Regional Facility THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW l A r Z.' . 2,6 A LIST OF VALUABLE STANDARD LAW BOOKS; PUBLISHED AND FOR SALE BY COLLINS, KEESE & CO. No. 254 PEARL STREET, NEW YORK. BURROW'S REPORTS. Reports of cases argued and determined in the Court of King's Bench under Lord Mansfield, from 1756 to 1772, in five volumes. By Sir James Burrow, Knt., late master of the Crown Office and Bencher of the Inner Temple. Second American from the Fourth London Edition, edited by /. Prescott Hall, Esq. Five volumes bound in one. COWPER'S REPORTS. Reports of cases adjudged in the Court of King's Bench, from 1774 to 1778, in two volumes, by Henry Cowper, Esq. of the Middle Temple, Barrister at Law, with notes of reference to similar cases in subsequent reporters. Second American from the last London Edition, edited by /. Prescott Hall, Esq. Five volumes bound in one. DURNFORD & EAST'S REPORTS. Reports of cases ad- judged in the Court of King's Bench, from 1785 to 1800, by Charles Durnford and Edward Hyde East, Esqrs. of the Temple, Barristers at Law, in eight volumes. Tliird American from the Fifth London Edition, corrected with additional references to later English and American authorities. Eight volumes bound in four. ENGLISH COMMON LAW, FIRST SERIES; containing Bur- row's, Cowper's, and Durnford & East's Reports. Fifteen volumes bound in eleven. This 'series includes all the Standard English Reports, from 1756 to 1800, inclusive, and contains a body of Law and Precedents that no member of the Bar can do without. East, Maule and Sel- wyn, and Bam well and Alderson, which form the connecting link between the above and the Philadelphia Edition of the Common Law Reports, are now being reprinted ; when finished, the whole will make a complete series of the English Common Law Reports from 1756 to the present time. CRUISE'S DIGEST. A Digest of the Laws of England respecting Real Property ; by William Cruise, Esq., Barrister at Law. Fourth American from the third and last London Edition, revised and corrected by the author, with notes and references by Thomas Huntington, Esq., Counsellor at Law. Six volumes bound in three. HOVENDON ON FRAUDS. A General Treatise on the Princi- ples and Practice by which Courts of Equity are guided as to the Prevention and Remedial Correction of Fraud, with numerous in- cidental notices of Collateral Points, both of Law and Equity. By John Eyken Hovendon, Esq. of Gray's Inn, Barrister at Law. First American Edition, with notes and references to American Decisions, by Thomas Huntington, Esq. Counsellor at Law. Two volumes bound in one. GOULD'S PLEADING. A Treatise on the Principles of Plead- ing in Civil Actions, by James Gould. Second Edition, revised and corrected by the author. One volume. Extract of a letter from Chief Justice Marshall, dated, RICHMOMD, Dec. 3rd, 1832. I hare read the work through with advantage to myself, and with some surprise at finding that a subject which has employed so many pens, should still admit of being pre- sented in a form that may make the book an acquisition certainly to the Law Student, and indeed to the profession. You have well arranged the matter belonging to the subject, and have succeeded in your design of presenting it, " as a system of consistent and ra- tional principles, adapted with the utmost precision to the administration of justice, ac- cording to uniform rules." By showing the reason of the rule plainly, the rule itself becomes more intelligible to the student, and will more certainly adhere to his memory. Allow me to repeat my thanks for the gratification afforded me by the perusal of your work, and to assure you that I am with very great respect, Your obliged and obedient servant, J. MARSHALL. Extract of a letter from Chief Justice Spencer, dated, ALBANY, Dec. 27th, 1832. If my opinion is entitled to any consideration, it is, that you have given to the pro- fession a work evidently useful ; and, I may add, have supplied what was wanting, a logical and scientific treatise on a most essential part of legal science. It has always been my opinion, that no man could be an accomplished lawyer unless he was thoroughly imbued with the learning of Pleading, With sentiments of high esteem and respect, Yours sincerely, A. SPENCER. DUER'S JURISPRUDENCE. Outlines of the Constitutional Ju- risprudence of the United States, designed as a Text Book for Lectures and popular use, by William Alexander Duer, L. L. D., President of Columbia College in the city of New-York. One volume, 12mo. COMYN ON CONTRACTS. The Law of Contracts and Pro- mises upon various subjects, and with particular persons, as settled in the action of assumpsit ; in three parts, by Samuel Comyn, Esq. of the Middle Temple, Barrister at Law. Third American from the last London Edition, with notes and references to American authorities, by Thomas Huntington, Esq. Counsellor at Law. One volume. STARKIE ON SLANDER. A Treatise on the Law of Slander, Libel, Scandalum Magnatum, and False Rumours ; including the Rules which regulate Intellectual Communications affecting the character of individuals and the interest of the public. With a description of the Practice and Pleadings in Personal Actions, Informations, Indictments, Attachments for Contempts, &c. con- nected with the subject. By Thomas Starkie, Esq., of Lincoln's- Inn, Barrister at Law. With notes and references to American Decisions. By Thomas Huntington, Esq. Counsellor at Law. One volume. FOUBLANQUE ON EQUITY. A Treatise on Equity, with notes and references, by John Foublanque, Esq., Barrister at Law. Fourth American Edition, with additional notes and references to American Chancery Decisions. By Anthony Laussat, Esq. of the Philadelphia Bar. One volume. ATKYNS' REPORTS. Reports -of cases argued and determined in the High Court of Chancery, in the time of Lord Chancellor Hardwicke, by John Tracey Atkyns, of Lincoln's-Inn, Baron of the Exchequer. Third Edition revised and corrected, with notes and references to former and modern determinations, and to the Re- gister's Books. By Francis William Sanders, Esq. of Lincoln's- Inn. First American from the Third London Edition, in three volumes. MERIVALE'S REPORTS. Reports of cases argued and deter- mined in the High Court of Chancery, from 1815 to 1817. By /. H. Merivale, Esq., of Lincoln's-Inn, Barrister at Law. First American from the last London Edition, in three volumes. STARKIE'S REPORTS. Reports of cases determined at Nisi Prius in the Courts of King's Bench and Common Pleas, and on the Circuit, from 1814 to 1819. By Thomas Starkie, Esq. of Lin- coln's-Inn, Barrister at Law. First American Edition, in three volumes. REEVE ON DESCENTS. A Treatise on the Law of Descents in the several United States of America, by Tapping Reeve, late Chief Justice of Connecticut. One volume. CHITTY'S BLACKSTONE. Commentaries on the Laws of En- gland, in Four Books, with an Analysis of the work. By Sir Wil- liam Blackstone, Knt., Justice of the Court of Common Pleas. From the Eighteenth London Edition, with a life of the Author, and notes by Christian, Chitty, Lee, Hovendon, and Ryland ; and references to American Cases, by a member of the New- York Bar. In two volumes. CHITTY ON BILLS. A Practical Treatise on Bills of Exchange, Banker's Cash Notes, Checks on Bankers, Promissory Notes and Bank Notes. By Joseph Chitty, Esq. of the Middle Temple., Barris- ter at Law. Eighth American from the Eighth London Edition; greatly enlarged and improved, containing the American notes of former Editions, with an Appendix of Precedents, and the deci- sions of the English and American Courts, brought down to the year 1834. By P. 0. Beebee, Attorney at Law. One volume, 1000 pages. CHITTY'S PLEADINGS. A Treatise on the' Parties to Actions. Forms of Actions, and Pleading, with a Collection of Practical Precedents, and notes thereon. By Joseph Chitty, Esq. of the Middle Temple, Barrister at Law. Seventh American from the last London Edition, with notes and additions by John A. Dunlap, Esq. and references to late decisions, by E. D. Ingraham, Esq. Three volumes. CHITTY'S CRIMINAL LAW. A Practical Treatise on the Crim- inal Law, comprising the Practice, Pleading, and Evidence which occur in Criminal Prosecutions, with a copious collection of Pre- cedents and comprehensive notes. By Joseph Chitty, Esq. of the Middle Temple, Barrister at Law. Third American from the last London Edition, corrected and enlarged by the author. With notes and corrections, by Richard Peters and Thomas Huntington, Esqrs. and references to the latest English and American Decisions. By J. C. Perkins, Esq. Counsellor at law. Three volumes. ARCHBOLD'S APPENDIX. A Collection of the Forms and En- tries which occur in practice in the Courts of King's Bench and Common Pleas, in Personal Actions and Ejectment. By John Frederick Archbold, of Lincoln's-Inn, Barrister at Law. BINGHAM ON INFANCY. The Law of Infancy and Coverture. By Peregrine Bingham, A. B. of ihe Middle Temple. First Ame- rican from the last London Edition, with Notes and References to American Decisions, by a member of the New-Hampshire Bar. One volume. KENT'S COMMENTARIES. Commentaries on American Law, by James Kent. Third Edition, revised and corrected by the Au- thor. Four volumes. COLLINS. KEESE & CO. have constantly on hand all the standard English Re- ports, Digests, and Treatises on Particular Subjects ; together with the various State Reports and Digests, and a general assortment of Law Books of every description. TREATISE ON THE PKINCIPLES OF PLEADING, IN CIVIL ACTIONS. BY JAMES GOULD. 'It is one of the most honorable, laudable, and profitable (useful) things in our law, to have the science of well Pleading, in actions, real and personal.' Littleton. Online placitandi servato, servatur et Jus. Coke. ' The Law itself speaketh by good pleading 3 ' as if pleading were the living voice of the Law itself.' t'fr. SECOND EDITION, REVISED AND CORRECTED BV THE AUTHOR. NEW YORK : PUBLISHEP BY B. AND S. COLLINS. 1836. Entered according to Act of Congress, in the year 1831, BY JAMES GOULD, In the Clerk's Office of the District Court of Connecticut. T E. & L. MERRIAM, PRINTERS, Srookfield, Mass. TO THE HON. ROGER MINOT SHERMAN, LL.D. THE FOLLOWING TREATISE IS INSCRIBED, AS A TESTIMONIAL OF THE GREAT RESPECT, AND SINCERE AFFECTION, OF HIS FRIEND AND BROTHER, THE AUTHOR. 667G22 PREFACE. IT is probably known to most of those, into whose hands the following Treatise is most likely to fall, that I have, for many years, been employed in the instruction of Law-Students, by a course of Lectures, embracing all the principal titles of the common law. The work, here presented, contains, with some additions, the substance of my lectures on Pleading. This, and the several other titles, I have digested, upon one uniform plan, with a view, originally, to the possible future publication of some, or most of them. But the further prosecution of this purpose will probably depend, in a great mea- sure, upon the degree of countenance, which may be shown, by the Profession, to the present publi- cation. It may tye proper, however, to suggest, in this connexion, that though my digests of all the other titles have been formed upon precisely the same general plan, as that of pleading ; yet the lat- ter far exceeds, in length, any of the others. No VJ PREFACE. other single title, in the whole number, will proba- bly extend to more than half the length of the pre- sent ; and most of them will not occupy, singly, even one third of the space devoted to the present work. The limits of the present Treatise have been thus extended, chiefly by the frequent and copious reasonings and illustrations, which have been deem- ed necessary to the elucidation and vindication of rules of pleading, and which that title more emi- nently requires, than almost any other in the law. To those of the Profession, who are already well versed in the scien'ce of pleading, many of these reasonings and illustrations may probably appear su- perfluous : But such are requested to consider, that the digest, from which the work, in its present form, has been prepared, was originally made for the instruction of Students at Law, to whose use the Treatise is meant to be especially adapted ; and that the entire work is intended to be as elementary, as if had been designed exclusively for that class of readers. The title of Pleading has been selected for prp- sent publication, for several reasons, not necessary to be detailed ; but principally, because it is deem- ed to be the most instructive, and therefore the PREFACE. Vll most important single title in the law, and yet is less thoroughly understood, in general, than almost any other. The relative importance of pleading, among the several titles of the common law, has been fully attested, by the most distinguished and authoritative names, which adorn the list of com- mon-law jurists. Lord Coke, in particular, among his other and frequent commendations of the science of pleading, has characterized it, as ' the truest guide to the knowledge of the common law' as ' the KEY, that opens its inmost recesses, and an EX- POSITOR, that discloses and explains the most ab- struse parts of it.'^ j This pre-eminence it owes, not solely to the intrinsic value of its own exact and logical principles, but also, and in no small de- gree, to the fact, that the principles of pleading are necessarily and closely interwoven, both in theory and practice, with those of every other title of the law. I say, ' necessarily' interwoven, because even the most simple of the judicial remedies, which the law affords, and without which it would be, practically, a dead letter, cannot be obtained, without the aid of pleading. And it has been well remarked by an intelligent Judge, that if the practice of special pleading were entirely banished from courts of jus- tice ; the science of pleading would still be the most instructive branch of the common law. Vlll PREFACE. The question will, however, naturally present it- self What can be the probable utility of a new original work on Pleading, while so many others, on the same subject, are already in the hands of the Profession ? On this point I cannot, perhaps, bet- ter explain my own views, than by merely stating the OBJECT of the present Treatise, which to express it in few words is simply to render the doctrines of Pleading more intelligible, and more easy of attainment, than many have supposed them to be, by showing them to be reasonable : In other words, by exhibiting them, not as a compilation of positive rules ; but as a system of consistent and ra- tional principles, adapted, with the utmost precision, to the administration of justice, according to uniform rules, or, (which is the same thing), according to law. How far I may have advanced towards the attainment of this object, it is for others to decide. But I shall not, I trust, be deemed invidious or presumptuous, in venturing to remark, that most of our digests and treatises, on the title of pleading, are useful, rather as manuals, or books of reference, for the practitioner, than as works of instruction in the science of pleading. The same remark may, in- deed, be extended to almost all our modern and most popular treatises, upon the various other titles of the common law. For while every other science PREFACE. IX is taught, by a detailed explication of its principles, the doctrines of the common law are usually ex- hibited, in our legal treatises, as if they were the insulated enactments of positive law without re- ference to the reasons on which they rest. And thus the common law is presented in most of our books, rather as an art, than a science ; and the acquisition of it made to depend, more upon the mechanical strength of the reader's memory, than upon the exercise of his understanding. But it has been left on record, by the highest legal au- thority, that ' the_law is unknown to him, who kjipweth ,jiot the REASON thereof.' An axiom, which cannot fail to command the assent of every intelligent mind. As the English system of pleading is, in general, the basis of that of our country ; the former has, in the following Treatise, been followed exclusively, without regard to any peculiarities in the latter, excepting a very few references to those, which exist in the law of my native State. Knowing well the fate, which usually and justly attends the apologies of authors, for the imperfec- tions of their published works, I abstain from offer- ing any, for those of the following Treatise. That 2 X PREFACE. it will be found, in man} 7 respects, imperfect, I have not the vanity to doubt. But with all its defects and errors whatever they may be I submit it to the judgment of the Profession. JAMES GOULD. LlTCHFIELD, (CONN.) JAN. 1832. CONTENTS. Chapter Pag c I. Of Pleading in General, 13 II. Of the General Divisions of Pleading, 26 III. Of the General Rules of Pleading, 48 IV. Of the Declaration, 170 V. Of Dilatory Pleas, 226 VI. Of Pleas to the Action, viz. the General Issue, and Special Pleas in Bar with Pleas puls darrein continuance, 302 VII. Of Traverse, 376 VIII. Of Duplicity Profert and Oyer, and Depar- ture, 419 IX. Of Demurrer, 1. to the Pleadings, 2. to Evi- dence, 460 X. Of Arrest of Judgment, and Repleader, 492 CHAPTER I. OF PLEADING IN GENERAL. SECTION 1. PLEADINGS are the mutual alter- CHAP. cations of the parties to a suit, expressed in legal i. form, and in civil actions reduced to writine/a). ,. , Nature of In a more limited sense, however, ' the pleadings' Pleading. (in the plural} comprehend only those allegations, or altercations, which are subsequent to the count, or declaration^). In England, these altercations were anciently oral; having been offered, viva voce, by the respective parties or their counsel, in open court ; as is still, generally done, in the plead- ings on the part of the defendant, or prisoner in criminal prosecutions. And hence it is, that in the Norman language, in which most of the ancient books of the English law are written, the pleadings are frequently denominated the parol(c): Though for centuries past, all pleadings, in civil actions, have been required to be written. In some instances, however, the term parol is still used to denote the entire pleadings in a cause : As when in an action, brought against an infant heir, on an obligation of his ancestor's, he prays that the parol may demur ; (a) Com. Dig. Pleader, A. 3 Black. Com. 293. (6) Com. Dig. Pleader, A. Reg. PI. 2. 54. Lawes' PI. 1. (c) Ibid. Lawes' PI. App. 80-4. Bac. Abr. Amendment, &c. A. 3 l^ OF PLEADING IN GENERAL. CHAP. i e * ^at the pleadings may be stayed, till he shall i. attain full age(W). g . 2. The mutual altercations, which constitute the pleadings in civil actions, consist of those formal allegations and denials, which are offered, on one side, for the purpose of maintaining the suit, and on the other, for the purpose of defeating it ; and which, generally speaking, are predicated only of matters of fact. 3. For pleading is, practically, nothing more than affirming or denying, in a formal and orderly manner, those facts, which constitute the ground of the plaintiff's demand, and of the defendant's de- fence^). Pleading, therefore, consists merely in alleging matter of fact, or in denying what is alleged as such by the adverse party. ^ 4. But in the theory, or science of pleading, the averment of facts, on either side, always presup- poses some principle, or rule of law, applicable to the facts alleged ; and which, when taken in connexion with those facts, is claimed, by the party pleading them, to operate in his own favor. For all rights of action, and all special defences, result from mat- ter of fact and matter of law combined. And hence, in every declaration, and in all special pleading, some legal proposition (i. e. some proposition consisting of matter of law), though not in general expressed in (d) 3 Black. Com. 300. 4 East, 485. () Bac. Abr. Pleas, &c. Inlrod. 3 T. R. 159. Doug. 159. OF PLEADING IN GENERAL. J terms, by the pleader, (because the Court is suppos- CHAP. ed judicially to know it), is always, and necessarily, i. implied, or to use the language of grammarians 7 i Nature of understood. Pleading. 5. For it would be obviously to no purpose, for either party to state facts, of which no principle of law could be predicated in his favor. Indeed, all that a party submits to the court, by alleging facts, is their legal operation : And for the purpose I of deciding what their operation in law is, the rule pf law, in virtue of which the pleader claims the matter of fact alleged by himself, to be in his fa- vor, must always be tacitly supplied, or understood. 6. By contemplating the subject in this point of view, we are enabled to apprehend the striking propriety and full import of Lord Mansfield's re- mark, that ' the substantial rules of pleading are founded in strong sense, and the soundest and closest logic^/)- For those rules, when considered in their proper connexions and dependencies, will be found to involve a connected, methodized body of PRINCI- PLES, constituting a complete and coherent system of legal logic : A system, artificial indeed in its form and structure ; but admirably adapted to the impor- tant ends of simplicity, uniformity and certainty, in the modes of administering justice. ^ 7. For the purpose of explaining and illustrat- ing this view of the subject, we may observe, that (/) 1 Burr. 319. If! OF PLEADING IN GENERAL. 10 CHAP. &M pleading is essentially a logical process.] And i. by analyzing a good declaration, or any good special pleading, if we take into view, with what is ex- Nature of . Pleading, pressed, what is necessarily supposed or implied ; we shall find in it the elements of good syllogism : All good pleading being in ( substance a syllogistic process ; though abridged in form, like some of the syllogisms of the schools : So that not only every good declaration, but all good special pleading on either side, in each successive stage of the plead- ings, is essentially a good syllogism. 8. Thus, in an action, brought for a trespass committed upon land, the declaration may be pre- sented in the following form: 'Against him, who has forcibly entered upon my land, I have a right, by law, to recover damages : But the defendant has forcibly entered upon my land : Therefore, against him I have a right, by law, to recover damages.' In the example here given, the first or major proposi- tion asserts the legal principle, on which the plain- tiff founds his claim : The second, or minor, alleges the matter of fact, to which that principle is to be applied, in the particular case : The conclusion is the legal inference, resulting from the law and fact together, as they appear in the premises. And the judgment of the court, (if for the plaintiff), is a re- affirmance of this conclusion (g), together with an award, or sentence of recovery in pursuance of it. (g-) 3 Black. Com. 396. r OF PLEADING IN GENERAL. 9. In the case now stated, the plaintiff's al- CHAP. leged right of recovery may be contested, by a de- i. nial of either of the three propositions, which con- stitute his declaration. And as the denial of either pleading. of them is, in effect, a complete denial of the plain- tiff's whole claim, the defendant is not allowed, (by the rules of the common law,) to deny more than one of them. For if he can successfully deny any one of them ; he will, by so doing, attain every ob- ject, which he could have proposed in denying them all. 10. If, then, the defendant would deny the major, or first proposition above stated, which con- sists of matter of law, he must do it, by tendering what is called an issue in law which is merely a technical denial of some legal proposition, or suppos- ed rule of law. The minor or second proposition in the declaration as it consists only of matter of fact must be denied, if at all, by what the law denominates an issue in fact ; or, more strictly speak- ing, by tendering an issue in fact which is the legal mode of denying by plea, what has been alleged, as matter of fact, on the other side(/i). But assuming the major to be correct in principle, and the minor true in point of fact, (upon which supposition, nei- ther of them can be successfully denied) ; the con- clusion must inevitably follow, unless the defendant can repel it, by alleging some new matter, (i. e. some distinct collateral fact) which is inconsistent with it, and which therefore by consequence implies a (/i) 3 Black. Com. 396. I 8 OF PLEADING IN GENERAL. CHAP, denial of it : There being no form of direct negation, i. in which the conclusion can be distinctly answered. g*! ^11. Let it be supposed then, that in the case just stated by way of example, the plaintiff's pre- mises are both undeniable ; but that he has released his cause of action to the defendant, and that the release is the particular fact, or new matter, upon which the defendant relies, for defeating the suit. Under these circustances, the defendant's plea, or defence, if reduced to a syllogistic form, will stand thus : ' If he, upon whose land I have forcibly en- tered, releases to me his right of action for such entry ; he has thenceforth no right by law to re- cover damages for it, against me : But the plaintiff has released to me his right of action, for my entry upon his land : Therefore he has, by law, no right to recover damages for that cause, against me.' ^12. To this defence the plaintiff has now, in ? his turn, a right to reply, by denying either of the three propositions, advanced by the defendant. But if he admits both of the defendant's premises ; or if, as we are now assuming, he cannot successfully deny either of them ; his suit must of course fail, unless he can destroy the defendant's conclusion, by some new matter of fact, which will be, in legal effect, a denial of it. % 13. For the purpose then of carrying this pro- cess one stage further, let us suppose that the re- lease, pleaded by the defendant, was extorted from OF PLEADING IN GENERAL. ] the plaintiff, by duress; and that this fact is the new CHAP. matter, by which the plaintiff proposes to overthrow i. the defendant's conclusion. The plaintiff's reply may, upon this state of facts, be resolved into the pleading. following syllogism : ' A release extorted from me, by duress, does not in law destroy any pre-existing right of mine, to recover damages : But the release, pleaded by the defendant, was extorted from me by duress : Therefore, that release does not destroy my right by law to recover damages against him.' 14. It is now necessary for the defendant, if he persists in denying the plaintiff's claim, to contest this reply ; and this he may do, by denying either of the three propositions, of which it consists. But as- Post. ch. 2 5 23. suniing, as in the preceding stages of this illustra- tion, that neither of the premises can be safely de- nied, the consequence must be, that the plaintiff will prevail, unless the defendant can, on his part, allege some further new matter, which may destroy the plaintiff 's conclusion. And the pleading of such new , matter, of whatever facts it may consist, will con- l tain the elements of another syllogism which the plaintiff will be at liberty to answer, by another still ; and the same syllogistic process may be repeated, by the parties, alternately as long as there remains new matter to be alleged on either side. ^15. For, that both parties may respectively have the full benefit of pleading whatever the na- ture and exigencies of the case, on their respective sides, may require, it is obvious that each must be 20 OF PLEADING IN GENERAL. CHAP. at liberty to answer the allegations made against i. himself, by denying, at his election, either of the ; three propositions contained in those allegations : Pleading. In other words, each party must be at liberty to deny whatever he considers as false, either in law, fact, or inference, in his adversary's pleading. Each party, therefore, has a right to allege new matter, in any stage of the pleadings, as long as he has occa- sion to answer new matter i. e. as long as such matter is alleged against him. And thus the right of electing between the three regular modes of meet- ing his adversary's allegations, is continued to each party, until one of the premises in the pleading on one side, is directly denied on the other ; or (to sub- stitute legal, for scholastic language,) until the plead- ings terminate in the tender of a proper issue, in law or in fact. ^ 16. An issue, of either kind, precludes the al- i legation of further new matter on either side, and thus regularly closes the pleadings(^). For before any issue can be tendered, both parties will neces- sarily have an opportunity to allege whatever the nature of the case, on either side, may require. And as the whole controversy, which is the subject- matter of the pleadings, is, by the issue, reduced to some one point of fact or law ; no necessary or use- ful purpose can be attained, by carrying the plead- ings further. For the question, upon which the contest depends, is now distinctly presented by the issue, and ripe for determination. And it only re- (t) Co. Litt. 126. a. 3 Black. Com. 314. OF PLEADING IN GENERAL. 21 mains for the court, or the jury, to decide the point CHAP. in issue, and for the former to render judgment. If i. the issue be taken upon matter of law, it is to be ill ' f f f Nature of determined by the court if upon matter of fact, it Pleading. is, in general, though not universally, to be tried by the jury : It being the province of the former to de- cide questions of law, and of the latter, ordinarily, to ascertain matters of fact(k). And the issue, whe- ther in law or fact,, being decided, the judgment of the court, which is merely the sentence of the law(/), deduced from the facts ascertained, must follow in favor of that party who appears, from the whole record, entitled to it. ^17. From this very general outline, it will be apparent that all pleading is a logical process. And the great object of the process is to facilitate the administration of justice, by simplifying the grounds of controversy, and ultimately narrowing down the contest to a single and direct affirmative and nega- tive i. e. to some definite point of law or fact, affirmed on one side, and denied on the other. & 18. By special pleading, is meant the allega^ Special ' f 1 T i i r pleading. tion of special or new matter, as distinguished from a direct denial of matter previously alleged on the op- posite side. ^19. The matter of fact, which, in the preced- ing illustration, constitutes the subject of the minor proposition, is, in the established forms of pleading, (&) 3 Black. Com. 315. (/) Ib. 396. 4 22 OF PLEADING IN GENERAL. CHAP, always expressly alleged : Since the facts, upon i. which the complaint or defence is founded, are sup- posed to be unknown to the judges. The conclu- Nature of .1 j '*. 11 *i Pleading, sion, or third proposition, in the syllogistic process, is also expressed, in the existing mode of pleading, either by the demand, which the plaintiff makes of damages, debt, or other thing, on the one hand, or by defendant's prayer of judgment against the plaintiff, on the other. For it cannot appear, from facts stated alone, what benefit the pleader proposes to claim from them ; and he can, therefore, derive from them no advantage which he does not claim from them, in his pleading. ^ 20. But as has been already suggested(w), the principle, or rule of law, of which we have re- presented the major proposition to consist, (and which, according to ancient usage, was, in certain cases, always recited, or formally alleged by the pleader) (n), is now, in general, not actually expres- sed in the pleadings, in any form. For the judges, whose province it is to decide upon the legal suffi- ciency of all pleadings, are presumed to know judi- cially, what the law, upon any given or alleged state of facts, is : and the nature of the facts, actu- ally alleged on either side, taken in connexion with the demand laid in the declaration, and with the prayer of judgment, in the subsequent pleadings, will, in every case, and with perfect certainty, indi- cate the supposed rule of law upon which the pleader relies, as his major proposition. And in this (MI) Ante, 4. () Post. Chap. 2. OF PLEADING IN GENERAL. 23 manner, that proposition, though not expressed in CHAP. terms, is necessarily understood and tacitly suppli- i. ed. Nature of Pleading. 21. Thus, in the example already given, of a declaration in trespass, the plaintiff, in alleging that the defendant has forcibly entered upon his land, and demanding damages for that cause, assumes and tacitly asserts the general principle, that he, upon whose land such an entry has been made, has a right by law to recover damages against him who made it. For unless that principle of law were tacitly sup- plied, or presupposed, the averment of the defend- ant's entry, and the demand of damages, which fol- lows it in the declaration, would be altogether un- meaning and nugatory : Since no right of action could result from the defendant's act, if no such legal principle existed. And this principle, or the proposi- tion which would express it, is as clearly indicated by the matter of fact alleged, and the demand made in the declaration, and may therefore be as easily apprehended and applied, as if it had been expressly and formally stated. 22. The object, thus far proposed, has been to exhibit a general analysis of the law of pleading, considered as a science, or system of principles. And though the scholastic terms and forms, which have been introduced for this purpose, are unknown in the established language and practice of pleading ; yet the essential properties and the results of the preceding syllogistic process, though differently ex- OF PLEADING IN GENERAL. 24 CHAP, pressed, are in effect the same as those of the less i. scholastic modes of pleading, adopted by the com- mon law. Nature of Pleading. ^ 23. Thus, an issue in law which, in the fore- / going analysis is called a denial of the major propo- sition of the adverse party, is described in legal lan- guage, as an admission of the facts alleged by that party, but a denial of their legal operation in his fa- vor. These different terms however express, in effect, one and the same thing or rather, the op- eration thus differently described, is essentially one and the same. ^ 24. Thus also, the new, or special matter, which in the foregoing analysis is called a denial of the adverse party's conclusion, is, in legal language, denominated matter of avoidance i. e. matter which, admitting both of the other party's premises, avoids or repels, in the particular case in question, the consequence, or inference, which would otherwise result from them. And that inference is, univer- sally, the syllogistic conclusion in the adverse party's pleading, if his pleading be reduced to a syllogism. It is therefore manifest, that matter of avoidance, and matter which, in the syllogistic formula, goes in denial of the adverse party's conclusion, are in substance one and the same thing. 25. In concluding this introductory chapter, it may be proper to observe, that the forms of scholas- tic logic, employed in the preceding pages, have OF PLEADING IN GENERAL. 25 been introduced for the purpose of resolving the law CHAP. of pleading into its constituent principles: A pro- i. cess which has been deemed conducive to a correct , ., . . r i Nature of and systematic exhibition or the original and essen- Pleading. tial nature of all pleading. And as those forms are more simple, and exact, than any other mode of analysis, of which the subject would admit ; they have been, of course, thought better adapted than any other to the end proposed. CHAPTER II. OF THE GENERAL DIVISIONS OF PLEADING. CHAP. SECTION 1. UNDER this head it may be pre- n< mised, that the original writ, which forms the first ~ stage of a suit at law, and is the foundation of all The writ. the subsequent proceedings in it, is no part of the pleadings; since it does not consist of the allega- tions, and is not the act, of either party ; but is a mandatory precept (I), issued by the authority, and in the name of the sovereign or the state, for the purpose of compelling the appearance of the defend- ant before the court, to which it is returnable, that he may there make answer to the plaintiff's com- plaint^). The general nature of the plaintiff's de- mand is, indeed, mentioned in the writ that the defendant may know, before he appears in court, to what kind of complaint he is required to answer ; but the particular cause of action the specific wrong or breach of contract complained of does (a) 3 Black. Com. 273. 1 Tidd, 93. (1) In England, the writ is directed only to the sheriff' of the county, in which (he cause of action is alleged to have arisen : In the practice of some of the American states, it is directed to ei- ther of several ministers of the law as the sheriff, his deputy, or a constable. GENERAL DIVISIONS OF PLEADING. 27 not appear, until the declaration is filed (6) (2). But CHAP. though the writ is no part of the pleadings, it may, n. for various causes, be excepted to and destroyed, by pleading : As for the want of any legal requisite, or in general, for any irregularity, informality or mistake. ^ 2. The suit commences, from the issuing of Post.ch.4. the original writ ; and if the writ bears a fictitious date ; the true time of its issuing may be proved, whenever the time is material, and the ends of jus- tice require that the time of its actually issuing be shown (c). 5> 3. The pleadings, in a civil suit, commence First sta s e ' of the with the declaration, or count (a} : The word plea, pleadings. The count. (placituni) being a generic, or collective term, com- prehending all the allegations, made on either side, in the various stages of pleading(^) ; though, in a more limited and appropriate sense, the term plea, in the singular, is used to denote the first plea, or (b] Bac. Abr. Actions in Gen. C. 1 Tidd, 96. (c) 2 Burr. 962-6. Cowp. 454. 3 Black. Com. 273. 285. 7 T. R. 4. 1 Wils. 147. (a) 3 Black. Com. 393. 00 Carth. 334. Skinn. 554. 1 Saund. 338, n. 6. (2) It will be perceived that all civil suits are supposed, in the text, to be commenced by original writ. In the modern practice of the courts of Westminster, however, there are modes of com- mencing actions without an original writ. But a delineation of the different means of instituting suits belongs to the title of Practice. 23 GENERAL DIVISIONS OF PLEADING. CHAP, answer made by the defendant, to the declaration or ii. the writ(e). 4. The declaration is a statement at large of the cause of action, (of which the writ gives only a general description) ; or as it is usually denominat- ed an amplification, or exposition, of the original writ, with the addition of the time when, and the place where, the cause of action arose, and of all necessary circumstances(/}. Defendant's k 5. The pleadings, which succeed the declara- plea. . tion, begin with the defendant's plea : For the writ being returned, and the plaintiff's complaint being presented in full ; it is incumbent on the defendant, within a reasonable time, to make defence, and put in an answer or plea ; as judgment must otherwise go against him, by default or nil dicit(g). For if he fails to make answer, within the time required by the rules of practice ; he impliedly confesses the truth of the complaint (/i). ^ 6. But as introductory to the plea, the defend- ant must, in general, make defence ; which is of two kinds, called full defence, and half defence. The term ' defence ' signifies, in the language of pleading, not a justification, but resistance or denial; as is very manifest from the established form, in which defence (e) 3 Black. Com. 299. 301. (/) Co. Lilt. 303, b. 3 Black. Com. 293. Bac. Abr. Pleas, &c. B. 1. (g) 3 Black. Com. 296. (h) 1 Stra. 612. GENERAL DIVISIONS OF PLEADING. 29 is made. That form when the defence is full, and CHAPi expressed in full is the following; 'And the n. said C. D.' (the defendant), 'by E. F. his attorney, comes, and defends the wrong and injury, (or force E and injury), when and where it shall behove him, and the damages, and whatsoever else he ought to defend'(i). Now it would be absurd to suppose that the defendant, in saying that he ' defends' the wrong and injury, is to be understood, as justifying them not only because a wrong cannot, in the na- ture of the thing, admit of justification ; but also, because the defendant may, with legal consistency, as he frequently does, subjoin at the close of his de- fence, a denial of what the plaintiff complains of as a wrong(X>. 5j 7. In writs of entry also, when no injury is al- leged, and when of course none can be denied (as the demandant states only his own right, and the de- fective title of the tenant, or defendant, without complaining of any wrong), the tenant defends the demandants right. And in writs of right, the tenant, for the same reason, always defends the right and seisin of the demandant(/c) : Examples, which de- cisively show that the meaning of the word defence, in pleading, is that which has now been assigned to it. (t) Bac. Abr. Pleas, &c. D. Co. Litt. 127, b. Lawes' PI. 89. 2 Chitt. PI. 409. 2 Saund. 209, c. (,/ ) 3 Black. Com. 297. (k) Ibid. 5 GENERAL DIVISIONS OF PLEADING. CHAP. 8. It is obvious then, that to make defence is ii. to resist the plaintiff's suit ; the reasons or grounds of which resistance must appear in the plea, which Defence. 9. Half defence, in the form in which it was anciently distinguished from full, is thus expressed : 1 And the said C. D. by E. F. his attorney' (or 'in his own proper person), comes, and defends the force (or wrong) and injury' omitting the sequel, in the above form of full defence. (/). 10. Half defence is adapted to pleas, which deny the jurisdiction of the court, or the legal com- petency of the plaintiff to prosecute. Full defence is an implied waiver of these two preliminary excep- tions ; because, by defending ' when and where it shall behove him', the defendant is considered as impliedly acknowledging the jurisdiction of the court ; and by defending ' the damages, and whatsoever else he ought to defend,' he is deemed virtually to admit the plaintiff's competency to sue(m). 11. Full defence, however, is adapted, it seems, to all other pleas than those last mentioned. But to any other pleas than those, half-defence is not apposite; and consequently, half defence, when coupled with a plea of any other kind, is fatal to (/) Co. Litt. 127. 2 Saund. 209, c. n. Bac. Abr. Pleas, &c. D. 2 Chitt. PI. 409. (in) Com. Dig. Abatement, I. 16. -I^U. ^f^ Cfr/. CtM*wt fafa 7Uxl>ui JJitlAArr- A fan****' GENERAL DIVISIONS OF PLEADING. g it(w). For such defence impliedly waives all excep- CHAP. tions, other than those, to which the two pleas n. above mentioned are adapted ; and is therefore in- consistent with all others. e&ctsck. ^12. As to the difference, between the offect of full and of half defence, there is, however, some contradiction and confusion, in the books. Accord- ing to some, full defence would seem to be improper for a dilatory plea, of any kind(o). The distinc- tion above expressed appears, however, to be the established one. 13. Much importance was formerly attached to these different modes of making defence ; and any deviation from that form, which the nature of the plea required, gave occasion to many critical and subtle exceptions. These exceptions, however, being merely technical, were, at a subsequent period, much discountenanced, and now seldom or never occur. For though the distinction between full and half defence still exists theoretically; yet the forms, by which they were originally distinguished, and which have already been recited, have lost their practical importance, by becoming obsolete : Since, according to modern usage, neither of those precise forms is employed ; but the defendant, by ,adding to the ancient form of half-defence, as before recited, (n) Co. Litt. 127, b. Bac. Abr. Pleas, &c. D. Lawes' PI. 90. 3 Lev. 240. (0) Com. Dig. Abatement, I. 16. <9 GENERAL DIVISIONS OF PLEADING. CHAP, merely the words ' when, &c.' is at liberty to ii. connect it with either species of plea : The ' &LC.' being construed to imply either full or /w//" defence, as the subject matter of the plea may require Q/). ^14. It must be acknowledged, however, that the rules, relating to the forms of defence in pleading, are very artificial, not to say arbitrary. It is, at least, very difficult to discover on what original principle., defence of either kind is, or ever was, necessary : Since it amounts only to an indefinite introductory suggestion of what must, afterwards, appear distinctly in the plea. Indeed, in certain actions, in which force and injury are, and must be, alleged, viz., in trespass for an assault, or for break- ing the plaintiff's close, no defence is required, merely because the ancient precedents contain none, in either of those two classes of cases( he himself has before pleaded. 28. And therefore, if matter pleaded (after the defendant's plea), by either party, does not go in support of what has been before alleged by him- self; the pleading is ill, even though it might, in itself, be a good answer to the adverse allegations, which immediately precede it. For however ex- tended the train of pleading, in any given cause, may be, he, who ultimately prevails, must prevail upon the grounds first assumed, on his own part ; which ' grounds, however, he can maintain in his subsequent pleading, only by repelling what has been advanced against him, in the intermediate allegations of his adversary. The plaintiff must therefore prevail, if at all, upon the facts stated in the declaration ; the defendant, upon those stated in the plea. And whatever the parties may respectively allege in their subsequent pleadings, must all go to fortify the It declaration on the one side, and the plea on the other. If it were otherwise, the foundation of the action, and of the defence, might be entirely chang- ed, in each successive stage of the pleadings ; and the great objects of all pleadings might thus be de- feated. (Vid. post, ch. 8, pt. 3, 65.) 4Q GENERAL DIVISIONS OF PLEADING. CHAP. 29. The replication must, therefore, so answer y ii. the plea, as to support the declaration the rejoin- der, in answering the replication, must support the plea ; and in the same manner, the surrejoinder must support the replication ; the rebutter, the rejoinder ; and the surrebutter, the surrejoinder '(r). The process being thus conducted, that which is last pleaded, on either side, necessarily goes in support of what was first pleaded, on the same side. Thus, a good surrebutter virtually supports the declaration ; - inasmuch as it directly supports the surrejoinder, which directly supports the replication, and which last directly supports the declaration (4). In the same manner, a good rebutter consequentially fortifies the plea : Since it goes directly in support of the re- joinder, which directly supports the plea. I Departure. ^ 30. The dereliction of the first ground of com- plaint or defence, and the substitution of another, in violation of these principles, constitute what is called a departure in pleading ; for a particular ex- CH s planation of which, and of its consequences, the Pans. reader is referred to a subsequent chapter. (*) Co. Litt. 303. b. 304. a. Reg. PI. 112. 167. 3 Black. Com. 310. (4) In these illustrations, the defendant's plea is supposed to be in answer to the declaration. If, however, the plea attacks the writ, instead of the declaration ; the replication, and of course all the subsequent pleading.--!, on the plaintiff's part, must go in sup- port of the icrit, and not of the declaration. GENERAL DIVISIONS" OF PLEADING. 4] 31. Pleas on the part of the defendant, as has CHAP. been already suggested, are of two kinds : First, n. Dilatory pleas ; Secondly, Pleras to the action(s). The latter are usually called pleas in bar ; though the a defend- sometimes, and especially in the older books of the khid s s p of.' law, they are denominated perpetual or peremptory pleas, or pleas in chief (t). ^ 32. I. Dilatory pleas are such as delay the ^ ory plaintiff's remedy, by questioning, not the cause of action, but the propriety of the suit, or the mode in which the remedy is sought. And hence they de- rive the denomination of dilatory pleas(^). ^ 33. Sir William Blackstone defines dilatory pleas to be ' such, as tend merely to delay, or put off, the suitf(v). It would, perhaps, be more cor- rect to say, that they tend to delay the plaintiff's eventual remedy. For though pleas of this kind were, formerly, often used for the mere purpose of delay, without any foundation in truth ; and though the interlocutory questions, raised by such a plea, may still incidentally have the mere effect of delaying the termination of the suit ; yet the proper and direct effect of a plea of this kind, when it prevails, is in general, and with a very few exceptions, to defeat forever the particular suit, in which it is used (if) : Though it leaves the merits, or right of action, un- (s) 3 Black. Com. 301. Bac. Abr. Pleas, &c. A. (0 Co. Litt. 304. a. Lawes' PI. 36. Com. Dig. Abatement, B. (u) Reg. PI. 76. 3 Black. Com. 301. (t>).3 Black. Com. 301. (to) Bac. Abr. Pleas, &c. F. 14. 3 Black. Com. 303. 2 GENERAL DIVISIONS OF PLEADING. CHAP determined ; so that the plaintiff is still at liberty n> to seek his remedy, by a new suit. The peculiar office of a dilatory plea is, therefore, in general, to defeat the individual suit, in which it is pleaded, without affecting the right of action. 34. Dilatory pleas are, by Sir William Black- stone, divided into three kinds: 1. Pleas to the jurisdiction of the court : As that the defendant is privileged to be sued, exclusively, in some other court ; or in some cases, that the cause of action arose without the limits of the court's jurisdiction, &c.(#) : 2. Pleas to the disability of the plaintiff, or as they are frequently termed, to the person of the plaintiff: As, that he is an alien enemy, an out- law, or under some other legal incapacity to main- tain a suit(?/) ; 3. Pleas in abatement of the writ, or count. Pleas of this last class are founded upon some defect or mistake, either in the writ itself (as that it is deficient in some legal requisite, or that the defendant is misnamed in it, &c.) or in the mode, in which the count pursues it : As that there is some variance, or repugnancy between the count and the writ ; in which case, the fault in the count furnishes a cause for abating the writ(z). But any mistake or insufficiency, apparent upon the face of the declaration, (or count) without reference to the writ i. e. any mistake or insufficiency, in the (x) Bac. Abr. Pleas, &c. E. Ib. Cowls, D. Gilb. H. C. P. 188. 189. 3 Black. Com. 301. (?/) Bac. Abr. Pleas, &c. F. 1. Co. Litt. 128, a. 129, b. (z) 3 Black. Com. 301. Com. Dig. Abatement, G. 1. 8. Ib. Pleader, C. 14, 16. Bac. Abr. Pleas, &c. F. 7. GENERAL DIVISIONS OF PLEADING. 43 statement of the cause of action, is in itself no ground CHAP. of abatement, though a good cause of demurrer(a) n. (5). 35. All dilatory pleas are sometimes called pleas in abatement, as contradistinguished from pleas to the action(6). This, however, is a vague use of the term, and never proper when strict accuracy is s required. 36. If no dilatory plea is offered -or if any, or all of those, which the law allows, have been pleaded and overruled as insufficient ; the defend- ant is still at liberty to plead. II. To the action(c). For it would be unreason- Picas to the ^ ' _ action. able to render a final judgment against him, until he has been required to answer, and has had op- portunity to contest the merits, or grounds of the suit : And these he is not bound to answer, until he has exhausted, or waived his right to interpose dila- tory exceptions. (a) Willes, 410. 1 Show. 9.1. 1 Salk. 212. 1 Mass. R. 500. (6) 3 Black. Com. 302. JYotis Chr. Lawes' PI. 37. (c) Co. Litt. 303. a. Bac. Abr. Pleas, &c. A. 3 Black. Com. 303. (5) Most writers on pleading have treated of dilatory pleas, un- p os t, c h. 5. der a more minute and complex division, which will be presented 1$ IQ > 11 ' in a subsequent chapter. But the threefold division, mentioned above, will here be pursued, as being not only more simple, and more easily understood : but sufficiently minute for the ends pro- posed in this Treatise. 44 GENERAL DIVISIONS OF PLEADING. CHAP. 37. On the other hand, the defendant, by n. pleading to the action, waives all dilatory pleas, ex- cept those, the matter of which has afterwards he action, accrued(^). For by denying the cause of action itself, he tacitly admits the mode, in which the re- medy is pursued, to be correct. ^ 38. Pleas to the action (or in bar), are usually divided into two kinds : 1 . The general, issue : 2. A special plea in bar(e). There is however a plea to the action, which does not strictly fall under either of these two denominations, and which is called a special issue (f) ; a plea termed special, as distinguished from the general issue ; but which differs also from what is appropriately denominated a ' special plea in bar,' in this that the latter is, universally, a plea advancing new matter : Whereas the plea, called a special issue, never advances such matter ; but merely denies some particular material allegation, the denial of which is in effect a de- o ' nial of the entire right of action. These several pleas are called, indifferently, pleas to the action, pleas in bar, or pleas in chief. ^ 39. A plea to the action, being an answer to the merits of the complaint, always goes in denial of the alleged right of action. And this the defend- ant may deny, either 1, by denying, in whole or in (d) Co. Litt. 303. a. Bac. Abr. Pleas, &c. 2. 1 Tidd, 572. (e) 3 Black. Com. 303. 305. Bac. Abr. Pleas, &c. G. 1, 3. (/) Bac. Abr. Pleas, &c. G. 3. Com. Dig. Pleader, R. 1. 2. Lawes'Pl. 110. 112. GENERAL DIVISIONS OF PLEADING. 45 part, the allegations in the declaration ; or, 2, by CHAP. alleging new matter, which admits the truth of the n. plaintiff's allegations, but goes in avoidance of them ; or, 3, by pleading matter of estoppel(g) : A defence which, neither admitting nor denying any of the facts alleged by the plaintiff, denies his legal right to allege them. 40. 1. When the defendant proposes to deny all the material allegations in the declaration, his proper plea is the general issue. But if the cause of action consists of several distinct, but connected facts, capable of being separated in pleading ; the defendant, instead of denying them all, by the gen- eral issue, may deny singly, any one of them, which is essential to the plaintiff's right of recovery, without [ > taking notice of the others : And such denial is a sufficient answer to the whole declaration (Ii). For where each of several concurring facts is necessary to one entire cause of action, the denial of either of them is, necessarily, a denial of the whole cause of action. The plea, in this case, is a special issue(i), 41. When the defence, upon which the de- fendant is to rely, does not involve a denial of any of the material allegations in the declaration, he may still deny the right of action by pleading, (g) 3 Black. Com. 303. 308. Lawes'Pl. 37-8. 115-6. 130. 3 East, 346. 365. Willes, 13. (h) Bac. Abr. Pleas, &c. G. 3. Lawes' PI. 112. 113. 135. Com. Dig. Pleader, R. 1. 2. (') lidem. 7 CHAP. n< GENERAL DIVISIONS OF PLEADING. ^ 42. 2. Matter of avoidance ; i. e. new matter, which admits the declaration to be true, but shows, nevertheless, either that the defendant was never lia- ble to the recovery claimed against him, or that he has been discharged from his original liability, by some- thing super venient(7). In either case, the plea is a special plea in bar as is also, 3. A plea in estoppel, when pleaded to the declara- tion. A plea of this kind, like a plea in avoidance of the declaration, always advances new matter ; but it differs from the latter, in this that instead of confessing and avoiding the plaintiff's allegations, it neither admits nor denies them ; but alleges some matter of estoppel (as a record, or deed, to which he is a party, or privy), and which, being inconsistent with his allegations, precludes him from availing him- self of them(m). Such are the different kinds of pleas to the action. ^ 43. There is still, however, another mode, in which the defendant may deny the plaintiff's right of action ; viz. by demurring to the declaration i. e. by confessing the facts alleged in it, but denying, that they constitute, in law, a cause of action(w). But a demurrer to the declaration is not classed among pleas to the action not only because it may be taken, as well to any other part of the pleadings, as to the declaration ; but also because it neither (/) 1 Tidd, 590. Lawes' PI. 115. (m) 3 Black. Com. 308. Willes, 13. 3 East, 346. 365. () Bac. Abr. Pleas, Sac. N. 1. 3 Black. Com. 314. GE>fERVL DIVISIONS OF PLEADING . 4 affirms nor denies any matter of fact, and is, there- CHAP. fore, not regarded as strictly a plea, of any class ; n. but rather as an excuse for not pleadingfo) (6). P -* l-> As, however, a demurrer to the declaration is one parVi.l'a of the modes of contesting the right of action ; there seems to be a propriety in adverting to it, in connexion with pleas to the action although all demurrers are, in their nature, as well as structure, essentially different from all pleas, properly so called. (o) Bac. Abr. Pleas, &c. N. 1. (6) The proposition, that a demurrer is not strictly a plea, is Wiarranted, as well by its form, as its essential nature. For the party demurring, after having averred that the adverse pleading, and the matter contained in it, are ' in no wise sufficient in law,' &c. proceeds to say, that 'he hath no necessity, neither is he obliged, by the law of the land, in any manner to answer the same,' i. e. to plead to it. (3 Black. Com. App. No. Ill, 6. 3 Wils. 292. 2 Chitt. PI. 678.) Vide ch. 9, s. 2. CHAPTER III. OF THE GENERAL RULES OF PLEADING. CHAP. BEFORE we enter upon a separate examination of In - the several divisions of Pleading, enumerated in the " preceding chapter, it will be proper to premise cer- tain miscellaneous rules, applicable to pleading in general. Requisites ^ ] . There are two indispensable requisites to all of pleading. > good pleading : 1 , That the matter pleaded (i. e. the facts alleged,) be sufficient in law to avail the party who pleads it ; and 2, That it be deduced and alleg- Po^.ch.9, ' . to s. is. ed, according to the forms of law. And it either or these requisites be omitted, the pleading is For all pleading is required to be sufficient, not only in substance, but in form also : (By which latter term, we are here to understand those technical or artificial modes of introducing and detailing the sub- ject-matter pleaded, which have been established by usage, and which cannot be dispensed with, without (p] Hob, 164. Bac. Abr. Pleas, &c. Introduction. Cowp. 683, GENERAL RULES OF PLEADING. 49 impairing that certainty, regularity and uniformity, CHAP. which are essential in all judicial proceedings(l). m. ^ 2. It is regularly essential then to all good pleading, that the party, offering new matter, allege every substantive fact, which is necessary in law to the maintenance of his suit or defence^). For if any such fact be omitted, the claim or defence, as disclosed by the pleader, must of necessity be defective. ^3. But that which already appears sufficiently, what in the pleading of either party, without a formal appears r J ' need not be allegation, need not be expressly averred(r). For averred. it would be obviously nugatory and absurd, to re- quire a distinct and substantive averment of that which, by the supposition, already appears with sufficient certainty. 4. Thus, in pleading a covenant to stand seized to uses, (which is a species of conveyance founded only upon the consideration of kindred or marriage,} if it is expressly shown that the deed is from a (q) Bac. Abr. Pleas, &c. A. Com. Dig. Pleader, C. 76. Lawes' PI. 46. (r) Co. Litt. 303. Yelv. 176, note. 7 Co. 40 b. 9 Ib. 54. a. b. 11 Ib. 25. a. 2 N. Rep. 77. (1) This consideration may account, in a great measure, for the importance which courts of justice attach and which they are, sometimes, charged with attaching, unnecessarily to matters of mere/ori, in pleading. 50 CHAP- III. Circum- stances implied. GENERAL RULES OF PLEADING. father to his son, or other near relative, there is no need of averring distinctly that the conveyance was made in consideration of kind red (V) : For that such was the consideration, (there being no other alleged,) is apparent from the relationship, which is expressly stated. And upon the same principle it is, that though, in trespass or trover, for the taking or con- version of goods, or specific chattels, the value of the property must regularly be alleged ; yet if the action is brought for taking or converting current money (as one hundred dollars, current coin of the United States), it is unnecessary to make a distinct averment of its value(^) : Since that fully appears from the number of dollars stated. ^ 5. Thus also, in an action upon a covenant for quiet enjoyment, (in which the eviction of the plain- tiff must be shown to have been under elder title) if it appears clearly, from facts stated in the declara- tion, that the evictor's title is the elder, there is no need of formally and distinctly averring that it is SO(M). ^ 6. Upon a similar principle, circumstances, however material, if necessarily implied in any fact expressly stated, need not themselves be substan- tively alleged (v). And therefore, if one pleads a (*) lid. (0 11 Co. 54. b. (u) 4 T. R. 617. 2 Lev. 37. (c) Bac. Abr. Pleas, &c. I. 3. Co. Litt. 303. b. 1 Salk. 91. 8 Co. 82. b. GENERAL RULES OF PLEADING. feoffment, without expressly averring livery of seisin, this omission does not vitiate the plead- ing (iv) : Since livery of seisin, being of the es- .y^JC^ <&** sence of every feoffment, a feoffment, ex vi termini, implies such livery. And therefore, to allege a feoff- ment, is by necesssary implication to allege livery of seisin. Again : If the plaintiff in ejectment de- scribes the land in question as lying in the parish of A, it is not necessary, in laying the ouster, to allege that it was committed in the same parish : For that fact sufficiently appears from the local description before given of the land (#). ^ 7. All facts alleged in good pleading, consist Gist of the either, 1 , of the gist or substance of the complaint, a lon ' &c " or defence or, 2, of matter of inducement, or as it is sometimes termed, conveyance or, 3, of matter of aggravation. Whatever else is stated, in any part of the pleadings, is but surplusage. For what is termed form in pleading, constitutes no distinct matter, but simply the manner, in which the matter pleaded is stated. 8. Thejrist^of the complaint or defence is the essential ground, or principal subject-matter of it; or that, without which no legal cause of complaint can appear, on the one hand, or no legal ground of defence, on the other ; however perfect, in point of (to) lid. 2 Saund. 305, n. 13. Com. Dig. Pleader, E. 9. Cro. Jac. 411. Cro. Eliz. 401. See ch. 10. (a?) Com Dig. Pleader, C. 20. Cro. Jac. 555, 557. 2 Mod. 304. 2 Black. R. 706. GENERAL RULES OF PLEADING. CHAP. form>i the pleading may be. Of this nature is the in. consideration of the defendant's promise, in assump- -- sit the performance of a condition precedent, in an action on a contract, containing such a condition the conversion in trover, &c. , induce- 9. Matter of inducement is that which is merely introductory to the essential ground] or substance of the complaint, or defence or in some respect explanatory of it, or of the manner in which it ori- ginated or took place. Thus in trover, the loss and finding of the plaintiff 's goods(?/) and in an action for a nuisance to a house or land, the plaintiff's pos- session of the subject injured are respectively mat- ters of inducement. , Aggrava- ^10. Matter of aggravation is that which, in actions for forcible injuries, is intended to show the circumstances of enormity, under which the princi- pal wrong complained of was committed. Thus if the plaintiff, in trespass for breaking and entering his house, superadds to his statement of the break- ing and entry, that the defendant at the same time made an affray, beat his servants, scattered his goods, and committed other enormities, these superadded facts are only matters of aggravation, which require neither proof nor answer : The breaking and enter- ing of the house being alone the gist of the ac- tion^) and whatever sufficiently answers these, is (y) Bull. N. P. 33. Lawes' PI. 66. (2) 3 Wils. 294. 3 T. R. 292. 1 H. Black. 555. Lawes' PI. 70. GENERAL RULES OF PLEADING. 53 of course a sufficient answer to the whole complaint, CHAP. including all matters of aggravation (V). in. ^ 11. The last observation is equally true of matter of inducement ; which, from its nature as al- ready explained, does not in general admit of a dis- tinct denial or precise answer of any kind (6). For any sufficient answer to the material facts, alleged in the pleading of the adverse party, covers all that he has alleged including as well matter of in- ducement as matter of aggravation. Surplusage is Surp!us . that which is impertinent or entirely surperjluous, as age - not being necessary either to the substance or the form of pleading (bb). ^ 12. It is regularly necessary in pleading to Facts only state nothing except facts, and as the case may be, be C pie S a a ded. conclusions from them(c); or in other words, nothing except facts as they really exist, or are, by legal fic- tion or presumption, deemed to exist. It is of course unnecessary, generally speaking, to allege matter of laiv(d). For the judges are always pre- sumed as has been suggested in a former chap- ter to know judicially what the law is ; and have therefore no occasion to be informed of it by the pleadings. 13. In some few instances, however, it was lawnotne. formerly thought necessary, and was therefore cus- (a) lid. Lawes' PI. 70. (6) Lawes' PI. 118. Bull. N. P. 33. (bb) Com. Dig. Pleader, C. 28. 29. E. 12. Lawes' PI. 63. (c) Doug. 159. 278. Lawes' PI. 46. (d) lid. 8 Co. 155. 8 54 GENERAL RULES OF PLEADING. CHAP, ternary, in declaring, to state the law as well as the in. facts upon which the action was founded. Such was the practice in declaring in actions ex delicto, against common carriers for goods lost or damaged by their negligence or breach of trust ; and in similar actions against innkeepers, for the effects of their guests, when lost or injured infra hospitium,(e) : In both of which cases, the plaintiff, according to the ancient form of pleading, recited in his declaration the cus- tom of the realm, i. e. the rule of laiv, in virtue of which he claime'd a right of recovery (/) (2). But * the custom of the realm' being, in all cases, no other than the common or general unwritten law of the realm, there was never, on principle, any need of re- citing it. And of late, that practice has in a great measure fallen into disuse (g) : Though in actions sounding in tort against innkeepers, it appears still to be usually, though unnecessarily, followed (A). &A* * *W y> ^14. In the same manner, it was formerly usual in declarations on bills of exchange, to recite the cus- tom of merchants (i. e. the rule of mercantile laws) upon which the action was found ed(f). But in this instance also, as in the two former, such a recital (e) Hob. 18. 3 Mod. 227. 1 Wils. 281. 2 Chitt. PI. 273. Bac. Abr. Carriers, A. Id. Inns, C. 6. (n). (J ) 1 Sid. 245. Com. Dig. Jlclion on case, for neg. C. 2. Bac. Abr. Inns, C. 6. 3 Co. 32. a. F. N. B. 94. (g-) 3 Wils. 429. 2 Chitt. PI. 271-2. 274. (h) 2 Chitt. PI. 274. (1) PI. Assist. 40. Kyd on Bills, 177. 180. Chitt. on Bills, 184-5. 233-4. (2) In some few other instances also, the same mode of plead- ing formerly prevailed. (Vid. 1 Lill. Ent. 67. 68. 69. 80. 81.) GENERAL RULES OF PLEADING. 55 was, upon the principles of pleading, clearly un- CHAP. necessary : Since the ' custom of merchants,' or HI. which is the same thing the law-merchant, is a branch of the common law(/c). In the modern pre- cedents, therefore, the recital of the custom is in general omitted(/). And even the practice, w r hich still prevails(m), of counting upon the custom (i. e. of making an express reference to it in the declara- tion, without reciting it), appears for the same rea- son to be an unnecessary formality, and has been so adjudged (n). ^15. In some instances, however, inferences of inferences law are advanced in pleading, for the purpose of stated. showing the intended application of the facts pleaded, or for the sake of mere form. Thus in declaring on bills of exchange, after the statement of the res gesta, or material facts, the plaintiff adds, * by means whereof, &c, the defendant became liable,"* i. e. in law, ' to pay,' fcc(o). It is also usual for the de- fendant, in a plea of justification after stating the special matter which constitutes his defence to accompany his confession of the facts alleged against him with a prout ei bene licuit ; i. e. to aver that he did the acts complained of, ' as by law he well might'(p). In this instance also, the proposition (A) 1 Ld. Ray. 88. 175. 3 Ib. 1542. Carth. 288. (I) lid. PI. Assist. 80. 81. 241. Chitt. on Bills, 184. 234. (m) Chitt. on Bills, 233-4. PI. Assist. 241. (n) 1 Ld. Ray. 88. 175. 234. Carth. 83. 269. Chitt. on Bills, 234, (n, c.) (o) Chitt. on Bills, 235-244. PI. Assist. 241. (/>) 8 T. R. 79. 2 Chitt. PI. 503-506. 524-530. 56 CHAP. III. Particular customs. GENERAL RULES OF PLEADING. involved in the clause just quoted, is only an infer- ence of law from the facts which constitute the justi- fication, and therefore is not of the substance of the plea. ^16. In pleading particular customs^, or pri- vate statutes, not only must the facts which bring the case within the custom or statute be pleaded ; but the custom or statute itself- or at least so much of it as is material to the case must be recited by the party complaining or defending under it(r) (3). But the recital, in these cases, is not to be deemed matter of law. For such customs and statutes although they may respectively furnish the rule of decision in cases falling within them are no part of the general law of the land ; but like private re- cords, prescriptions, deeds, &c. are regarded and treated in pleading as matters of fact, of which the (q) 1 Black. Com. 76. Co. L. 175. Litt. 265. Dr. & St. 18. (r) 1 Black. Com. 86. Cro Jac. 139. 4 Co. 76. 2 East, 341. Bac. Abr. Statute. L. 2. 1 Saund. 193. (3) There is a material distinction, not always observed by writers on pleading and the non-observance of which has some- times occasioned confusion between pleading, counting upon, and reciting a statute. Pleading a statute, is merely stating the facts which bring a case within it, without making mention or taking any notice of the statute itself. Counting upon a statute, consists in making express reference to it as, by the words, ' against the form of the statute' (or, ' by force of the statute'), * in such case made and provided.' Reciting a statute, is quoting or stating its contents. A statute may, therefore, be pleaded with- out either reciting or counting upon it ; and may be counted upon without being recited. GENERAL RULES OF PLEADING. 57 courts of justice cannot judicially take notice(s). CHAP. Hence it is, that the existence of any such custom in. or statute may be denied by plea(^) ; and that when so denied, it must be proved as a fact, and can be tried only on an issue in fact. Whereas matter of law, properly so called, can never be denied in pleading(w). $> 17. But under the rule requiring all material Fictions in pleading. facts to be pleaded, it is sometimes necessary to al- lege not only those which really exist; but also certain conclusions, or fictions, which the law founds upon, or connects with them, and which it regards as facts, though they exist only in legal intend ment. \ GL ^18 Fictions in pleading were devised for the \ sole purpose of advancing justice(v)(&) ; \ and hav- 1 ing been sanctioned for this purpose, they require, on the one hand, no proof, and on the other, they cannot be traversed (w) : Since to require the one, or permit the other, would defeat the end for which they were designed. The fictions employed in plead- ing are numerous ; but their general nature and ope- (*) 1 Black. Com. 86. 4 Co. 76. a. b. 1 Stra. 187. Doug. 378. 330. n. (0 Bac. Abr. Statute, L. 2. (u) 8 Co. 28. (t) 3 Black. Cora. 43. 107. (w) Id. Cowp. 177-8. (4) Fictions in pleading are seldom employed, except in the declaration; but are not, however, universally confined to that part of the pleadings. 58 GENERAL RULES OF PLEADING. CHAP, ration may be sufficiently illustrated, for the present in. purpose, by two or three familiar examples : ^19. In the action of indebitatus assumpsit, if there is an actual debt, or legal liability, (by simple contract), on the part of the defendant, but, as is frequently the case, no express undertaking to pay the debt ; the plaintiff, in his declaration, must regu- larly allege a promise(x) (5). For as the action of assumpsit is, in its form and structure, adapted to no other demands than those arising upon promises ; the law, when no promise has actually been made implies or presumes one, from the fact of the defendant's being indebted ; for the purpose of en- (a?) Cro.Eliz.913. 1 Lev. 164. 2 Ld. Ray. 1517. 2 Stra. 793. (5) It is held, however, that in declaring, in assumpsit, on a bill of exchange, against the drawer, or on a promissory note, against the maker, a statement of the facts, which render the de- fendant liable to pay, is sufficient, without expressly alleging a promise on his part. (1 Salk. 128. 1 Stra. 224. Ld. Ray. 538. 2 New Rep. 63. n.) The reason, assigned for the rule, is, that the drawing of the bill, or making of the note, is of itself an actual promise: So that alleging the act of drawing, &c., is virtually al- leging a promise, by the drawer, &c, to pay. Whether this rule, so far as it regards the declaration on a bill of exchange, (in which (the drawer makes no express promise), is agreeable to the analo- gies and principles of pleading, appears at least questionable. For in all other cases of indebitatus. assumpsit, the facts, stated in the declaration, as the ground of the defendant's liability, are re- garded, upon the face of the record, only as the consideration of the promise, which the declaration alleges, and must allege. But whether the rule is, on principle, correct or not, the universal practice is, to allege a substantive promise, by the drawer of the bill. GENERAL RULES OF PLEADING. 59 titling the plaintiff to this beneficial action, instead of CHAP. the precarious and less remedial action of debt, in. which was anciently his only remedy in such a case. But whenever the promise is thus implied, it is de- clared upon as an express one, and upon the face of the record is always taken to be express. There is, indeed, no such thing as an implied promise in plead- ing ; or rather, the fact of its being implied appears only in evidence, and never upon the record(y). ^ 20. In trover also, the goods, for the conver- sion of which the action is brought, are, according to the precedents, alleged to have been lost, and to have come to the defendant's hands by jfinding(z). For as trover originally lay only for the conversion of goods actually lost and found (a) ; the averment of a loss by the plaintiff, and a finding by the defend- ant which, in^ most cases, is a mere fiction was, at a later period, introduced for the purpose of ex- tending this liberal action to cases, in which there was anciently no other remedy, than that afforded by the more narrow and inconvenient action of de- tinue(b). And thus, by the aid of this fictitious averment, which is not traversable, the action of trover now lies in all cases, in general, in which he who is, by any means, in possession of another's (y) 6 Mod. 131. Cowp. 289. 7 T. R. 351. n. 1 Ld. Ray. 538. (2) 1LH1. Ent. 70. 3 Black. Com. 153. 2. Chitt. PI. 223-231. (a) 3 Black. Com. 152. Bac. Abr. Trover. Introd. (&) 3 Reeve H. E. L. 385-6. 526. 3 Black. Com. 153. 3 Woodes. 212. 60 GENERAL RULES OF PLEADING. CHAP personal chattels, converts them to his own use(c) m. (6). ^21. So also in the modern English ejectment, which lies nominally only for a term of years, the lease to the nominal plaintiff, his entry under it, and the ouster charged upon the casual ejector, (all which were originally material facts, and are still stated as facts in the declaration), are in reality mere fictions, devised for the purpose of escaping from the inconvenient forms of real actions, and fa- cilitating the determination of questions of title to real property (d). And by these fictions, aided by corresponding rules of practice, this convenient remedy is accommodated practically to the trial of freehold title s(e.) h"o e w"to mp be' 22. Whenever it is necessary for a party, in pleaded. an y sta g e o f ^ e pleadings, to show an estate m fee- simple, it is sufficient, in general, to allege the estate in general terms, (as that he, or another, was 'seised in his demesne as of fee'), without stating when or how the estate commenced, or was created^/]) (c) Bac. Abr. Trover. Introd. Cro. Eliz. 781. Bull. N. P. 33. (d) 3 Black. Com. 199. 201. 206. 2 Burr. 667-8. (c) 1 Wils. 220. 7 T. R. 327. 334. 1 Bos. & P. 573. (/) 1 Ld. Ray. 333. 2 Salk. 562. Comb. 476. Carth. 444. 3 Wils. 70. 72. 12 Mod. 191. (6) Since the action has been thus extended, it is held, that the averment of finding is not indispensable (5 Bac. Abr. Tro- ver, F. 1. Bull. N. P. 33.) It is still retained, however, in the approved precedents. GENERAL RULES OF PLEADING. gj But when title to any particular estate as an estate CHAP. in tail, for life, or for years is necessary to be in. shown in a plea in bar, acowry, replication, or any of the pleadings subsequent to the declaration, the com- estates," mencement of the estate, and the mode of its deriva- ed! v ' tion, must be specially stated (g - ). 23. The principal reason of this diversity ap* i pears to be, that an estate in fee simple may be, and \ frequently is acquired by means, consisting of sheef 1 matter of fact, (as by a continued disseisin of the rightful owner, or by long possession), of which the jury is competent to judge(/) ; and which need not, therefore, be specially shown to the court upon the record : And hence a general allegation of a seisin in fee simple is traversable(V). Whereas par- ticular estates, which must always be derived out of the fee simple, can regularly be created only by legal conveyance, or by operation of law (A*) ; both of which modes of acquisition necessarily involve matter of law ; of which the jury are not competent judges : And therefore, a general allegation of a sei- sin or possession of such an estate in a plea, &c. is ill ; because it improperly blends law and fact, and therefore is not traversable(Z). 24. It is hence necessary when title to estates of the latter kind is to be averred in a plea, (K) lid- (h) 3 Salk. 562. 3 Wil.s. 72. Co. Lit. 297. a. (j) Comb. 476. 12 Mod. 191. (A-) 3 Wils. 72. 12 Mod. 191. 2 Salk. 562. (/) Comb. 476. Carth. 445. 12 Mod. 191. 2 Salk. 562. 9 Q<2 GENERAL RULES OF PLEADING. CHAP, avowry, &c. that the time and manner of their in. derivation be specially shown in the pleading ; that * the plaintiff may be able to traverse distinctly any e s a tater,how particular point in the title. For as there is no sen- pleaded. r , . , . ,. . p eral issue to pleas, avownes, replications, &c ; no traverse can, in general, be taken upon them, other- wise than by denying precisely some or all of the specific allegations contained in them(w). 25. But in personal actions, this latter rule holds, in general, only of those parts of the plead- ings, which are subsequent to the declaration. And therefore if a tenant in tail, for life, or for years, brings a suit for an injury to his possession, (as in trespass quare clausum fregit, trespass on the case for obstructing a way, &c.) ; it is not necessary for him to state the commencement of his title in his declaration(n). For the action is not founded on title^ but on possession. It is not necessary, there- fore, in such a case, to state his title in any manner whatever : It being sufficient to allege merely his possession. (For, as against a wrong doer, possession alone, in the plaintiff, is sufficient^) ; and in ac- tions of this kind, the defendant is always charged as such.) 26. And in general, when, as in the preceding cases, a particular estate is only matter of induce- (m) 2 Salk. 562. (n) 2 Salk. 562. Comb. 476. Cro. Car. 571. Carth. 444. (o) 1 Ld. Ray. 333. 266. Com. Dig. Pleader, C. 39. Sayer, 32. 1 Wils. 327. 1 Vent. 319. GENERAL RULES OF PLEADING. Q ment, it m is unnecessary in any stage of the plead- CHAP. ings, to state when or how it commencedQ?) : The in. reason of which is apparent, from the principles, (already stated), which regulate the pleading of mat- ter of inducement, in general. Indeed the single consideration, that such matter is never contested in the pleadings, furnishes a sufficient reason for the rule. ^ 27. And therefore, in an action of trespass for an assault and battery, if the defendant, being a tenant for years of a house or land, justifies the acts complained of, as having been done in resisting the plaintiff's unlawful entry into the one, or upon the other ; it is sufficient as regards the matter of ti- tle, for the defendant to aver in his plea, that he was 4 possessed of a certain dwelling-house' (or ' a certain close') &c. without stating the time at which, or the manner in which, his possession commenced (g). For to his plea, his estate or possession is but matter of inducement. & 28. As a general rule, all material facts, (7) Material 111 ., ., ,. . . averments pleaded on either side, must be stated in positive must be di- 7 7 . ., , .. . rect and ana direct terms, and not argumentatively, (i. e. in a positive. manner which leaves them to be collected by in- (p) 3 Wils. 72. 1 Ld. Ray. 334. 8 T. R. 79. 299. 2 Chitt. PI. 529-531. Com. Dig. Pleader, C. 43. E. 19. Carth. 444. (9) lid- (7) Material facts are such as are essential to the right of ac- tion, or defence, and are therefore of the substance of the one, or the other. gj, GENERAL RULES OF PLEADING. CHAP, ference) ; nor by way of recital, as under a ' where- in, as'(r). This requisite is prescribed, not only for the sake of precision ; but also that the adverse party averments, may be enabled to traverse the matter alleged, direct- ets B eq. 421 ly and distinctly. And therefore, if in an action of covenant broken, the defendant instead of pleading performance generally, or specially, as the nature and terms of the contract may require pleads that he has not broken his covenant ; the plea is ill(V). For it leaves the fact of performance to be inferred from that of the covenant's not being bro- ken (8), so that the former fact, (the only one, on which such a plea can be supposed to be founded), cannot be directly put in issue by a traverse of the plea. ^ 29. Upon the same principle, if in trespass for tearing the seal from a deed, alleged to have been made by A. to B., and to have conveyed to B. a certain manor, the defendant pleads that A did not convey the manor to B. ; the plea is argumentative, and of course ill(0 : Since it denies the tres- pass only by inference i. e. only by denying the ex- istence of such a deed as that described instead of putting the wrongful act alleged directly in issue. (r) Co. Litt. 303. a. Bac. Abr. Pleas, &c. B. 5. (4.) I. 5. Trespass, I. 2. (s) 8 T. R. 278. 2 Black. R. 1312. 2 Tent. 166, (t) Yelv. 223. Com. Dig. Pleader, E. 3. (8) The plea stated in the text would also be ill, as improperly bjending law and fact. GENERAL RULES OF PLEADING. The proper plea, for the defence pleaded, in the CHAP. case here stated, would be the general issue. in. 30. Argumentative pleading is aided, however, by verdict, or on general denmrrer(tt). For the defectiveness of such pleading is not in the matter pleaded, but in the manner of pleading it ; and is therefore only a fault inform. 31. It is for a similar reason, that the general rule disallows the allegation of material facts by wav of recital; as under a 'whereas.' For as this form of averment does not directly assert the fact recited, a travese of the averment would not put the fact directly in issue. If therefore, in an action of trespass for an assault and battery, the plaintiff should complain, by saying in his declaration, ' whereas the defendant with force and arms assault- ed,' &c ; or if in trespass quare clausum fregit, he should declare * whereas the defendant with force, &c. broke and entered his close ;' the declaration would, in both cases, be ill (a) (9). For this mode of stating the injury would not constitute a positive (u) Com. Dig. Pleader, E. 3. 1 Saund. 274. (n. 1.) Aleyn, 48. 9 Johns. R. 314. Con/. Bac. Abr. Pleas, B. 5. (4). (t>) Bac. Abr. Pleas, &c. B. Tresp. I. 2. 5. 4. Co. Litt. 303. a. 2 Salk. 636. 1 Stra. 621. Com. Dig. Pleader, C. 86. (9) When the suit is by original writ, (as in the English court of Com. Pleas,) such an averment in the declaration is good being aided by the recital of the writ, in the declaration. (Com. Dig. Pleader, C. 86. 1 Wils. 99. 2 Ib. 203. Fort. 376. Bac. Abr. Trespass, I. 2 QQ GENERAL RULES OF PLEADING. CHAP, allegation of the trespass in either case ; and the in. plea of not guilty would be tantamount only to say- ; ing, in the one case, ' whereas the defendant did not averments, with force and arms assault,' &c. and in the other, ' whereas he did not with force, &c. break and enter the plaintiff's close.' A principal reason therefore, why the averment of material facts by way of re- cital is inadmissible, is, that as such averments do not admit of a direct negative, no proper precise issue can be taken upon them. ^ 32. But in debt on bond, the allegation that * whereas the defendant, by his writing obligatory, sealed, '&c. ' acknowledged himself held and bound,' &c. ' yet he has not paid,' has always been held a sufficient averment of the execution of the bond ; though that fact, which is the gist of the action, is stated only by way of recital : And in this form are all the common precedents of declarations on bonds, covenants, and specialties of every kind(w). The reason of this apparent deviation from the general rule is said to be, that as the statement under the ' whereas' is part of an entire sentence, of which the latter clause is a positive averment, the former part is in construction also positive, and therefore capable of being directly traversed (x). However this construction may appear, in a grammatical view, it has always prevailed in the forms of plead- ing. (to) Bac. Abr. Pleas, &c. B. 5. (4.) 1 Lill. Ent. 144-187. 2 Chitt. PI. 151-178. 191-9. (x) Bac. Abr. Pleas, &c. B. 5. (4.) GENERAL RULES OF PLEADING. 33. But in a declaration, the whole of which CHAP. may be denied by the general issue, a material; in. averment, under a ' whereas,' though formerly held incurable, is now amendable, and is ill only on spe- averments. rial demurrer(y) : The defect being not in the matter alleged, but in the manner of alleging it. ^> 34. The words pro eo quod, (for this that) quod. quia (because) and licet (although,) are respective- ly sufficiently direct and positive for introducing a material avermentfz) ; as they are all considered as Quare terms of affirmation. But the word ' quare"* (where- fore), though used in the writ in certain actions, is inadmissible in a material averment in the plead- ings(a) : For it is merely interrogatory. And therefore a declaration which begins with complain- ing of the defendant, ' wherefore with force, &c. he broke and entered' the plaintiff's close, is ill. ^ 35. A material averment may also be intro- duced by a videlicit, or scilicit (to wit) ; in which case, if the averment immediately preceding the l vizS is direct and positive, that which immediately follows it is so(6). Thus if the plaintiff in trespass declares that the defendant took and carried away his 'goods, viz.' such and such articles specifically (?/) 2 Salk. 636. 1 Stra. 621. Com. Dig. Pleader, C. 86. 2 Stra. 1151. 1162. 1 Chitt. PI. 375. 1 Wils. 99. 2 Mass. R. 358. 7 Johns. R. 109. (2) 1 Saund. 117. (n. 4.) Com. Dig. Pleader, C. 77. 1 Lev. 194. 2 Lill. Ent. 429. 431. 435. 2 Chitt. PI. 369 393. (a) 2 Salk. 636. Bac. Abr. Pleas, &c. B. 5. (4.) (6) Hob. 172. Com. Dig. Parols, A. 8. )3 GENERAL RULES OF PLEADING. CHAP, mentioned, the specification under the ' viz.' is a in. positive and traversable averment(e). So also in ; debt on bond, for the penal sum of 1000, if the de- averments, fendant pleads that there is due on the bond ' a much less sum than 1000, viz. 500, and no more,' this last averment under the ' viz.' is regarded as a direct allegation, and is traversable, as it would have been, if the viz. and the quoted words immedi- ately preceding it, had been omitted(d). 36. The proper office of ascilicit,' or ' videlicit' is to particularize what is general in the words pre- ceding it, or in some other manner to explain what goes before it(e). A 'viz' may therefore restrain the generality of preceding words, but cannot en- large or diminish the preceding subject-matter '(/"). For in the former case, the 'viz.' is merely an explanation of the language which precedes it ; but in the latter, it is repugnant to, or variant from, the preceding matter. Thus if a grant is made to ' A. and his heirs, viz. heirs of his body,' the interest granted is an estate tail(g) : For here the ' viz.' is only expla- natory of the sense in which the word ' heirs' is first used, and not inconsistent with it. But if one hav- ing three acres of land in the parish of A., grants ' all his land in A., viz. two acres,' the three acres will pass(/&) : Or if he grants ' all his land' in the parish (c) 2 Chitl. PL 99. 272. 379. 385. (d) a Saund. 291. b. (n. 1.) 6 T. R. 460. 2 Wils. 332. 335. (e) Hob. 175. 2 Saund. 291. b. (n. 1.) 2 Wils. 332. 335. (/) Hob. 172. Com. Dig. Parols, A. 8. (ff) Ed- (ft) lid. 2 Saund. 291. a. (n. 1.) GENERAL RULES OF PLEADING. g of A., viz. black-acre, which lies out of that parish ; CHAP. black-acre will not pass by the grant (?'). For in in. both these cases the ' viz.' is repugnant to that which precedes it. The same distinction applies to the use of a 'viz.' in pleading. ^ 37. Yet in the application of this general dis- tinction to the rules of pleading, there is one impor- tant difference to be observed, (as regards the use and effect of a ' viz.') between the averment, of material and immaterial facts. When a viz. is followed by what is material, and necessary to be alleged, and preceded by words of direct averment, the videlicit, being regarded as a positive and direct allegation, is therefore traversable(k) : In other words, a material averment under a viz. is traversable, whenever it would have been so, if it had been made without a viz. Thus, when in debt on bond for a certain penal sum, conditioned for the payment of a less sum, the defendant pleaded that he was indebted to the plaintiff, ' in a large sum of money, to wit, the said sum in the said condition mentioned,' and then al- leged special matter in avoidance an exception was taken to the plea, as not containing any state- ment, in an issuable form, of the sum due on the bond : But the court overruled the objection, and held the statement under the ' to wit? to be travers- (i] lid. Hob. 170. (k) 3 Burr. 1730. 1 Saund. 169. 170. (n. 2.) 2 Ib. 291. b. (n. 1.) 1 Black. R. 495. Yelv. 94, note. 4 Johns. R. 450. 2 Pick. 222. 10 70 GENERAL RULES OF PLEADING. CHAP. able(7). And the rule appears to be universal, that in. any fact, which is in its nature traversable, may be traversed, though pleaded under a videlidt(m). 38. It is apparent from what has been said, that a material fact cannot be made immaterial, by being pleaded under a ' viz.,(n~). Therefore, if an aver- ment under a * viz.' contains matter in itself mate- rial, but which is repugnant to what goes before ; the pleading is ill(10). Thus where to an action against the sheriff for an escape, he pleaded a recap- tion of the prisoner, on fresh suit, ' before the exhi- bition of the bill, viz. on the 8th of May" 1 (which was in fact after the bill was exhibited), the court held the plea ill(o). For the time of retaking was mate- rial ; inasmuch as a recaption, after the exhibition of the bill, is no defence in law to such an action. 39. As material facts averred under a videlicit are traversable ; it follows that they must, if tra- versed, be proved : For nothing is legally travers- able by either party, except what the adverse party may be required to prove. If therefore in pleading (/) 2 Wils. 332. 335. (m) 5 T. R. 71. 1 Ib. 656. 4 Johns. R. 450. 1 Stra. 233. 2 Saund. 291. a. c. (n. 1.) 6 T. R. 460. 463. 1 Saund. 169. 170. (n. 2.) (n) lid. (o) Latch, 200. 201. 2 Saund. 291. c. (n. 1). 1 Black. R.495. (10) On this point, however, there have formerly been some contradiction and confusion. Latch, 200. 201. Cro. Jac. 135. 154. 662. 12 Mod. 579. 580. GENERAL RULES OF PLEADING. J a record, or written instrument of any kind, the CHAP. pleader misstates the date of it, or otherwise mis- HI. describes it in any material particular, though under a videlicit, he must fail in his proof : For the record or instrument, when produced in evidence, will, by its variance from the description of it in the plead- ing, appear to be a different record or instrument from that pleaded (p) (11). ^ 40. But if that which comes under a videlicit is immaterial, or matter of mereybrw ; its repugnancy to what goes before does not vitiate, or in any way affect, the pleading. In such a case, the videlicit is regarded as wholly nugatory and void, and is there- fore rejected as surplusage ( J &c. must al- ings, as the plea in bar, replication, &c. the general wa y s bfr di - rule, requiring material facts to be alleged directly and positively, admits of no exception(w) : For as there is no general issue to any of these subsequent pleadings(17) ; the only mode, in general, of deny- ing any of them, is by precisely traversing some or all of the particular issuable facts alleged in them. (n) Lawe's PI. 134. (16) In the modern English ejectment, the real defendant is not indeed permitted, under the common rule, to deny the fictitious lease, counted upon in the declaration. But this is merely a posi- tive regulation, by rule of Court ; and does not affect the cor- rectness of the position in the text, so far as regards the original principles of the actior (17) A replication, containing a new assignment, may indeed be answered by the general issue. But a new assignment is in the nature of a new declaration. (Post. ch. 6. Part 2.) 8Q_ GENERAL RULES OF PLEAUIMi. CHAP. Hence the allegation of every such fact must be so in. framed, as to admit of a direct negative answer. & 50. It is apparent from the preceding rules, Inducement, * howpieada- that matter of mere inducement, in the declaration, ble. may always be stated by way of recital. For as such matter neither requires nor admits of a direct answer of any kind, in pleading ; it can never require a direct allegation. This rule, however, must not be understood to apply, without exception, to what is termed the inducement to a traverse, in the subse- quent pleadings. Certainty. CK-I HIT ^ 51. An important requisite, in all pleading, is certainty '(0). This requisite implies, that the mat- ter pleaded must be clearly and distinctly stated ; so that it may be fully understood by the adverse party, the counsel, the jury, and the judges ; and especially, (as regards the declaration), that the de- fendant may be enabled to plead the judgment, which may be rendered in the cause, in bar of any subsequent action for the same eauseQ?). For if a vague or partial description of the matter in contro- versy, in a given case, were allowed ; and in a sub- sequent suit of the same thing, the declaration should contain a full and precise description of it ; the cause of action, though actually the same in both cases, would not appear, from a comparison of the two records, to be so. (o) Bac. Abr. Pleas, &c. B. 1. Hob. 295. 5 Co. 34-5. (p)2Ld. Ray. 1411. 4 Burr. 2456. 5 Co. 34. 1 Day, 315. Bac. Abr. TYom-, F. 1. Reg. PI. 4. GENERAL RULES OF PLEADING. g] ^ 52. Certainty in pleading is, according to Lord CHAP. Coke, of three sorts or degrees : viz. ' Certainty to in. a common intent' * certainty to a certain intent in general' and ' certainty to a certain intent in every cerfelaty. particular'' (q). These degrees, which it would be difficult to distinguish by exact logical definitions, have been sometimes treated as idle and unintelligi- ble refinements. It seems, agreed, however, by all common-law jurists, that there are different degrees of certainty, (however they may be denominated), required for different kinds or classes of pleas : And the objection to Lord Coke's denominations of them is not, that the law does not recognize any distinc- tion, in respect to the requisite degree of certainty in different branches of pleading ; but that the lan- guage, in which he has endeavored to express the distinction, is not sufficiently precise and intelligible, to convey any very definite notion of it. The ob- jection thus understood, is undoubtedly well found- ed ; but we are not, for this reason, to discard all distinction between different degrees of certainty in pleading(r) : Since such degrees are not only re- cognized in legal theory ; but practically observed, to a certain extent at least, in all the authoritative precedents. Without attempting, however, to frame exact legal definitions of these different degrees of certainty, (which as they are merely relative, and referrible to no fixed standard would seem impossi- ble) it may suffice, perhaps, to present the follow- ing general explanation of them : (7) Co. Lilt. 303. a. Corn. Dig. Pleader, C. 17. (r) Per Buller, J. 2 H. Black. 530. 2 GENERAL RULES OF PLEADING. CHAP. 53. The first degree of certainty, in Lord in. Coke's enumeration, and which he denotes ' cer- tainty to a common intent,' is the lowest which the rules of pleading in any instance allow. This de- gree is sufficient only in pleas in bar, rejoinders, and such other pleadings, on the part of the defendant, as go to the action(s) ; but not in dilatory pleas. The second degree, or ' certainty to a certain intent in general,' is higher than the former, and is required in counts, replications, and other pleadings on the part of the plaintiff'; as also in indictments and in- formations^) : It being deemed reasonable, that such pleadings as assert a charge, either criminal or civil, against the adverse party, should be construed with greater strictness, than those which state his defence or excuse. ^ 54. More precise explanations of these two degrees of certainty have, however, been attempted. Thus, Mr. Justice JBuller observes, ' By a common in- tent I understand, that when words are used, which will bear a natural sense, and also an artificial one, or one to be made out by argument or inference, the natural sense shall prevail. It is simply a rule of construction, and not of addition : Common intent cannot add to a sentence words which are omit- ted'^). But where * certainty to a certain intent in general' is required, if words are used which will (s) Cowp. 682. Doug. 159. 2 H. Black. 530. (0 lid. Co. Litt. 303. a. Com. Dig. Pleader, C. 24. 2 Lill. Ab. 377. () 2 H. Black. 530. GENERAL RULES OF PLEADING. 33 bear these two senses, they may be taken, it seems, CHAP. either way against the party pleading ; though as in. against the adverse party, they can be understood only in their natural sense : So that if either sense cerfafnty. will operate against the pleader, his pleading is de- fective^). The same distinguished judge again observes, that by the second degree of certainty is meant, ' what, upon a fair and reasonable construc- tion, may be called certain, without recurring to pos- sible facts, which do not appear\w) ; i. e. without denying, or avoiding by anticipation, possible facts, which may operate against him ; and on the other hand, without the aid of any supposable facts or circumstances, not alleged by him. 55. These expositions appear correct, as far as they extend : In other words, they conform to the points adjudged, in the particular cases, to which they relate ; but if considered as intended to furnish a comprehensive criterion, applicable to all cases to which they may extend, they will often be found, it is believed, to afford but little assistance to the inquirer. The only practicable method, perhaps, of acquiring a competent knowledge of the distinc- tion in question, is a careful and thorough examina- tion of precedents. ^ 56. It is however material to be observed, that neither of these two first degrees of certainty () Co. Litt. 303. Lawes' PI. 54. (w) Doug. 159. 84 CHAP. III. Degrees of certainty. GENERAL RULES OF PLEADING. requires the pleader to allege any thing more than is necessary to constitute, prima facie, a right of action, or a legal defence(.r). He is, therefore, not obliged to deny or avoid, by anticipation) any of the possible answers which may be given, on the other side, to the matter alleged in his pleading. And therefore in declaring on a contract, the plaintiff is not bound to aver that the defendant, at the time of contracting, was not an infant, or feme covert or that the contract was not obtained by fraud, or du- ress, or has not been released or any other such special matter as might, if alleged and proved on the other side, defeat this action. For if any such matter exists, it is matter of defence, to be shown by the defendant. And the same principle governs, in special pleas in bar, and other pleadings to the action, on the part of the defendant. It is neces- sary indeed for a plaintiff, declaring on contract, to allege that the debt has not been paid, or the agree- ment not performed not, however, by way of anticipating the defence of payment or performance, but because, without such an allegation, no breach of the contract, and of course no prima facie right of action, will appear in the declaration. ^ 57. Certainty of the third sort, or ' to a certain intent in every particular, 1 requires the utmost full- ness and particularity of statement, as well as the highest attainable accuracy and precision leaving, (x) 2 Wils. 100. 2 Burr. 1037. 1 Ld. Ray. 400. 1 Saund. 299. GENERAL RULES OF PLEADING. 85 on the one hand, nothing to be supplied by intend- CHAP. ment or construction ; and on the other, no suppos- in. able special answer unobviated(?/). The rule, re- quiring this degree of certainty, is a rule not of cerfaimy. construction 1 only, but also of ' addition ;' i. e. it requires the pleader, not only to answer fully what is necessary to be answered ; but also to anticipate and exclude all such supposable matter, as would, if alleged on the opposite side, defeat his plea(z). This last requisite affords a clear and marked dis- tinction between this, and the two former kinds of certainty. For in those two, nothing more is neces- sary, in general, than to answer fully the substance of what is actually affirmed by the adverse party or at most to make out a claim or defence, prima facie sufficient ; without anticipating other matters, not already appearing in the pleadings, but which may possibly be alleged in reply. ^ 58. This third and highest degree of certainty is required only in such pleas as are odious or unfa- vorably regarded in the law : viz. pleas in estoppel, and dilatory pleas(a). The former are so regarded because their effect is to preclude the adverse party from averring even the truth, if inconsistent with the estoppel pleaded (6) ; and the latter, because their (t/) Co. Lilt. 352. b. (*) Willes, 554. Lawes' PI. 55. (a) Bac. Abr. Pleas, &c. I. 11. Cro. Jac. 82. 2 Saund. 209. b. 8 T. R. 167. 3 Ib. 185-6. 5 Ib. 487. Doug. 159. 2 II. Black. 530. Willes, 554. Lawes' PI. 56. 107. 134. Com. Dig. Estoppel, E. 4. (b) Co. Litt. 303. a. 352. b. Lawes' PI. 55. 12 86 GENERAL RULES OF PLEADING. CHAP, object is to defeat suits upon grounds unconnected in. with their merits. certainty? ^ 59. It has been said, indeed, that the highest degree of certainty is required only in pleas of estop- pel^. So far as regards pleadings which go, on either side, to the right of action, the proposition is undoubtedly correct ; and in this limited sense it was, probably, meant to be understood. For it is agreed by all, that no other plea of that class, except a plea in estoppel, requires the highest degree of cer- tainty. It is clear, however, that dilatory pleas in- general require at least the same certainty as pleas in estoppel. If, for example, the defendant is misnamed in the writ or declaration, (as if A. is sued by the name of B.); it is not sufficient for the defendant to allege in his plea, that his name is not B. : He must also show in his plea that his true name is A., and must aver that he was, at the time of the writ pur- chased (of), known and called by the latter name ; and must, moreover, subjoin a traverse, that he was known or called by the name of B.(e) thus ex- cluding, by anticipation, every supposition which could justify the plaintiff in giving him the name of B. This example will illustrate the position, that the rule requiring the highest degree of certainty, is a rule of addition as well as construction. (Vid. ch. 5, 45.) (c) 2 H. Black. 530. (d) 1 Salk. 7. Bac. Abr. Pleas, &e. F. 3. () Willes, 554. 1 Lill. Ent. 6. 2 Chitt. PI. 418. 3 T. R. 185-6. 5 Ib. 487. Com. Dig. Abatement, I. 11. Lawes' PI. 107. 2 H. Black. 530. GENERAL RULES OF PLEADING. 87 ^ 60. The certainty required in pleading relates CHAP. chiefly to parties, time, place, and subject-matter. in. For certainty, as regards the subject-matter, the reader is referred to the Division, Declaration, (ch. in^haf 7 ' 4). The parties should be described by their pro- necess^! per names(f): Such a description being necessary AS to the for the purpose of identifying them. And no other P form of description, it seems, can supply the omis- sion of their proper names. If therefore two or more persons are sued, as copartners in trade ; a description of them, by their partnership firm, or the name of their house, without their proper names, seems clearly insufficient(^). For the style of a partnership, being entirely arbitrary, may not con- tain the proper name of either of its members. 61. But when a corporation is a party, the only proper mode of describing it, is by its corpo- rate name(/i) : This being the only name or de- scription, by which a body politic is known in Jaw(). For the law takes no notice of the indi- vidual members of a corporation, as such, except when the individual right of a corporator is the sub- ject in question. ^ 62. When the name of either party, having been once introduced in the pleadings, is afterwards repeated, the repetition of it must be accompanied (/) Com. Dig. Pleader, C. 17. (g) 8 T. R. 508. (/i) 2 Stra. 787. 2 Ld. Ray. 1515. Com. Dig. Pleader, C. 18. (i) 1 Black. Com. 474-5. 88 GENERAL RULES OF PLEADING. CHAP, with some such term of reference, as may identify in. the person named in the latter instance, as the one before named as by the word ' said,' ' aforesaid,' as'uTpai- or some other term of similar import : Otherwise the latter description will be ill for want of cer- tainty (A;). But when there are two or more ante- cedent persons to whom, or subjects to which it may be referred, the word ' said,' ' aforesaid,' &c. does not alone import sufficient certainty(7). In such cases, it is necessary to use the words ' first aforesaid,' ' last aforesaid,' or other terms of equr- valent import (m). Certainty ^ 63. It is a general rule of pleading in personal actions, that the time of every traversable fact must be stated(ft); i. e. that every such fact must be alleged to have taken place on some particular day. This rule seems to be designed merely to promote certainty in the pleadings ; but in a great proportion of the instances which fall within the rule, very lit- tle, if any, practical certainty can result from the ob- servance of it. For where the time is immaterial, the pleader is of course not confined in his allega- tions to the true time, nor in his proof to the time alleged(o). He is not confined to the true time in pleading, where the time is immaterial, because he is not, in such a case, obliged to show in evidence (k) 2 Lev. 207. Com Dig. Pleader, C. 18. (/) 8 T. R. 178. 2 East, 66. Cro. Eliz. 267. 2 Ld. Ray. 888. 1 B. & A. 327. Com. Dig. Pleader, C. 18. (m) 8 T. R. 178. (n) Com. Dig. Pleader, C. 19. Yelv. 94. (o) Co. Litt. 283. a. 1 Saund. 24. (n. 1.) GENERAL RULES OF PLEADING. 89 the precise day, on which the fact alleged took CHAP. place which might often, indeed, be impossible. in. And where the day is not material in evidence, it ; cannot be so in pleading(p). In such cases, there- as to time, fore, the adverse party and the court are but little better informed, by the laying of a particular day, of the actual time when the fact alleged took place, or to what day the pleader's proof will apply, than if no particular time had been stated in the plead- ing. Still however, it is in general necessary, in point of form at least, to lay a day for every traver- sable fact, whether the day is material or not ; and in the declaration especially, this is necessary for the additional reason, that the cause of action must always appear, by the plaintiff's own showing, to have accrued before the commencement of the suit(^). s 64. The precise day on which a material fact Time when 11 T IT 11 immaterial. alleged in the pleadings took place, is in most cases immaterial, except when the date of a record, or other writing, or some other fact, the time of which must be proved by a written document, is alleged(r). For as the day is not an independent fact, or sub- stantive matter, but a mere circumstance or accom- paniment of such matter ; it obviously cannot be in its own nature material, and must therefore be made (p] 2 Stra. 806. 2 Saund. 5. a. (n. 3.) ( if at a U> on ly by tne nature of the fact or matter, in. in connexion with which it is pleaded. ^ 65. If then a tort is stated to have been com- mitted, or a parol contract to have been made, on a particular day ; the plaintiff is, in neither case, con- fined in his proof to the day laid ; but may sup- port the allegation, by proving that the wrong was done (5), or the contract made(Y), on another day except that, in each case, the day laid in the dec- laration, and that proved in evidence, must both be prior to the commencement of the suit. And as the plaintiff is not generally confined, in evidence, to the time stated in the declaration ; so neither is the defendant, when the time on his part is immaterial, confined to that which is laid in his plea(u). And the same rule obtains throughout the subsequent pleadings. ^ 66. But though a parol contract has, in strict- ness, no date, and consequently the time of making it is not, as such, material ; yet if time enters into the terms of such a contract, or is involved in any of its essential parts ; the true time must be stated, to avoid a variance. Hence, iii an action on the statute of usury, in which the plaintiff stated a cor- rupt agreement, made on the 2lst of December, 1774, for forbearance from that time to the 23 d of (s) Co. Litt. 283. a. Cro. Eliz. 32. 1 Chit. PI. 383. 1 Saund. 24. (n. 1.) 2 Ib. 5. (n. 3.) 295. (n. 2.) (0 Stra. 21. 806. 10 Mod. 313. 348. 1 Chitt. PI. 258. 1 Lev. 110. 111. () 1 Saund. 24. (n. 1.) 2 Ib. 5. a. b. (n. 3.) GENERAL RULES OF PLEADING. 91 December, 1776, it was resolved, that proof of an CHAP. agreement made on the 23d of December, 1774, for in. forbearance for two years, did not support the de- claration^). It is to be observed, however, that this decision was founded, not upon any supposi- tion that, in proving a parol contract, the plaintiff is limited to the day on which it is alleged in the de- claration to have been made ; but upon the ground that the agreement proved, varied in its terms, from that stated in the declaration : Since the time of forbearance, counted upon, was an essential part of the agreement itself, and entered necessarily into the description of it. 67. But in pleading any written document such as a record, specialty, promissory note, bill of exchange, &c. the day, on which it is alleged to bear date, is material, and must therefore be truly stat- ed(V) : As there will otherwise be a variance be- tween the writing itself, and the description of it in the pleading. Thus in debt on bond, if the plaintiff counts upon a writing obligatory, as bearing date on a certain day, and the instrument is actually dated on a different day ; the variance will be fatal to the action. For though the date is strictly no part of the contract, it nevertheless enters into the descrip- tion of the instrument; and therefore a misstate- in ent of the date describes a different deed from that exhibited in evidence. And the same rule obtains, (t)) Cowp. 671. et vid. 4 Esp. Rep. 152. (M) 1 Stra. 21. 2 Ib. 806. 10 Mod. 313. 1 T. R. 656. 3 Ib. 531. 1 Lev. 110. 111. GENERAL RULES OF PLEADING. CHAP, whenever the time stated in the pleading, on either in. side, is to be proved by a record, or written instru- ment, referred to in the pleading. Time. ^ 68. Where the date of an instrument is alleg- ed, it is not indispensable to the sufficiency of the pleading, that the time of its delivery be stated at all(V). For the date being stated, and the time of delivery omitted ; the instrument will be intended to have been delivered on the day of the date. ^ 69. But if the plaintiff, in an action on a spe- cialty, describes it in the declaration, as bearing date on a certain day, without averring the time of its delivery ; he cannot, in his replication allege that it was delivered on a day different from that of its date, as stated in the declaration^). For the time of delivery being omitted in the declaration, must be intended (as has been suggested already), to have been the same as that of the date(z) : And as the day of the date is material ; an averment, in the replication, that the delivery was on a different day, would be a departure. ^ 70. But where time is not, prima facie, mate- rial, it may sometimes be made so by the subse- quent pleading of the adverse party. Thus, though upon the face of the declaration, the day, on which the cause of action is laid, be immaterial ; it may (a?) lid. 1 Saund. 291. (n. 1.) Cro. Jac. 420. 2 Ld. Ray. 1538. (y) 3 Lev. 348. Cro. Eliz. 773. (z) Cro. Eliz. 773. 890. GENERAL RULES OF PLEADING. 93 nevertheless in many cases, be rendered material in CHAP. the subsequent pleadings, by the matter alleged in in. them(rt). Yet whenever the day laid is not, origi- nally, or prima facie, material, but is afterwards made so by the pleading of the adverse party, a de- viation from it, (if necessary), in any of the subse- quent pleadings, is no departure(b) (18). ^71. If therefore the plaintiff in assumpsit lays the promise on a day, which is more than six years before the commencement of the suit, and the de- fendant pleads the statute of limitations ; the plain- tiff may reply a promise made within six years be- fore the suit was brought(e). In this case, though the day, as it appears upon the face of the declaration, is not material ; the plea nevertheless makes it so, as regards the subsequent pleadings, by obliging the plaintiff to allege, in his replication, a promise with- in six years before the commencement of the suit, for the purpose of taking the case out of the statute. But still as the day 'is not, upon the face of the dec- laration, material ; the deviation from it, in the re- plication, is no departure. ^ 72. Upon the same principles, if the defendant, in an action of trespass, justifies the alleged wrong, (a) 2 Saund. 5. a. b. (n. 3.) (6) 1 Lev. 110. 1 Salk. 222-3. Stra. 21. 806. (c) lid. 16 East, 423. (18) A departure is a deviation from what is material, in the prior pleadings, on the same side. (Vide Ch. 8, part 3.) 13 C)^ GENERAL RULES OF PLEADING. CHAP, under the authority of law, (as in the character of in. sheriff, acting under legal process,) and lays his justification, either on the same day as that men- tioned in the declaration, or on another day ; the plaintiff also, on his part, may in his replication new-assign the trespass, on a day different from that stated in the plea or the declaration (d). For the justification may be true (since an act similar to that stated in the declaration, may have been done, and lawfully done, on the day mentioned in the plea) ; and yet the particular wrong, for which the plaintiff actually seeks redress, may have been com- mitted on a day different from that mentioned in the declaration, or the plea ; and at a time when the defendant had no legal authority to do the act in question. And thus the time of the alleged tres- pass, though notprima facie material, is made so by the plea. For if the plea be true, it is necessary for the plaintiff in order to avoid the effect of it, and entitle himself to a recovery to show, upon the record, a trespass committed at a time different from that covered by the plea. If therefore he were not allowed to vary, in his replication, from the day mentioned in the declaration, he might, (as in the case last before stated,) be ousted, by an eva- sive plea, of the right which the law allows him of laying the trespass, in his declaration, on whatever day he pleases. 73. It has long been an established general (d) 1 Salk. 222. 1 Freem. 246. 2 Saund. 5. a. b. (n. 3.) GENERAL RULES OF PLEADING. 9 rule, however, that where the time is not material to CHAP. the defence, and from the nature of the case, the in. matter of the complaint and defence must have ac crued, at one and the same time, the defendant must, wh e e n im- in his plea, follow the day laid in the declaration : mustbe'foi- In other words, that the plea must state the matter JXeqiTent of the defence, as having accrued on the day men- pe ' tioned in the declaration (even though that be not the true day) unless the nature or circumstances of the defence render it necessary for the defendant to vary from the day laid in the declaration (e). The object of this rule appears to be, to prevent an appa- rent discrepancy, in respect to time, upon the face of the record, where the alleged cause of action, and the defence pleaded, actually occurred at one and the same time, and where the defendant is under no ne- cessity of laying his defence on a different day from that mentioned in the declaration. ^ 74. In trespass, therefore, if the defendant pleads a justification, he must regularly lay it on the same day, on which the trespass is alleged to have been done. Nor is he allowed to vary from that day in his plea, unless the defence shows, upon the face of it, that it was necessary thus to vary(f). Thus, in trespass for an assault and battery, laid on the first of January, but actually committed on a dif- ferent day as the first of February if the defend- ant pleads son assault demesne, (i. e. necessary self- (c) 1 Salk. 222. 1 Saund. 14. 82. (n. 3.) 2 Ib. 5. a. (n. 3.) 1 Chitt. PI. 509. 517. Com. Dig. Pleader, E. 4. (/) lid- Qg GENERAL RULES OF PLEADING. CHAP, defence, against an assault by the plaintiff) both in. the first assault and the self-defence must be laid in the plea, on the first of January or as the usual form is, ' on the day and year in the declaration men- tioned? (g). For if the justification (which confesses the alleged battery,) were laid on the first of Febru- ary ; the record would exhibit the apparent incongru- ity of an act done at one time, and justified at ano- ther ; or, (which is the same thing), of one identical transaction taking place at two different times. 75. But as the general rule, requiring a plea of justification to follow the day mentioned in the declaration, extends only to cases in which the time is immaterial; it follows that a justification, unne- cessarily varying from the day laid in the declaration, varies only in an immaterial point, and is therefore faulty only inform : and is consequently good, except on special demurrer(A). (Vide Demurrer, ch. 9.) Need not be & 76. When, on the other hand, the justification followed, . , . . , r whenadevi- is such as to render it necessary to the defence, that ation from it . 1 _ . . * is necessary, the true time be stated in the plea, the law allows the defendant to vary from the time mentioned in the declaration (i). And this is always the case, when it is necessary to state the true time, in order to adapt the plea to what is material in the defend- ant's proof. In all such cases, the formal objection, (#) lid. 2 Chitt. PI. 524533. (7tj Stat. 27 Eliz. c. 5. 1 Saund. 14. (n. 2.) 2 Stra. 694. 2 Salk. 642. 1 Lev. 241. (i) 2 Saund. 5. a. b. (n. 3.) 1 Chitt. PI. 617. GENERAL RULES OF PLEADING. 97 arising out of the apparent discrepancy as to time, CH AP. between the declaration and the plea, must yield to m. the more important principle, that each party must be permitted to frame his allegations according to the exigency of his case. If the rule were other- wise, the plaintiff, by stating in his declaration any other than the true time, might entirely preclude the defendant from availing himself of a just and legal defence. 77. In trespass, therefore, if the defence is, that the act complained of was done by the defend- ant, as a sheriff, or other officer, acting under the authority of legal process, which bears date after the day mentioned in the declaration, the defendant may and to render his plea available, must lay his justification after the date of the process(/c). For if the justification were laid on the day mentioned in the declaration, (a day prior to that of the date of the process,) the process would not, in evidence, support the plea. And thus the time becomes ma- terial in the plea, though it was not so in the dec- laration. 78. But in such a case, the defendant must, in some form, traverse the day laid in the declara- tion^), i. e. must deny that he was guilty of the alleged wrong, on that day, or on any other day than that mentioned in his plea(m). This traverse is necessary, to make the defence complete, or co- (k) 2 Saund. 5. a. b. (n. 3.) (/) 1 Saund. 82. (n. 3.) 297. 1 Chitt. PI. 509. (m) Hob. 104. 1 Chitt. PI. 534-5. Com. Dig. Pleader, G. 1. 2. gg GENERAL RULES OF PLEADING. CHAP, extensive with the complaint. For as the plaintiff in. has an unquestionable right to prove the alleged trespass to have been committed on any day, prior to the date of his writ, and of course, on a day dif- ferent from that mentioned in the plea ; it is mani- fest that, without such a traverse, the plea, which applies the justification to a single day only, must leave unanswered any trespass, which may have been committed on any such different day, and which may be the very wrong for which the action is brought : Upon which supposition, the justification, without the traverse, would furnish no defence as to the particular wrong for which the plaintiff claims a recovery. 79. It seems to be settled, however, (though upon this point there is some confusion in the books,) that in the cases contemplated by the last preceding rule, a direct and formal traverse of the day laid in the declaration is not necessary, if the plea contains the allegation, quce est eadem transgressio ; i. e. that the trespass, justified in the plea, is the same as that complained of in the declaration (ri) : That allega- tion itself being tantamount to a traverse or denial, that the trespass was committed on any other day, than that stated in the plea. And therefore a formal traverse, superadded to that allegation, is held to be not only unnecessary but improper, and of course ill, on special demurrer (o). (n) 1 Saund. 14. 298. (n. 2.) 2 Ib. 5. a. (n. 3.) Cro. Car. 228. 2 Stra. 694. 1 Lev. 241. 2 Salk. 642. Cro. Eliz. 705. 1 Bulstr. 138. Yelv. 122-3. (o) lid. Time. GENERAL RULES OF PLEADING. 99 80. If, however, the day stated in the justifica- CHAP. tion is the same as that in the declaration, the alle- HI. gation, quee est eadem, &c. is unnecessary (p) : The trespass complained of, and that justified, being in such a case prima facie identified, by being laid on the same day ; and therefore a traverse, in the plea, of the day laid in the declaration, is improper and ill, in point of form (9). And if the plaintiff, in this case, relies on proving a trespass done on a different day he must make a new assignment of it in his replication (qq). ^ 81. But though, where the time in the declara- tion is immaterial, and the justification is, from ne- cessity, laid at a different time, the plaintiff is at liberty to vary, in his replication, as well from the time laid in his declaration, as from that stated in the plea : Yet where the day mentioned in the A j ntc > 70 - declaration is itself material, the plaintiff cannot deviate from it in his replication, without making a departure, which would be fatal to his action(r), Thus, if the plaintiff declares upon a record, bond, covenant, bill of exchange, promissory note, or other written instrument, described in the declaration as bearing date on a given day, he is not allowed to assign to the document, in his replication, a different (p) 2 Saund. 5. a. b. (n. 3.) (9) Id. 8 Mod. 30. Fort. 379. (99) Bull. N. P. 17. Bac. Abr. Pleas, &c. L. (r) 2 Saund. 5. b. (n. 3.) 1 Salk. 222-3. 1 Ld. Ray. 121. 1 Stra. 21. 2 Ib. 806. 1 Lev. 110. 111. 100 GENERAL RULES OF PLEADING. CHAP, date (5). For as the date, mentioned in the declara- iii. tion, is part of the description of the instrument declared upon, the assignment of a different date to the same instrument, in the replication, would be, in effect, the pleading of a different instrument, and of course, the substitution of a different cause of action, from that stated in the declaration. ^ 82. But in pleading any matter of discharge, as a release accord and satisfaction a prior judg- ment or award, deciding the matter in controversy payment, or tender of a pre-existing debt, or any other defence, operating as a discharge or extinguish- ment of any prior liability the defendant is never required to follow the day mentioned in the declara- tion^). And the rule is the same, whether the day in the declaration is material or immaterial, and whether it is the true day, or not. For in pleading a defence of this kind, a deviation from the day mentioned in the declaration, introduces upon the face of the record no such apparent discrepancy, in regard to time, as in certain cases before stated, a O ' ' similar deviation would occasion : Since all matter of discharge must, from its nature, have accrued subsequently to the creation of the duty or liability upon which the action is founded. It is therefore manifest, that in pleading any matter of discharge, the defendant not only may, but (to make his plea (s) 1 Salk. 222-3. 2 Stra. 806. 2 Saund. 5. b. (n. 3.) (I) 1 Chitt. PI. 517. 2 Burr. 944. 2 Wils. 150. 173. Plowd. 46. 2 Stra. 994. Com. Dig. Pleader, E. 6. GENERAL RULES OF PLEADING. ]Q| sufficient,) must, state the defence as having accrued CHAP. after the cause of action arose ; or, at least, after m. the wrong complained of was done, or the contract declared upon, was made. ^ 83. It may be proper to add, in this connexion, that when the defendant has been discharged by matter of record as a prior judgment or by a written instrument as a deed of release ; he cannot be confined, in his plea, to the time mentioned in the declaration, for an additional reason, viz. the necessity of stating the time of the discharge, so as to conform to the date of the record, or instru- ment^). For in these, and similar cases, the date is material, on a principle heretofore stated, viz. Ante, 67. that a deviation from it would make a variance. ^ 84. In most cases, and especially when the declaration contains but one count, the cause of ac- tion is laid on a single day only : In which case, the plaintiff can recover only for the wrongs or acts of some one day(V). For the declaration, in the case supposed, claims no recovery, except for what has taken place on one day. And if there is in fact but one cause of action, though differently stated in different counts, the same day is usually stated in all the counts. And when there is only one count in the declaration, the plaintiff cannot recover for acts () Vid. rcference(to), ante 67, and the authorities there cited. (r) 2 Salk. 639. 1 Ld. Ray. 240. 2 Ib. 976-7. 2 Chitt. PI. 367. (n. s.) 14 GENERAL RULES OF PLEADING. CHAP. or injuries done on several days, except in the fol- iii. lowing cases, and those similar to them(w) : 85. 1 . In an action on the case for a nuisance or disturbance in which the damage complained of is augmented by the continuance of the wrong, the plaintiff is, from the nature of the case, allowed to state the period of its continuance, from one given day to another ; or, as is the more usual mode, from a certain day named, to the commencement of the suit(x) : Since the declaration could not otherwise show, nor the plaintiff be permitted to prove, the whole extent of the injury. continuan- 86. 2. In trespass also, when the plaintiff sues for different wrongs of the same nature, committed by continuation or repetition, on several different days, he may recover for all of them, on one count, by in- cluding in it as many days, or as long a period of time, as his case may require(?/). But in the appli- cation of this rule, there is a difference to be ob- served in the mode of declaring, between the case of a trespass continued or renewed on several different days, and that of distinct trespasses repeated on dif- ferent days ; or in other words, between continued trespasses of a permanent nature, and repeated tres- passes which are not permanent. (w) lid. (ar) Vide precedents (3 Ld. Ray. 260. 292. 324. Plead. Assist. 424. 2 Chitt. PI. 331342. 354. 429437.) (y) 2 Salk. 638. 3 Black. Com. 212. Bac. Abr. Tresp. I. 2- GENERAL RULES OF PLEADING. ^> 87. When trespasses of one and the same kind, CHAP. committed on several days, are in their nature capa- in. ble of renewal or continuation, and are renewed or continued from day to day so that the particular in- jury, done on each particular day, cannot be distin- guished from what was done on another day the trespasses are denominated permanent. Of this de- scription are trespasses committed by the cattle, by trampling down, consuming or destroying, from day to day, the grass, crops or herbage, of any kind, growing upon land (z). 88. But when each of several trespasses, com- mitted on different days, is distinct from the others, and, terminating in itself, is incapable of continua- tion or renewal, (in which case the injury, commit- ted on any one day, is supposed to be distinguisha- ble from the rest), the trespasses, though all of the same nature, are deemed not permanent. Thus, if the defendant has, on each of several different days, felled one or more of the plaintiffs trees, or killed several of his beasts, or taken and carried away different articles of his personal chattels ; the trespasses, in either case, are not of a permanent na- ture^). And from this distinction between tres- passes which are permanent, and those which are not so, there results a difference in the mode of de- claring, when the action is brought for more than one day's trespass. (z) 3 Black. Com. 212. Bac. Abr. Tresp. I. 2. Ld. Ray. 240. 976. 2 Salk. 638. 2 Roll. Ab. 545. 1 Saund. 24. (n. 1.) (a) 1 Ld. Ray. 239. 2 Id. 975. 2 Salk. 6389. Bac. Abr. Tresp. I. 2. 1 Saund. 24. (n. 1.) 3 Black. Com. 212. in* GENERAL RULES OF PLEADING. CHAP. ^ ^9. When the trespasses complained of are all in. of a. permanent nature, and are continued on several days, in immediate succession, they may all be laid in one count, with a continuando for the whole time i. e. as having been committed by continua- tion, from one particular day specifically named, to another so named. And if the trespasses, though of a permanent nature, were committed on different days, not in immediate succession, but with intervals of one or more days ; they may still be laid with a continuando, though not for the whole time ; but by continuation, ' on divers days and times, between' one given day and another(6). ^ 90. But if .the trespasses alleged are not of a permanent nature ; they cannot be laid with a con- tinuando from one certain day to another ; but may be alleged to have been committed, diver sis diebus et vicibus, (' on divers days and times'), between one particular day and another, or between one certain day and the commencement of the suit(c). These modes of declaring in trespass for several days, in one count, whether with or without a continuando, are allowed, to avoid the necessity of bringing a separate action, or inserting a separate count, for each day's trespass (d). (6) Bac. Abr. Tresp. B. 2. I. 2. T. Ray. 396. 1 Ld. Ray. 239240. 2 Chitt. PI. 367. n. s. 2 Salk. 6389. 1 Saund. 234. (n. 1.) 3 Black. Com. 212. 1 Sid. 319. Com. Dig. Tresp. B. 2. and vid. precedents 2 Lill. Ent. 444. 2 Chitt. PI. 367. (c) lid. (d) 1 Saund. 24. (n. 1.) 1 Roll. Ab. 545. GENERAL RULES OF PLEADING. 105 ^ 91. But if trespasses, which, according to the CHAP. preceding distinctions, do not admit of continuation, in. are alleged with a continuando ; the declaration is ill, at least in form(e) : Because it must necessarily appear, from the nature of the wrongs alleged, that they could not, in legal contemplation, have been committed by continuation, and consequently, that they could not have been done in the manner alleg- ed. But the fault is aided by verdict(f). For the continuando being void, only one day's trespass was legally proveable under the declaration ; and it must therefore be intended, after verdict, that the damages were assessed for no more than one day's trespass^). 92. So also, where the plaintiff declared that the defendants, on a certain day named, ' and on divers other days and times, between' that day and the commencement of the suit, committed an assault upon him, the declaration being specially demur- red to, was adjudged ill(/t) : An assault being one entire, indivisible act, which cannot be continu- ed, or committed at different times. But as it is now held, an allegation that the defendant on a cer- tain day, ' and on divers other days and times, be- tween that day and the day of suing forth the writ, assaulted the plaintiff,' &c. is good : Since one may assault another at different times, though an assault (e} 1 Saund. 24. a. (n. 1.) 1 Ld. Ray. 240. Bac. Abr. Tresp. I. 2. 1 Lev. 210. 2 Salic. 6389. Esp. Dig. 408. (/) lid. Vid. 2 Mass. R. 50. (g) 2 Ld. Ray. 823. 7 Mod. 152. Comb. 427. 1 Freem. 82. (/i) Cowp. 828. & Vide 6 East, 391. 395. 1 Saund. 24. a. (n. 1.) 2 Chitt. PI. 367. (n. s.) GENERAL RULES OF PLEADING. CHAP, cannot be committed at different times(z) ; A dis- iii. tinction, which must be acknowledged to savor, in some degree of verbal subtlety. Time. Ante, 64. ^ 93. It has been stated already, that when a trespass is laid on a certain single day, the plaintiff is at liberty to prove that it was committed on any one day, before the commencement of the suit. But when trespasses are laid with a continuando, he must if he attempts to prove trespassing acts on more than one day confine his evidence to the period, or some part of the period, included in the continuan- do(k) ; and is not permitted to prove trespasses on two or more days, which are not comprehended in that period. The reason of this rule appears to be, that although the time, as such, is not material ; yet the continuando is considered as descriptive of the alleged trespasses, or at least of the manner in which they were committed. And upon this supposition, a deviation, in evidence, from the time stated under the continuando, is a deviation from the plaintiff ' s description of the trespasses complained of : Whereas, when only a single day is stated in the declaration, it is not regarded as in any sense descriptive of the trespasses alleged ; but simply as a formal compliance with the general rule of certainty, requiring some particular day to be alleged. The same rule, which limits the plaintiff's proof, under a continuando, to (f) 2 Bos. & P. 425-7. 6 East, 395. 1 Phil. Ev. (2ded.) 134. Bull. N. P. 86. (k) 2 Salk. 639. Bull. N. P. 86. 1 Saund. 24. a. (n. 1.) Esp. Dig. 417-8. Co. Litt. 283. a. 2 Chitt. PI. 367-8. (n. s.) 1 Ib. 258-9. 16 Mass. R. 470. a Stark. Ev. 356. 3 Ib. 1441, note(l). GENERAL RULES OF PLEADING. the time comprehended within it, extends to cases CHAP in which several trespasses are laid ' on different in. days and times' between two different days. The principle of the rule, however, as applied to this latter case, is not altogether so obvious as in the for- mer. 94. But although the cause of action be laid, and properly laid, either with a continuando, or ' on divers days and times,' between two certain days ; yet if the plaintiff at the trial will, as he may, waive the continuando, in the former case, or in the -latter, his right of recovery, except for a trespass commit- ted on a single day ; he is at liberty to prove a tres- pass done on any one day before the commencement of the suit. For after such a waiver, the declaration will stand as if it had originally alleged but a single day. 95. And where several trespasses are improp- erly laid by continuation, or ' on divers days,' &c. and the defendant instead of demurring specially for that cause, pleads to the action ; the plaintiff may, at the trial, without any waiver on his part, be lim- ited, on the defendant's objection, to the proof of a trespass committed on a single day. In such a case, no waiver by the plaintiff is necessary : For as he had, by the rules of pleading, no right, in the case supposed, to state more than one day in one count ; he has of course no right, on the trial, to prove more than one day's trespass, except by the defendant's consent or acquiescence. 108 GENERAL RULES OF PLEADING. ^ 96. It seems, however, that declaring with a continuando is not, at this day, usual in England, even when that form of declaring is admissible. The more customary mode of declaring, it is said, is to lay the trespasses on a given day, * and on divers other days and times,' between that and another particular day(/). ^ 97. When several facts are stated, either in several clauses of an entire sentence, or in several sentences connected by the conjunction ' and,' if the time be stated in only one of the different clauses or sentences, it will be applied to each of the facts al- leged in the succeeding clauses or sentences thus connected(m). Thus if the plaintiff, in trespass, declares that the defendant, on such a day, made an assault upon him, and took and carried away such a sum of money ; the day stated will be referred, as well to the taking, &c. as to the assault : Such be- ing the fair grammatical construction of the language used. 98. In pleading any negative matter, no time need be alleged(w) : As where the plaintiff avers that the defendant has not paid the debt, or perform- ed the duty in question ; or the defendant, that he has not done what he covenanted not to do. For no particular day is predicable of that, which has never existed. And it may be added, that a negative (1} 1 Saund. 24. (n. 1.) (TO) Cro. Jac. 443. Com. Dig. Pleader, C. 19. 1 Ld. Ray. 576. () Com. Dig. Pleader, C. 19. Plowd. 24. a. Lawes' PI. 58. I ;K, \ERAL RULES OF PLEADING. JQ9 allegation requires, in general, no proof: The burden CHAP. of proof lying, regularly, on that party, who takes in. the affirmative of the issue (o). To this last remark there is indeed an exception, hvone or two particu- lar instances, not material to the present subject(p). ^ 99. In real actions also, there is no necessity of alleging any particular day, in the declaration^). There would indeed be no propriety or congruity, in doing so. For in actions of this class, the declara- tion does not, as in personal actions, aver any spe- cific act or fact, (occurring at a particular time), as the cause of action ; but asserts, in substance, only a subsisting right or title in the plaintiff or demandant, and an adverse holding or denial of his right by the 4/ defendant or tenant(r). ^ 100. In ejectment also, it is held unnecessary to lay the ouster on any particular day(s) : Because to adopt the reason usually assigned ' so are the precedents.' It is therefore held sufficient, as re- gards the time of the ouster, that it be stated in gen- eral terms, as having been committed, after the mak- ing of the supposed demise, and the plaintiff's entry under it. Perhaps, however, the reason of the rule (o) 1 T. R. 144. 649. 4 Ib. 33. 381. 5 Ib. 616. Bull. N. P. 297-8. ( p) Vid. 2 fil. Rep. 851. Gilb. Ev. 148. Comb. 57. 3 East, 192. 10 Ib. 216. 2 Russ. an Crimes, (2d ed.) 673. 692, note(/). (q) 2 Sulk. 561. Com. Dig. Pleader, C. 19. 1 Sauncl. 286-7. (r) Vide. Precedents, 3 Black. Com. App. No. 1. 6. Lawes' PI. App. 212. 3 Chitt. PI. 620635. (.9) Cro. Jac. 311. 312. Yelv. 182. a. note. 2 Chitt. PI. 396. (n. r.) Esp. Dig. 445-6. 15 GENERAL RULES OF PLEADING. CHAP. ma j be, that in the English ejectment, the supposed in. ouster is not traversable, and cannot in any way be put in issue : The real defendant being obliged, under the ' common rule,' to confess the ouster, as one of the conditions of his being permitted to ap- pear and defend (t). And the general rule, requiring a particular day to be stated in pleading, extends Ante, 62. only to traverstible facts. It is usual, however, in the present forms of declaring in this action, to lay the ouster on a particular day(w). 101. If, where time is not material, the pleader states an impossible day as the 30th of February ; or a day future to that of pleading ; or a day incon- sistent with what he has before stated -(as when in trover, the declaration lays the loss of the goods on the second day of a certain month, and avers that the defendant ' afterwards,' viz. on the jirst day of the same month, converted them) ; the effect of the mistake is, in either case, the same as if no time whatever had been stated(t/) : For repugnancy or absurdity, in a point not material, being but matter of form, will consequently, except on special demur- Post, 172. rer ' be rejected as surplusage according to the maxim, utile per inutile non vitiatur(iv). And the (0 3 Black. Corn. App. No. 2. s. 3. (M) 3 Black. Com. App. No. 2. s. 2. 2 Chitt. PI. 396400. () Carth. 389. Com. R. 12. 5 Mod. 286. Com. Dig. Pleader, C. 19. 3 M. 5. Stra. 232. 1095. Cro. Jac. 662. 1 Saund. 116. 286. 1 Lev. 195. Vide Yelv. 71. note (2). Clayt. 102. (>) Co. Litt. 303. a. Com. Dig. Pleader, Q. 9. Vid. Stat. 27. Eliz. c. 5. GENERAL RULES OF PLEADING. j J \ time, in the cases now supposed, being immaterial, CHAP. the mistake is aided, except on special demurrer. in. ^ 102. The third particular, in which certainty, Place. in pleading, is required, is that of place ; the discus- (Venue.) sion of which involves the law of venue. Under this head, it is a general rule, that the place of every traversable fact, stated in the pleadings, must be dis- tinctly alleged (a;) : Or, at least, (as the rule is now understood and applied,) that some certain place must be alleged for every such fact. This is done by de- signating the city, town, village, parish, or hamlet, together with the county, in which the fact is alleged to have occurred ; and the place, thus designated, is called the venue(y) : The term, ' venue? (vicinage,} signifying, in strictness, not the county in which the action is brought ; but the particular city, town, parish, hamlet, &c. in which the fact alleged occurred or is supposed to have occurred, and which is stated as situate in the county named in connexion w r ith it(z). In its present acceptation, however, the word venue is most frequently used to comprehend, as well the county, as the town, parish or other vicinage, in which the fact alleged arose, or is stated to have arisen, (x) Com. Dig. Pleader, C. 20. Cro. Eliz. 78. 98. 5 T. R. 620. 1 Stra. 595. Lawes' PI. 57-8. Bac. Abr. Venue, B. Co. Litt. 303. a. (y) 3 Black. Com. 294. 384. Com. Dig. Pleader, C. 20. Bac. Abr. Venue, A. (*) lid. 112 CHAP. III. Place. (Venue.) GENERAL RULES OF PLEADING. 103. But the rule, requiring the laying of a venue for traversable facts, though doubtless neces- sary for the sake of certainty in pleading, was, by an ancient principle of the common law, more espe- cially so, for an entirely different reason. For by a general rule of the common law, strictly observed in the ancient practice, and still recognised in theory, by legal fiction, every issue in fact, triable by jury, was required to be tried by jurors, not only of the same county, but also of the same venue, vicinage, or immediate neighborhood, in which the fact to IDC tried actually took place() : A rule, founded on the inaxim of the common law, Maxmimt Vicini Vicino- rum facta presumuntur scire, the transactions of men are presumed to be best known to those of their immediate neighborhood). And this regulation made it necessary, that the true place or venue should be alleged ; because it could not otherwise appear from the pleading, to what particular vicinage the jury-process should go or in other words from what vicinage the jury should come. And upon the establishment of nisi prius trials, (which were held in each county of the kingdom), it was also required that every matter of fact, put in issue and triable by jury, should be tried, as well in the county (19), as (a) Co. Litt. 125. a. b. innotis. Yelv. 12. M . 2. Gilb. H. C. P. 70. 83-4. 5 T. R. 620. 3 Black. Com. 359. 384-5. Com. -Dig. Amendment, H.I. Lawes' PI. 27-8. 2 H. Black. 161. Bac. Abr. Venue, E. 5 Mass. R. 96. (19) To the ancient common law rule, that every action must be laid in the county, in which the cause of action arose, there GENERAL RULES OF PLEADING. JJ by a jury of the county and vicinage, in which the CHAP. fact actually arosc(6). Hence it became necessary, in. for the purpose of trial, that the true place of every traversable fact should be stated in the pleadings : Since it could not otherwise be known from the (b) 2 H. Black. 161. Co. Litt. 125. a. b. Bac. Abr. Venue, E. Gilb. H. C. P. 70. 83-4. 3 Black. Com. 359. 384-5. Bac. Abr. Actions Local, &c. appears to have been originally, or at a very early period, an ex- ception in the case of actions founded on Personal contracts; as in account, debt, and covenant broken. Actions of this kind were allowed to be brought in any county, in accordance with the maxim, debitum et contractus suntnullius loci : He who is indebt- ed, being a debtor in all places, or wherever he is. (7 Co. 3. a. Com. Dig. Action, N. 12. 6. 1 Stra. 612. Cowp. 180. 3 Black. Com. 384. 1 Saund. 74. (n. 2.) But by the stat. 6 Rich. 2. c. 2. it is enacted, that in ' writs of debt and account, and all other such actions, if in pleas upon the same writ, it shall be declared that the contract thereof was made in another county' than that in which the wt is brought ; the writ shall abate. Under this statute, if it appeared from the record, that the contract was made in a county, other than that in which the action was laid ; the judgment was erroneous. 1 Saund. 74. (n. 2.) But to prevent error, and to avoid the inconvenience of rigidly abating - the writ, the judges, at a subsequent period, construed the statute as authorizing them, in their discretion, to change the venue, under a rule of practice, by ordering the declaration to be altered, and the action laid, and trial had, in the county in which the cause of action arose. (Bac. Abr. Actions Local, &c. 2 Salk. 670. 3 Black. Com. 294.) This statute, and that of 4 Hen. 4. c. 18, requiring that attornies ' make no suit in a foreign county,' are con- sidered as the source of the authority, which judges now exercise, of changing venues in transitory actions. l]^ GENERAL RULES OF PLEADING. CHAP. recor d> ill what county the issue ought to be in. tried (c). 104. In the application of this ancient rule, however, a distinction, suggested by general conve- nience, was soon established between things local and transitory ; and consequently between local and transitory actions. In local actions, the preceding rules regarding locality of trial were still adhered to ; while those of a transitory nature became, by an ar- bitrary laying of the venue, triable in any county, in which the venue was laid in the pleadings(d). Hence in local actions, the place has ever been, and still is, material ; and must therefore be laid accord- ing to the truth (e). But in actions transitory, the ancient rule as to the locality of actions and trials, is now, and has long been, entirely disregarded, or rather evaded, to every purpose except the mere form of laying some venue, and the power of the i9 d ant n e ote court > under special circumstances, to change it, i. e. to change the county, on motion. In transitory ac- tions, therefore, the plaintiff is at liberty to lay the venue in what county hepleases(/). Local and 105. It becomes necessary, therefore, to a cor- rect understanding of the modem law of venues, to (c) lid. Cowp. 176. 2 H. Black. 160-1. (d) 7 Co. 3. Gilb. H. C. P. 84-5. Cowp. 1767. 3 Black. Com. 294. (e) Com. Dig. Action, N. 1.2.3. Id. Pleader, S. 15. 3 Black. Com. 294. (/) 3 Black. Com. 294. Bac. Abr. Actions Local, &c. B. Com. Dig. Pleader. S. 9. Cowp. 177. 1 Saund. 74. (n. 2.) Gilb. H. C. P. 89-90. GENERAL RULES OF PLEADING. J J ascertain in the first place what actions are local, CHAP. and what transitory. A local action is one, which in. must still be laid in the county, in which the cause , Venue. of action actually arose. A transitory action may be laid in any county, which the plaintiff may pre- fer^). The present locality of actions is founded, in some cases, on common-law principles, and in others, on positive enactments of statute-law. ^ 106. Of those which continue local, by the common law, are 1. All actions in which the subject or thing to be Local ac - tions. recovered, is in its nature local. Of this class are all real actions actions of waste, when brought on the statute of Glocester, (6 Edw. 1.), to recover, to- gether with damages, the locus in quo, or place wasted and actions of ejectment (h). All these are local, because they are brought to recover the seisin or possession of lands or tenements, which are local subjects. And if the place as the par- ish, &c. where the land, or subject in demand, is situated be misstated, the plaintiff will be liable to a nonsuit(*), by reason of the mis-description of the subject-matter of the suit ; because the place enters into the description of it. ^ 107. 2. Various actions, which do not seek the direct recovery of lands or tenements, are also local, (g] Bac. Abr. Actions Local, &c. A. (a), (/t) lid. Com. Dig. Action, N. 1. 7 Co. 2. b. 2 Black. Rep. 1070. Covvp. 176. 7 T. R. 583. 4 Ib. 504. () 1 Stra. 595. 3 Lev. 334. tions. iig GENERAL RULES OF PLEADING. CHAP, ky the common law ; because they arise out of some in. local subject, or the violation of some local right or interest. Thus the action of quare impedit is lo- cal^) ; inasmuch as the benefice, in the right of pre- sentation to which the plaintiff complains of being obstructed, is so. Within this class of cases are also many actions, in which only pecuniary damages are recoverable. Such are the common-law action of waste, and trespass quare clausum fregit(l) ; as likewise trespass on the case for injuries affecting things real as for nuisances to houses or lands disturbance of rights of way, or of common obstruc- tion or diversion of ancient water-courses, &c.(w). ^ 108. If however a tortious act, committed in one county, occasions damage to land or any other \ : local subject, situate in another ; an action for the injury thus occasioned, may be laid in either of the two counties, at the choice of the party injured(w). Thus, if by the diversion or obstruction of a water- course, in the county of A., damage is done to lands, mills or other real property in the county of B., the party injured may lay his action in either of those two counties. beci ^ 109. No action will lie, in any one sovereign ing in a Vor- state, for the recovery of lands or tenements lying cign coun- J J try. (fc) 7 Co, 3. a. Com. Dig. Action, N. 4. 1 Chitt. PI. 271. (/) Bac. Abr. Actions Local, &c. A. (a). Cowp. 180. 4 T. R. 503. 6 East, 598-9. (w) Com. Dig. Action, n. 4. 7 Co. 2. b. 2 East, 498-9. 1 Chitt. PI. 271. (n) 7 Co. 2 B. Co. Litt. 54. a. Com. Dig. Action, N. 3. 11. 2 T. R. 241. 7 Ib. 583. 3 Stark. Ev. 1650. CKVER.VL RULES OF PLEADING. 11- in another(o) : Since no common-law court has CH AP. jurisdiction of local causes, arising within a foreign m. sovereignty. Indeed a judgment, if given in such a case, would be utterly nugatory. For as legal pro- Venue ' cess, issuing from a court of even the highest juris- diction, is of no authority in any other country or state, than that in which it was issued ; a judg- ment, in the case supposed, could by no possibility be enforced(20). Nor in general can any personal action be maintained, in one sovereign state, for a trespass, nuisance, or other injury to real property, lying in another(p) : Such actions being local, (as already stated), because they arise out of local sub- jects. 110. But it has been held that this last rule admits of an exception, w T here a local cause of ac- tion, requiring a reparation in damages only, arises in a foreign country, in which there are no regular courts of judicature, and in which, of course, no le- gal remedy can be obtained^). In such cases, this (o) Bac. Abr. Jettons Local, &c. A. (a). G'owp. 176. 1 Chit. PI. 269. (p) 1 Stra. 646. 2 Black. Rep. 1070. Cowp. 176. 4 T. R. 503. 7 Ib. 587. 6 East, 5989. (q) Cowp. 180 1. (20) These remarks, however, are not practically applicable, in their full extent, to the jurisdiction and decrees of courts of equity. For these courts, by their power of acting in personam, when the parties are within the reach of their process, can in many cases in- directly enforce rights to real property, situated in foreign coun- tries. 1 Atk. 19. 2 Yes. 204. 447. 454. Mitf. PI. 184. 1 Fonbl. Eq. 31. 6 C ranch, 157. 16 1 1 g GENERAL RULES OF PLEADING. exception has been allowed in some instances, from necessity, to prevent a failure of justice. And as the judgment, in this class of cases, is for damages only ; there is indeed no practical difficulty in enforcing it as there would be, if the action were brought for the recovery of a specific local subject, situated in a foreign county. Thus where certain houses, erected by the plaintiff on the coast of Nova Scotia, had been illegally demolished by the defendant, at a time when no regular administration of justice had been established in that province, and an action of trespass for that injury was brought in the English court of B. R., Lord Mansfield held the action to be maintainable (r). But this doctrine appears to be now overruled (5). 111. The action of replevin also, though it lies for damages only, and does not arise directly out of the violation of any local right, is nevertheless lo- cal(t). The reason of its locality (a reason which applies to no other action for injuries to personal chattels) appears to be the necessity of giving a local description of the taking complained of. For, in declaring in replevin, it is necessary to describe, and to describe truly, the locus in quo i. e. the close, house, or common, in which the cattle or goods in question w r ere taken by the defendant^) : And as (r} Cowp. 1801. 4 T. R. 5034. (a) 4 T. R. 5034. (0 1 Saund. 347. (n. 1.) Hob. 16. Willes, 478. 1 Stra. 507-8. 2 Wils. 354. 1 Chit. PI. 161. 2 Ib. 364. (n. c. & e.) (tt) lid. Yelv. 185. n. (1). 10 Johns. R. 53. GENERAL RULES OF PLEADING. the necessity of alleging the true place of caption CHAP. involves the necessity of laying the true town, parish in. or vill, and of course the true county ; the ve nue and county as well as the close, &c. are con- sequently material (v), and the actions of necessity, tions. ac local. If however replevin lies, by the common law, only for goods distrained ; there would seem to be another and more fundamental reason for its locality, viz. that the right of distress, which the action is intended to contest, is at common law always local. 112. But personal actions, that is to say, actions SoS. 017 which seek nothing more than the recovery of money, or personal chattels of any kind, are in most cases transitory, whether they sound in tort or in con- tract^) : Because actions of this class are, in most instances, founded on the violation of rights which, in contemplation of law, have no locality*- And it will be found true, as a general position, that actions ex delicto, in which mere personalty is alone recoverable, are, by the common law, transitory except when they are founded upon, or arise out of, some local subject(.r). Thus actions for injuries to the person, or to personal chattels as for assault and battery, false imprisonment, slanderous words, libel, and malicious prosecution(y) trespass for taking away () 1 Saund. 347. (n. 1.) Cro. Eliz. 896. Carth. 186. Wil- les, 478. 1 Stra. 507-8. 2 Mod. 199. (ic) Com. Dig. Action, N. 12. 1 Chitt. PI. 273. (x) Com. Dig. Action, N. 12. Co. Litt. 282. Cowp. 161. 1 T. R 571. 2 Black. Rep. 1058. 2 Chitt. Pi". 242. (n. p.) ( -i actions. cause 01 action arose within a joreign jurisdiction (a). 113. In the case of Mostyn v. Fabrigas(b), Lord Mansfield indeed suggested a doubt, whether trespass for an assault and battery, committed out of the realm of England, would lie in the courts of Westminster; because as every such injury involves a breach of the peace, it must be alleged to have been committed against the peace of the king ; and a breach of the peace, considered as a public wrong, is confessedly, local. There appears, however, no sufficient reason for the doubt here suggested. For the wrong, considered as a civil injury, is clearly transitory ; and in the subsequent case of Rafael v. Verelst(c), in which the point in question directly (z) 2 Salk. 670. 12 Mod. 408. Com. Dig. Action, N. 12. Sayer, 54. 1 Wils. 336. 1 East, 114. Cro. Car. 444. 9 Johns. R. 67. {a) Com. Dig. Action, N. 12. Cowp. 161. 2 Black. Rep. 1058. 4 East, 162-3. <&) Cowp. 176. ns? ry considered as arising out of a local subject the record being made local by the law. On Leases. ^116. As to actions arising upon leases, and which appear to require a distinct consideration, the common law has established the following general distinction : If the action is founded directly on privity of contract between the parties ; it is transi- tory, and may be laid in any county ; even though the land, or subject demised, be situated in a foreign county(A-) : But if the action is founded on privity of estate, it is local, and must consequently be laid in the county in which the estate lies(). For though money only is recoverable, in either case, yet in the former, the right of action arises exclusive- ly out of the personal contract, which is in its nature transitory. Whereas in the latter, the action is found- ed on the interest of the parties in the land or property demised, which is a local subject ; and for this reason the action is local. This general distinction may be illustrated, by the seven following particulars : 117. 1. The action of debt, or covenant brok- en, brought by the lessor against the lessee, or vice (h) 7 Co. 2. a. 2 Salk. 651. 1 Saund. 241. b. (n. 6.) G Mod. 194. 2 East, 579. () 7 Co. 2. a. 3. a. 6 Mass. R. 331. 1 Saund. 241. b. (n. 6.) Carth. 182-3. 6 Mod. 194. GENERAL RULES OF PLEADING. versa, is transitory (k). For these being immediate CHAP. parties to the lease ; there exists between them a in. privity of contract, which is the foundation of the action. 2. But debt, or covenant broken, when brought by the lessor against the assignee of the les- see, or vice versa, is by the common law local(l). For the assignee of the lease, though privy in in- terest or estate to the lessor, is a stranger to the per- sonal contract, between lessor and lessee ; and can- not therefore be charged in favor of the lessor, on privity of contract ; but is liable, (when liable at all), on privity of estate, which is in its nature local. In these latter cases, the assignee of the lease, when liable to the lessor, on any of the lessee's covenants, is so liable, because he holds the interest or estate, which the lessee had before the assignment ; and is consequently liable only on those covenants of the lessee, which ' run with the land 7 or in other words, those which follow the interest demised(21). And hence the action is said to be founded on privi- ty of estate. (k) 7 Co. a. 2. Bac. Abr. Actions Local, &c. A. (a.) 6 Mod. 194. 2 Stra. 776. 2 East, 579. 1 Saund. 241. b. (n. 6.) 2 Salk. 651. (/) Bac. Abr. Actions Local, &c. A. (a). 5 Co. 17. 1 Saund. 241. b. (n. 6.) Carth. 183. 2 Eas*, 580. (21) A covenant ' runs with the land', only when the right or obligation, created by it, is attached to the interest demised, or to the estate, out of ichich that interest was created ; so that the right or obligation devolves, (on an assignment of the estate or interest), upon the assignee of the party assigning. actions. 124 GENERAL RULES OF PLEADING. CHAP. 119. 3. Upon the same principles, the action in. of covenant broken, brought by the assignee of the lessee, against the assignee of the lessor, is by the common law, local(m) : For the action, which is Local and -11 " i . . transitory given by the common law, between these parties, is smtirmc founded on privity of estate. So also on the other hand, debt or covenant broken, brought by the as- signee of the lessor, against the assignee of the les- see, is local(w) : For the statute 32 Hen. 8, c. 34, which in this latter instance gives the action, makes it local, by giving to the assignee of the lessor, * the same remedy, by action,' as the lessor himself has, by the common law. And the lessor's remedy, by the common law, against the assignee of the lease, being local, (as stated in the last section) ; that of the lessor's assignee is, in the construction of this act, held to be of course local. 120. 4. The action of debt, (as for rent ar- rear), by the assignee of the lessor, against the lessee, is also local by the common law(o). For rent being incident to the reversion, and the lessee being in the receipt of the issues and profits of the land, out of which it arises ; there consequently exists, between these parties, a privity of estate : And the action being founded upon that privity (for the privity of contract, between the original parties to the (TO) 5 Co. 17. a. 1 Saund. 241. c. (n. 6.) 1 Chitt. PI. 276. (n) 1 Saund. 241. c. (n. 6.) 1 Salk. 80. 7 T. R. 583. Garth. 182. 2 East, 580. 1 Wils. 165. 3 Mod. 338. 4 Ib. 81. Bac. Abr. Covenant, E. 6. Ib. Actions Local, &c. A. (a.) (o) 3 Co. 22. b. 1 Saund. 241. c. (n. 6.) 1 Wils. 165. 3 Mod. 338. 4 Ib. 81. GENERAL RULES OF PLEADING. lease, is destroyed by the assignment of the rever- CHAP. sion) is consequently local. And it is here obser- in. vable, that the dccisee of the reversion is consider- ed and treated as the assignee of the lessor, within ^^1 and the three last rules : The devise being, in legal ef- a?t"ons. ry feet, a testamentary assignment of the reversion. And by parity of reason, the devisee of the term is in law the assignee of the lessee. &' ^ 121. 5. But the action of covenant broken, brought by the assignee of the lessor, against the lessee, or nice versa, upon an express covenant con- tained in the lease, and running with the land, is made transitory, by the operation of the statute 32 Hen. 8. c. 3&(p). For the purpose of explaining this proposition, it may be observed that the action of covenant broken, upon express covenants, being founded only on privity of contract, will not lie, at common law, between the assignees of the lessor and those of the lessee ; because that privity does not exist between them. But the statute above men- tioned expressly extends ' the same remedy' upon such covenants, to and against the assignees of les- sors and lessees, as lessors and lessees themselves had by the common law( signee of the lessor, against the lessee, is local : The action being given by the common law, and founded on privity of estate. ^ 122. 6. So also, debt or covenant broken for rent, brought by the lessor, his personal representa- tive or assignee, against the executor or administra- tor of the lessee, charging him for rent accruing, after the lessee's death, is local(r). For as the per- sonal representative of the lessee of a term for years is chargeable, during his own possession, as assignee of the lease ; he is, in this latter capacity, privy in estate to the lessor : And therefore, if the action is brought by the lessor or his representatives, (in which case the remedy is given by the common law) ; it is local, as being founded on privity of estate. And if the action is brought by the lessor's assignee ; the statute 32 Hen. 8, which gives him the remedy, (for the common law gives him none, against the assignee of the lease), makes it local, by its own provisions, as before stated, 119. (r) Bac. Abr. Actions Local, &c. A. (a.) 3 Co. 24. Com. Dig. Actions, N. 4. 2 Lev. 80. Gilb. H. C. P. 91. GENERAL RULES OF PLEADING. J27 ^ 123. 7. On the other hand, if the executors CHAP. or administrators of the lessee, in either of the above in. cases,- are charged as the representatives of the lessee, and not as assignees of the term, (as where they are sued for rent accruing during the lessee's life) ; the transit*^ action is transitory (5). For in such a case they are liable, not by reason of any interest of their own in the term, and therefore not upon privity of estate ; but upon privity of contract, devolving upon them from the lessee whom they represent. ^ 124. It appears, from the preceding distinc- tions, that where an action, founded on a lease, is given by the common law, if an assignee of the re- version, or of the term, is party to the suit, it is lo- cal : Since in all such cases, the action is founded on privity of estate : But that where the action is given by statute, it may be either local or transitory f as the fair construction of the statute may appear to warrant. & 125. Assumpsit for use and occupation, though For use and . r . f. , occupation. substantially an action tor rent, issuing out or a real subject, is not, by the law, considered as such, and is therefore transitory(t) : For the plaintiff's title being immaterial (11), the legal liability of the de- fendant is considered as a merely personal duty, par- (*) 3 Co. 24. Bac. Abr. Actions Local, &c. A. (a.) Latch, 262. 271. (0 6 T. R. 62. 6 East, 348. 2 Chitt. PI. 8, (n. c.) 174, (n. c.) (u) Sayer, 13. 1 Wils. 314. 2 Ib. 208. 2 Chitt. PI. 9, (n. c.) 128 GENERAL RULES OF PLEADING. CHAP, taking no more of a local quality, than a liability in. arising from goods sold, labor clone, or money lent. Venue. ^ 126. But though this action is in its nature transitory transitory, and though it is therefore unnecessary, in declaring, to state the place where the land occupied is situated(V) ; yet if the declaration does, though unnecessarily, describe the land as lying m a particu- lar place not by way of venue for the promise, but of local description ; the place, thus stated, must be the true one, or the plaintiff will be liable to a nonsuit(w). For though the venue, properly so call- ed i. e. the place where the contract is alleged to have been made is immaterial, (the action being transitory ;) yet the place, named for the purpose of describing the land, is material, as entering into the description of the cause of action. And hence, a mis- description of the place where the land lies is in nature of a variance, in stating the consideration of the promise. If therefore the declaration describes the land, as lying in the parish of A., when it is ac- tually situate in the parish of B., the plaintiff cannot recover : because the proof will not support the dec- laration. All criminal prosecutions remain local, under the ancient rule of the common law, that (c) 6 T. R. 62. 6 East, 348. 2 Chitt. PI. 9, (n. d.) 174, (n. c.) 3 M. & S. 380. (a) 6 East, 348. 352. 6 T. R. 62. 1 Taunt. 570. 1 Esp. Rep. 273. 3 Campb. 235. Vid. 13 East, 9. 4 B. & A. 619. 3 Stark. Ev. 1571,et. seq. GENERAL RULES OF PLEADING. every issue in fact, triable by jury, must be tried CHAP. in the county in which the fact to be tried occur- in. red(a'). For the distinction, since introduced, be tween local and transitory remedies, was expressly limited to civil suits. 128. Hence no crime, committed within the territorial limits of one sovereign state, can be tried in any other(y). For the penal laws of every sovereign state are, in the strictest sence, local, and cannot therefore be enforced by the tribunals of any other state(z) : It being an elementary princi- ple of public and municipal law, that all offences, considered as public wrongs, offend that state only within whose limits they are committed ; and no state has a right to punish, for any other offences, than those committed against itself. ^ 129. The local actions, thus far enumerated, are all, (except so far as the statute 32 Hen. 8. has prescribed the rule, in certain actions, on leases), made local by the principles of the common law. But certain other actions, which upon common- law principles are transitory, are, by the English statute-law, required to be brought in the county, in which the cause of action in truth arose ; and are thus made local by positive enactments. (x) 7 Co. 2. b. Com. Dig. Action, N. 5. 9. 1 Saund. 308. (n. 1.) 2 Black. Rep. 1053. (?/) 2 Black. Rep. 1058. Kel. 80. 2 Johns. R. 477. 479. () 3 T. R. 733. 1 H. Black. 123. statutes. 1 30 GENERAL RULES OF PLEADING. CHAP. 130. Thus, by the statute 21 Jac. 1, c. 4, 2, in. all actions and informations, &c. ' for any offence against any penal statute,' whether on ' behalf of the Venue. ,? . _ Local and king, or any other person, are required to be ' laid, *cons. ry and alleged to have been committed, in the county On penal where such offence was, in truth, committed, and not elsewhere ; or the defendant, upon the general issue, shall be found not guilty'(a). When, how- ever, two material facts are necessary to constitute an offence against a penal statute, if one of those facts occurred in one county, and the other in ano- ther ; the action may be laid in either of the two counties, according to the analogy of the common law rule in similar cases (6). This in an action on the statute of usury, if the contract was made in the county of A., and the illegal interest received in the county of B. ; the venue may be laid in either of those counties. It appears to be settled, in the con- struction of this statute, that it does not extend to any action given, by a penal statute, to the party aggrieved by the offence prohibited : So that the action, when brought by such a party, is still transi- tory, as at common law(c). 131. By the common law then, (as the last observation implies), actions for the recovery of statute-penalties, are transitory (d). For though (a) Com. Dig. Action, 10. Bac. Abr. Action, q. t. C. 1 Chitt. PI. 276-7. 1 Salk. 373. 5 Mod. 425. 4 Ib. 158. (6) 7 Co. 1. 2 T. R. 238. 7 Ib. 583. 2 Bos. & P. 381. (c) Bac. Abr. Action, q. t. C. 1 Show. 354. (d) lid. GENERAL RULES OF PLEADING. the object of every prosecution for such a penalty, CHAP. is the punishment of the defendant for an offence ; in. yet an action brought for this purpose, is in form a civil suit(e) ; and as regards the venue, as well as in most other respects, the nature or character of eve- ry suit, or prosecution, is decided by its form. In- deed, a pecuniary penalty is in law considered as a debt, due from the offender to the prosecutor, or plaintiff in the action^/]) ; and hence the action brought for the recovery of it, and which is usually an action of debt, is, by the common law, transitory ; on the same principles on which other actions of debt are generally so. 132. From what has been already stated, of Venue. ii r / i n > \ 11 How laid in the law or venues, (ante, s. 104), it results that no thepiead- suit can be abated, nor in any manner defeated, on MOW the , . . declaration. the ground that the venue is laid in the wrong county, unless the action is in its nature local, or is made so by statute^). For in consequence of the distinction between local and transitory actions, it has become an established rule, that in transitory actions, the place laid in the declaration draws to it- self the trial of all transitory matters alleged in the subsequent pleadings. And the defendant cannot therefore state, in his plea, any other venue for the (e) Covvp. 382. 391. Willes, 597. 1 Wils. 125. 4 T. R. 753. 7 Ib. 257. 3 Ib. 448. (/) Bac. Abr. Statute, K. Poph. 175. Palm. 400. Latch, 19. 3 Black. Com. 160-161. (g) 3 Black. Com. 294. Bac. Abr. Actions Local, &c. B. Com. Dig. Pleader. S. 9. Cowp. 177. 1 Saund. 74. (n. 2.) Gilb. H. C. P. 8990. GENERAL RULES OF PLEADING. CHAP. f acts which he pleads, than that laid in the declara- iii. tion ; unless the nature of the defence renders ano- ther venue necessary(h) ; i. e. unless his defence is founded upon something local, arising in a different inthe pica, place from that which is laid in the declaration. &c. ^ 133. If therefore, in a transitory action, the cause of which is laid in the county of A., (in which county the suit is brought^ the defendant pleads any transitory matter of defence, as having arisen in the county of B. ; the plea is ill in form(z'). For if the defendant might, without necesssity, thus deviate from the venue laid in the declaration, he would, upon original common-law principles, be able to change or oust the venue in transitory actions ; and thus to subvert the rule, which allows the plaintiff, in such actions, to bring his suit in what county, and lay his venue in what part of it, he may choose : Since, if issue was taken upon the plea, in the case supposed, the original rule of the common law would require the trial to be had in the county of B. ^ 134. If then, in an action of assault and bat- tery, trover, trespass for taking goods, slander, as- sumpsit, &c. (in all which the place in the declara- tion is immaterial, and the action transitory), the de- fendant pleads any matter of defence, which is not local and lays it at a place not mentioned in the (/i) Com. Dig. Pleader, E. 4. 3 Lev. 113. 1 Saund. 8. a. (n. 2.) 85. (n. 4.) 247. (n. 1.) 2 Ib. 5. d. e. (n. 3.) 2 H. Black. 161. Com. Dig. Action, N. 12. Pleader, C. 20. 1 Chitt. PI. 509. Co. Litt. 281. b. (t) lid. GENERAL RULES OF PLEADING. 133 declaration ; the plea is ill, on special demurrer (/c). CH AP. If, for example, in an action of assault and battery m. laid in the county of A., the defendant pleads son Venue laid assault demesne, in the county of B. ; or if in tres- H ^ pass for taking goods in the county of A., the plea c the P lea > is a license, in the county of B. ; or, if in assumpsit on a promise laid in one county, the defendant pleads fraud, duress, accord and satisfaction, usury, &c. in another ; the plaintiff may with safety de- mur specially to the plea(/). For these several defences, in whatever place they may have arisen, are respectively as available, as if they had occurred elsewhere ; and there can, therefore, be no necessity of laying them at any other place, than that stated in the declaration. ^ 135. But although the cause of action be tran- sitory as in the several examples, last stated ; yet, if the nature of the defence is local so that the fact, that it arose in a particular county or place, different from that stated in the declaration, is necessary to be alleged, in order to adapt the plea to the matter of the defence ; the defendant is at liberty to devi- ate, in his plea, from the county or place alleged in the declaration(w). For if, in such a case, he was confined to the county or venue laid by the plaintiff, he might, by the false venue in the declaration, be (k) lid. (/) lid. Co. Litt. 282. b. Cro. Eliz. 667. 842. 860. 1 Ld. Ray. 120. 3 Lev. 113. 2 Mod. 271. (m) Cro. Eliz. 184. Co. Litt. 282. b. 3 Lev. 113. 227. 1 Ld. Ray. 120. 1 Sauncl. 85. (n. 4.) 247. 2 Ib. 5. b. (n. 3.) Carth. 326. Hob. 5. 18 GENERAL RULES OF PLEADING. CHAP, utterly deprived of his defence. For when issue is in. joined upon a local fact, the place is of the substance - of the issue, and must be proved as laid. Venue. intheplea, ^ 136. Thus, if a sheriff of the county of A., having made an arrest, by authority of law, in that county, is sued for it, in an action of assault and battery and false imprisonment, alleged to have been committed in the county of B. ; he may, in his plea, justify the arrest, as having been made in the former county(/i). For as his official authority, existing only in the county of A., was local ; his de- fence, which is founded upon that authority, is necessarily so. If then, he were obliged to justify the arrest, as made in the county of B. ; he \vould, of course, be reduced to the necessity of proving his authority to arrest in that county, (which according to the facts supposed, he could not do), or of losing the benefit of a justification, which is in law com- plete, ^ 137. Upon the same principle, if a constable of the town of A., makes arrest in that town, in virtue of his office, and is sued for it in an action, in which the trespass is laid in the town of B., in the same or a different county ; he is allowed to justify the arrest in the town of A.(o). For the town, which limits his authority, is material to his justifi- cation, as is the county to that of the sheriff, in the (w) 1 Saund. 85. (n. 4.) 247. 2 Ib. 5. b. c. (n. 3.) 1 Ld. Ray. 120. Cro. Eliz. 174. 184. (o) lid. GENERAL RULES OF PLEADING. 135 case last before supposed. The same principle ap- CHAP. plies to all cases, in which the defence is local, and in. in which the place laid in the declaration is not the true one ; because in every such case, if issue is taken on the plea, the place must be proved as laid. &c. ^ 138. But in all such cases, it is necessary for the defendant to traverse the place laid in the de- claration : i. e. to deny that he is guilty of the al- leged wrong in that place, or in any other than the one stated in his pleaQ/). For the place of the al- leged wrong is, by the defendant's plea, made ma- terial and traversable : And it is a general principle, that a party who does not traverse what is material and traversable, in his adversary's pleading, tacitly admits it to be true() 1 Saund. 247. (n. 3.) Willes, 431. 7 T. R. 583. 2 Saund. 5. g. (in noiis.) 2 East, 580. 1 Chitt. PI. 283. 1 Saund. 74. (n. 2.) (>) Com. Dig. Action. N. 4. 6. 1 Saund. 74. (n. 2.) 1 Chitt. PI. 283. (22) That is, as regards the place of trial. (23) This provision, which applies only to judgments after ver- dict, is by the statute 4 Ann. c. 16. 2. extended to judgments by confession, nil dicit, or non sum informants. Bac. Abr. Amend- ment, &c. B. 2 Saund. 5. e. (n. 3.) (23 a) And the same rule seems still to be applied to actions, transitory at common law, but made local by statute. Vide 5 M. & S. 427. 3 Ib. 430 ; and cases there cited. GENERAL RULES OF PLEADING. CHAP. or suit* shall be awarded of the body of the proper in. county, where such issue is triable^x) : The import of which enactment, expressed in more familiar lan- guage, is, that the jury, by whom any issue is to be defences, tried, in any particular county, are to be summoned from the county at large, without reference to the common-law rule, requiring them to come from the immediate vicinage, in which the matter in issue arose : which rule had, indeed, by various evasions and alterations, been greatly relaxed in practice, be- fore the statute of Anne was passed (y). 145. This latter enactment, by removing the necessity of drawing the jury from the immediate vicinity, in which the matter in issue arose, or is al- leged to have arisen, has virtually abrogated the an- cient law of venues, properly so called inasmuch as it has destroyed all distinction between true and false venues, in one and the same county ; as the statute of Charles 2. (extended by the second section of the 16th chapter of the statute of Anne), has ren- dered all distinction between different counties, im- material after verdict, confesssion, nil dicit, or non sum informatus(2ty provided the trial in the case of (x) Bac. Abr. Venue, D. 3 Black. Com. 360. (ad. s one county or sovereign state, may in general be brought in any other, in which the defendant may be found(w) : For duties and liabilities, of a tran- sitory nature, attend the person of the party charge- able, wherever he may be. Hence, if a personal contract is made, or a personal tort committed, in the kingdom of France ; an action will lie against the debtor, or wrongdoer, (if found in England,} in an English court of general jurisdiction, and may, in general, be laid in any English county, without making mention of the place where the cause of action actually arose (v). In such a case, it is necessary that some English county be laid in the declaration, for a reason heretofore explained ; viz. that every action must be laid in some particular county in the kingdom for the sake of trial. And this legal fiction, like all others devised for the furtherance of justice, cannot be traversed(w). Thus, if A. becomes indebted to B., or commits a tort upon his person, or personal chattels, in the () Com. Dig. Action, N. 7. Cowp. 161. 177-8. 181. 344. 2 H. Black, 145161. Co. Litt. 125. a. (n. 1.) 5 T. R. 616. 7 Ib. 243. 1 Saund. 74. (n. 2.) (v) lid. (v) Cowp. 177-8. 179. 3 Black. Com. 43. 107. 148 GENERAL RULES OF PLEADING. CHAP. city of Paris, or of Canton ; an action, in either in. case, may regularly be maintained against A. in England, (if he is there found,) upon a declaration, Venue. n i r alleging the cause of action to have arisen in that English county, in which the action is laid, without taking notice of the foreign place. Mode of ^ 160. But to this rule there is one exception, fo?e" g g n a in respect to the mode of laying the county : If an venue. . ' . , . 7-17-7 ij action is brought, in an English court, on a specialty, dated at a place in a foreign country as at Am- sterdam ; the declaration must describe the bond, as made at Amsterdam, for the purpose of avoiding a variance. For if the instrument were described, as having been made in any English county ; it would not, when produced, correspond to the description given of it in the declaration. In this case, how- ever, the name of the foreign place, at which the bond is dated, must be followed, (under a videlicit,) by that of the county in which the action is laid as in the manner following : ' At the city of Am- sterdam, to wit, at Islington, in the county of Mid- dlesex'^) : The foreign place being named, for the purpose of correctly describing the instrument ; and the English county, for the sake not only of trial, but of jurisdiction. For by the theory of the com- mon law, an English court has jurisdiction of such matters only as arise within the realm, or in the body of an English county to conform to which theory, (x) 2 Salk. 660. Cowp. 161. 177. 178. 2 Ld. Ray. 1043. Bac. Abr. Actions \Local, &c. A. 2 H. Black. 161-2. Com. Dig. Action, N. 7. 12. 1 Stra. 612. GENERAL RULES OF PLEADING. the fiction, just mentioned, was invented. And as CH4P has been stated already, the fiction employed for ni< this purpose cannot be traversed. For if it were traversable, the jurisdiction might be ousted, at the Venue ' pleasure of the defendant, and the administration of justice obstructed. ^ 161. But the necessity of laying the true place of the execution of written instruments is now, in general, superseded in England, by the practice of dating them, at large ; i. e. without naming the place of execution (T/). Actions, the causes of Causes of which arise upon the high seas, and which are cog- ingonthe , ii'i- high seas. nizable by the common-law courts, may be laid in any county (2). ^ 162. In most cases, local actions in courts of Local ac - general jurisdiction, might be tried (even by the byconsent e common-law, and without reference to the statute ty. a " J of 16 & 17 Car. ii. c. 8) in any county, by consent of both parties entered upon the record though the county should appear, from the record itself, to be a wrong one(a). For the consent, thus entered, was a waiver on the record, of the error which would otherwise have been fatal to the trial. But unless such consent appear upon the record, it would not, (where the county appeared, from the body of the record, to be a wrong one), prevent error (b). Be- (y) Com. Dig. Action, N. 7. 12. 1 Saund. 74. (n. 2.) (c) Cowp. 179. (a) Com. Dig. Action, N. 11. 1 Chitt. PI. 271. Cro. Eliz. 664. (6) lid. Hob. 5. c. n. 2. (Williams' ed.) Bac. Abr. Error, K. 6. 20 GENERAL RULES OF PLEADING. CHAP, cause an error, apparent in the body of the record, in. cannot be waived, except by what appears on the record itself. But by the statute above mentioned, (according to the construction given to it by the courts), as has been before shown, such consent on the record is no longer necessary to prevent error. ^ 163. But in actions, brought for the recovery of lands or tenements as in ejectment no consent of parties, it seems, can render a trial, in a wrong county, effectual, on the principles of the English law ; though such consent, (while it was necessary), would have prevented error(c). For the sheriff of the county, in which the action is tried, to whom only, as it seems, the execution can, in such case, ^ost. c.5. j^ Directed, cannot deliver possession of land lying in another county (d). So that there would be, eventually, no means of enforcing the judgment. In the New-England States, however, this difficulty does not exist ; if it does in any of the United States. venue is no- when no & 164. The general rule, (ante, 102), that a i i /- i ? r venue must be laid for all traversable facts, is not universal. Negative allegations regularly require no venue (e). For place can, with no propriety, be predicated of that, which has no existence. So also, matters which concern the person of a party, or of any individual as his name, title, &c. need (c) Palm. 100. 2 Roll. Rep. 166. T. Jon. 199. T. Ray. 372. (d) 1 Chitt. PI. 284. Cowp. 176. 7 T. R. 588. (e) Plowd. 24. a. 2 East, 503. Lawes' PI. 58. GENERAL RULES OF PLEADING: not be laid at any particular place (/"); These also CHAP. being facts, of which locality is not predicable. m. 165. In alleging wrongs affecting a local sub- ject as the breaking and entering the plaintiff's close, in an action of trespass, or the ouster in eject- ment a formal venue need not be laid for the wrongful act complained of; although it constitutes the gist of the action^). For as the description, which is required to be given of the land, must state as well the parish, &c. as the county, in which it lies ; the place where the act was done will necessa- rily appear, from that description which thus, in effect, supplies the venue, without formally laying one. And as upon original principles of the common law, already stated, those facts only, which may be traversed, require a venue ; it follows that matters of mere inducement, or aggravation, require none(/i) : Because such matter is not traversable. The mode of laying the venue, in the English precedents, is by placing the name of the county in the margin, at the commencement of the declaration, in the following manner : ' Middlesex, to wit'(i) and, in the body of the declaration, ' the county aforesaid,' is a sufficient description. The requisites of TIME, and PLACE, in pleading, (/) 1 Salk. 6. Lawes' PI. 58. (g) Com. Dig. Pleader, C. 20. 2 Black. R. 706. Cro. Jac. 555. 557. 2 Mod. 304. Lawes' PI. 58. (A) 1 Saund. 74. (n. 1.) Com. Dig. Pleader, C. 20. Co. Litt. 303. a. Salk. 404. (f) Lill. Ent. passim. 2 Chitt. PI. 1. 2. 3. 4. 141. 152 GENERAL RULES OF PLEADING. CHAP, having been thus discussed ; it is necessary to pro- in. ceed to others, of a more miscellaneous character : Miscellanc- c i // T i i i i / C^NI ous rules. ^ loo. It has already appeared (ante, 2,) that ^vldfn"! l of a N facts, essential to the right of action or the de- sufficiJm! fence, must, in general, be expressly and substan- tively alleged. Hence, stating the mere evidence of a material fact is not sufficient (A:). The fact itself must be stated ; otherwise the allegation will present no subject to which the law can be applied. Besides, such a mode of pleading would, if admissible, refer the matter of fact in question to the court, instead of the jury. Thus, if in trover, the plaintiff alleges a property in the goods the loss the finding and a demand and refusal but omits to aver a conversion; the declaration is ill : The demand and refusal being only evidence of a conversion, which is the gist of the action (7). ^167. Each party tacitly admits all such traver- sable allegations on the opposite side, as he does not traverse(m). For as each party is allowed to deny in some form (either by a general, or precise traverse) all material facts alleged against him ; the omis- sion, by either party, to traverse any such fact, al- leged by his adversary, is justly considered as an ad- mission of it. (fc) 9 Co. 9. b. Willes, 131. Cro. Eliz. 913. 2 Root, 74. 2 Stra. 793. Cro. Jac. 383. Chitt. on Bills, 186-7. (1) 1 Roll. Ab. 131. Hob. 187. 2 Show. 179. 10 Co. 56. b. 57. a. 3 Burr. 1243. 2 H. Black. 135-6. Cowp. 529. Contra, G Mod. 212. (m) Bac. Abr. Pleas, &c. II. 4. Ib. Introd. 2. 1 Salk. 91. 1 Wils. 338. GENERAL RULES OF PLEADING. ^ 168. Whatever has been admitted, on both CHAP. sides, in the pleadings, cannot be contradicted, either in. in the subsequent pleadings, or even by the verdict. For neither party can retract what he has before conceded on the record ; and the jury have no au- thority to find any other facts than such as are put iii issue(n). > 169. Each party's pleading is to be taken most Construc- tion of any strongly against himself, and most favorably to his pleading, ^ J ' J most strong adversary(o). This rule is founded, not only upon a f a ^ thc the presumption that each party's statement is the most favorable to himself, of which his case will admit ; but also upon the obviously reasonable prin- ciple, that it is incumbent on each pleader, in stat- ing the ground of his action or defence, to explain himself fully and clearly. Any ambiguity, uncertain- ty, or omission in the pleadings, must therefore be at the peril of that party, in whose allegations it oc- curs. If, therefore, the defendant in trespass pleads a general release, without stating the time of its ex- ecution ; it shall be intended to have been made be- fore the trespass was committed (p). Thus also, if to debt on bond, payable on a given day, the de- fendant pleads payment or tender, without alleging the time ; the legal intendment must be, that it was made after the day appointed for payment(^). (n) Bac. Abr. Pleas, &c. Introd. Ib. Verdict, W. 2 Mod. 6. Willes, 366. Lawes, PI. 48. (o) Co. Litt. 303. b. Dy. 120. a. Plowd. 29. 202. Com. Dig. Pleader, E. 6. (p) Plowd. 46. a. Com. Dig. Pleader, E. 6. (q) Plowd. 104. Com. Dig. Pleader, E. 6. GENERAL RULES OF PLEADING. CHAP. % 170. Surplusage by which is meant matter, in. that is altogether superfluous and useless, does not, in general, vitiate the pleadings, even in point of Surplusage f . . of no effect, f orm i 1 he maxim being utile per inutile non vitia- tur(r). In such cases, the unnecessary matter will be rejected by the court, and the pleadings will stand as if it were struck out, or had never been inserted. 171. But where a party pleads unnecessary matter, which shows that he has no cause of action Effect of r no legal defence, the matter thus pleaded will be " ^ ata l to tnat which would, otherwise, have been good(s). For in this case, the superfluous matter cannot be rejected, as immaterial; since it shows that the pleader has, according to his own state- ment, no cause of action, or no defence. Thus, if in declaring upon a public statute, the plaintiff so counts upon it, as to confine himself to its terms as recited, (as by the words, " contra formam statuti predicti") but misrecites it, in a material part ; the declaration is ill, in substance(^). For though the recital of a public statute is unnecessary ; yet, it be- ing thus recited, and counted upon, the plaintiff must recover upon it, if at all, as recited But, as it must, of necessity, appear judicially to the court, that no such statute, as that recited, exists ; it must consequently appear, in the same manner, that the declaration discloses no right of action. (r) Bac. Abr. Pleas, &c. I. 4. Co. Litt. 303, b. 2 East, 333. 4 Co. 42. Com. Dig. Pleader, C. 28. 29. E. 12. Hob. 208. (*) lid. (t) Com. Dig. Pleader, C. 29. Ib. Action upon stat. I. 1 Ld. Ray. 382. Plowd. 84. b. Cro. Eliz. 245. Yelv. 127. a. nole.(l.) GENERAL RULES OF PLEADING. J55 ^ 172. So also, superfluous matter, when it con- CHAP. tradicts, or is inconsistent with facts before alleged in. on the same side, vitiates the pleading(t<). This fault falls properly under the denomination of repug- C y' p Xct n ~ nancy; which, as the term imports, is some contra- riety or inconsistency between different allegations of the same party(27). ^ 173. Repugnancy is a fault in all pleading(t?) ; and this, upon the obvious principle, that inconsistent allegations, in the pleading of either party, destroy or neutralize each other. The rule, however, is to be understood with this difference : If the pleading is repugnant, in a material point ; it is ill in sub- stance, or on general demurrer : But repugnancy, in an immaterial point, is. a fault in form only(if) ; and therefore no advantage can be taken of it, except by special demurrer. Thus, if in trover, the declara- tion by mistake alleges the conversion to have taken place on a day prior to that, on which the loss of the goods is laid; or if in ejectment, the ouster is laid on a day prior to the alleged date of the lease ; the repugnancy, in either case, would, at common law, (before the statute of jeofails), have been fatal, (a) Co. Litt. 303. b. Com. Dig. Pleader, E. 12. Lawes' PI. 63-4. 170. Gilb. H. C. P. 132. () 1 Saund. 169. 2 Ib. 291. 1 Stra. 232. 1 T. R. 70. 71. 657. (w) lid." (27) Such superfluous matter cannot be considered as mere surplusage ; for, by surplusage, properly so called, is generally meant such superfluous matter, as may be rejected, or entirely disregarded. GENERAL RULE S OF PLEADING. CHAP. on general demurrer : But the day being now con- iii. sidered but matter of form ; the repugnancy is in both cases aided, except on special demurrer(V) . Ante, 64. AII things 174. it i s laid down as an established rule, that are to be > pleaded ac- a j] things must be pleaded according to their legal cording to effect egal e ff ec t(y) i i' e * must be stated or described, as they operate or take effect, in law ; although such state- ment or description should vary, literally or in form, from the matter of fact to be shown in evidence. This rule relates chiefly to cases, in which a written instrument, drawn in a form in which it cannot, by the rules of law, take effect, may nevertheless operate as an instrument of a different kind: In which case ut res magis valeat quam pereat, the law will so construe it, if possible, as to give it effect, as an instrument of a different kind from that, which in its language it purports to be(z). For it is an esta- blished rule, that a deed shall never fail of ef- fect, if by construction it can be made effectu- al^). ^ 175. If then a deed, in the form of a contract or conveyance, of one particular species, cannot (x) Com. Dig. Pleader, C. 19. 3 M. 5. Yelv. 94. 3 Black. Com. 394. Carth. 389. Com. R. 12. 1 Saund. 116- 1 Lev. 194. Andr. 250. Stra. 232. 1095. (y] Bac. Abr. Pleas, &c. I. 7. Co. Litt. 193. b. ^Com. Dig. Pleader, C. 37. 2 Saund. 96-7. Cowp. 600. Cro.* Eliz. 352. Doug. 667. 2 Salk. 574. 1 Ld. Ray. 400. Lawes' PI. 62. 1 T. R. 446. () Shep. Touch. 82-3. Cro. Eliz. 352. 2 Salk. 574. 2 Saund. 96. T. Ray. 187. 1 T. R. 446. 4 Mod. 150. (a) Shep. Touch. 82-3. Hob. 277. 2 Saund. 96. n. 1. GENERAL RULES OF PLEADING. from the nature of the thing, operate except as a CHAP. contract, or conveyance, of a different kind ; it must, in. according to the above rule, be pleaded, as a deed of - the latter kind. Thus, if a deed purporting to give, accorcUnf to grant, bargain, sell, and release, cannot, in the na- ibct. eg ture of the case, take effect in law, except as a re- lease ; it must, according to the above rule, be pleaded as a release : Or if it cannot operate, except as a deed of bargain and sale ; it must be pleaded as such(b). ^ 1 76. (And in all such cases, a mistake in stat- ing the legal effect, if it appears upon the face of the pleadings, is fatal on demurrer(c) ; and if it * does not thus appear, it is fatal in evidence(d). For the court cannot, in either case, give judgment for the pleader, in opposition to his own averments.) If, therefore, a deed of feoffment, with livery of seisin, is made by a joint-tenant to his co-tenant ; it must, according to this rule, be pleaded not as a feoffment, but as a release(e). For a feoffment cannot take effect, as between joint-tenants ; since each of them is already seised as well per tout, as per mie as well of the whole, as of the half. So also, if a tenant for life makes a conveyance, in form of a grant, to the reversioner ; it is, by the same rule, to be plead- ed Cro. E-liz. 166. 1 Vent. 109. 2 Saund. 97. b. (n. 2.) Co. Litt. 301. b. Carth. 308. (c) 2 Vent. 151. 3 Lev. 291. 2 Saund. 97. c. (n. 2.) 4 Mod. 149. Carth. 253. (d) 1 H. Black. 313. 569. 3 T. R. 182. 481. 2 Stra. 934-5. (e) Com. Dig. Pleader, C. 37. 4 Mod. 150. Bac. Abr. Pleas, &c. I. 7. Co. Litt. 193. b. 200. b. 2 Saund. 96. 21 158 GENERAL RULES OF PLEADING. CHAP. e d as a surrender (f) : The latter being the only HI. form of conveyance, by which the interest of the particular tenant can, by the common law, pass to Pleading ,1 according to the reversioner. the legal ef- fect. ^ 177. Under the same rule, if one covenants to stand seised to the use of his child, or near relative, for a pecuniary or valuable consideration ; the con- veyance must be pleaded, as a deed of bargain and sale(g). For a covenant to stand seised is not sup- ported by a valuable consideration ; but by that only of natural affection between kindred ', or that of mar- riage : Whereas a conveyance by bargain and sale can be supported, by no other than a valuable consid- eration^). Hence, on the other hand, a deed in the form of a grant, or of a bargain and sale, made to a near relative, and expressed to be in consideration of natural affection, must, on the same principle, be pleaded as a covenant to stand seised(i) : Because such a consideration will support no other conveyance, than a covenant to stand seised. 178. And a single deed, made by two persons, having distinct interests in the subject of it, may enure to two different intents or effects. Thus if a tenant for life or years, and the reversioner, join in a deed of conveyance, in the form of a deed of bar- gain and sale; it will, as against the reversioner, (/) Bac. Abr. Pleas, &c. I. 7. -4 Mod. 151. Comb. 190. (g) Carth. 308. 3 Lev. 291. 4 Mod. 149. 2 Vent. 149. (h) 2 Black. Com. 342. (i) 2 Wils. 22. 75. Willes, 673. 682. 4 Mass. R. 135. 2 Saund. 97. a. (n. 1.) Bac. Abr. Pleas, &c. I. 7. 2 Vent. 149. 260. 266. GENERAL RULES OF PLEADING. J59 take effect as a bargain and sale, and quoad the ten- CHAP. ant, as a surrender. In such a case therefore, the in. conveyance should, by the above rule, be pleaded according to its twofold legal effect viz. as a bar- according gain and sale, on the part of the reversioner ; and as effect, g a surrender, on that of the tenant (7c). ^ 179. Within the same general rule, a covenant by a creditor, with his debtor, never to sue for the debt, should be pleaded, not as a covenant, but as an acquittance (I). For, as a covenant, it cannot bar an action for the recovery of the debt ; although it would entitle the debtor to damages, in a cross ac- tion of covenant broken : Since a covenant is no bar to an action brought upon a different contract, unless the former contains words of defeasance(m). ^ 180. So also, when a bill of exchange is pay- able, in its terms, to the order of a factitious payee, the holder, in declaring upon it, must, by the same rule, describe it as a bill payable to bearer(n) : This being the only form in which it can take effect. 181. But the rule itself, (ante, % 174), of which the preceding examples are given, as illustra- tions though generally laid down as being im- perative ought rather to be expressed, as permis- (/) 1 Ld. Ray. 400. Lutw. 569. (I) Cro. Eliz. 352. 1 Show. 46. 1 Roll. Ab. 939. 1 T. R. 446. 8 Ib. 170-1. Willes, 109. note. 17 Mass. R. 581. (m) 1 Lev. 152. 6 T. R. 737. 8 Ib. 483. Esp. Dig. 306. () 1 H. Black. 313. 569. 2 Ib. 194. 288. 3 T. R. 178. 282. 335. 481. 160 GENERAL RULES OF PLEADING. CHAP. s ^ ve ' And the more proper form of stating the rule, in. would be, that where the form and legal effect of an instrument differ, it may be pleaded, according to according its legal effect. For, though this latter is con- eflect. fessedly the more scientific and approved mode of pleading, in all such cases ; yet the pleader may, at his option instead of stating the legal effect re- cite the instrument, in hcec verba, and refer its legal operation to the court(o). For if, when the form of the deed differs from its legal effect, and it is pleaded according to that effect, the court can per- ceive from the instrument, that it supports the state- ment, in evidence ; there appears to be no sufficient reason, why when the deed is recited, in hcec ver- ba its legal effect may not be recognised by the court, upon the face of the pleadings. 182. If however the pleader undertakes to state the legal effect, and misstates it ; the mistake Ante,B. 176. w ^ ^ e f ata l(p) ' As if a deed, which can operate in law only as a release, or surrender, is pleaded as a grant, or bargain and sale, or vice versa. For in such a case, the allegation, professing to state the legal effect, is essentially untrue. & 183. There is an important distinction to be Immaterial > m \ andim- observed, between immaterial and impertinent aver- pertment averments. me nts i viz. that the former must, in many cases, be (o) 1 Ld. Ray. 400. 403. 404. Lutw. 569. 2 H. Black. 11. 3 Lev. 292^ 8 Johns. R. 374. (p) 3 Lev. 291. 2 Saund. 97. c. (n. 2.) 4 Mod. 149. Carth. 253. 1 H. Black. 313. 516. 3 T. R. 182. 474 481. 2 Stra. 934-5. 3 B, & A. 66. GENERAL RULES OF PLEADING. precisely proved ; whereas the latter require no CHAP. proof in any case(^). in. 1 84. For the purpose of explaining this dis- impertinent ... -, -11 j- ^ averments. Unction, it must be premised, that an impertinent averment is a statement of matter altogether foreign to the merits of the cause, and which might, there- fore, be entirely struck out, without injury to the pleading(r). Of such matter, no proof can ever be required. An immaterial averment, (as contradis- tinguished from an impertinent one), has been vari- ously described ; but not always with sufficient pre- cision. In the case of Bristow v. Wright, (Doug. 665), Lord Mansfield, in commenting upon the dis- tinction between these two species of averments, observes, ' The distinction is between that, which may be rejected as surplusage, and which might have been struck out on motion, and what cannot. Where the declaration contains impertinent matter, foreign to the cause, and which the master, on a reference to him, would strike out, that will be rejected by the court, and need not be proved. But if the very ground of the action is misstated ; as where you undertake to recite that part of a deed on which the action is founded, and it is misrecited ; that will be fatal.' ^ 185. This language, though sufficiently de- scriptive of an impertinent averment, affords rather a (g) Doug. 667. 2 Black. Rep. 1104. 3 T. R. 643. 5 Ib. 496. 2 East, 446. 451. 497. 3 Bos. & P. 456. 461. 2 McNall. Ev. 501. 513. (r) Doug. 667. 2 Black. R'ep. 1104. 3 T. R. 6445. 162 CHAP. III. Immaterial averments. When necessary to be proved. GENERAL RULES OF PLEADING. particular example, than a general definition or de- scription of an immaterial one. The following is therefore submitted, as a substantially correct de- scription of the latter : An immaterial averment is one, alleging, with needless particularity or unnecessary circumstances, what is material and necessary, and which might properly have been stated more generally, and with- out such circumstances or particulars : Or in other words, it is a statement of unnecessary particulars, in connexion ivith, and as descriptive of, what is material. 186. Immaterial averments, and the necessity of strictly proving them, may be illustrated by the case before mentioned, of Bristow v. Wright (Doug. 665). This was an action, brought on the statute 8 Ann. c. 14. ^ 1. by a landlord against a sheriff, for taking in execution, and removing from the demised premises, the goods of the tenant, without leaving effects sufficient to satisfy a year's rent. The de- claration stated the demise, which it described as reserving a certain annual rent, payable ' by four even and equal quarterly payments? &c. On the trial, a parol demise was proved ; but it appeared that there was no stipulation with regard to the time or times of paying the rent ; and for this cause, it was resolved by the court of King's Bench, that the plaintiff could not recover. For though it was confessedly unnecessary to state the time or times of payment, in the declaration in other words, though this part of the statement was immaterial ; GENERAL RULES OF PLEADING. yet, as it was indispensably necessary to allege a CHAP. reservation of rent : (so that the entire statement in. of the reservation could not be struck out, without destroying the declaration) ; and as the appointment of certain particular times of payment was stated as a constituent part of the contract, which was in its nature entire ; a failure to prove such an appoint- ment, was a failure to prove the contract as stated, an consequently a variance. The contract proved was not the contract alleged in the declaration. ^ 187. The same rule, in regard to immaterial averments, was recognized in the case of Savage, q. t. v. Smith (2 Black. Rep. 1101. 1104). That was an action of debt against a bailiff, for extorting ille- gal fees, on a writ of fieri facias. The declaration described the fi. fa., as having been issued, on a judgment recovered in B. R. at a specified term, for 51, 12, 0, debt, and 6, 10, 0, costs. But the plaintiff having failed, on the trial, to prove such a judgment, the court held, that admitting it to have been unnecessary for the plaintiff to state any judg- ment, (76. 1104. and vid. 5 T. R. 498), that is to say, admitting the statement, in that particular, to have been immaterial; yet being made, as descrip- tive of the foundation of theji.fa. ; it was necessary to be proved as made (5). The omission of such proof was indeed of the nature of a variance. () Ace. 12 Mod. 127. 3 T. R. 646. 5 Ib. 497. 3 Bos. & P. 456. 461. 5 Price, 540. 2 B. & A. 767. 1 M. & S. 204. 164 GENERAL RULES OF PLEADING. CHAP. 188. The rule that immaterial averments must in. be strictly proved, is however by no means universal, though it appears to have been formerly so understood : When not , j / i i -r i necessary 1 he principle of the rule manifestly embraces, (it is to be proved. - i^ r conceived), no other averments of that class, than those of which a variance may be predicated. And the rule itself, it seems, is now to be understood as limited by that principle. ^ 189. The rule, then, as limited by the more modern authorities, appears to be, that no immaterial averment requires precise proof, unless the failure of such proof would occasion a variance between the . pleading and the proof: Or (in different language), strict proof of such an averment is not, at this day, necessary, unless the subject of the averment is a record a written instrument or, (as I conceive) an express contract(t) : Inasmuch as these are in strictness the only subjects of variance, (properly so called), when the mistake in the pleading is in a point not in itself material (28). It is here observa- (f) 3 T. R. 645. 5 Ib. 496. 2 East, 452. 502. 4 Ib. 400. 5 Esp. Rep. 8. (28) The editor of the second English edition of Douglas's Re- ports observes, in a note annexed to the case of Bristow v. Wright, that the rule requiring immaterial averments to be strictly proved, is now confined to the cases of ' records and written contracts.' This assertion appears to have been founded upon a casual re- mark of Mr. J. Butter, (3 T. R. 646,) that ' perhaps the rule will be found to extend to all cases of records and written con- tracts.' (Vid. also 3 Cranch, 209.) But that learned judge did not profess, in this occasional remark, formally to define the GENERAL RULES OF PLEADING. ble, that the decisions in the two cases before stated, C HAP. of Bristow v. Wright and Savage v. Smith, both come m. within the range of the rule, as thus restricted. For the immaterial averment in question, in the former case, was descriptive of an express contract, as that in the latter was of a record. ^ 190. But where, in an action on a policy of in- surance on a ship, the declaration contained an aver- ment, that she sailed upon her voyage, after the mak- ing of the policy ; whereas she actually sailed before it was made it was held by the court of B. R. un- necessary for the plaintiff to prove the averment, as made(i<) : Because it was not a statement of any part of the contract, but of a collateral fact, which (as there was no warranty, or representation, in re- gard to the time of sailing), could not affect the right of action. (M) 5 T. R. 496. precise extent of the rule. Indeed, he had before, and in imme- diate connexion with the observation just cited, extended it to ' contracts', generally ; as Lord Kenyan had done, in the same case. Nor, on principle, does there appear any reason for con- fining the rule to the limit expressed in the note to Bristow v. Wright : since a variance may occur, as well in the statement of a parol contract, as in that of a written instrument or record. But what appears decisive against such a restriction of the rule is, that the averment, which was held fatal to the action, in Bristow v. Wright, (the leading authority in support of the Editor's rule), was an averment, made instating a parol lease. Vid. Yelv. 195. b. (n. 1.) 22 GENERAL RULES OF PLEADING. CHAP. 191. Thus also, where in an action of debt, in. brought on the statute 11 Geo. 2, c. 19, 3, to re- cover double the value of goods, which w r ere remov- ed by the defendants, to prevent a distress for. rent, the declaration averred that such a certain sum (57), was due as rent in arrear the court of B. R. resolv- ed, that the plaintiff was not bound to prove that particular sum as the amount due(#). For the averment of a particular sum, as the amount in arrear, being immaterial, and not descriptive of the terms of the contract, (as a statement of the rent re- served would have been), was not within the rule requiring precise proof of immaterial aver- ments^). Defects, on 192. If one of the parties expressly avers, or aided by the confesses, a material fact, before omitted on the other pleading. side ; the omission is cured. For the defect, in the pleading of the one party, is thus supplied by the other ; and it may thus be made to appear, from the pleadings on both sides, taken together, that he, on whose part the omission occurs, is entitled to judgment ; although his own pleading, taken by it- self, be insufficient^). Thus where in trespass, the plaintiff complained of the defendant for taking a certain iron hook, without alleging possession in himself (which in that action is material), the de- () 3 T. R. 643. (to) Vid. 3 Cianch, 193. 208-9. (x) Esp. Dig. 588. Com. Dig. Pleader, C. 85. 1 Sid. 184. Cro. Car. 288. Aleyn, 7. 6 Binn. 24. 9 Pick. 62. Con/. Gouldsb. 187. 3 Caines' R. 73. GENERAL RULES OF PLEADING. fendant's plea, in which he confessed and justified CHAP. the taking of the hook from the plaintiff's hand, was m. held to aid the declaration ; inasmuch as it express- ly acknowledged the plaintiff's possession(y). 193. In general, it is not necessary for either party to allege more than will constitute, prima facie, ^n se &c a b a sufficient cause of action or defence (2) (29). It sufficient - is therefore in general unnecessary for a party to deny or avoid, by anticipation, all or any of the pos- sible facts, which might furnish sufficient answers in law to his own allegations. For this would not only lead to extravagant prolixity, but would be found impracticable. ^ 194. Thus also, in declaring on a contract, it is unnecessary to aver that the defendant, at the time of making it, was of full age or was not a feme covert or, that the contract was not obtain- ed by fraud,rjp duress or, that it was not founded upon an usurious, or other illegal consideration or to anticipate any other special matter of defence(a). For if any such matter of defence exists, it is for the defendant to show it. (j/) 1 Sid. 184. (*) 2 Wils. 100. 1 Saund. 299. 1 Ld. Ray. 400. Doug. 159. 1 Vent. 217. (a) Plowd. 376. 564. 1 Ve'nt. 217. 1 Saund. 298-9. (29) An exception to this rule has been already mentioned, as obtaining in two particular instances : viz. in pleading estoppels, and generally, in dilatory pleas, ( Vid. Dilatory Pleas, post. ch. Ante, ch. 3., V.) Co Litt. 352. b. 303. a. 2 H. Black. 530. GENERAL RULES OF PLEADING. CHAP. Yet, in declaring on a contract, the plaintiff must in. aver that it has not been performed ; though per- formance is special matter of defence, on the defend- ant's part. But this allegation, in the declaration, is necessary, not for the purpose of excluding, by an- ticipation, the defence of performance ; but for that of showing aprimafacie right of action. For with- out an allegation of non-performance, no complete right of action can, in such a case, appear upon the face of the declaration. New matter, ^ jg^ A jj fa^ al j ege( J m piling, which gO iii avoidance of what is before pleaded, on the oppo- site side, are called new matter. In other words, every allegation made in the pleadings, subsequent to the declaration, and which does not go in denial of what is before alleged on the other side, is an allegation of new matter. cKwi&a % 196. And it is a general rule of the common rerification. | aw ^ t | iat a jj new matter mus t be followed by a verification, or, as it is frequently termed, an aver- ment(b) : A verification being an averment, or affir- mation, that the pleader is prepared to verify, or prove, the matter alleged by him ; and is expressed in the following form : ' And this he is ready to verify '(c). . The necessity of concluding new matter with a verification, arises from the right, which each (6) 3 Black. Com. 309. Lavves' PI. 114. 145. 223. Cowp. 575. 1 Saund. 102. 103. Doug. 58. (c) 3 Black. Com. 309. GENERAL RULES OF PLEADING. party has, (until a proper issue, closing the plead- CHAP. ings, is tendered,) to answer the allegations on the m. other side, by new matter of his own, or otherwise, as the exigency of his case may require. And to p os t, ch. vi. secure this right to each party, the pleadings, on both sides, must be kept open to such answer, until they are closed by an issue, in the manner above- mentioned. And a verification, is, in general, the conventional and only mode known to the law, of keeping them thus open. ^ 198. There is one instance, however, in which new matter need not conclude with a verification, and in which the pleader may pray judgment, with- out it : viz. Where the matter pleaded is merely negative (d). For a negative in general requires no proof; and it would therefore be impertinent or nu- gatory for him, who pleads negative matter, to de- clare his readiness to prove it. To an action on a negative covenant, therefore, the defendant may plead merely that he has not done what he cove- nanted against, and pray judgment, without a veri- fication. And by a positive, and anomalous, provision, in the English statute 5 Geo. 2, a bankrupt may plead his bankruptcy in bar, and conclude, (though the matter pleaded is new, and merely affirmative), to the country (e.) (d) Willes, 5. Lawes' PI. 145. (e) Lawes' PI. 145. 227. CHAPTER IV. CHAP. IV. Declara- tion, requi- sites of. Difference between declaration and count. OF THE DECLARATION OR COUNT. SECTION 1. THE declaration, or count, as has been before stated, (Chap. II.), is an amplification or exposition of the original writ, with the addition of all necessary circumstances, not expressed in the wnt(f) : In other words, it is a detailed statement of the complaint, or cause of action, which, in the writ, is presented in a more general form. 2. The terms ' declaration' and ' count' are frequently used, especially in the older books, as convertible terms ; but practice has introduced the following distinction : Where the plaintiff's com- plaint embraces only a single cause of action, and he makes only one statement of it, that statement is called, indifferently, a ' declaration', or a ' count' ; though the former term is the more usual, at the present day. But where the suit embraces two or more causes of action, (each of which requires, of course, a distinct statement) ; or when the plaintiff makes two or more different statements of one and (/) Co. Litt. 17. a. 303. b. 3 Black. Com. 293. Coin. Dig. Pleader, C. 7. Bac. Abr. Pleas, &c. B. 1. OF THE DECLARATION. the same cause of action; each several statement is CHAP. called a count, and all of them, collectively taken, iv. constitute the declaration. 3. In all cases, however, in which there are two or more counts whether there is actually but one cause of action, or several each count purports, upon the face of it, to disclose a distinct right of ac- tion, unconnected with that stated in any of the oth- er counts : So that, upon the face of the declaration, there appear to be as many different causes of action, as there are counts inserted. And therefore, whether a plaintiff, whose declaration contains more than one count, claims a recovery upon one right of action only, or upon several, cannot appear, except in evi- dence. Practically, however, the defendant can sel- dom be left in doubt on this point. ^ 4. One object proposed, in inserting two or Several i i i i . counts. more counts in one declaration, when there is in use of. fact but one cause of action, is, in some cases, to guard against the danger of an insufficient statement of the cause, where a doubt exists as to the legal sufficiency of one or another of two or more different modes of declaring. But the more usual end pro- posed, in inserting more than one count, in such a case, is to accommodate the statement of the cause, as far as may be, to the possible state of the proof to be exhibited on the trial : or to guard, if possi- ble, against the hazard of the proof's varying mate- rially from the statement of the cause of action : So that if one or more of the several counts should J>7<2 OF THE DECLARATION. CHAP. not k adapted to the evidence, some other of them iv. may be so(g'). 5. The plaintiff has, in every case, a right to insert, in his declaration, as many counts, (each one being in itself single), as he pleases(/i) ; and in ac- tions on the case (especially in assumpsit), it is the usual practice to insert, though often unnecessarily, two or more(z'). But where counts, clearly superflu- ous, are inserted, they may, in the English practice, be struck out by the order of the court, and the plain- tiff be compelled to pay the costs (A:). 6. And if any one of several counts in a declara- tion be proved, (although the proof of all the others should fail) ; the plaintiff must recover upon it, un- less it be radically insufficient in law(/). For by maintaining one good count, he establishes a complete right of recovery. And for the same reason, if on demurrer to the whole declaration, any one of the counts is adjudged sufficient in law ; the plaintiff will be entitled to judgment on that count though all the others be defective. what the $, 7. The declaration, being the statement of declaration must allege, those facts on which the plaintiff founds his right of recovery, must of course allege all that is essential (g-) 3 Black. Com. 295. (fc) Lawes' PI. 73. (i) 3 Black. Com. 295. Lawes' PI. 73. (k) Cas. Temp. Hardw. 129. Lawes' PI. 61. 73. (/) Com. Dig. Pleader, Q. 3. 3 Black. Com. 295. 1 Saund. 286. (n. 9.) 2 Ib. 171. d. (n. 1.) 380. (n. 14.) 1 Mod. 271. OF THE DECLARATION. f to his right of action(w). For he can recover only CHAP. secundum allegata et probata ; and can legally prove iv. no material fact, which the declaration does not allege. ^ 8. The first and most comprehensive rule, in respect to the requisites of a declaration, is that it must show a title, (i. e. a right of action), in the plaintirT(ft). If then the declaration, which is the foundation of the suit, is insufficient in law to war- rant a judgment in the plaintiff 's favor ; no subse- quent allegation on his part can entitle him to a re.- covery(o). He must recover upon the grounds, on which he first places his claim, or not at all. ^ 9. If, therefore the declaration, though other- wise sufficient, discloses any fact, which shows that at the commencement of the suit(l) the plaintiff had (m) Bac, Abr. Pleas, &c. A. B. 1. Doct. PI. 85. (n) Com. Dig. Pleader, C. 34. Bac. Abr. Pleas, &c. B. I. (o) Bac. Abr. Pleas, &c. B. 1. (1) The suit is considered as commenced, from the issuing of the writ (3 Black. Com. 273. 285. 7 T. R. 4. 1 Wils. 147) : but where the teste, or date of the writ is fictitious, the true time of its issuing may be averred and proved, whenever the purposes of justice require it : As, to let in a plea of tender, or of the statute of limitations. (Bac. Abr. Tender, D. 1 Stra. 638. 1 Wils. 147. Peake Ev. 259.) In the usual practice of the Court of King's Bench, however, the suit is not deemed to be commenced till the filing of the bill, (or declaration) which is considered in that court as the original. (Cowp. 454. 456. 1 Wils. 147. 2 Burr. 960. 8 Mod. 343. 1 Vent. 28.) 23 J74 OF THE DECLARATION. CHAP. no "ght of action ; he cannot have judgment(p) : As iv. where in debt on an obligation, it appeared from the declaration, that the writ bore date before the time of payment appointed in the deed. For the cause of action, which entitles a party to recover by suit, must be complete at the time when the suit is com- menced, (vide ante, note 1). If it is not then com- "; plete, the complaint of the plaintiff must of neces- sity be either untrue, or insufficient in law. ? ^ 10. For any matter, accruing after the com- mencement of the suit, the plaintiff therefore cannot recover^) except that interest, on demands car- rying interest, is recoverable up to the time of the judgment, under the name of damages(r). For the interest is regarded as only incident to, or part of, the debt ; and that interest, which accrues after the commencement of the suit, being inseparable from the rest, is consequently recoverable in no other way (5). 11. So also, if the declaration omits the aver- ment of any fact, which is of gist of the action (as, if no consideration be alleged, in assump- (p) Cowp. 454. Bac. A.br. Pleas, &c. B. 5. 7 Co. 24-5. Cro. Eliz. 325. (q) 2Saund. 171. c. (n. 1.) Cowp. 454. (r) 2 Burr. 1085. 1087. 2 T. R. 58. Doug. 376. Chitt. on Bills, 214. Toller on Ex. 286-7. 2 Saund. 171. c. (n. 1.) 8 Johns. R. 446. (s) 1 Esp. Rep. 110. 2 New Rep. 206. n. 3 Johns. R. 229. 5 Ib. 271. OF THE DECLARATION. J75 sit(2) no conversion in trover, &c) ; the omission CHAP. is fatal (t). iv. 12. The gist of the action is that, without Gist of the which there is no cause of action. It comprehends, therefore, whatever is indispensable in law to a right of recovery (u). Hence, if any thing of this kind be omitted, no title can appear from the declaration ; and the defect is of course incurable (v). 13. Whenever therefore the right of recovery condition depends upon a condition precedent, the declaration must aver performance of it, (or what is equivalent to performance), to entitle the plaintiff to recov- er^). For in every such case, performance of the (*) Bac. Abr. Pleas, &c. B. 1. Doct. PI. 85. 1 Sid. 184. Bull. N. P. 33. 2 Salk. 519. 640. 7T. R. 348. 351. n. 5 Ib. 143. Com. Dig. Jlssumpsit, H. 3. 6 East, 568. 8 Ib. 9. 2 Bos. & P. 79. () Bac. Abr. Pleas, &c. B. 1. Doct. PI. 85. (v) Bac. Abr. Pleas, &c. B. 1. 3 Black. Com. 395. 4 T. R. 472. 2 H. Black. 201. Doug. 683. (>) 7 Co. 10. a. Bac. Abr. Pleas, &c. B. 5. (2.) Com. Dig. Pleader, C. 51. 70-75. Plowd. 25. b. Yelv. 134. n. 1 T. R. 645. 7 Ib. 125. 1 Saund. 320. 2 H. Black. 574. (2) In assumpsit on bills of exchange and promissory notes, however, the mere statement of the facts, which create the de- fendant's liability, dispenses with the necessity of stating the con- sideration for which the bill, &c. was drawn, accepted, or indorsed. (2 Bos. & P. 79. 1 Chitt. PI. 295.) For these instruments, like specialties, afford prima facie internal evidence of a consideration, and consequently dispense in general, with the proof of it. A^id what need not be proved, need not be alleged. (2 Ld. Ray. 758. 3 Salk. 70. 1 Black. Rep. 487. 2 Black. Com. 445. Kyd on Bills, 48. 3 Burr. 1516. 1523. Chitt. on Bills, 9. 51. 201. 209. OF THE DECLARATION. CHAP, condition, or what the law holds equivalent to it, is a iv. constituent and indispensable part of the right of ac- - tion or that, without which there can be no cause of action. lu^*-*-JU A-H^**^ ** 14. Thus, in an action against the indorser or drawer of a bill of exchange, if the declaration does not allege a demand of payment, at the proper time, on the drawee, or acceptor or ortiits an allegation of due notice to the defendant, of the refusal of pay- ment by the former ; the omission is fatal(V). For such demand and notice are implied conditions, the performance of which, by the holder, is essential to the liability of the indorser or drawer. Notice and & 15. And in all cases, in which actual notice of request, when to b any fact to the defendant, or a special request, is, ei- alleged. J ther by the terms or the nature of the contract, the condition of his liability ; such notice, in the one case, and such request, in the other, is of the gist of the action, and must therefore be specially averred in the declaration (y). For without such averment, no complete right of action can appear from the decla- ration. ^16. And whenever an actual request is neces- sary to be stated, the general averment, ' although (x) Doug. G83. Chitt. on Bills, 132-3. 188-9. 202-3. 5 Burr. 2670. 1 T. R. 712. (y) Com. Dig. Pleader, C. 69. 73. Sav. 72. 1 Saund. 33. (n. 2.) 2 Keb. 126. 1 Stra. 88. Hob. 68. Com. Dig. Condition, 10. 11. 14 East, 500. 16 Ib. 110. 1 Campb. 425. 5 T. R. 409. OF THE DECLARATION. often thereunto requested,' is not sufficient(z) : CHAP. That averment being but matter of form, and not iv. traversable. ^17. It is never necessary, by the common law, for the plaintiff, in his declaration, to state, or in any manner to take notice of any condition subse- quent, annexed to the right which he asserts (). For the office of such a condition is, not to create the right on which the plaintiff founds his demand ; but to qualify, or defeat it. The condition, there- fore, if performed or complied with, furnishes mat- ter of defence, which it is for the defendant to plead. Thus in debt on bond, it is not necessary for the plaintiff, in his declaration, to state or count upon any other than the penal part of the instrument ; leaving the condition to be pleaded by the defend- ant, if it affords him any defence ; as it does, if per- formed^). For the penal part of the bond, alone, constitutes prima facie, a right of action. ^18. The plaintiff may, however, in an action on bond, count as well upon the condition, as upon the penal part ; but if he declares in this manner, he must allege the breach of the condition in his declaration, instead of replying it, (as he must, when he counts only on the penal part), in answer to the (z) 1 Saund. 33. (n. 2). 1 Stra. 88. (a) Com. Dig. Pleader, C. 57. 7 Co. 10. a. b. 11. a. Bac. Abr. Pleas, &c. B. 5. (2). 1 T. R. 638. 1 H. Black. 254. 2 Ib. 574. (6) lid. 2 Chitt. PI. 1513. 178 OF THE DECLARATION. CHAP, defendant's plea(c). The declaration, when formed iv. in the former manner, is called a special one. HOW much & 19. It is a general rule, that in declaring upon of a deed . . must be a deed or other instrument, consisting of several set out. . ..,.. . , distinct parts, the plaintiff is required to state only so much of the instrument, as constitutes, prima facie, a complete right of action () 3 T. R. 767. 8 East, 85. Cora. Dig. Pleader, C. 26. 42. (to) 1 Saund. 112. n. 1 Chitt. PI. 353.2 Ib. 196-7. 6 Mod. 72. Vid. Bac. Abr. Pleas, &c. I. 3. OF THE DECLARATION. have related to the description of personal chattels, CHAP. in actions for injuries to that species of property. iv. In these, however, as in other cases, the rule be- Ante, 26. fore stated now generally prevails : viz. that the property must be described with as much certainty, as it will conveniently admit of; and that no greater certainty than this is necessary(z). ^ 34. In the action of detinue, indeed, great mi- nuteness of description has been considered neces- sary ; because the goods are to be specifically re- stored to the plaintiff, on the execution(a). It ap- pears, indeed, to have been deemed necessary to describe the goods so minutely, that the sheriff might be able to identify them, by the mere descrip- tion given of them in the writ of execution. And when the action of detinue was first superseded by that of trover, as great precision and minuteness of description were deemed necessary in the latter, as in the former action(6). ^ 35. But it is now established, that in trover, trespass, and other actions in general, for injuries to personal chattels, nothing more than convenient cer- tainty is necessary in the description of them(c). (z) Vid. ante, 26, references (i. k.) 1 Vent. 114. 317. 1 Ld. Ray. 588. 2 Stra. 809. 1 Lev. 301. 2 Ib. 176. Bac. Abr. Pleas, &c. B. 5. (5). (a) 10 Co. 57. 2 Saund. 74. b. (n. 1.) Willes, 120. 3 Black. Com. 152. 2 Salk. 654. (6) 2 Saund. 74. a. (n. 1.) Cro. Eliz. 865. 5 Co. 34. b. (c) 2 Saund. 74. a. (n. 1.) 2 Stra. 809. Bull. N. P. 37. Esp. Dig. 588. Ld. Ray. 588. 1219. 12 Mass. R. 505. OF THE DECLARATION. CHAP. I* 1 these actions then, it is necessary to describe the iv. goods, by specifying distinctly their kind or kinds, together with their quantity, number, weight or measure(d) ; and this is regularly all that is required for the purpose of certainty, in describing them. But number, quantity, &c. alleged in the declaration, does not regularly require strict proof, and need not there- fore be truly stated, except when alleged in the re- cital or statement of a record, written instrument, or express contract(e). For except in these cases, the statement of a wrong number, &c. does not occa- sion a variance. And in the cases now under con- sideration, (trover, trespass, &c.), if the plaintiff proves the wrongful taking away, or cpnversion, of any part of the goods duly described in the declara- tion, he is entitled to recover pro tanto. ^ 36. And when the subject to be described is supposed to comprehend a multiplicity of particulars, a general description is sufficient ; not only because the plaintiff may probably be incapable of describing them specifically ; but also because a detailed de- scription of them, if practicable, would produce e. g rea t and inconvenient prolixity in the pleadings. Hence where a declaration in trover alleged the conversion of ' a library of books,' without naming their number, titles or quality, the description was held sufficiently certain^/). And in an action for (d) 5 Co. 34. b. Bac. Abr. Trespass, I. 2. (1). (e) Lawes' PI. 489. 4 T, R. 314. Cro. Car. 262. 2 Black. Rep. 1104. Doug. 669. (/) 3 Bulstr. 31. Carth. 110. 2 Burr. 772. 8 T. R. 459. 1 Bos. & P. 640. Bac. Abr. Trover, F. 1. Sty. 25. Gilb. H. C. P. 122. OF THE DECLARATION. ] 37 the loss of goods, by the burning of the plaintiff's CHAP. house, the goods may be described by the simple iv. denomination of ' goods,' without any designation of their quantity or kind(,g-) ; and it seems that in such a case, the words divers goods' would be suf- Ante 32 ficient. & 37. In actions for injuries to property, whether Value L L /' when consisting of personal chattels, or chattels annexed necessary to the realty, (as growing crops, &c.), the value of stated. the property, or at least some value, must be alleg- ed^*-). This is required, not strictly as matter of description, to identify the property ; but because it is incumbent on a plaintiff claiming damages, to show in his declaration the amount of the damages which, according to his own statement of the case, he has sustained ; and to this end, he is required to allege the value, or what he claims to be the value, of the property converted, destroyed or otherwise injured ; and thus to furnish (according to his own showing), a prima facie rule of damages. But as he is not obliged to state the true value ; the rule requiring it to be stated would seem to be of no great practical use. ^ 38. In actions for forcible injuries as assault 'Vi et and battery, false imprisonment, and other tres- when' passes the declaration must allege the wrongful "obe 88 * alleged. (g} 1 Keb. 825. Plowd. 85. 118. 123. Cro. Eliz. 837. 1 H. Black. 284. 3 Bulstr. 31. Finch's Law, 48. (h) Bac. Abr. Trespass, I. 2. (1.) Trover, F. 1. 2 Lev. 230. Cro. Jac. 147-8. 1 Sid. 39. Cont. Esp. Dig. 588. Dub. Cro. Jac. 130. |gg OF THE DECLARATION. CHAP. act to nave k een committed * with force and arms,' iv. and ' against the peace '(*). And by the common law, the omission of these words was an incurable defect(&). For every de- fendant, on conviction, in a civil action, of a forcible wrong alleged to have been committed vi et armis, &c. was obliged to pay a fine to the king, for the breach of peace implied in the act ; and was sub- jected to the judgment of capiatur pro fine, under which he was liable to be arrested and imprisoned, until the fine was paid. But if the words expres- sive of the force were omitted in the declaration, the judgment of capiatur could not be rendered ; and consequently, payment of the fine could not be enforced : So that if the omission of the words in question had not been held incurable, even by ver- dict, the crown would, by such omission, have been defrauded of the fine ; and the judgment, which the wrong required, would have been changed into another species of judgment, (a miser ecor did), not adapted to the action(Z). 39. And though now, by the statute 5 W. & M. c. 12, the judgment of capiatur pro fine, in civil actions, is abolished ; yet as that statute prescribes a substitute for the fine, in all actions for forcible injuries (viz. the payment of a fixed sum by the (') Bac. Abr. Tresp. I. 1. 2 Salk. 636. 640. 1 Saund. 81. 82. (n. 1.) 140. (n. 4.) F. N. B. 196. Com. Dig. Pleader, 3 M. 7. (fc) lid. (/) 3 Black. Com. 398. App. 12. Hob. 180. Vide post. 81. 82. OP THE DECLARATION. ] 39 plaintiff, on signing judgment which sum he re- CHAP. covers back by the judgment) ; and as it seems that iv. this substitute cannot be exacted, unless the wrong is laid ' vi et armisj fee. ; the better authority appears to be, that these words are now as necessary to give effect to the provisions of the statute, as they were, for a different reason, (i. e. to warrant a judgment of capiatur), by the common law(/w). 40. According to some opinions, however, the words ' vi et armis\ though confessedly necessary in all cases of trespass, were even by the common law, (before the statute 4 Ann. c. 16), only matter of form(n). But the better opinion appears to be, that they were necessary in substance(o). Now however the omission of those words, and also of the words ' contra pacem'f may, after verdict, be sup- plied by amendment, under the statute 16 & 17 Car. 2, c. 8, ^ 1. And by statute 4 fc 5 Ann. c. 16, the omission of the words vi et armis and contra pacem, is expressly aided, except on special demurrer(p). ^41. In declaring upon a contract or convey- ^{;^ s | be ance of any kind, to the validity of which a deed is, counted n - by common law, necessary, (as a grant, covenant, &c.), the plaintiff must count upon the deed; i. e. he must allege the contract, &c. to be by deed, or (HI) Bac. Abr. Tresp. I. 1. 1 Saund. 82. (n. 1.) Com. Dig. Pleader, 3 M. 7. Cont. 2 Ld. Ray. 985. (n) Cro. Jac. 130. 2 Salk. 636. 640. Carth. 66. (o) Bac. Abr. Tresp. I. 1. 1 Saund. 82. (n. 1.) () Bac. Abr. Amendment, &,c. B. Tb. Tresp. I. 1. 25 OF THE DECLARATION. CHAP, under seal : otherwise the declaration will be insuf- iv. ficient() lid. (w) I Saurid. 9. a. (n. 1.) 211. (n. 2.) 276. (n. 1.) 3 T. R. 156. 2 Salk. 519. OF THE DECLARATION. CHAP. a P ar l contract(o:). This rule extends to declara- iv. tions upon all the several kinds of promises and agreements contemplated by the above statute(?/). ^ 44. On the same principle, a lease, or an as- signment of a lease, or a conveyance with livery of seisin, in fee, in tail, or for life, may be pleaded with- out the allegation of any deed or writing, even if the conveyance, &c. were actually made by deed, &c.(z) : Because, by the common law, no writing of any kind is necessary to such conveyance, &c. (3) ; and consequently no writing need be alleged, in pleading it. 45. And if, to a declaration upon any promise writing. " 1 or agreement within the statute of frauds, the de- fendant demurs; he by demurring confesses the promise, as being in writing, however the fact may be(#). For as the demurrer, by confessing the promise, precludes all proof of it so that the plaintiff cannot exhibit a written agreement in evi- dence, if he has one ; the law must intend that the (a;) 7 T. R. 350-1. n. Cowp. 289. (!/) lid- (z) Co. Litt. 121. b. 9. a. (n. 1.) 1 Saund. 276. (n. 1.) (a) Cowp. 289. 7 T. R. 350-1. n. (3) If, however, the action is founded immediately vpon any stipulation in (he deed, (as upon a covenant in it), the deed must be pleaded, by the rule of the common law. For the deed itself necessarily enters into the description of any covenant, &c. con- tained in it. (1 Saund. 276. u. 1. Cro. Eliz. 571. 1 Lev. 88.) Besides, a covenant cannot exist, except by deed. OF THE DECLARATION. promise, thus confessed, is one which the plaintiff CHAP. has the means of proving by legal evidence i. e. iv. that it is in writing. If it were otherwise, the plaintiff, though possessed of written evidence of the promise, would lose the whole benefit of it by the defendant's demurring. & 46. But if any agreement within the statute How to be 3 . . . pleaded in of frauds is pleaded in bar of an action ; the plea, it kar. is held, must show that the agreement, or some note or memorandum of it, is in writing(6). Thus if in assumpsit, by A. against B., the defendant pleads that the plaintiff has accepted, in satisfaction of his demand, an agreement by C. to pay the debt ; the plea must show that C.'s agreement is in writing. For the plea confesses a cause of action, or legal claim, once existing in favor of the plaintiff; and this cannot be barred or destroyed, it is said, by any substituted claim, which is not itself shown to be such as will support an action. ^ 47. When a contract or conveyance, unknown Devises, to the common law, but authorized by statute, and piead^i. by the statute required to be in writing, is to be stated in any stage of the pleadings, it must be al- leged to be in writing(c). (b) T. Ray. 450. T. Jon. 158. Bull. N. P. 279. 1 Saund. 276. a. (n. 2.) 2 Wils. 49. Roberts on St. of Frauds, 203. note. Vide 2 Salk. 519, Evans' note. Lawes' PI. in Assump. 90. (c)Plowd. 376. 12 Mod. 540. 2 Salk. 519. Bac. Abr. Statute, L. 3. 1 Saund. 276. a. (n. 2.) OF THE DECLARATION. CHAP. Thus where a party declares upon, or otherwise iv. pleads, a devise of real property, he must aver that the devise was made in writing. This is necessary, upon the same general principle before mentioned, An e 6 4i tn ^t ^ pleader must allege all that is essential in law, to the right which he asserts in pleading. For a devise of realty, being unknown to the common law ; no form of pleading it could, by the ancient common law, be prescribed. And as the statute of Wills, (32 Hen. 8. c. 1), which first authorized such devises, required them to be in writing ; no right, under a devise not in writing, could ever have ex- isted in the law : And therefore no devise could ever have been well pleaded, without an averment that it was in writing : Since all that is necessary to its validity, or legal existence, could not otherwise have appeared from the pleading. f ^ 48. I And the same reasons, which require a devise to^be pleaded as being in writing, render it equally necessary to allege an observance of all the other requisites, prescribed by statute as essential to its validity : These requisites being expressly made as indispensable to the validity of such instruments, as writing itself, j And hence, he who now pleads a devise, must aver not only that it is in writing, as provided by the statute of Wills (32 Hen. 8) ; but also that it is signed and attested, according to the provisions of the statute of frauds (29 Car. 2, c. 3, 5.) For this latter enactment, relating to the same subject-matter as that of the statute of Wills, and being in effect only supplementary to it, is to be OF THE DECLARATION. ]95 taken notice of in pleading, as if it formed a part CHAP. of the elder statute(cc). iv. ^ 49. A declaration, though consisting of a single ^^1" count, may be good as to part of what the plaintiff f^ d m part demands, and ill for the residue : In which case, if the whole be demurred to, the plaintiff may have judgment for the part which is good(cT)(4). Thus, if in covenant broken, the declaration assigns two breaches, one of which is well assigned, and the oth- er ill or if in trover for two chattels, one of them is sufficiently described, and the other not so ; the plaintiff may, in either case, have judgment for that which is well pleaded(e). For in these, and all similar cases, that part of the declaration, which is sufficient, shows of itself a complete right of action, which cannot be destroyed by the part which is worth- less. ^ 50. A declaration may be general, or spe- cial(f). Thus in debt on bond, a declaration, (cc) Bac. Abr. Statute, L. 3. Syst. PI. 439. 2 Chitt. PI. 231. Fid. 6 Taunt. 628. (d) Bac. Abr. Pleas, &c. B. 6. 1 Saund. 286. (n. 9.) 2 Ib. 380. (n. 14.) Cro. Jac. 557. Com. Dig. Pleader, C. 32. Lawes' PI. 59. 60. 1 Salk. 218. 11 East, 565. 3 Caines' R. 89. (e) lid. 6 Johns. R. 65. (/) Bac. Abr. Pleas, &c. B. 1. Doct. PI. 84. (4) It is assumed in this rule, that the demand in the declara- tion is divisible into two or more distinct claims, of which one alone constitutes a right of action as in the examples which fol- low in the text. For if a declaration founded on one indivisible demand, (as on a single promise, or a single breach of covenant, or the conversion of a single chattel), is ill in part, it is necessa- rily so in toto. OF THE DECLARATION. CHAP, counting on the penal part only, is general : But if iv. it sets out both the penalty and the condition, and as- signs the breach ; it is special. In assumpsit also, if the declaration states only a general legal liability and a general promise to pay, in the form of a com- mon count ; it is general : If it alleges a special ex- press agreement, and a specific consideration, accord- ing to the usual forms of declaring upon express pro- mises ; it is special. And a declaration may contain both special and general counts. Declaration & 51. The declaration must agree with, or pur- must pursue 7 f the writ. sue<> the complaint made in the writ(g). For the writ is the foundation of all the subsequent proceed- ings, and indeed confers upon the court all its autho- rity to proceed, in each particular action. Besides, the declaration is, or ought to be, merely an enlarged Ante )C h.2. exposition of the writ ; and must of course follow up the same complaint, as is contained in the writ. If, therefore, the declaration varies from the writ as if the writ sounds in tort, and the declaration in con- tract, or t> converse the latter is an abandonment of the complaint in the writ ; and the court has, strictly, no authority to proceed in the suit. In such a case, ] the declaration itself is said to ' abate the writ'(A). / Of the Joinder of Parties in one Declaration. i. joinder & 52. Under this head, it may be premised, that f tilaintiffe 3 J the remedy or redress, which the law affords in any (g) Bac. Abr. Pleas, &c. B. 4. Doct. PL 84. Hob. 180. (h) Bac. Abr. Pleas, &c. B. 4. Abatement, I. of plaintiffs. OF THE DECLARATION. J07 given case, for the violation or deprivation of a legal CHAP. right, belongs exclusively to him or them, whose iv. right has been violated, or is withheld. T ' 1 f Joinder of plaintiffs. If then, the right of action is in one person only, another may not be joined with him, as plaintiff in the action (i). For he whose sole right is violated, cannot, by joining another person in his complaint, make the defendant liable to a stranger. This rule extends both to actions ex contractu, and ex delicto. (Vid. note (5). post. ^ 56). ^ 53. When the several rights of two or more persons are violated, even by one and the same act or wrong, (as if the same slanderous words are spoken, by one and the same person, at the same time and place, and in the same sentence, of A. and B. ; or if the persons of A. and B. are both injured, or their several interests violated, by one and the same tortious act) they cannot regularly, in either case, join in an action for the injuries thus occasion- ed^). For there is no joint right violated. tb On this principle, tenants in common cannot join, in a real action, or in ejectment, to recover the lands **" which they hold in common(/) : Their interests (t) Com. Dig. Abatement, E. 15 Godb. 440. Hob. 72. Cro. Car. 300. 408. 575. (A:) Bac. Abr. Pleas, &c. B. 2. Gouldsb. 76. Keilw. 55. a. Ow. 106. Cro. Car. 512. Bac. Abr. Slander, S. 1. Yelv. 129. Co. Litt. 145. b. 2 Saund. 117. (n. 2.) (/) 2 Black. Com. 194. Co. Litt. 197. 2 Wils. 232. 2 H. Black. 387. 2 Black. Rep. 1077. Bac. Abr. Joint Tenants, &c. K. 26 OF THE DECLARATION. CHAP, being not joint, but several. (Vide note (5), post. iv. 56.) 54. If however slanderous words are spoken or written of two partners in trade, as such i. e. if the slander or libel affect their joint interest as traders, and occasion special damage ; they may join in an action for the injury. For the interest, and the injury sustained, are joint. And there appears to be no reason why the same rule should not hold, if the words were in themselves actionable, and no special damage alleged. For the damage, implied or presumed in the latter case, would be joint, in every sense in which special damage can be so(w), ^ 55. Where a cause of action accrues in right of a feme covert, if the right is such as would, on the husband's death, (he dying first), survive to her ; they must both, regularly, join as co-plaintiffs in the action(w). For she cannot sue alone, by reason of the legal disability of femes covert thus to sue ; and if the husband alone could maintain the action, he might, in certain events, deprive her of her sole right of recovery after his own death. , X M/ fett* /ittJt , (m) 3 Bos. & P. 150. 3 Bing. 452. 2 East, 426. 2 Saund. 117. a. (n. 2.) 2 Selw. N. P. 1162. Yelv. 129, notis Metcalf. Vid. etiam 17 Mass. R. 182 ; and Collins v. Barrett, mentioned by Best, C. J. in 3 Bing. 456. (n) 1 Roll. Ab. 347. 2 Wils. 424.' 3 T. R. 631. 1 Bulstr. 21. Lane, 53-4, 1 Fonbl. Eq. 309. Bac, Abr. Baron $ Feme, K. OF THE DECLARATION. 199 56. If the right of action is in two or more CHAP. persons jointly, they all may and ought to join, as iv. plaintifife in the action, whether it be ex contractu or ex delicto(o). For on the general principle, first premised (Ante, 52), one person ought not to be allowed to sue alone, for the whole of that, of which he is entitled to only a part ; and on the other hand, the defendant ought not to be subjected more than once, for one and the same cause or thing. On this principle, joint creditors, whether by record, special- ty, or simple contract, must all join in an action to recover the debt(jo). So also, in general, joint tenants and coparceners must, respectively, join in actions to recover the estate, which they respective- ly hold together(5) ; and in all actions for injuries to theirjoint property^). (o) Com. Dig. Abatement, E. 8. Pleader, 2 V. 2. 1 Saund. 153. 291. f. (n. 4.) Bac. Abr. Pleas, &c. B. 2. Co. Litt. 164. a. 5 Co. 18. b. 2 Stra. 820. 1146. (p) 5 Co. 18. b. Yelv. 177. 1 Saund. 155. 291, f. (n. 4.) 1 Sid. 238. 1 Vent. 34. 3 T. R. 782. (g) Bac. Abr. Joint Tenants, &c. K. Co. Litt. 180. b. (5) It appears to have been long considered as an established rule of the common law, that joint-tenants and coparceners must, respectively, all join in actions relating to their respective estates. But in some recent cases, it has been held, that in ejectment they may either join or sue severally, at their election. (12 East, 39. 57. 6 Ib. 173. 11 Ib. 288. 2 Caines' R. 169) : Inasmuch as a several demise, by one of the .tenants, to the plaintiff in the action, is a severance of the joint tenancy or coparcenary. In the state of Connecticut, joint-tenants, coparceners, and tenants in common, have immemorially joined, or severed, at their election, both in ejectment, and disseisin. (1 Root, 246. 4 Day, 298. 303.) 200 OF THE DECLARATION. CH\P. 57. And although tenants in common cannot iv. join, in real actions, or in ejectment because their interest is several ; yet in personal actions, in which plaintiffs" damages only are recoverable as in trespass quare clausum fregit, in case for a nuisance to their land, and in all actions for injuries to personal chattels they must all join(r). For in such cases, as the damages are entire, and will survive entire, to the surviving tenant ; they are in effect joint, and so, consequently, is the right of action. s~ I ^ 58. It has already been stated, that where the 'right of action is in two or more, jointly as joint obligees, covenantees, &c. the action must be brought by all of them. So also, where one covenants with, or otherwise binds himself to, two or more persons, jointly and severally, if it appear from the contract, that their interest is joint ; they must all, if living, join in the action(V). Thus if A. conveys land to B. and C. jointly, and covenants with both, and each of them, (thus making the covenant joint and se- veral), that he is well seised, &c. ; B. and C. must join, in an action on the covenant(Y). For w r hen the interest of the covenantees is joint, the right of recovery is so : And the defendant ought not to be subjected to two suits, for one and the same entire cause or thing. (r) Litt. 315. Cro. Jac. 231. Co. Litt. 198. a. Yelv. 162. Com. Dig. Matcmeni, E. 10. Bac. Abr. Joint-tenants, &c. K. () 5 Co. 18. b. 19. a. 1 East, 497. 1 Saund. 153. & n. 1. Bac. Abr. Obligation, D. 3. (/) lid. OF THE DECLARATION. 201 59. But upon such a covenant, (or, as it seems, CHAP. even on one that is joint only}, if it appears from the iv. deed, that the interest of the covenantees is several ; they may sue in separate actions(w). For the inter- est of the covenantees being several ; the right to be asserted by action, is consequently several. If then A., by one and the same deed, leases Black-acre to B. and White-acre to C., and covenants as to the whole, with both and each of them ; B. and C. may each maintain a several action on the cove- nant. And the rule, it seems, would be the same, if the covenant had been with both the covenantees on- ly, and with each of them(#). ^ 60. Where one is bound by contract, to two per- sons, (as B. &, C.), severally, and only severally, (their interest being also several), they not only may, but it seems must, sue upon it separately (w). For the case is, in effect, that of two distinct contracts, though contained in one instrument. And in such a case, B. and C. may each in his own sole action, declare upon the obligation as one made to himself alone, without naming the other : This form of de- claring being according to the legal effect of the con- tract^). ) () 5 Co. 18. 19. Bull. N. P. 157-8. 2 Mod. 82. 1 Saund. 154. (n. 1.) 2 Ib. 116. a. b. (n. 2.) 1 East, 497. Yelv. 177. (B) 5 Co. 18. 1 Saund. 154. (n. 1.) Yelv. 177. Metcalf's ed. n. 1. (tc) Cro. Eliz. 729. Mo. 667. Yelv. 25. tx) lid. 202 OF THE DECLARATION. CHAP. 61. On the death of one of two or more joint iv. obligees, promisees, &c. the action must be brought by the survivor, or, (if there be more than one), by plaintiffs, all the survivor s(y). For by the common law, rights of action, vested jointly in several persons, survive entire, on the death of any of them, to the survivors, and ultimately to the last survivor(2r) : But while there are several survivors, the right of ac- tion, as between themselves, continues joint. If therefore, one of two joint obligees in a bond ' dies ; his executor or administrator can neither join, in an action upon it, with the survivor, nor sue alone, at law, for the part which belonged to his testator or intestate(a). For the remedy, at law, survives entire to the surviving obligee ; who howev- er receives the share of the deceased obligee in the avails of the suit, as trustee to the personal repre- sentatives of the latter, and must therefore account for it with them(6). ^ 62. But when the contract is with two or more severally, and their interest is several, no right of survivorship accrues between them. In this case therefore, each, on his own death, transmits his several interest, and right of action, to his own re- (y} 1 Saund. 291. f. (n. 4.) 2 Salk. 444. Carth. 170. Comb. 474. 1 Bos. & P. 445. 1 East, 497. (*) lid. (a) 1 East, 497. 1 Bos. & P. 445. (6) 1 Ves. 242. 252. 1 Ld. Ray. 340. Toller on Ex'rs. 155. 163. 444-5. OF THE DECLARATION. 203 presentatives(c) : The case being, in effect, the CHAP. same as if a separate contract had been made with iv. each of the original parties, for his part of the debt , . Joinder of or demand. plaintiffs. ^ 63. Where there are two or more executors. Executors, named in a will, they must all, if living, join as plaintiffs, or at least be named as such, in personal actions brought in right of the testator(c?). For their rights and interests, as executors, are in so strict a sense joint, that they are all considered in law as constituting but one officer or representative(e). And where one of several co-executors, when named as co-plaintiff, refuses to join in pursuing the action, he may be summoned and severed, i. e. separated from the suit after which, the others may proceed in the action without him(f) : Since the judgment of severance makes him a stranger to the right of action. ^ 64. On the death of one of several co-execu- tors, the executor of the deceased executor can not join in actions, with the surviving original ex- ecutors, nor sue at law, at all, in right of the first testator^). For rights of action survive entire, (c) Cro. Eliz. 729. 2 Burr. 1197. 1 Saund. 154. (n. 1.) (d) Off. Ex. 42. 9 Co. 37. Toller on Ex. 41. 45. 446. 1 Saund. 291. g. Com. Dig. Abatement, E. 13. (e) Off. Ex. 259. Godolph. 134. Toller on Ex. 243. 359. 3 T. R. 558. Com. Dig. Administration, G. (/) Cro. Car. 420. Toller on Ex. 446. Carth. 61. Dyer, 319. b. (g} Bac. Abr. Executors, &c. G. 1 Ves. 10. 3 Atk. 509. Toller on Ex's. 363. THE DECLARATION. CHAP, between co-executors, as between original parties iv. having joint rights of action. ants. 65. Co-administrators also must all, if living, join in actions, like co-executors(^) ; and for the same reason, viz. that their right to sue is joint. And on the death of one of them, the right survives to the others, as in the case of executors(f). of' defend- ^ 66. In regard to the joinder of defendants, it is a general principle, that where a legal right has been violated, or is withheld, by the joint act or joint default of two or more persons, they may all be joined as defendants in one action, whether it be ex contractu or ex delicto. And if the action be ex contractu, they must all, if living, be thus joined ; although in actions ex delicto, they may generally be joined or not, at the option of the party injured. The reason of the distinction is, that in contracts, if the obligation or duty be joint only ; the non-per- formance or default, and consequently the liability, must be so : whereas if a tort is committed by several ; the wrong, and the liability, may be treat- ed as joint or several, at the election of the aggriev- ed party. For the act of each of the wrong doers is deemed the act of all ; and on the other hand, the acts of all are, in law, the acts of each. (h) Com. Dig. Abatement, E. 14. Ib. Pleader, 2 D. 10. Tol- ler on Ex's. 448. (t) Bac. Abr. Executors, &c. G. 2 Vern. 514. Lovelass, 21. OF THE DECLARATION. 205 ^ 67. If therefore two or more persons bind CHAP. themselves, by a joint contract of any kind ; they iv. must all, if living, be joined as defendants, in an action for the breach of it(/c). And the rule was defendants. formerly held to be the same, in actions ex quasi Oncon- contractu as in actions against carriers, or other bailees, for negligence or breach of trust(l). But it is now held to be unnecessary, in this class of ac- tions, to join, as defendants, all the parties who are liable, unless the action is founded on contract, so that to support it a contract between the parties to the suit must be proved. If the action is so found- ed, all must be joined as defendants, though the action is in form ex delicto. This principle recon- ciles all the recent cases(w). Thus, if in an action against carriers, the plaintiff declares against them on the custom of the realm, and alleges a breach of duty imposed by that custom ; he alleges a breach of law, which needs not the aid of a contract to enforce it, and of course he need not sue all the persons who are liable : Otherwise, if he declares on contract. 68. And if one of several persons, bound by a joint contract, dies ; the action must be brought against the survivor ; or if there be more than one (fe) Bac. Abr. Obligation, D. 4. 5 Co. 19. 1 Saund. 154. (n. 1.) 291. (n. 2.) 5 Burr. 2611. 2 Black. Rep. 947. (/) Carth. 1623. 1 Freem. 499. 1 Saund. 291. d. n. 6 T. R. 369. (nt) 5 T. R. 649. 2 N. Rep. 365. 454. 3 East, 62. 12 East, 89. 452. 6 M. & S. 385. 6 Moore, 141. 3 Brod. & Bing. 54. Vid. 6 B. & A. 653. 27 206 OF THE DECLARATION. CHAP, survivor, against all of them(). For joint liabili- iv. ties survive entire, against survivors, as do joint rights, in their favor. And therefore, the personal defendants, .representative of the deceased party is not liable, at law, either as a co-defendant with the survivor, or in a separate action(o). 69. But if two bind themselves by contract, jointly and severally; they may both be joined as defendants in one action ; or either, or each of them, may be sued in a separate action(j!?). For when the contract is in this form, the obligation, created by it, may be treated as either joint or several, at the election of the party, who is entitled to recover for the " breach of it. For the liability, considered as several, is virtually the same as if it had been created by two several and distinct contracts, for the performance of one and the same duty. The plain- tiff is ultimately entitled, however, to only one satis- faction in the whole. f ^ 70. If three persons bind themselves by a. joint and several contract ; they may be sued jointly or severally, as in the last case( tvvo different dilatory pleas, either of the same pomts. class, or of different classes, to different points as different parts of the matter in demand(i/). For as the pleas go to different points, they do not consti- tute duplicity ; and for the same reason, they are not incongruous, even if they are of different classes, unless one of them has before been waived. The defendant, therefore, may plead simultaneously the nonjoinder or misjoinder of a party, as plaintiff", to one count ; and the nonjoinder of another person, as defendant, or other matter of abatement, to the other. ^ 7. He may also, at the same time, plead a dil- atory plea, as to part of the matter in demand, and in bar, as to the residue : As nonjoinder of a party, to one of two counts in assumpsit, and non as- sumpsit, or a special plea in bar, to the other(z) : (*) Com. Dig. Abatement, C. I. 3. Lawes' PI. 108. Co. Litt. 303. a. (y) Com. Dig. Abatement, I. 5. Lawes' PI. 107. (z) Lawes' PI. 107-8. 2 Bos. & P. 420. Vid. 10 Mod. 285. OF DILATORY PLEAS. 229 Different pleas to different counts being virtually, CHAP. as they appear upon the record, pleas to different v. demands, or causes of action(l). & 8. The order to be observed, in pleading the .r der of :> dilatory several dilatory pleas before enumerated, is the same P leas - as that in which they are named in the enumera- tion ; and this order is dictated by the principle, that the pleading of any one of the pleas, in that enumeration, is a tacit waiver of those of the pre- ceding class or classes. Thus, a plea of the second class waives those of the first ; one of the third class waives those of the first and second ; and. the same principle prevails through the whole series. 9. But as the only object of the foregoing mi- nute division, and subdivision of dilatory pleas, is to show their priorities in the order of pleading ; and as these priorities, and the several offices of dilatory pleas, may be sufficiently explained, under the three- fold division, heretofore mentioned, (ch. 2, 34) ; the latter, as being the more simple, will be still pur- sued. & 10. Dilatory pleas then, according to the di- Kinds of * J dilatory vision under which they are now to be considered, P leas - and have already been classed, in a former part of this Treatise, are I. Pleas to the jurisdiction of (1) In the States of Connecticut and Massachusetts, it has heretofore been customary to assign any number of causes of abatement, in one and the same plea. (Story's PI. 59 60.) 30 230 OF DILATORY PLEAS. CHAP, the court : II. Pleas to the disability of the plain- v. tiff : III. Pleas in abatement(a). 11. It is here to be observed, that what are termed pleas in abatement, in this threefold division of dilatory pleas, comprehend all those which, in the more minute division (ante, 1), follow pleas to the person of the plaintiff'. All dilatory pleas, there- fore, which go to the disability of the person of the defendant, and all those which follow that class of pleas, in the latter division, are here to be considered as pleas in abatement, properly so called. But pleas founded upon a defendant's privilege, exempting him from suits, except in a particular court, are here considered as pleas to the jurisdiction of the court. (See post. 16). Restriction ^12. Dilatory pleas having been formerly used pleas. for the mere purpose of delay, and without any foundation in fact ; it is enacted, by the statute 4 Ann. c. 16, ^ 11, that no plea of this class shall be received without affidavit made of its truth, or of some matter, which shall induce the court to believe it true(6). But this enactment, though universal in its terms, is applicable only to pleas alleging extrin- sic matters : As those, appearing upon the face of the record, can require no proof(c). (a) 3 Black. Com. 301. (6) Bac. Air. Pleas, &c. E, 2. Ib. Abatement, 0. 2 Saund. 210. e. Sayer, 293. 3 WJ1 S . 51. (c) 3 Bos. & P. 397. 2 Ld. Ray. 1409. 1 Chitt. PI. 452. -' OF PLEAS TO THE JURISDICTION. 231 CHAP. I. Of Pleas to the Jurisdiction. v. 13. A plea to the jurisdiction is one which de- nies that the court has jurisdiction of the cause(^). This is the first plea, in the regular order of plead- ^'"^j^ ing, on the part of the defendant(e). The defend- {j|c ordlr"of ant therefore, if he would except to the jurisdiction p!eas - of the court, in any case in which the exception must be taken, if taken at all, by plea, must do it before he offers any other plea : For in such a case, a plea of any kind, which refers to the court any other question than that of its own jurisdiction, (which last every court must, from the necessity of the case, decide for itself, in the first instance), is a tacit admission that the court has a right to judge in the cause ; or in other words, that it has jurisdic- tion : And thus all exception to the jurisdiction is waived (f). 1^ IvUMJL *+**J<<~ UVi , In every such case also, a plea to the jurisdiction must, for a similar reason, be pleaded, if at all, be- fore a general or even a special imparlance(g). But for the distinctions on this head, see ch. 2, ^ 17. 18, 19. 14. Want of jurisdiction may arise, at com- Causes of 1 c . . ~ , ir exception to mon law, from either or several causes as 1. from the jurisdic- tion. (d) Bac. Abr. Pleas, c. E. 1. 2. (e) Bac. Abr. Pleas, &c. A. E. 1. 2. Co. Litt. 303. (/) lid. Co. Litt. 127. b. Hob. 164. (g-) 2 Saund. 2. (n. 2.) Ticld, 418. 232 OF PLEAS TO E JURISDICTION. CHAP, what may properly be termed privilege of tenure ; v. under which head falls the plea of ancient demesne : 2. from some privilege of the defendant, by which he is exempted from liability to suits, in the court in which the action is brought : 3. 'from the cause of action's having arisen out of the limits of the court's / jurisdiction : 4. from a want of power in the court to take cognizance of the subject-matter of the suit. ^ 15. I. When land, sued for in any of the supe- rior courts, (as the King's Bench, Common Pleas, &c.) is held in ancient demesne, the defendant may Ancient de- plead that fact, to the jurisdiction of the court(/i) : Ancient demesne being a peculiar and privileged spe- cies of tenure, cognizable only in the court of the manor, of which the land so held is parcel(z). This plea, I trust, is unknown to the laws of any of the United States : Since no such tenure or court, it is presumed, exists in any of them. Privilege of 16. II. If an attorney, or other officer of one of attorney, ^^ superior courts of Westminster, is sued alone, and in his own individual capacity, in another court, in any action that the court, of which he is an officer, is competent to try ; he may defeat the suit, by plead- ing his privilege, as an officer of the court to which he belongs(A;). This privilege is allowed, on the (fc) Com. Dig. Matenent, D. 1. 2 Leon. 190. Sly. 273. 3 Lev. 182. (t) 2 Black. Com. 93. 3 Woodes. 12. (fc) Com. Dig. Abatement, E. 4. 2 Bulstr. 207. 2 Salk. 544. Andr. 44. Bac. Abr. Abatement, C. OF PLEAS TO THE JURISDICTION. 233 presumption that the constant attendance of these CHAP. officers, in their own courts, is necessary to the due v. administration of justice. But as this privilege, al- so, is presumed not to exist in any of the United States ; the more particular rules relating to it are here omitted. 17. III. It is, in some cases, a good plea to the jurisdiction, that the cause of action arose out oj the local limits of the court's jurisdiction ; in others, it is not so. And on this head the following dis- tinctions are to be observed : ^18. 1. In courts of limited jurisdiction, i. e. cause of courts whose jurisdiction extends only to causes of fnVout 8 " action actually arising within certain local limits jurisdiction, it is a good plea to the jurisdiction, as well in tran- sitory as in local actions, that the cause of action did not accrue within those limits (7). Most of the city courts, in the United States, are believed to be thus limited in their jurisdiction. In such cases, however, it is not necessary for the defendant to plead to the jurisdiction : Since the exception may be taken under the general is- sue(m). For the legal presumption being against the jurisdiction of such inferior courts ; it is neces- sary for him, who sues in one of them, to allege that (/) Bac. Abr. Pleas, &c. E. 1. Gilb. H. C. P. 188-9. 1 Roll. Ab. 545-6. Bac. Abr. Courts, D. 4. (m) Bac. Abr. Pleas, &c. E. 1. 1 Lill. Ab. 366. 1 Saund. 98. (n. 1.) Gilb. H. C. P. 188-9. 2 Ves. 357. 6 East, 601. 234 OF PLEAS T THE JURISDICTION. CHAP, tne cause f action arose within its jurisdiction. If v. this allegation is omitted, his declaration is ill ; and if the allegation, being made, is not proved, he is liable to a nonsuit(n). ^19. 2. Courts of general jurisdiction, (as the Superior Courts of Westminster, in England), have cognizance of all transitory actions, wherever the cause of action may have accrued : Since all such actions, in general, follow the person of the defend- ant^). The same extent of jurisdiction apper- tains not only to the several Superior Courts, (or highest courts of ordinary jurisdiction), of the sever- al states, which compose the United States ; but to various other courts, of subordinate authority, in ma- ny of the states, and probably in all of them. ^ 20. 3. But it is a good exception to the jurisdic- tion of courts, even of the superior class, that the cause of action, when local, accrued in a foreign state, or in any place where the process of the court cannot mn( J p). 21. Thus, to an action of trespass quare clau- sum fregit or an action for rent arrear, against the assignee of a lease or any other action, in (n) 2 Inst. 231. 1 Roll. Ab. 545-6. Bac. Abr. Pleas, &c. E. 1. Gilb. H. C. P. 188-9. (o) Com. Dig. Action, N. 7. Cowp. 161. 177-8. 344. 2 H. Black. 145-161. 5 T, R. 616. 7 Tb. 243. Ante, ch. 3, 159. (/>) Bac. Abr. Pleas, &c. E. 1. Ib. Actions Local, &c. A. 1. 2 Bl. Rep. 1070. 4 T. R. 503. 7 Ib. 587. 1 Stra. 646. Ante, ch. 3, 108. OF PLEAS TO THE JURISDICTION. 235 general, arising out of the realty, it is a good plea to CHAP. the jurisdiction of a court, even of general jurisdic- v. tion, that the land, on which the wrong was commit- ted, or out of which the action arose, lies in a for- eign country or state(ry). And the same rule ex- tends to all local actions, in general, the causes of which arose in a foreign state(2). In the application of this rule, in the United States, the several states are, in relation to each other, foreign. ^ 22. In an action, brought for the recovery of a local subject, (as land), situated in a foreign country, or beyond the reach of the process of the court, a plea to the jurisdiction cannot, however, on principle, be ne- cessary for the purpose of ousting the jurisdiction. For, as the judgment, demanded in such an action, being in rem, would, if rendered, be utterly nugatory (since the subject could not be reached by any pro- cess of the court) ; the exception may be taken in any stage of the proceedings(r). ^ 23. But in local actions which are personal, and in which, of course, the judgment demanded may be enforced against the person, or goods of the defendant (as in trespass quare clausum fregit, debt for rent against the assignee of a term, &c.) if the (?) Com. Dig. Abatement, D. 3. 1 Salk. 80. 1 Show. 191. Carth. 182. (r) Cowp. 176. 7 T. R. 587-8. 1 Chitt. PL 284. (2) For the enumeration and description of local actions, in gen- eral, see ante, ch. 3, 105 to 131. OF PLEAS TO THE JURISDICTION. CHAP, cause of action accrued in a foreign state, or where v. the process of the court cannot run, it appears to have been formerly deemed necessary, in a Superior Court, to plead to the jurisdiction^). And such is now the rule, in relation to this class of local actions, in the courts of Westminster, when the cause of action ac- crued in Wales, or in a County Palatine, where, though within the kingdom of England, the ordinary process of these courts does not run(Y). ^ 24. It seems now, however, that where a local action, not requiring a judgment in rem, (as trespass quare clausum fregit, for an injury to land lying in a foreign country), is brought, even in a Superior Court, exception may be taken to the jurisdiction, under the general issue(u). 25. 4. It is a fatal objection to the jurisdiction of any court, that it has not cognizance of the sub- ject-matter of the suit i. e. that the nature of the action is such as the court is, under no circumstan- ces, competent to try(V) . As if a real action were brought in B. R. : or a cause, exclusively of ad- miralty jurisdiction, in any court of common law. In any such case, neither a plea to the jurisdiction, (*) 1 Salk. 80. 1 Show. 191. Carth. 182. Com. Dig. Mate- tnent, D. 3. (<) Bac. Abr. Pleas, &c. E. 1. 1 Chitt. PI. 427. Cowp. 172. Andr. 198. () 4 T. R. 503. & vid. 6 East, 583. 598-9. 7 T. R. 587. (0) 10 Co. 68. 76. b. 1 Vent. 133-4. Hardr. 478. 481. 8 Mass. R. 87. 12 Ib. 367. OF PLEAS TO THE JURISDICTION. 237 nor any other plea would be necessary, to oust the CHAP. jurisdiction of the court. The cause might he dis- v. missed on motion ; and even without motion, it would be the duty of the court to dismiss it ex offi- cio. For the whole proceeding w r ould be coram non judice, and utterly void. ^ 26. As to the mode of pleading to the iurisdic- R ? od f. of / JT o J pleading to tion, there is an essential difference to be observed, ^ O e j urisdic " between a plea to the jurisdiction, in a court of limited, and one of general jurisdiction : In a court of the former class, it is sufficient to plead negatively i. e. to show, by proper allegations, that the court has not jurisdiction : Whereas in a superior court, it is necessary, both at law, and in equity, and as well in criminal as in civil cases, not only to show that the court has not jurisdiction ; but also to point out, specially, some other court which has it.(w). For if it does not appear that a remedy can bo had in some other tribunal ; that very fact will, in general, confer jurisdiction upon a superior court ; as there would otherwise be, for aught that would appear, a failure of justice. But it seems manifest, for reasons which have already been stated, that neither in this, nor in any other way, can jurisdiction be ultimately given to any court, which has not co'gnizance of the subject-matter, as where the action is brought for the recovery of real property, lying in a foreign country, or where the process of the court cannot run. (M>) Yelv. 13. 1 Ves. 202. 2 Ib. 357. 2 Burr. 1047. Cowp. 172. Doct. PI. 234. 6 East, 583. 598. 601. 3 Mass. R. 26. 31 2QQ OF PLEAS TO THE JURISDICTION. CHAP. 27. A plea to the jurisdiction must be signed by v. the defendant in person. For if signed by an attor- ney, who is an officer of the court, he is supposed to have signed it by leave of the court ; and the asking of leave is considered as a tacit admission of the ju- risdiction^?). But such an implied admission obvi- ously cannot aid the jurisdiction, except in cases, in which the objection to the jurisdiction must be tak- en, if at all, by plea to the jurisdiction, and can be taken in no other way. ^ 28. In ejectment, according to the English practice, a plea to the jurisdiction cannot be plead- ed, except by leave of court(y) : Because without such leave, the real defendant is, by the ' common rule,' obliged to plead the general issue. Under the more simple forms of this action, which prevail in some of the United States, no such leave is neces- sary. ^ 29. A plea to the jurisdiction concludes to the cognizance of the court, by praying judgment, if the court will take ' cognizance, (or have further cogni- zance)', of the suit or, in more technical language, ' of the plea afore said '(2). (x) Bac. Ab. Abatement, A. Ib. Pleas, &c. E. 2. 6 Mod. 146. Lawes' PI. 91. 6 Pick. 371. (y) 1 Black. Rep. 197. 2 Burr. 1046. 3 Wils. 51. 8 T. R. 474. (*) Bac. Abr. Pleas, &c. E. 1. 3 Black. Com. 303. 1 Wentw. PI. 19. 2 Chitt. PI. 412. 3 T. R. 186. 5 Mod. 146. Lawes' PI. 109. OF PLEAS TO THE DISABILITY OF PLAINTIFF. 239 30. Whenever jurisdiction cannot be given to CHAP. the court, by the defendant's omitting to plead to v. the jurisdiction, or by consent of parties, the plain- .rr- ,i f ,i . When the tiff in the suit may assign lor error the want of ju- plaintiff risdiction ; although he, himself, chose to resort to "hTwanT^" the court for redress(). For in such a case, no- for error. thing can give validity to the judgment. II. Of Pleas to the disability of the Plaintiff. 31. There are certain legal disabilities, which disqualify the subjects of them to prosecute suits ; and which are therefore pleadable ' to their disabili- ty' as plaintiffs. Some of these entirely defeat the suit ; while others only suspend it, quousque until the disability be removed. These disabilities, as they exist in the law of England, are the following : ^ 32. I. Outlawry(3). That the plaintiff is an outlawry. outlaw, is pleadable to his disability : One of the effects of a judgment of outlawry being, to disable the outlaw to assert any civil right in a court of jus- tice, while that judgment remains in force(6). (a) 2 Cranch, 126. (6) Bac. Abr. Abatement, B. Litt. 197. Co. Litt. 128. a. (3) As this disability, and those which follow it, to that of ex- communication, inclusive, can be of little practical importance in the United States ; little more concerning these, than a mere enumeration of them, will be presented in this Treatise. 240 OF PLEAS T0 THE DISABILITY OF PLAINTIFF. CHAP. 33. If the disability existed, when the cause of v. action accrued ; it has the effect of totally defeating the suit(c) ; which, in such a case, was improper in its commencement. But the disability, when it com- mences after the accruing of the cause of action, is only a temporary impediment, which does not abso- lutely destroy the suit. For as the action in this case is rightly commenced ; the supervening disabili- ty has no other effect, than that of suspending the proceedings in it, until the impediment is removed ; and this can be done, only by a reversal of the judg- ment of outlawry, or a pardoned). ^ 34. If two sue as co-plaintiffs, in a personal ac- tion, a plea that one of them is an outlaw, will, if established, defeat or suspend the suit, as to both(e). For as they sue jointly, and of course assert a joint right ; they must recover jointly, or not at all, in that suit. plead " % 35. That the plaintiff is an outlaw, is always pleadable to his disability, and in some cases it can be pleaded in no other w 7 ay ; in others, it may be pleaded either to his disability, or in bar(f). And the distinction between these different cases, is the following : (c) Lawes' PI. 102-3. (d) Bac. Abr. Abatement, B. 1. Lawes' PI. 103. 12 Mod. 400. (e) Com. Dig. Abatement, E. 2. (/) Bac. Abr. Abatement, L. Co. Litt. 118. b. OF PLEAS TO THE DISABILITY OF PLAINTIFF. 241 36. If the right of action is not forfeited by the CH AP. outlawry (as where the action is for an injury to the v. person ; such as battery, slander, &c. ; and in gener- al, where the damages demanded are altogether pre- sumptive) this defence goes only to the disability of the plaintiff, and is not pleadable in bar(g) : Be- cause rights of action, of this kind, are not in their nature forfeitable by crimes. ^ 37. But a judgment of outlawry, which works a total forfeiture of the outlaw's property, (as where he is outlawed on a charge of felony), may, in gener- al, be pleaded either to his disability, or in bar, in all suits in which he asserts a right of property(h). For by such- a judgment, the right of action is itself, by the common law, forfeited to the crown or state. ^ 38. II. Attainder of treason or felony, by the Attainder. common law, disables the party attainted, to prose- cute any civil action, and may therefore, (like a judgment of outlawry for such an offence), be plead- ed to his disability, when plaintiff in a suit(i). For by the attainder, the traitor or felon is civilly dead(&). (g) Bac. Abr. Outlawry, D. 4. (3). Ib. Abatement, L. Co. Litt. 128. b. 1 Chitt. PI. 473. 5 Co. 109. 2 Lill. Ab. 333. Ow. 22. 3 Lev. 29. (h) Bac. Abr. Outlawry, D. 4. (3). Abatement, L. Com. Dig. Pleader, 2. G. 4. 1 Chitt. PI. 473. Lawes' PI. 38. 104. (t) 3 Black. Com. 301. 4 Ib. 112. 3802. Com. Dig. Abatement, E. 3. (fe) 4 Black. Com. 380. 3 Inst. 213. OF PLEAS TO THE DISABILITY OF PLAINTIFF. CHAP. 39. III. IV. V. Prcemunire, (or the offence of v. maintaining the Papal power in the realm of Eng- land) Popish recusancy and Monachism, i. e. be- Prsemunire. n,r T r t 11 i & c . ing a Monk professed, are, by me common and stat- ute law of England, respectively pleadable to the plaintiff's disability(/). But neither of these disabi- lities, I trust, is recognized by the laws of any of the United States. ^ 40. VI. Excommunication is also, by the law of England, a civil disability, and as such pleadable to the person of an excommunicated plaintiff, suing either in his own right, or in the character of executor or administrator(m). The excommunication of the plaintiff does not however destroy the suit, but mere- ly suspends it until the plaintiff has obtained absolu- tion(n). This disability also is unknown to the laws of this country. Alienage. ^ ^j yjj Alienage is, in some actions, plead- able to the disability of the plaintiff; but not in all. In regard to the extent of this disability, there exists a distinction, first, between alien enemies and aliens in amity ; and secondly, between the species of actions, which the latter can, and cannot, maintain. (/) 3 Black. Com. 301-2. 4 Ib. 112. Com. Dig. Abatement, E. 5. (?n) Godolph. 85. 3 Black. Com. 301. Bac. Abr. Abatement, B. 2. (n) Bac. Abr. Abatement, B. 2. Vid- St. 51 Geo. HI. c. 127. OF PLEAS TO THE DISABILITY OF PLAINTIFF. 243 ^ 42. An alien enemy can in general maintain, CHAP. in his own right, no action ; real, personal or mixed. v. This rule extends, as well to prisoners of war de- tained here, as to all other subjects of a hostile power(o). For, as a general rule, such an alien, being out of the protection of the laws of the state, with which his own is at war, can have no civil remedies under them. ^ 43. This rule, however, does not extend to an alien enemy residing here, under a license, protec- tion, or safe conduct, from the executive govern- ment(p). For such license, &c. places him under the protection of the law, and substantially upon the same footing as that of an alien friend. ^ 44. The question whether an alien enemy, not thus protected by the government, can maintain suits in the character of executor or administrator, has been a subject of considerable debate, and di- versity of opinion(^). The better opinion appears to be, that he cannot(r). For, without adverting to the several reasons, urged in the books, on either side of the question, it may be sufficient to observe, that his right to sue here, in any capacity, would (o) Bac. Abr. Abatement, B. 3. Aliens, D. 2 Stra. 1082. 6 T. R. 23. 49. 8 Ib. 166. 4 East, 502. ( p) Bac. Abr. Abatement, B. 3. Aliens, D. 1 Salk. 46. 4 Mod. 405. 1 Ld. Ray. 282. 2 Stra. 1082. 8 T. R. 166. 10 Johns. R. 69. (q) Cro. Eliz. 142. 684. Skin. 370. Carter, 193. Bac. Abr. Aliens, D. Executors, &c. A. 4. (r) Co. Litt. 129. b. 1 Salk. 46. 1 Ld. Ray. 282. Toll, on Ex'rs. 32. 244 OF PLEAS TO THE DISABILITY OF PLAINTIFF. CHAP, seem of course to give him the additional right, not v. only of holding such personal intercourse and commu- nication with his counsel and others here, as the policy of the laws of war forbids, between the sub- jects of belligerent states ; but also of appearing personally in the court, in which his action is brought, and of remaining, during its pendency, within the territories of the state at war with his own : A right, which no alien enemy, not protected by the government of the state with which his own is at war, can possess. ' Alien enemy* may be pleaded, as well in bar, as to the plaintiff's disability(s). For the law recog- nizes, in such alien, no right of action during the war. 45. Under the plea, that the plaintiff is an alien enemy, the burden of proof is on the defend- ant^). For every suitor is presumed to be under the protection of the law, and of ability to maintain his suit, until the contrary is shown. Hence the plea must allege, not only that the plaintiff is an alien enemy ; but also, that he has no license, safe- conduct, or protection, from the government of the kingdom or state, in which the suit is brought(w) : An example of the highest degree of certainty (s) Bac. Abr. Abatement, B. 3. Miens, E. Co. Litt. 129. 6 T. R. 24. 4 East, 407. 410. Com Dig. Abatement, K. 1 Bos. & P. 222. (n. a.) 2 Ib. 72. 2 Chitt. PI. 425-6. 1 Ib. 470. 473. 3 Inst. Cler. 16. Vid. 10 Johns. R. 183. 11 Mass. R. 26. 119. (t) 2 Stra. 1082. Vid. also 8 T. R. 166. 4 Mod. 405. () 8 T. R. 166. 4 Mod. 405. 3 Inst. Cler. 16. 2 Chitt. PL 425- 6. Vid. 2 Gallison, 127129 ; semb. con/. OF PLEAS TO THE DISABILITY OF PLAINTIFF. required in pleading. (Vid. post. ^ 66. 67. and CHAP . ante, ch. 3, ^ 57. 58.) v . 46. An alien-friend, being under the protec- tion of the law, may in general maintain actions of any kind, either in his individual or representative character ; except in so far as his legal incapacity to hold certain species of property disables him to sue for the recovery of it, or for damage done to it. He may, therefore, maintain actions for the re- covery of debts for injuries to his person and in general, actions of any kind relating to personal chattels^). In these several cases, therefore, alien- age is no disability. ^47. In real and mixed actions, however, alien- age is held a good plea to the disability of the plain- tiff, even though he be an alien-friend (w). For in both these actions, real property is recovered ; and as no alien can, it is said, hold such property, it fol- lows that he cannot recover it by suit(4). ()Cowp. 171. 3 Black. Com. 384. 2 H. Black. 162. Yelv. 198. Bac. Abr. Miens. D. Co. Litt. 129. b. 2 Kent's Com. 54. (w) Bac. Abr. Abatement, B. 3. Miens, D. Co. Litt. 129. b. (4) The common law rule, disabling aliens to hold real pro- perty against the sovereign or state, has been adopted to its full extent, in most of the United States. In some of them, how- ever as in Pennsylvania, Kentucky, and probably in some of the new states the rule has been somewhat relaxed ; (Vid. New. Edinb. Encyclop. Am. ed. Art. Alien, by Duponceau)- And private statutes enabling foreigners to hold lands, like na- 32 246 OF PL EAS TO THE DISABILITY OF PLAINTIFF. CHAP. 48. But this rule seems to require some quali- v. fication. For though no alien can inherit real es- tate ; an alien friend can, nevertheless, take it by purchase, and, as a purchaser, hold it against all others than the king or state and even against these, until office-found (x) (5). It would seem, therefore, that until office-found, he may sue for and recover it ; and so it has been held, in this coun- try(y) (6). 49. In ejectment also, brought by an alien- friend in his own right, his alienage is regularly pleadable to his disability, as in real and mixed ac- tions ; because he cannot, in general, hold even a term for years, in his own right (2). (a?) Co. Litt. 2. b. 5 Co. 52. 9 Ib. 141. Pow. Dev. 316. 4 T. R. 300. 4 Cruise's Dig. 22. Esp. Dig. 439. 3 Dallas, 305-6. n. 1 Mass. R. 256. 12 Ib. 143. 7 Cranch, 603. 2 Kent's Com. 53. (y) 1 Mass. R. 256. 7 Cranch, 603. (z) Poph. 36. Co. Litt. 2. b. Bac. Abr. Aliens, C. 2 Black. Com. 297. 1 Roll. Ab. 194. tive citizens, are sometimes passed by our state-legislatures. This is usually done, indeed, as a matter of course, in favor of femes covert, who are foreigners, on a prayer that they may be enabled to hold dower in the inheritable estates of their American hus- bands. (5) By ' office-found,' is here meant, a certain species of in- quisition or verdict, finding a person to be an alien ; upon which finding, the estate purchased by him vests in the crown or state. (6) According to the terms of the statute of Connecticut, on this subject, no alien is capable of l purchasing or holding' land in the state. Probably, however, nothing more than an affirm- ance of the common law rule was intended by this enactment. OF PLEAS TO THE DISABILITY OF PLAINTIFF. 247 But to this rule there is one exception : An alien- CHAP. friend, being a merchant, may hold, in his own right, v. a term for years, in a house or building, for the con- venience of merchandizing^). This exception is allowed, for the encouragement of trade and com- merce. And as an alien-friend may, in the capacity of executor or administrator, hold a term for years, in the right of others, who are not aliens ; he is of course capable, in either of those capacities, of suing for the recovery of it(6). ^ 50. VIII. Coverture. When a feme covert coverture. sues, otherwise than as co-plaintiff with her hus- band, her coverture is generally pleadable to her disability(c). The principal reason of her inability to sue alone, appears to be, that if she were permit- ted thus to sue, the result of the suit might impair both the property of the husband, and his marital rights : Since both might be put in hazard, by a judgment against her. 51. But if the husband has abjured the realm, or is banished, or is, from any cause, civilly dead ; this disability of the wife ceases, and she may con- sequently sue alone(^). For in such cases, the husband, though actually living, is regarded as hav- (o) lid. (6) Cro. Car. 8. Bac. Abr. Aliens, D. (c) Com. Dig. Abatement, E. 6. Bac. Abr. Abatement, G. Co. Litt. 132. 3 T. R. 631. (d) Bac. Abr. Abatement, G. Com. Dig. Abatement, E. 6. Co. Litt. 132. 1 Black. Com. 469. 248 OF PLEAS TO THE DISABILITY OF PLAINTIFF. CHAP. m g no civM rights ; and the wife is, therefore, in v. contemplation of law, a feme sole. ^ 5-2. And if a feme sole, being plaintiff in a suit, marries while it is pending; this supervenient coverture may, by the common law, be pleaded to her disability (e). For by this act, she is disabled to proceed further in the suit, on the same princi- ples, on which a prior marriage would have disabled her to sue at all. But by a statute provision, in the states of Connecticut and Massachusetts, if a feme sole plaintiff marries, pendente lite, her husband may appear, suggest the marriage upon the record, and then proceed in the suit, jointly with her. ^ 53. The plaintiff's coverture is pleadable, only as a dilatory plea. It is no defence in bar(f) : Be- cause the fact of her coverture goes neither in de- nial nor avoidance of the cause of action ; but simply in denial of her legal ability to commence or prose cute the suit, alone. infancy. 54. IX. Infancy. That the plaintiff is an in- fant, is pleadable to his disability, unless he appears by guardian, or his prochein amie, (next friend) (g). For he cannot declare or appear in person, by rea- (e\ 3 Black. Com. 316. Bac. Abr. Abatement, G. 4 Serg. & R. 238. 17 Mass. R. 342. (/) 3 T. R. 631. Carth. 124. (g-) Co. Litt. 135. b. 2 Saund. 117. f. (n. 1.) 3 Black. Com. 3012. Bac. Abr. Infancy, &c. K. 2. 7 Johns. R. 373. 2 Connect. R. 357. OF PLEAS TO THE DISABILITY OF PLAINTIFF. 249 son of his supposed want of judgment to conduct a CHAP. suit ; nor by attorney, on account of his legal inabil- v. itj to make a power of attorney. Infancy. 55. By the common law, if an infant plaintiff appears by attorney, and, (no plea to his disability being interposed), judgment is given, either against or for him ; it is error, and the judgment may be re- versed by writ of error (A). But by the English statutes 21 Jac. 1, c. 13, 2, and 4 Ann. c. 16, ^ 2, if judgment, in such a case, is for the infant, upon verdict, or by confession, nil dicit, or non sum informatus ; it is valid(z). 56. And by the common law, where an infant sues as co-executor with an adult, both may appear by attorney (/c). For the suit being en auter droit, the personal rights of the infant are not affected by it ; and therefore the adult is permitted to appoint an attorney for both. 57. Any person, in general, being of full age, and sui juris, may name himself next friend to an infant plaintiff(/) ; and in that character, may insti- tute a suit in the name of the latter. But to (h) Cro. Jac. 4. Cro. Eliz. 424. 1 Roll. Ab. 287. Carth. 123. 2 Saund. 212. (n. 4.) Bac. Abr. Infancy, &c. K. 1. 2. vid. cont. Cro. Jac. 441. (') 2 Saund. 212. (n. 5.) (k) 2 Saund. 212. 213. Bac. Abr. Infancy, &c. K. 2. Carth. 123. 1 Roll. Ab. 288. Cro. Eliz. 642. 2 Stra. 784. (/) 1 Eq. Ca. Ab. 72. Bac. Abr. Infancy, &c. K. 2. 250 OF PLEAS TO THE DISABILITY OF PLAINTIFF. CHAP, guard the infant against injury from mismanagement, v. the court exercises the power of admitting, or dismiss - ing, the next friend (m). Plaintiff not ^ 58. X. That the person, named as plaintiff, is not (or rather that he never was) in rerum natura, is a good plea of this class(w) ; as where he is a ficti- tious, or imaginary person. For in such a case, there is, in fact, no plaintiff. And if one of several co-plaintiffs is an imaginary person ; that fact, pleaded as to him, will defeat the whole suit(o). For where several persons sue, as joint plaintiffs, they must, regularly, recover, if at all, jointly. (Vid. post. Pleas in Abatement, ^ 107.) (6). 59. But where a suit is brought in the name of a person once existing, but who is dead, at the commencement of the suit, a plea that he was not in esse when the writ was purchased, is said to be illQ?) : The proper plea, in such a case, being, that (m) Stra. 304. 709. Bac. Abr. Infancy, &c. K. 2. 1 Ld. Ray.' 332. Comb. 331. (n) Com. Dig. Abatement, E. 16. 17. Lawes' PI. 104. 1 Wils. 302. 1 Chitt. PI. 435-6. 6 Pick. 370. 19 Johns. R. 308.' (o) Com. Dig. Abatement E. 16. (6) There is an exception to this general position, when there is a summons and severance, in personal actions, and. also, in ma- ny cases, where one of several co-plaintiffs dies after the com- mencement of the suit. (Vid. post. Pleas in Abatement, 91. 92.) OF PLEAS TO THE DISABILITY OF PLAINTIFF. 251 he was dead at the time. This diversity, in the CHAP. form of pleading, seems intended merely to mark v. the difference between the case of a person, named as plaintiff after his death, and that of a plaintiff altogether imaginary. 60. That the plaintiff was never in esse, seems also to be a good plea in bar(q). For that a right of action should exist, in favor of an imaginary per- son, is plainly impossible(7). ^ 61. Pleas to the disability of the plaintiff con- clude, by praying judgment ; ' if the said A. B. the plaintiff, ought to be answered' or, (when the disability operates only as a temporary suspension of the suit), ' that the plaint may remain without day, &c.' i. e. until the disability be removed(r). (q) Vid. 1 Bos. & P. 44. Bro. Ab. Misnomer, 93. (r) 3 Black. Com. 303. Tidd, 585. Lawes' PL 109. (7) That the nominal plaintiff, in the English ejectment, is fic- titious, is however not pleadable, in any form. His fictitious cha- racter is an essential part of the machinery of that action ; and the fiction, being devised for the advancement of justice, cannot be contradicted. Indeed, the real defendant has generally no oppor- tunity to plead the fact : Since he is .obliged, under the consent- rule, to plead the general issue. Vid<-4 M. & S. 301. 19 Johns. R. 169. 252 OF PLEAS J N ABATEMENT. CHAP. V. III. Of Pleas in Abatement. pieas in ^ 62. The term ' abatement,' in the language of abatement, IT r 7 7 nature of. pleading, signifies prostration, or demolition; and hence, to * abate' a writ, is to prostrate or destroy 63. Pleas in abatement, in most instances, ex- tend only to the writ, when the suit is commenced by original writ(i). In some cases, however, pleas of this class may be pleaded to the count, even when the suit is thus commenced(w). ^ 64. But defects or mistakes, apparent upon the face of the declaration, independently of any re- ference to the writ, are not pleadable in abatement(^): The proper mode of taking advantage of such faults being by demurrer. On the contrary however, cer- tain mistakes in the declaration, when not apparent upon the face of it, (such, for example, as misnomer, variance from the writ, &c.) are proper subjects of a plea in abatement. (Ante, ch. 2, 34.)(8). (*) Co. Litt. 134. b. (<) 3 Black. Com. 301-3. (u) 3 Black. Com. 301-3. Com. Dig. Abatement, G. 1. Doct. PL 1. Lawes' PI. 102. 105. (t>) 1 Salk. 212. Willes, 478. (8) In respect to the precise office and extent of pleas in abate- ment, there is some confusion, or apparent inconsistency, in the V. OF PLEAS IN ABATEMENT. 253 65. When the suit is commenced by bill, the CHAP . defendant may plead in abatement of the ' bill,' as books. Pleas of this class are sometimes mentioned in a manner implying that they extend only to the ten'/, and that no defects in the count can be reached by them. But this limitation of their effect is clearly too unqualified. It is indeed universally true, that a plea to the ivrit, if properly framed for its purpose, is a plea in abatement : But it is not always true, e converse, that a plea in abatement can extend to the writ only ; for by the common law, various matters of abatement are pleadable to the declaration though in consequence of certain modern rules of practice, in the English C. B. and B. R. pleas in abatement, to the declaration, are, to a great extent, virtually abolished in those courts. And the change, thus introduced, between the ancient and modern practice, appears to be the chief cause of the apparent inconsist- ency above alluded to. To explain, somewhat more particularly, what is here suggested, it may be observed, that pleas in abate- ment, to the count, which were frequent in the ancient practice, were founded chiefly upon some defect, mistake, or informality, appearing either in the recital of the writ, in the declaration, (which recital was then deemed necessary, in all cases) or upon seme variance between the count and the writ. (Lavves' PL 105. 1 Saund. 318. n. 3. Cro. Eliz. 829. 185. 330. 198.) But in the year 1654, a rule of court was established by the English C. B. ordering that thenceforth ' declarations in actions upon the case, and general statutes, other than debt, should not repeat the origin- al writ, but only the nature of the action* (1 Saund. 318. a. (n. 3.) Lawes' PI. 105-06.) And it seems that the more recent practice has somewhat extended the operation of the rule (Carth. 108. 1 Saund. ub. sup.) The consequence has been, that in cases af- fected by this rule, all pleas in abatement, founded upon the re- dial of the writ in the count, have been abolished. And no ad- vantage can be taken of any variance between the writ and the count, but by obtaining oijer of the original tmV, (Com. Dig. Abatement, H. 1.) But by a more recent rule of C. B. and B. R. established in the 12 Geo. 2, and 19 Geo. 3. (Vid. post, 101,) it was ordered, that oyer of the original should not thence- 33 OF P LEAS IN ABATEMENT. CHAP, he may of w the ' writ,' when it is commenced by writ. v. In the forrtfer case, the plea prays judgment of the bill, as in the latter it does of the writ(w). Requisites ^ QQ j t hag been state d ul a former chapter (vid. ch. 3, ^ 57. 58), that in pleas of this class as in all other dilatory pleas, the greatest precision and certainty are required, because dilatory pleas are odi- ous, or at least not favored. Hence, the least inaccuracy or defect, in pleas of this kind, is fatal(V). " ^ 67. It is a general rule, founded, upon the same principle, that a plea in abatement must ' give the plaintiff a better writ\y) ; i. e. it must be so plead- ed as to enable the plaintiff, (in a subsequent suit for the same cause), to supply the defect, or avoid the mistake, upon which the plea is founded. Thus, (w) 3 Black. Com. 303. (a) Cro. Jac. 82. 3 T. R. 185-6. 5 Ib. 487. 8 Ib. 167. 2 Saund. 209. b. Com. Dig. Abatement, I. 11. Willes, 554. 1 Lill. Ent. 1. 6. 2 H. Black. 530. (i/) Com. Dig. Abatement, I. 1. 2. Lawes' PI. 39. 103-4. 8 T. R. 515. 1 Lill. Ent. 6. Willes, 554. 2 Chitt. PI. 418. Vid. Yelv. 112. (n. 1.) 6 Pick. 369. Archb. Civ. PI. (Amer.ed.) 334. forth be granted. And the effect of this rule has been, to abolish all pleas in abatement, founded upon any variance between the declaration and the writ. Thus, pleas in abatement to the count, are, in the modern practice of those two courts, almost unknown. When, indeed, as is most usual in B. R., the suit is commenc- ed by bill, no distinction can exist, between pleas to the ivrit and to the count. For in these cases, the bill itself is the only original ; and all pleas in abatement are to the bill. Vid. post. 82-84. OF PLEAS IN ABATEMENT. 255 if the defendant pleads that he is misnamed, or that CHAP. a wrong addition is given him, in the writ ; he must v. show, in his plea, what his true name or addition is ; and thus enable the plaintiff to avoid a similar mis- take in a subsequent suit(z). And this rule is ap- plied to indictments, as well as to civil ac- tions(2;z). ^ 68. The causes or grounds for pleading in Cauge sf. abatement, may be either intrinsic, or extrinsic either apparent upon the face of the writ, &c. ; or not thus apparent(a). These causes, in the order here proposed, are & 69. I. Misnomer, and want of mistake of Misnomer, * . . . &c. of de- addition. If the defendant is sued, or declared against, by a wrong name ; he may plead the mis- take in abatement(6). The object of this rule is, to prevent mistakes and confusion as to the identity of the person sued. A party may however sue, or be sued, by any name by which he is known and called, at the commencement of the suit(c) ; though it be not in his baptismal, or original name. For he (z) Bac. Abr. Misnomer, &c. F. 1 Salk. 6. 7. Willes, 554. 1 Lill. Ent. 6. (zz) 6 M. & S. 88. (a) Lawes' PI. 102. 106. (b) 3 Black. Corn. 302. 1 Salk. 7. 3 East, 167. Bac. Abr. ,'lbatemenl, D. (c) Willes, 554. 2 Wils. 367. 1 Bos. & P. 60. 1 East, 542. 2 Chitt. PI. 590. OF PLEAS IN ABATEMENT. CHAP. ma y be fully identified by the former, as by the v. latter. Misnomer, & 70. Where there are several co-defendants, the &c. of de- c i r i fendant. true proper name of each of them must be given. Describing them, even when sued as partners, by ch.s, 60. t h e st yj e or name O f t ne co-partnership, (as 'A. B. & Co.') seems clearly not sufficient. For the name of a co-partnership is altogether arbitrary, and may not express the proper name of any one of the indi- vidual partners(ce). 71. By the common law, no other personal description of a party, sued or suing, was required, than his proper name, (including both his name of baptism, and surname), unless his dignity, or degree, were as high as that of knight in which case, his degree was a necessary addition to his proper name : The title of knight, and all those above it, being deemed parcel of the proper name(^). And this rule extends to both the plaintiff and defendant. But the statute of additions (1 Hen. 5, c. 5), re- quires, that in all personal actions, appeals and in- dictments, there shall be added to the name of the defendant, his title, mystery, estate or degree, (as 1 knight' l gentleman' ' esquire' ' yeoman' ' spinster', &c.) and his place of abode (the town, hamlet, &c.) and the county in which he resides, or (cc) 8 T. R. 508. 1 Leach's Cr. Cases, 240. 1 Chitt. PI. 256. (d) Bac. Abr. Misnomer, &c. B. 2. 2 Roll. Ab. 469. Comb. 189. OF PLEAS IN ABATEMENT. 257 has resided(e). The description, title, &c. thus add- CHAP. ed to the defendant's name, is called his * addition' ; v. and the absence of this addition, or the giving of a , . 111*1 x ,P\ Misnomer, wrong one, in the writ, is pleadable in abatement(/J. &c. ofde- But the addition of the defendant's degree, or mys- tery, with his present or late place of abode is held sufficient^). Where there are several co-defend- ants, the proper addition must be given to each, ex- cept where husband and wife are co-defendants in which case the latter requires no addition (h). 72. But this statute extends only to personal actions, appeals, and indictments. Real actions are not within its purview ; probably because the de- fendant is supposed to be sufficiently identified, by his proper name and the possession of the land in question(i). By the 'appeals', mentioned in the statute, are meant those criminal prosecutions, which are so called. 73. At common law, neither want of addition, nor misnomer, was pleadable to an indictment for felony : The prisoner being identified by his personal presence(/c). But the rule, as now altered by the above statute 1 Hen. 5, is the same in indictments for felony, as in personal actions. The plea to such (e) Bac. Abr. Misnomer, &c. B. 2. 3 Black. Com. 302. Lawes' PI. 106. (/) lid- (g) 2 Ld. Ray. 1541. Stra. 556. 816. 924. (h) Bac. Abr. Misnomer, &c. B. 1 Chitt. PI. 247. (t) Bac. Abr. Misnomer, &c. B. 2. 6 Mod. 85. (k) Bac. Abr. Abatement, D. Indictment, G. 2. 258 OF PLEAS IN ABATEMENT. CHAP. ai1 indictment however, can in general be of little v. avail, eventually, to the prisoner ; since the court - will, as a matter of course, detain him in custody, &c.of<' till another indictment can be framed and found Pendant. . , . XJX against mm(/). 74. Misnomer, or want of addition, in describ- ing one of two defendants, is not pleadable by the other(w). For the former may, if he pleases, ad- mit himself to be rightly named and described ; (as he does of course, by not pleading the mistake him- self in abatement) ; and his co-defendant cannot ob- ject to such admission. The same rule holds in indictments against several(w). ^ 75. If a defendant, in pleading misnomer, gives himself, in the commencement of his plea, the same name by which he is sued ; (as if A. B., when sued by the name of C. D., begins his plea by say- ing, ' And the said C. D. comes and defends,' &c.) ; his plea is ill(o). For, by calling himself ' C. D.', in the first instance, he is estopped to aver that that is not his true name. He should begin, by saying, 'And A. B., against whom the plaintiff has sued out his writ, by the name of C. D., comes, & (/) 2 Hale, P. C. 176. 238. 1 Chitt. Grim. Law, 203. (m) Bac. Abr. Misnomer, &c. G. Abatement, D. (u) 2 Hale, P. C. 177. Bac. Abr. Misnomer, &c. G. (o) 2 Saund. 209. b. 5 T. R. 487. Comb. 188. Lawes' PI. 92. Carth. 207. 1 Show. 394. (p) lid. 2 Chitt. PI. 416. 417. 1 Lill. Ent. 1. OF PLEAS IN ABATEMENT. 259 ^ 76. And if the recognizance of bail gives the CHAP. defendant the same name by which he is sued, v. (though a wrong one) ; he is estopped to aver that . / \ T-< i f Misnomer. it is a misnomer(^). Jbor by the entry of the re- & c . ofde- , . i i fendant. cognizance in this manner, he places upon the re- cord the name, given him in the writ, as his true name. And the rule is the same, even though the defendant himself does not join in the recogni- zance (r). For although the recognizance, in such a case, is not in strictness the defendant's act ; yet being by his procurement, he is concluded by it. ^ 77. If one executes a specialty, by a wrong name : it is held that he must be sued upon it, by the same name by which the instrument is exe- cuted ; and that his true name should be added, un- der an alias(s). For he is estopped by the deed to deny the name, by which he executed it ; and if sued by his true name, there would be a variance between the deed and the writ. & 78. Misnomer of the plaintiff, is also pleadable Misnomer , of plaintiffs. in abatement(T) : And the plea may be answered, by the same replication, as when the misnomer is of the defendant(w). But the want of addition, or a wrong one, in the description of the plaintiff*, is no cause of abatement, except as at common law (md. ^71). For the statute of additions does not (q] Willes, 461. 1 Salk. 8. 2 Chitt. PI. 590. 2 New Rep. 453. (r) 2 New Rep. 453. () 2 Stra. 1218. 1 Bulslr. 216. Bac. Abr. Misnomer, B. 1. (/) Com. Dig. Abatement, E. 18. 1 East, 542. (u) 1 East, 642 OF PLEAS IN ABATEMENT. CHAP, extend to plaintiffs(v) because there was sup- v. posed to be no danger of mistakes in regard to their identity. 79. Misnomer, &c. as such, is pleadable only Post. 100. in abatement(w). It is no plea in bar ; because it does not deny the cause of action ; nor can it be as- signed for error, unless it has been pleaded in abate- ment, and overruled. For if not thus pleaded, the exception is waved, as all matters of mere abate- ment are, if not pleaded in abatement^). 80. To a plea of misnomer, (whether of the plaintiff, or defendant), it is a good replication, that at the commencement of the suit, he was known and called, as well by the name, by which he sues or is sued, as by that set forth as his true name, in the plea(?/). ^81. In the State of Connecticut, and probably in many of the United States, no other addition, than his place of abode, need be given to either of the parties ; but this must be given to both ; and of course to all the co-parties, plaintiffs or defendants. 82. In concluding this head of abatement, it is proper to remark, that in the English Court of (v) Bac. Abr. Misnomer, &c. B. 2. (to) Bac. Abr. Misnomer, &c. E. Carth. 124. Comb. 188. 1 Bos. & P. 40. 6 M. & S. 46. (x) 6 T. R. 766. 2 H. Black. 267. 299. 1 Salk. 2. (y) 2 Wils. 367. 1 East, 542. 1 Bos. & R 60. 2 Chitt. PI. 590. Willes, 554. OF PLEAS IN ABATEMENT. Common Pleas, and (when the suit is by original), CHAP. in that of the King's Bench also, pleas in abatement, v. founded upon the want, or the falsity, of the de- fendant's addition, are now virtually abolished, by the operation of a rule of practice, (established in the former of those courts, in the 11 & 12 Geo. 2. and in the latter, in the 19 Geo. 3), ordering that oyer shall not thenceforth be granted of the original writ(2:). For no addition is given, or required to be given, to either party, in the declaration ; and its omission or falsity, in the writ, cannot be shown, without an inspection of the writ itself. And as oyer of the writ(a), is now unattainable, in the two courts above mentioned, under the above rule of court ; a plea, in either of those courts, founded upon the want of addition, &c. must of necessity fail(6). The effect of this rule, indeed, has been the abolition, in those courts, of all pleas, which cannot be verified without oyer of the writ. (Vid. post. 101.) 83. Yet if any thing, which, in the writ, would be matter of abatement, appears in the de- claration; it may be pleaded to the writ the above rule of court notwithstanding. If, for exam- ple, there is a misnomer, or a nonjoinder or mis- joinder of parties, in the declaration ; the mistake may be safely pleaded, as a fault in the writ. For the declaration is conclusive against the plaintiff, (z) Doug. 227. 1 Saund. 318. a. (n. 3.) (a) 2 Salk. 701. Lawes' PI. 105-6.1 Saund. 318. a. (n. 3). (6) 1 Saund. 318. a. (n. 3.) Lawes' PI. 105-6. 1 Chitt. PI. 440. 34 e?$2 OF PLEAS IN ABATEMENT. CHAP. tnat tne parties, and the names given them, are the v. same in the writ, as in itself : Because the plaintiff, by averring the contrary, would himself necessarily disclose a variance between the declaration and the writ, which would be fatal to the suit. And thus, without any examination of the writ, the defendant may, in cases like these, abate it through the medium of the declaration. 84. When the suit is commenced by bill which is itself considered as the original, and of which there is no occasion for oyer the above rule of court has no effect. And where as in the practice of the courts of some of the United States the writ and declara- tion are embodied, as parts of one and the same in- strument, no such rule can exist(c). coverture. ^ 85. H. Coverture of the defendant. If a feme covert is sued without her husband, she may plead her coverture in abatement(cc). This de- fence is allowed, for the protection of her privilege, and of the husband's rights; both of which might be violated by a recovery against her. ^ 86. But this plea is no defence, where the husband, though actually living, is civilly dead as, where he is banished, or has abjured the realm, or is an alien enemy, and out of the realm, &c. For (c) Vid. 5 Mass. R. 285. (cc) Com. Dig. Matement, F. 2. Co. Litt. 132. b. 1 Salk. 7. OF PLEAS IN ABATEMENT. 263 in either of these cases, the wife is in law considered CHAP. as a feme sole(d). And whenever she is, from any v. cause, regarded in law as sole, this plea cannot avail ^ 87. If a woman, being sued while sole, mar- ries pending the suit ; she cannot plead this superve- nient coverture, in abatement, or at all(e). For it would be manifestly unreasonable, to allow her to defeat, by her own act, a suit rightly commenced against her. ^ 88. When a feme covert is sued alone, she can plead her coverture only in abatement(f) . For the defence does not deny the right of action ; and therefore, if she omits to plead it as a dilatory plea, she waives it, so far as regards her own privilege, and tacitly admits that she is liable to be sue"d alone. She must also plead her coverture in person(g) : Because she is legally incapable of appointing an attorney. (d) Com. Dig. Abatement, F. 2. Co. Litt. 132. b. 133. a. 1 Salk. 116. Vid. ante, ch. 5. 51. (dd) Vid. 3 Campb. 124. 15 Mass. R. 31. 6 Pick. 89. 5 Ib. 461. 11 East, 304, nolis Day. 2 Kent's Com. 132. 214. n. 3 Barn. & Cress. 291. (c) Bac. Abr. Abatement, G. 1 Lill. Ab. 526. 2 Stra. 811. 2 I,d. Ray. 1525. Cro. Jac. 323. 1 Ve. 182. 2 Roll. Rep. 53. (/) Com. Dig. Abatement, F. 2. 3 T. R. 631. Carth. 12. (g) 2 Saund. 209. c. (n. 1.) 1 Lill. Ent. 1. 2 Chitt. PI. 415. 425! OF P LEA S IN ABATEMENT. CHAP. ^9. But she can, by no admission or omission, v. waive any right of her husband : And therefore, if -- she omits to plead her coverture, he may, at any time, come in and plead it in bar(h). And if both of them omit to plead it, and judg- ment is given against her; the judgment maybe reversed, by writ of error, in which they must both join, as plaintiffs in error(z). If the writ of error is in the name of either of them alone, it may be quashed(k). For the wife cannot prosecute it alone, by reason of her legal disability ; nor can the husband alone, because her rights, as well as his own, are involved in it. Death of 90. III. Death of Parties. By the common law, the death of a sole plaintiff or sole defendant, pendente lite, abates the suit(7) : There being, after such an event, but one party to the action. And if, after the death of either party, final judgment should be given, for or against him ; it would be errone- ous(m) as being for or against a party not in esse. But by the statute 17 Car. 2, c. 28, it is enacted, that the death of either party, ' between verdict and judgment, shall not be alleged for error, so as judg- (k) Bac. Abr. Abatement, G. Sty. 280. 1 Salk. 400. 3 T. R. 631. 5lb. 681. (') lid. 3 Esp. Rep. 19. 4 Mass. R. 661. (fc) 3 Esp. Rep. 19. Bac. Abr. Error, B. (/) Bac. Abr. Abatement, F. Com. Dig. Abatement, H. 32. (m) Carth. 338-9. T. Ray. 59. 463. Bac. Abr. Pleas, &c. Q. OF PLEAS IN ABATEMENT. 265 ment be entered within two terms, after such ver- CHAP . dict'(?i) nunc pro tune. v. 91. By the common law also, if one of several plaintiffs dies, pending the suit ; it will, in most ca- ses, abate(o). For by joining in the suit, they assert a joint right of recovery, which, as such, is destroyed by the death of either of them. 92. But this last rule does not apply, in its full extent, to such personal actions as admit of summons and severance, and in which an entire, indivisi- ble thing is to be recovered (9). For in such ac- tions, after one of two co-plaintiffs has been sum- moned and severed, he ceases to be a party ; and the other becomes a sole plaintiff, prosecuting for the whole amount, or matter in demand, and there- fore if the severed plaintiff afterwards dies, pending the action, his death has no effect upon the suit.Q?). () Bac. Abr. Abatement, F. (o) Bac. Abr. Abatement, F. Joint-Tenants, &c. K. 10 Co. 134. 6 Ib. 26. Com. Dig. Abatement, H. 33. (p) Bac. Abr. Abatement, F. Cro. Eliz. 652. (9) Summons and severance is a proceeding, by which one of several persons named as co-plaintiffs, in a writ, is, on his neglect- ing to appear and prosecute, summoned to appear, &c. and if he refuses to join in prosecuting the suit, is separated from it, by a judgment of severance. As to what cases admit of summons and severance, see Off*. Ex'r. 96. 104. 6 Co. 25. Bac. Abr. Sum- mons $ Severance, F. Co. Litt. 139. 266 OF PLEAS IN ABATEMENT. CHAP. If one of several, named as co-plaintiffs, was dead v. at the issuing of the writ ; the fact may be pleaded in abatement/a). For it falsifies the writ. Death of J parties. 93. If one of several co-defendants dies, pend- ing the suit ; his death is, in general, no cause of abatement, even by the common law(r). For by being sued together (a proceeding in which they are passive) co-defendants do not, like co-plaintiffs, either assert or admit any thing, which requires them all to act or proceed jointly : And hence, on the death of one of them, if the cause of action is such, as would survive against the survivors, (as is almost universally the case) ; the plaintiff may, by suggest- ing the death of the former upon the roll, proceed in the same suit, against the latter. 94. The inconvenience of abatement, by the death of parties, is now, in a great measure, remedi- ed, by the statute 17 Car. 2, c. 8, and by the 8 & 9 W. 3, c. 2, ^ 6 & 7 ; by which last it is enacted, 1 that if there be two or more plaintiffs or defend- ants, and one or more of them should die, if the cause of such action should survive to the surviving plaintiff or plaintiffs, or against the surviving de- fendant or defendants ; the writ, or action, shall not be thereby abated. But such death being sug- gested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs, against the surviving defendant or defendants' : And that (q) Bac. Abr. Abatement, F. (r) Hardr. 113. 151. Cro. Car. 426. Bac. Abr. Abatement, F. OF PLEAS IN ABATEMENT. 267 if any sole plaintiff happen to die, after an interlocu- CHAP. tory judgment, and before a final judgment obtained v. therein ; the said action shall not abate by reason thereof: if such action might, originally, be prose- Death of parties. cuted or maintained by the executors or administra- tors of such plaintiff; and if the defendant die, after such interlocutory judgment, and before final judg- ment therein obtained, the said action shall not abate, if such action might originally be prosecuted or maintained against the executors or administra- tors of such defendant ; and the plaintiff, (or if he be dead after such interlocutory judgment), his ex- ecutors or administrators shall and may have a scire facias against the defendant, if living after such interlocutory judgment, (or if he died after,) then against his executors or administrators, to show cause why damages, in such action, should not be assessed and recovered by him or them.' ^ 95. Under the former of these statutes, (that of 17 Car. 2), the death of a party, after verdict, does not abate the suit ; but judgment in pursuance of the verdict, may be entered, (within the time prescribed, by the act), as if the death had not in- tervened^). And under the latter statute (8 & 9 W. 3), if a sole plaintiff dies, after an interlocutory judgment(lO), and before final judgment in an ac- (s) 1 Salk. 42. 1 Sid. 385. Toll, on ex'rs. 442-3. (10) The interlocutory judgment, contemplated in the above enactment, is such an one, as leaves nothing more, to be ascer- tained, than the amount to be recovered, in damages, or otherwise 2(38 OF PLEAS IN ABATEMENT. CHAP. ti n 5 tne cause of which would have survived to his v. personal representatives or if a sole defendant dies, after such a judgment in an action, the cause parties. of which would have survived against his personal representatives^ 1) the suit shall not abate; but on a sci. fa. prayed out, as prescribed in the act, the suit may proceed to final judgment : And if one or more of several co-plaintiffs die, pending an action, the cause of which would have survived to the surviving plaintiffs or if one or more of several co-defendants die, pending an action, the cause of which would have survived against the sur- viving defendants : the suit shall not, in either case, abate ; but such death being suggested upon the as, where a demurrer to the declaration, or to the plaintiff's evidence, has been overruled or, where the defendant has sub- mitted to a judgment by default, non swn informal us, nil dicit, &c. ; in each of which cases, nothing more is necessary to be done, as preparatory to final judgment, than to ascertain how much the plaintiff is entitled to recover. (Vid. 1 Lill. Ent. 647. 6 Mod. 144. 4 T. R. 431. Toll, on Ex'rs. 443.) The stutute of Connecticut prevents the suit from abating, when the death hap- pens in any stage of the suit whether after or before an inter- locutory judgment. (11) When a cause of action is such as, on the death of either of the sole parties to it, might have been originally prosecuted by or against his personal representatives, it is one, which icould survive to or against such representatives, within the meaning of the above distinctions : But when it could not have been thus originally prosecuted, it is one which would not thus survive. But what particular causes of action do, or do not, thus survive, is an inquiry, which falls appropriately under a different title that of Executors and Administrators. OF PLEAS IN ABATEMENT. 269 record the action shall proceed between the surviv- CHAP. ing parties. v. ^ 96. It will be perceived, that the second clause in the above statute, of W. 3, (viz. that which provides against abatement, by the death of a sole party), extends only to personal actions i. e. such as survive to or against personal representatives. Real actions therefore still abate, as at common law, on the death of a sole plaintiff or defendant (ante ^ 90). But real actions, in which there are several co-plain- tiffs or co-defendants, and of which the causes are such, as survive to or against the surviving par- ties, are within the purview of the first clause of the act. ^ 97. IV. Variance. There are divers instances, Variance. or particulars, in which variance is pleadable in abate- ment as where the count varies from the writ or, where the writ varies from the record, specialty, or instrument, on which the action is brought(i). For in the one case, the count does not maintain or pur- sue the writ ; and in the other, the writ is not adapt- ed to the cause of action. 98. As to variance between the writ and the count, this diversity is to be observed : If the va- riance is in matter of mere form, (as in time, or place, when that circumstance is immaterial, or in (/) Com. Dig. Abatement, G. 1. H. 7. 9. 6 Co. 14. 2 Wils. 85. 395. Cro. Eliz. 722. 1 H. Black. 249. 35 CtfVvf- 27Q OF PLEAS IN ABATEMENT. CHAP. an J ther particular which is so) ; advantage can v. be taken of it, only by plea in abatement(u) : but if the variance is in matter of substance (as if the writ sounds in contract, and the declaration in tort, or e converse or if the writ demands one thing, or subject, and the declaration another) ; advantage may be taken of it, even by motion in arrest of judg- ment^). For as it is the ivrit, which gives authority to the court to proceed in any given suit ; it is obvi- ous, that the court can have no authority to hear and determine a cause, substantially different from that mentioned in the writ. ^ 99. In the states of Connecticut and Massachu- setts^/;), it has heretofore been customary to plead in abatement any variance between the record or instrument declared upon, and the description of it in the declaration. But the more proper mode of tak- ing exception for such a variance, is either by ob- jecting to the record, &c. as evidence, under the general issue and in that way, compelling a non- suit(.r) (because the record or writing, offered in evidence, will appear to be a different one from that declared upon) ; or by reciting it upon the record, on oyer, and then demurring to the declaration^) : This latter course being justified, on the ground that () Yelv. 120. Latch, 173. Bac. Abr. Abatement, I. () Hob. 279. Cro. Eliz. 722. (w) Story's PI. 59. 60. (a?) 4 T. R. 612. 687-8. 1 Ib. 656. 1 Bos. & P. 7. 1 Saund. 154. n. Doug. 665. Cowp. 766-7. (T/) 1 Saund. 317. Com. Dig. Pleader, 2. 3. Hob. 18. Lawes' PI. 98-9. . ' OF PLEAS IN ABATEMENT. 271 the instrument, &c. thus recited, on oyer, becomes in CHAP. effect, part of the declaration(z). v. ^ 100. Though, as heretofore stated, no advan- tage can be taken of misnomer, as such, except by plea in abatement ; yet when misnomer occasions a variance (as, if A. B., having executed a bond by his true name, is sued upon it, and declared against by the name of C. D.) ; advantage may be taken of the mistake, as a variance, in either of the two modes last before mentioned : i. e. under the gener- al issue, or by demurrer, on oyer(a) : Though if the mistake is treated, by the defendant, as a misnomer, (in which case, no use is made of the instrument, in evidence or otherwise) ; he must plead it in abate- ment. Pleas in abatement, for any variance be- tween the writ and the count, are now, however, practically abolished in England, in C. B. and (where the suit is by original) in B. R. also, by a rule of practice heretofore mentioned(6), refusing oyer of the original writ. And the operation of this rule extends to all pleas in abatement which cannot be proved without an examination of the original writ(c). (2) 1 Vent. 43. 1 Saund. 316. Carth. 513. 6 Mod. 28. 237. (a) 4 T. R. 611. 612. 3 Bos. & P. 559. 1 Campb. 195. (6) Ante, Note 8 to 64, and 82. (c) Lawes' PI. 97. 105. 1 Saund. 318. (n. 3.) 3 Bos. & P. 395. 7 East, 383. 6 T. R. 363. 1 Chitt. PI. 440. 272 OF PLEAS IN ABATEMENT. CHAP. V. V. Nonjoinder and Misjoinder of Parties. ^ 102. In what cases, two or more persons ought or ought not to be joined as co-parties, (either as plaintiffs or defendants), in one suit, has been alrea- dy explained (ante, ch. 4, 52 to 78). The present inquiry is, in what manner advantage is to be taken of a mistake, in respect to the proper parties. Nonjoinder ^ JQ3. Under this head, it may be laid down as and misjom- J \ fi e e r s f par a un i versa l ru ' e 3 applicable both to actions ex con- tractu and ex delicto, that if one person sues alone, when the right of action is in two or more, jointly(J) or if tw r o or more sue as co-plaintiffs, W 7 hen the right of action is in one of them only(e) ; the mis- take is pleadable in abatement: Because, without reference to the merits, the suit is, in both cases, brought in an improper manner, in regard to the par- ties. ^ 104. On the other hand, if one is sued alone, when by law another should have been joined with him, as co-defendant or if two or more are sued together, when by law the action should have been brought against one of them only ; the nonjoinder (d) Com. Dig. Abatement, E. 8-14. 1 Salk. 4. 7 T. R. 243. 1 Saund. 291. (n. 4.) Co. Lilt. 164. a. 189. a. 195. b. 698. a. (e) Com. Dig. Abatement, E. 15. Cro. Eliz. 143. 1 Leon. 315. OF PLEAS IN ABATEMENT. 273 in the one case, and the misjoinder in the other, is, CHAP. in all cases, pleadable in the same manner. (f). v. ^ 105. In some cases, falling under the two last &c" J of n P ar- rules, the exception can be taken only by plea in abatement : In others, it may be taken, at the elec- tion of the defendant, either by pleading in abate- ment, or under the general issue ; or, as the case may be, by demurrer on oyer by motion in arrest of judgment or by writ of error. ^ 106. And for the purpose of determining, in any given case, whether a mistake in the joinder or nonjoinder of a party, is pleadable only in abate- ment or whether advantage may be taken of it, under the general issue the following distinction, it is believed, will be found to furnish the true cri- terion : If the proof, which supports the objection arising from the nonjoinder or misjoinder of a party, goes in denial or disproof of the declaration, or of any material allegation in it ; advantage may be taken of the mistake, as well under the general issue, as by plea in abatement (for whatever denies the decla- ration, goes to support the general issue) : But if the proof, which shows the mistake, is not inconsist- ent with any material part of the declaration ; the exception can be taken, only by a plea in abatement : Because whatever does not contradict the declara- (/) 5 Burr. 2611. 1 Saund. 153. (n. 1.) 291. b. (11. 4.) 5 T. R. 651. Com. Dig. Abatement, F, 6. 2 East, 574. 1 Chitt. PI. 75-6. 274 OF PLEAS IN ABATEMENT. CHAP. ti n > does not conduce to support the general is- v. sue(12). &if l piain- To apply this distinction ; first, to the nonjoinder tiffs : ... ,, . , . . ,y, or misjomder of parties, as plaintiffs t?act. n ~ % 107. In an action on CONTRACT, if one of the co-parties to it sues alone, when the right of action is in himself and another or if two or more sue together, when the right of action is in one of them only ; advantage may be taken of the mistake, as well under the general issue, as by plea in abate- ment^). If therefore, upon an obligation or pro- mise, made to A. and B. jointly, A. sues alone, as on a contract made with himself only or if on a con- tract made with A. only, he and B. sue, as on a con- tract made with both of them ; the suit may be de- feated, in either of the above modes. For in each of these cases, there is a variance : The contract, offered in evidence, being not the same as that declar- ed upon. In other words, the fact, (or proof), that the right of action is joint, in the former case, or that it is not so, in the latter, goes in disproof of the de- claration. (g) 1 Saund. 291. f. (n. 4.) 1 Chitt. PI. 209, & seq. 1 Taunt. 7. 1 Bos. & P. 75. 2 Stra. 820. 1 146. 2 T. R. 282. 5 Ib. 709. 1 Esp. Rep. 183. Bull. N. P. 152. Peake Ev. (2d ed.) 205. 2 Mass. R. 510. 6 Pick. 360. (12) It is not pretended that all the cases conform to this dis- tinction ; but on principle, it appears to be the only correct one. OF PLEAS IN ABATEMENT. 275 ^ 108. And if in either of the two last cases, the CHAP. action is founded upon a written instrument ; advan- v. tage may be taken of the mistake, not only in either of the two modes just mentioned, but in another also : Nonjoinder, &c. of plain- Viz, by praying; over of the instrument, reciting tiffs: *''.'' .In contract : it, verbatim, upon the record, and demurring to the declaration(A). For it is a general principle, that a written instrument, pleaded by one party, when thus recited on the record by the other, be- comes parcel of the former party's pleading. 109. And if in an action, on contract, brought by a sole plaintiff, it appears, upon the face of the declaration, or of any other pleading on the plaintiff's part, that another ought to have been joined as co- plaintiff; the mistake is incurable, even by verdict(i). If therefore, in an action of debt, covenant broken, or assumpsit, brought by A. alone, it appears from his own pleading, that the contract was made with himself and B. jointly, and that B. is still living, (as he is presumed to be, unless the contrary ap- pears, in the declaration) ; the defendant may demur, without reciting the contract ; or may, after verdict, move in arrest of judgment, or reverse a judgment against him, on writ of error(/c). For in this case, as it appears from the plaintiff's own showing, that he alone has no right of action ; the defendant is not (/*) 1 Saund. 153. (n. 1.) 291. f, (n. 4.) 1 Bos. & P. 67. 1 Chitt. PI. 209. (t) 1 Saund. 153. (n. 1.) 291. b. (n. 4.) Esp. Dig. 304. 2 Stra. 1146. 1 Bos. & P. 67. 74. 1 East, 497. (fc) lid. 276 OF PLEAS IN ABATEMENT. CHAP, under the necessity of showing the mistake, by plead- v. ing the fact which has occasioned it. kcTofpiain- And undoubtedly the same rule must apply to an in contract: tion, brought by two plaintiffs, on a contract which appears, from their own pleading, to have been made with one of them only. 110. But the general rule, that if one of two persons, having a joint right of action ex contractu, sues alone, advantage may be taken of the mistake, under the general issue, does not extend to actions brought by one, suing in a representative capacity. Hence, if one of two co-executors sues alone, on a contract made with their testator, advantage can be taken of the nonjoinder of the other only by plea in abatement(l). For as the executors are not parties to the contract ; the nonjoinder of one of them occa- sions no variance, and does not in any respect involve a contradiction of the declaration : Inasmuch as the fact that there is another executor, who should have been joined as co-plaintiff, is not inconsistent with the description, in the declaration, of the contract made with the testator. in ton. ^111. In an action EX DELICTO, if one sues alone, when another should have been joined (as where one of two joint- tenants, or of any two persons, whose joint right has been violated by a tort, sues for it, without joining the other) advantage can (/) 1 Saund. 291. g. (n. 4.) 3 T. R. 558. 1 Chitt. PI. 8, note (g) 13. OF PLEAS IN ABATEMENT. be taken of the nonjoinder of the latter, only by CHAP. plea in abatement(m) : Because the fact, that ano- v. ther was interested jointly with the plaintiff, does not go in support of the general issue. For proof der" J & l c" of that the right violated was joint, is no proof that ETtort: the defendant has not injured the plaintiff's proper- ty : Nay, it admits that fact ; and shows merely that the injury was not to his sole property. But this latter fact does not disprove the declaration. In this last case however, the defendant may prove, under the general issue, the interest of the other party, who is not made co-plaintiff in the suit not, indeed, for the purpose of defeating the action ; but for that of taking off a moiety of the damages(ii). For otherwise, the plaintiff might recover damages to the whole amount of the injury; and still leave the defendant liable, for a moiety of them, to the other party in interest(o). 113. If two sue together, in tort, when the right of action is in one of them, only (as if, for a trespass upon the sole property of A., he and B. sue, as co-plaintiffs) ; advantage of the misjoinder may be taken, either in abatement, or under the (w) 6 T. R. 766. 1 Saund. 291. f. g. h. (n. 4.) Cro. Eliz. 554. Godb. 172. Lutch, 152. 5 Co. 18. b. 5 Ea,<*, 407. 2 Stra. 820. 1 Johns. R. 471. 6 Ib. 108. 1 Wend. 380. 6 Mass. R. 462. 2 Ib. 511. 11 Ib. 419. (n) 5 East, 407. Peake Ev. (2d ed.) 205. (o) 7 T. R. 279. 36 CHAP, v. Nonjoinder, &c. of de- In contract OF PLEAS IN ABATEMENT. general issue(p) : Because the fact, that A. is the sole owner of the property, contradicts the declara- tion ; since it proves that the trespass committed, was not upon joint property of A. and B., and con- sequently, is not the trespass complained of. As to the joinder or nonjoinder of defendants ^ 1 14. In an action on contract, it one issued J alone, where another ought by law to have been / made co-defendant with him (as if A. is sued alone, on a joint obligation or promise, made by himself and B.) ; advantage can be taken of the nonjoinder of B. only in abatement ; unless the mis- take appears, (as hereafter mentioned), from the plaintiffs own pleading(q). For the obligation is A*s act, though not his sole act ; and the promise is his, though not his sole promise. The fact then, that B. is a co-obligor, or co-promissor with A., does not prove that the obligation, in the one case, is not A's act, nor that A. did not promise, in the other(13) ; and therefore does not disprove the declaration. (p) Cro. Eliz. 143. 473. Gouldsb. 77. Clayt. 121. Bac. Abr. Tresp. I. 2. (3). Lacy v. Barns $ al. Sup. C. (Connecticut.) 1805. M. S. 6 Pick. 222. Gow. on Partnership, 159. (9) 5 Burr. 2611. 2 Black. Rep. 947. 5 T. R. 651. 7 Ib. 313. 1 Saund. 291 b. (n. 4.) 2 N. Rep. 365. Cowp. 832. 5 Co. 119. 1 Bos. & P. 72. L 18 Johns. R. 459. ConL 2 Salk. 440. (13) It is suggested by Mr. Serjeant Williams, (I Saund. 291. f. g. (n. 4.), that since the nonjoinder of one of two joint prom- issors as defendant, is held to be only matter of abatement, the rule ought, for the sake of consistency, to be the same as to joint OF PLEAS IN ABATEMENT. 279 The rule is the same, and for the same reason, CHAP. where two only are sued upon a joint and several v. contract, made by three, or more(r). For the fact, that another or others bound themselves by the same & J of n de r ' contract, does not prove that the defendants did not contract, as stated in the declaration. <$ 115. But in an action on contract, if it ap- pears from the face of the declaration, or of any other pleading on the part of the plaintiff, that a person, not made defendant in the suit, was a joint contractor with the defendant, and that such person is still living, (as he must be presumed to be, unless the contrary is alleged) ; the nonjoinder of him as defendant, is a good ground of demurrer, or motion (r) 1 Saund. 291. e. (n. 4.) Bro. Ab. Obligation, 94. Yelv. 27. a. note. 1 Peters, 73. promissees ; i. e. that the nonjoinder of one of two joint prom- issees as plaintiff, should be pleadable in abatement only. But with submission, are not the two cases essentially different? If A. & B. make a joint promise, it is nevertheless true, that each of them promises : And if so, it follows, that a declaration on the promise, against A. alone, alleging that he promised, is not disproved by the admission, that B. promised jointly with him. But if a promise is made to A. & B. jointly, it would seem not correct, to say that (here is a promise to each of them : And there- fore, a declaration by A. alone, alleging the promise to have been made to him, without naming B. as a co-promisee, is falsified, by proof that the promise was made to both of them jointly. In other words, there is a variance between the declaration and the proof. Such, at any rate, is the principle of the distinction recog- nized by the authorities a distinction, which, it is believed, is not ' without a difference.' 280 OF 1>LEAS LN AiiATEAIKNT. CHAP. m arrest of judgment and (if judgment be given v. for the plaintiff), may be assigned for error(s). For in this case, the pleading of the plaintiff himself Nonjoinder, 1 . , , & C . of de- shows, that he has no right to recover in the suit, as fendants : , T 7 , , in contract: it is brought ; and as the mistake appears upon the record, by his own showing ; there is no need of the defendant's pleading it. (Vid. ante, 109.) 116. If, on a contract made by one person only, he and another are sued, as upon a contract made by both, the misjoinder is a good ground of defence, under the general issue(t). For the con- tract made is not the same, as that declared upon. The proof of the former therefore disproves the declaration. And in an action against two as joint contractors as in assumpsit against A. & B. as joint promis- sors if the jury find that A. promised, but that B. did not ; A. may arrest the judgment(w). For the contract declared upon, is disproved, by the ver- dict^). And when the action is thus brought against tivo, upon a contract made by one of them only, the plaintiff cannot enter a noil. pros, as to the other, and then proceed against the party bound, (s) 5 Burr. 2614. 1 Saund. 153. (n. 1.) 291. b. c. (n. 4.) 6 T. R. 769. 1 Vent. 34. (/) Clayt. 114. 1 East, 48. 2 Day, 272. 2 New Rep. 454. 11 Johns. R. 101. 1 Esp. Rep. 363. (M) 3 East, 62. 1 Keb. 284. Carth. 361. 3 Brod. & Bing. 54. (r) 1 Keb. 284. OF PLEAS IN ABATEMENT. 281 alone(?(;). To allow this, would be to enable the CHAP. plaintiff, by his own act, not only to defeat a good v. defence upon the merits ; but also virtually to sub- stitute one action for another or rather, to trans- &c" J of"de e - r; form an action against A. & B., into an action against ^"contract : A. alone. If several are sued for a TORT, committed i tort - by one of them only ; the joinder of the others is no ground of abatement, nor can advantage be taken of it, as a misjoinder, in any way (a;). For of co-de- fendants, in actions ex delicto, some may be convict- ed, and others acquitted ; and the proper plea for those not actually guilty, is the general issue. But a plea in abatement, by one of the defendants, that the wrong in question was committed by the others, without his concurrence, is ill ; because it is, in ef- fect, the general issue, which is pleadable only to the action. 118. If, on the other hand, one is sued alone, for a tort committed by himself and others jointly ; the nonjoinder of the others is, in general, no ground of exception, either in abatement or otherwise (?/). For a tort, committed by several, may regularly be treated as joint or several, or as partly joint, and partly several, at the election of the plaintiff. And as he consequently has, by the general rule, the (w) 4 Taunt. 470. 3 Esp. Rep. 76. 5 Ib. 47. COM/. 5 Johns. R. 160. 1 Pick. 500. (A-) 1 Saund. 291. d. (n. 4.) (//) Bac. Abr. Tresp. G. 1. & 1. 1. 8 Co. 159. 1 Saund. 291. d. (n. 4.) 3 East, 62. 282 OF PLEAS IN ABATEMENT. CHAP, right by law, to sue any one of them only or all v. or any number of them together or each of them, in a several action : the nonjoinder of any of the Nonjoinder, r & C of de- wrong-doers is no defence, in any form. fendants : J In tort. 119. But there is an exception to the last rule, where one is sued alone in tort, upon a cause of action, arising out of, or concerning, real property held jointly, or in common, by himself and another. In this case, the nonjoinder of the other tenant is pleadable in abatement, although the action sounds in tort(z). For the probable ground of this excep- tion to the general rule, see ch. 4, 76. * ^ 120. When a suit is defeated, by a plea in abatement, for the nonjoinder of another person, who should have been made a co-defendant ; the latter may, in a subsequent action for the same cause, and in which he is made such, plead in abate- ment, that still another ought to have been sued(a). And in case of several successive suits for the same cause, each new defendant, disclosed in the next pre- ceding suit, by a plea in abatement, may plead, in the same manner, that another, still, should have been joined, as defendant(6). For the new de- fendant cannot be deprived of his right thus to plead, by the omission of the defendant, or defendants, in the prior suit, to disclose the names of all those, (z) 5 T. R. 651. 1 Saund. 291. e. (n. 4.) 2 Black. Com. 182. Com. Dig. Abatement, F. 6. (a) 3 East, 70-1. (6) Ib. OF PLEAS IN ABATEMENT. 283 who ought to have joined in it. And the same rule CHAP. holds, throughout any series of actions in which new v. joint contractors are successively disclosed. ^ 121. But the same defendant, who, in a prior suit, has pleaded the nonjoinder of one joint con- tractor, cannot plead, when afterwards sued on the same contract as co-defendant with the latter, that there is still another joint contractor, who should have been made defendant(V). This he is estopped to do, by his plea, in the preceding suit : For he ought, by his plea in that suit, to have ' given the plaintiff a better writ? by naming all the joint con- tractors. VI. The Pendency of a prior suit, for the same cause. & 122. It is, in general, a good plea in abatement, Pendency of ' a prior suit. that there is a prior action, (similar, or concurrent), pending between the same parties, for the same cause (d). For the law, which ' abhors a multi- plicity of suits,' will not permit a defendant to be harassed, by two or more actions for the same thing, where a complete remedy might be obtained by one of them. The object of the rule is to pre- vent vexation. (c) Ib. (d) Thel. Dig. 270. Com. Dig. Abatement, H. 24. Bac. Abr. Abatement, M. 5 Co. 612. Doct. PI. 10. 67. 284 OF PLEAS IN ABATEMENT. CHAP. J23. To give effect to this plea, it is not v. necessary that both suits be of the same kind : It is sufficient for this purpose, that they are concur- rent(e). Thus, in replevin, it is a good plea in abatement, that a prior action of trespass, for the same taking, is depending. And when trespass and trover are concurrent, the pendency of one when the other is brought, is pleadable in abatement of the latter(/}. For the vexation is the same, as if both suits were of the same kind. And the identity of the cause of action, in the two cases, may be shown by averment. ^ 124. But where the cause of action is not the same in both suits, the pendency of the first will not abate the second(g). Such a case is not within the reason, or even the terms, of the above general rule. Hence, in debt on a bond secured by mortgage, the pendency of a prior action of ejectment, for the land mortgaged, is no cause of abatement(/t). ^ 125. It is immaterial whether the first suit is pending, or" not, at the time of the defendant's pleading in abatement of the second. If the first was pending, when the second was commenced ; the latter may be abated, as being vexatious ab initio(i). (e) lid. (/) Bac. Abr. Abatement, M. Hob. 184. Hutt. 3. Doct. PI. 10. Com. R. 595. (g-) 5 Co. 61-2. Hob. 184. Com. Dig. Abatement, H. 24. (h) Doug. 417. 2 Atk. 344. Pow. on Mortg. 417. (t) Doct. PI. 10. Bac. Abr. Abatement, M. 3 Inst. Cler. 118. Gilb. H. C. P. 255-6. 5 Mass. R. 177. OF PLEAS IN ABATEMENT. 285 And on principle, it seems, that this plea can never CHAP. prevail, except in cases where the latter suit is v. vexatious. 126. Hence, where it appears that the first action must have been ineffectual, the courts of Con- necticut have often determined that its pendency shall not abate the second (A;) : Because in such a case, the latter is not vexatious. ^ 127. The plea of a prior suit pending, for the same cause, is good, although there be a new de- fendant added in the second : As where the first action is against A. only, and the second against A. & B.(T). And by the opinion of three judges, (Holt, Ch. J. doubting), it was held that the second suit must abate, as to both defendants(14). And when, on the other hand, one of two or more defendants in the first action is omitted in the second (as if the first action is against A. &. B. (k) 1 Root, 355. 562. (/) Garth. 967. Comb. 144. 1 Show. 75. Ham. N. Prius. (Am. ed.) 96. Hob. 137. (14) Where the liability of the defendant is several, as well as joint, (as in an action for a joint tort), qu. whether the second action ought, on principle, to abate quoad the neiv defendant. For he is not, in fact, subjected to vexation by the second suit'; and the action is, by the supposition, of such a nature, as might be prosecuted against himself alone. Such, however, was the action, in the case referred to, in the text. Was not Ld. HolCs doubt, then, well founded ? 37 286 OF PLEAS IN ABATEMENT. CHAP. a d the second against A. only) it seems manifest v. that the second must abate : The case being plainly within the reason of the general rule. 128. On a writ of partition, the defendant may, by the common law, plead in abatement the pendency of a prior writ of the same kind, brought by himself against the plaintiff 1 in the second, for a partition of the same land(m) : Because the same end, which the plaintiff in the second suit seeks to attain, may be fully attained in the first. But since the statute 8 & 9 W. Ill, c. 39, there can be no plea in abatement in any suit for partition of lands(ww). 129. By the English law, the pendency of a prior action, in an inferior court, is not pleadable in abatement of another, brought in one of the Supe- rior Courts of Westminster(w). This rule seems to have originated in the general authority of the latter courts to supersede the jurisdiction of the former, upon the application of defendants in the inferior courts(14). (m) Gilb. H. C. P. 260. Bac. Abr. Abatement, M. Dy. 92. b. Coni. 1 Brownl. 158. (mm} 2 Lill. Ab. 357. 3 Black. Com. 302. (n) 5 Co. 62. Bac. Abr. Abatement, M. 2 Wils. 87. Com. Dig. Abatement, H. 24. (14 o) From the language of Ch. J. Eyre (Fitzg. 313), it might perhaps be inferred, that the reason of this exception to the general rule is the presumed want of jurisdiction in the inferior court. (See also 1 Chitt. PI. 443. n. r.) But upon this suppo- OF PLEAS IN ABATEMENT. 287 130. It is no cause for abating an indictment, CHAP. that a prior indictment is pending against the defen- v. dant, for the same offence. Because the court, - in the exercise of its discretionary control over pros- ecutions by indictment, may quash the first(o). The same is true of informations for crimes filed ex qffi- cio, by a prosecuting ofificer(oo). But this rule does not extend to the case of two informations qui tarn, &c. for the same of- fence. For on such an information, the situation and rights of the prosecutor are analogous to those of the plaintiff in a civil suit ; and the court has, therefore, no such discretionary power over them, as it exercises over indictmentsQ/). ^ 132. VII. In general, any irregularity, defect ^ or informality, in the terms, form, or structure, of the writ, or in the mode of issuing it, is a ground of abatement^). (o) 2 Hawk. P. C. c. 34, 1. Cro. Car. 147. Fost. 104, & seq. 2 East, 226. (oo) Doug. 240. (p) 2 Hawk. P. C. c. 26, 63. Doug. 240, (n. 1.) 2d ed. (/) Com. Dig. Abatement, H. 1-6. Lawes' PI. 106. sition, there would seem to be no propriety in limiting the excep- tion to prior suits in inferior courts ; since a prior suit, pending even in a superior court, not having jurisdiction of it, would, on principle, afford no cause for abating a second suit for the same cause in any other court. Upon the same supposition, an allega-. tion of jurisdiction in the inferior court would seem to make the plea good. 288 OF PLEAS IN ABATEMENT. CHAP. 133. The defects or mistakes, which fall within v. this general description, are quite multifarious, and hardly admit of an explanation in detail. Among those usually enumerated, are any uncertainty or re- pugnancy want of date, or an impossible date want of venue, or, in local actions, a wrong venue a defective return, &c. &c.(r). The return is ' defec- tive,' when the time, between the date of the writ and the return-day, is too short to afford the defend- ant such length of notice, in regard to time, as the law requires(s). 134. If the writ is made returnable to any other than the Jirst term of the court, after it issues, when there is sufficient intervening time for its return to that term ; it may for this cause be abated ; but a plea in abatement, in such a case, is unnecessary. For the writ is void, and therefore liable to be set aside, on motion(t)(\o}. (r) Com. Dig. Abatement, H. 1-17. Lawes' PI. 106. () Com. Dig. Abatement, H. 15. 2 Keb. 461. 2Wils. 117- 6 Pick. 370. (/) 3 Wils. 341. 2 Sulk. 700. 1 Root, 315. 316. 5 Mass. R. 100. (15) It is necessary to the protection of the defendant, that the writ should be considered as void, and not as merely abateable. If the rule were otherwise, no advantage could be taken of the ir- regularity, until the arrival of the term, to which it is made return- able which might be at any future term, however remote ; and the defendant might consequently be held to bail, or imprisoned, during the whole intermediate period. But the writ being void, all acts done in obedience to it, are so : And the defendant, if ar- rested under it, is entitled to an immediate discharge. OF PLEAS IN ABATEMENT. 289 135. If the sheriff's return of service, as indors- CHAP. ed by him upon the writ, is defective upon the face v. of it (as if it appears, from his indorsement, that the defendant has not had seasonable notice of the suit) ; this is a ground of abatement, or for setting the writ aside, on motion(u). But if sufficient upon the face of it; the defendant cannot falsify it, on a plea in abatement ; and his only remedy is an ac- tion against the sheriff, for a false return(v*). For it is a general rule of the common law, that such official acts shall not be falsified, except by a pro- ceeding, to which the officer is a party, and which is commenced for the direct and express purpose of falsifying it. ^ 136. In the state of Connecticut, however, if the service is actually defective, the defendant has always been allowed to prove it so, under a plea in abatement, even in contradiction of the officer's in- dorsement. 137. VIII. That the action is misconceived, is Action mis- pleadable in abatement : As if assumpsit is brought, when account is the only proper remedy ; or trespass, when case is the proper action(i<;). But a plea in abatement, for this cause, is unnecessary and unusual. For if the mistake appears upon the face of the () Com. Dig. Abatement, H. 15. 2 Wils. 117. (r) 2 Stra. 813. T. Jon. 39. 1 Black. R. 393. Com. Dig. Retorn, G. 4 Mass. R. 478. (i) Com. Dig. Abatement, G. 5. 1 Show. 71. Hob. 199. Lawes' PI. 106. Tkld, 579. 290 OF PLEA S IN ABATEMENT. CHAP, declaration, it is fatal on demurrer ; and if not, ad- v. vantage may be taken of it under the general issue. & 138. IX. That the right of action had not ac- ed too soon. 3 * cruea, at the commencement of the suit, may be pleaded in abatement^) : As, when an action on contract is commenced, before the time, appointed for performance. This plea also is seldom used, and for the same reason, as is mentioned under the last head. The foregoing enumeration of pleas in abatement comprehends all the principal causes or grounds of abatement, known to the common law(15 a). (x} 2 Lev. 197. Benl. 57. Cro. Eliz. 325. Hob. 199. Com. Dig. Action, E. 1. (15 a) What are here called pleas in ' abatement', without further discrimination, comprehend all those pleas, which, under the more minute and complex classification of dilatory pleas, pre- sented in the first section of this chapter, follow pleas to ' the per- son of the plaintiff".' And the nine foregoing kinds, or classes, of pleas in abatement, enumerated in the present chapter, (from 69 to 138, inclusive), are under that more minute classification, de- nominated as follows : 1. The plea of coverture of the defendant, and that of the death of a party, are pleas ' to the person' i. e. the person of the defendant, in the first case, and of either party, in the second. 2. The plea of variance between the count and the writ, or between the writ and the instrument, &c. declared on, Ante, 64, i s a pi ea ' to the count' ; (as all writs were formerly recited at full length in the count}. 3. The pleas of misnomer, want of addi- tion, &c. of nonjoinder or misjoinder of parties, and pleas found- ed on any repugnancy, defect or informality, upon the face of the writ, are pleas 'to the form of the writ'. 4. The plea of a prior OF PLEAS IN ABATEMENT. 291 139. When a plea in abatement is true, in point CHAP. of fact, and sufficient in law, (in which case the writ v. must abate), the plaintiff may in order to prevent unnecessary delay and expense enter a cassetur breve, or cassetur billa ; i. e. may pray that his writ or bill may be quashed, to the intent, that he may sue out a better writ, or exhibit a better bill, for the same cause(t/). And judgment will, of course, be entered according to his prayer. Whenever the defect is such as cannot be amended, this is the more eligible course for the plaintiff. ^ 140. There is also another mode in which the N l Ueprose " plaintiff may, in general, after a plea in abatement, and in most other stages of the suit, put an end to his own action, in whole, or in part ; viz. by enter- ing a nolle prosequi(z) which is an entry upon the record, that he will not further prosecute the suit against the defendant, in respect either to the whole, or some part, of his alleged cause of action. (y) Lawes' PI. 166. 7 T. R. 698. 3 Anst. 935. Tidd, 633 1 Chitt. PI. 454. 2 Ib. 590. (z) Lawes' PI. 166. Tidd, 617. 620-1. 1 Bos. & P. 157. Vid. 1 Peters, 74, & seq. suit pending for the same cause that the action is misconceived or that the suit was commenced before the right of action had accrued, is a plea ' to the action of the writ.' 292 OF PLEAS 1N ABATEMENT. CHAP. V. - Of the mode of pleading in abatement and the effect of the plea(\Q). 141. If matter of mere abatement is pleaded in bar ; or if matter, which goes only in bar, is pleaded in abatement ; the plea, in either case, is ill(a). For otherwise, all distinction betweent hese different clas- ses of pleas would be confounded. In the former case too, judgment in chief must be given for the plaintiff (6) ; since the plea, which is necessarily ill, is to the action. There are, however, as has before been shown, (ante, ^ 37. 43.), certain defences, which are good, either in abatement or in bar ; and to these the above rule is, of course, inapplicable. how tobe 14Q. A plea in abatement, for matter apparent gin, and upon the face of the writ, should, in general, both conclude. * begin and conclude, by praying 'judgment of the writ,' (or 'of the writ and declaration'), and that the same may be quashed : But where the cause of abatement is extrinsic, the plea, it is said, should not (a) Com. Dig. Abatement, I. 12. 14. 4 T. R. 227. 2 Saund. 209. c. d. (n. 1.) 1 Mod. 239. (6) 2 Ld. Ray. 1020. 1 East, 634. (16) The great degree of certainty and accuracy, required in dilatory pleas of all kinds, has been before explained, (ante, 66. 67, and ch. 3, 57. 58.) The rules on this subject need not, therefore, be here repeated. OF PLEAS IN ABATEMENT. 293 begin, but only conclude, with this prayer(c). The CHAP. precedents, however, do -not all appear to conform v. to this distinction^). If the action is by bill, the - plea should, in like manner, pray ' judgment of the The P i ea 1 J J how to be- bill'(>). gin, and conclude. 143. When the plea goes to the person of the defendant, (as if it be, that she is a feme covert), the form of praying judgment is, ' whether the defend- ant ought to answer' or ' ought to be compelled to answer'(y) : It being rather the personal privi- lege of the defendant, than any fault in the writ itself, that constitutes the ground of exception. 144. Any mistake, in the form of beginning or concluding a plea in abatement, is fatal to the plea(g'). Great accuracy is therefore required, in these two, as well as in all other particulars. Upon these two, indeed, depends the character of the plea, as distinguished from a plea to the action. 145. The character of a plea depends, regu- larly, upon the form of its commencement and conclu- sion : or (which is the same thing), upon the nature of the judgment which it prays, in its commence- (c) Lawes' PI. 108 9. Com. Dig. Abatement, I. 12. 2 Saund. 209. a. d. (n.) 2 Chitt. PI. 415. Tidd, 577. 584. 3 Black. Com. 303. (d) 1 Chitt. PI. 451. 2 Ib. 413-420. Bac. Abr. Abatement,?. (e) 2 Saund. 209. d. Holt, 3. 5 Mod. 144. Tidd, 577. Com. Dig. Abatement, I. 12. (/) Lawes' PI. 109. Tidd, 584. 2 Saund. 209. d. (g) 2 Saund. 209. c. d. 1 Chitt. PI. 445. 3 T. R. 185. 1 B. & A. 173. 38 OF PLEAS IN ABATEMENT. CHAP, nient ana * conclusion. So that if these are alike v. (both in abatement, or both in bar) ; they are deci- sive of the character of the plea, whatever may be h? w to e be- its matter (h). gin, and conclude. ^ 146. If therefore, the defendant pleads mat- ter, which goes only in bar (as a release), but be- gins and concludes in abatement, (as by praying judgment of the writ} ; the plea is in abatement(i). And the same commencement and conclusion, which the plea requires, are to be followed in the replica- tion, rejoinder, &c. until an issue is tendered ; and those, tendering an issue, require the same com- mencement. ^ 147. And on the other hand, if the matter pleaded goes only in abatement, (as misnomer, or any informality in the writ}, but begins and concludes in bar ; the plea is in bar(j) (17). ^ 148. But when the beginning and conclusion of the plea differ, (the former being in abatement, and the latter in bar, or e converse), there is some confusion in the books not indeed as to the legal sufficiency of the plea, which is ill of course, by (/i) Ld. Ray. 593. 1019. Bac. Abr. Abatement, P. Latch, 178. 2 Saund. 209.C. d. (n. 1.) Lawes' PI. 107. Tidd, 583-4. (t) lid. 6 Taunt. 587. (j) 1 Sid. 189. 190. (17) By a plea ' in abatement,' in these distinctions, regarding the different characters of pleas, is meant a dilatory plea of any kind. OF PLEAS IN ABATEMENT. 295 reason of the discrepancy but as to the effect of CHAP - the discrepancy, upon the character of the plea, and ' consequently upon the mode of answering it, and The pica the kind of judgment to be rendered upon it. conclude. According to the weight of authority, however, the following appear to be the correct distinc- tions : ^ 149. When the beginning and conclusion thus differ, the subject-matter of the plea would seem to be the most simple and most obvious criterion of its character. And such is the established rule, when the application of this criterion would favor the plaintiff; though it is otherwise, when the same criterion would operate in favor of the defendant : A distinction, derived from the policy of discouraging dilatory pleas, 150. Thus if matter, which goes only in bar, begins in abatement and concludes in bar or e con- verso ; it is a plea in bar(k), by reason of its subject- matter and being ill, by reason of the discrepancy between its commencement and conclusion ; the plaintiff, by demurring as in bar, (i. e. by concluding his demurrer, with a prayer of judgment in chief his debt, or damages), is entitled to final judgment upon it. 151. So also, if matter, which goes only in abatement, begins in bar, and concludes in abate- (/,-) Ld. Ray. 593.^1018. 2 Sauud. 209. c. d. (11. 1.) 6 Mod. 103. OF PLEAS IN ABATEMENT 296 CHAP, merit, or e converse ; the plaintiff may demur, as in v. bar(l). And if he thus demurs, he entitles himself to final judgment(18). But if issue is joined, on how t p e be- such a plea, and found for the defendant ; the judg- ment will be, as on a plea in abatement, viz. that the writ be quashed ; though if the same issue were found for the plaintiff, he would be entitled to judg- ment in chief (m). ^ 152. If a plea of matter, which goes indiffer- ently either in bar or in abatement, differs in its commencement and conclusion ; the plaintiff may, with equal propriety, demur to it, either as in bar, or in abatement(V). For the beginning and con- clusion neutralize each other, as regards the charac- ter of the plea ; and its subject-matter, (as it may operate either way), furnishes no criterion. The judgment will therefore follow the nature of the prayer, with w r hich the demurrer concludes. It is obvious, then, that the course, most advantageous to the plaintiff, is to demur to the plea, as in bar; as by thus demurring, he will entitle himself to judg- ment quod recuperet. (/) 1 Chitt. PI. 446. 456-7. 2 Saund. 209. d. (n. 1.) 1 East, 634. 10 Johns. R. 49. (m) 1 Cbitt. PI. 446. 1 East, 634. 2 Saund. 209. d. n. 1.) 2 Ld. Ray. 1018. (n) Bac. Abr. Abatement, P. 1 Vent. 136. 3 Mod. 281. (18) The uile, allowing the plaintiff to demur in this manner, originated in the same anxiety of courts of justice to discourage dilatory pleas. Were it not for this reason, the mailer of the plea would determine its character, as under the last preceding rule. OF PLEAS IN ABATEMENT. 297 153. On a judgment, rendered upon any dilato- CHAP. ry plea, error may be assigned, as well as upon a v. final judgment. But matter of mere abatement, if not pleaded in abatement, cannot be assigned for signabufon error(o). For if not thus pleaded, it is waved as mem" given it would be unreasonable that a suit should be de- e as. a ry feated, in its latter stages, by an exception, which might have been taken in limine. Excovit having an impossible date. ^ 154. For a similar reason, it is an established rule, that to a scire facias, or debt on judgment, the defendant is not allowed to plead in abatement, (nor indeed in bar), any thing, which he might have pleaded in the original actionQ?). & 155. A defendant cannot 'demur in abate- Defendant . , *. rp,, . f. i . ma y not de ' ment (o). I his rule appears, from the application mur in r i i i ,. rr . abatement. or it in the books, to have two different meanings, or to be applied in two different senses: 1. That the defendant cannot demur, for defects or mistakes in the writ(r) (19) : 2. That he cannot plead in abatement, for the insufficiency of the declaration(s). (o) 10 Mod. 166. 6 T. R. 766. Carth. 124. Com. Dig. Abatement, I. 36. 2 H. Black. 267. 299. Bac. Abr. Error, K. 5. (p) Bac. Abr. Abatement, O. 1 Salk. 2. 310. 1 Atk. 292. 2 Stra. 732. 1 Wils. 258. 1 Saund. 219. c. (n. 8.) Co. Litt. 303. (g) Bac. Abr. Abatement, P. 1 Salk. 220. Willes, 410. 479. 6 Mod. 195. 198. Andr. 147. (r) Plowd. 73. n. 6 Mod. 198. () Plowd. 73. n. Willes,410. 479. Lawes' PI. 172. Gilb. H. C. P. 259. (19) It was formerly held otherwise. (Plowd. 73. Dy. 341.) 298 OF PLEAS IN ABATEMENT. CHAP. The former he cannot do, because a demurrer never v. reaches the writ; nor the latter, because no advan- tage can be taken of insufficiency in the pleadings, by a plea in abatement (ante, ch. 2, 34). And on the plaintiff's joining in the demurrer, in the one case, or demurring to the plea, in the other, final judgment will be given in his favor(^) (20). ^a n er a f 156. Although, as we have seen, the prayer of indent' a wron judgment, in the conclusion of a plea, makes the plea faulty ; yet a mere prayer of judg- ment, not specifying any particular kind of judgment, is sufficient (u). For it is the duty of the court to render such a judgment as the legal effect of the pleading requires. maybe" 1 <^ 157. A writ may be abated as to part of what paS oni the plaintiff demands, and stand good for the resi- due^). Thus, in debt on two bonds, or assumpsit on two promises, the defendant may plead, as to one of them, the nonjoinder of a co-obligor, or co- promissor, and thus abate the writ, quoad that one bond or promise only. And a judgment, thus abat- (0 Plowd. 73. n. 6 Mod. 198. Willes, 411. () 2 Lev. 19. 1 Saund. 97. Willes, 4 10. 411. 4 East, 502. 509. (r) Lawes' PI. 106-7. 2 Saund. 210. a. (n. 1.) 2 Bos. & P. 420. Com. Dig. Abatement, N. Bac. Abr. Abatement, L. (20) But if a prisoner, indicted of a capital offence, demurs in abatement ; the judgment is only a respondeat ouster, (2 Hawk. P. C. c. 31, 6) : A rule founded on the benignity of the law, in favorem vitce. OF PLEAS IN ABATEMENT. 299 ing the writ in part, may be given on a plea, praying CHAP. that the whole may be abated (to) : It being the du- v. ty of the court to give the plea its proper effect, if the judgment prayed is of the right kind. merits. 158. As a plea in abatement does not go to J^ the merits of the cause ; a judgment upon it does f c e not, in general, conclude either party, quoad the cause of action, and is therefore no bar to a subse- quent action for the same cause(:r) : The general principle, upon which a prior judgment bars a sub- sequent action, being, that the merits of the con- troversy have been already decided in the former suit. But the above rule does not hold, when the judg- ment upon a plea in abatement goes in chief as, in some cases, it does(?/). For such a judgment on any plea is, in its nature, conclusive as to the right of action. ^ 159. As to the judgment, to be rendered on pleas in abatement, the distinctions are the follow- $ ilicr ment re- & quire. 1. If the plea is determined in favor of the de- fendant, upon an issue either in law or fact; the judgment is, that the writ, (or, as the case may (w) lid. (x) Com. Dig. Action, L. 4. Bac. Abr. Pleas, &c. I. 13. 4 Co. 43. a. 6 Ib. 7. 8. 8 Ib. 37. b. 98. 2 Vent. 170. (.c proved as stated, the words i modo CHAP. et forma? are of the substance of the issue, and do vi. consequently put those concomitants in issue : But, PART i. that when such concomitants or circumstances are not in themselves material, and therefore not neces- sary to be proved as stated, the words ' modo et forma\ are not of the substance of the issue, and consequently do not put them in issue(6). The result then is, that these words may always be safe- ly used, in tendering an issue ; because, in their legal effect, they always put in issue all material circum- stances, and no other(c). ^ 23. Hence if one party pleads a feoffinent by deed, and the other traverses the feoffinent, modo et forma as alleged ; the deed, as well as the en - feoffing act, is put in issue(J) : And therefore proof of a feoffinent without deed, is inadmissible, under this issue. For though a feoffment without deed is good, at common law ; yet when it is pleaded as by deed, the deed becomes material, as an essential part of the conveyance. ^ 24. But in trespass for an assault and battery, alleged to have been committed with swords, dag- gers, &c., if the defendant pleads not guilty ' in man- ner and form' ; the plaintiff is at liberty to prove a battery, committed with any other weapon. And (6) Lawes' PI. 120. Latch, 92-3. (c) 2 Saund. 319. (n. 6.) Lawes' PI. 49. 120. () Bac. Abr. Pleas, &c. G. 1. 3 Black. Com. 305. 42 326 OF THE GENERAL ISSUE, &c. CHAP. plea(i0). But the defence of coverture, in this vi. case, is considered in the law, as going in denial of PART i. the declaration. For her incapacity to bind herself, by any contract, being absolute and total; she is issue.de- regarded, as being not a moral agent in executing der - the instrument ; and it is therefore not considered as her act. And according to what appear to be the more reasonable opinions, the same rule applies, and for the same reason, to the deed of an idiot or a lunatic ; but. on this point, the authorities are not all agreed (#). 39. But if the legal incapacity of the party executing the specialty, on which the action is founded, is only partial or qualified as if the suit is on the bond of an infant; he cannot give his in- fancy in evidence, under the plea of non estfactum ; but must plead it specially '(y). For the legal inca- pacity of an infant not being absolute ; a bond exe- cuted by him is considered as his act, though avoid- able by him ; and therefore, proof of his infancy does not support the plea that the instrument is not his act. The defence is inconsistent with the plea. 40. The rule is the same, in the case of a bond obtained by duress. For it is the act of the (to) 5 Co. 119. 2 Wils. 341. 347. 1 Pow. on Cont. 97. Gilb. Ev. 162. Com. Dig. Pleader, 2. W. 18. (x) 2 Vent. 198. 2 Stra. 1104. 1 Ld. Ray. 315. 2 Salk. 675. 4 Co. 123. Wilmot, 155. Chitt. on Cont. 260. 3 Day, 90. 15 Johns. R. 503. 5 Pick. 431. (y] 3 Burr. 1805. 1 Salk. 279. Gilb. Ev. 162-3. Com. Dig. Pleader, 2 W. 22. OF THE GENERAL ISSUE, &c. 327 party making it, though avoidable, as in the preced- CHAP. ing case(^). The duress must, therefore, be plead- vi. ed specially ; as the defence would contradict the PART i. general issue. For the latter plea denies the execu- " ~ * Genral is- tion of the bond : but the defence of duress admits ; de - fences un- it. der - 41 . So also, where a specialty is declared void by statute, for any cause as, for usury, gaming, or other illegal consideration the obligor, or maker of the deed, cannot avail himself of the statute, under the general issue ; but must plead it specially, i. e. he must plead specially the facts, which bring the case within the statute(a). For the instrument, though it creates no legal obligation, is nevertheless, as in the preceding cases, his act ; and the special matter of the defence is therefore inconsistent with the plea of non est factum. ) 42. But fraud, in the execution of a deed, may be proved under the plea of non est factum : As, where one is, by a deception practised upon him, induced to execute an instrument, materially differ- ent from what he believed it to be ex. gr. a bond, instead of a release or an obligation for 100, in- stead of one for 10(6). For in such a case, proof (z) 2 Black. Com. 296. 5 Co. 119. a. Com. Dig. Pleader, 2 W. 19. 20. Bull. N. P. 172. (a) 5 Co. 119. a. Hob. 72. 1 Stra. 498. 2 Black. Rep. 1108. Com. Dig. Pleader, 2 W. 23. Gilb. Ev. 163. (6) 2 Black. Com. 308. 2 Co. 3. 9. b. Shep. Touch. 70-1 . 4 Cruise's Dig. 27. 2 T. R. 765. 3 Ib. 488. OF THE GENERAL ISSUE, &c. CHAP, of the fraud goes directly to support the plea : Inas- vi. much as the instrument, thus obtained, is not in law PART i. the deed of the party sealing it. 43. Thus also, the want of complete delivery as in the case of an escrow, where the condition, on which it was to be delivered oyer, is not complied with loss of the seal erasure interpolation, or any alteration, in general, after the delivery are, respectively, good evidence under the plea of non estfactum to an action on a deed(c). The two first of these grounds of defence are founded on the prin- ciple, that without a complete delivery, or without a seal, no deed can exist in law ; and consequently if an instrument, originally sealed, loses its seal, though after delivery, it ceases, ipso facto, to" be a deed(Q). As to the other grounds of defence last mentioned, it may be observed, that where a deed, originally valid, is altered after its delivery, it is no longer the same instrument, which the maker executed. ^ 44. According to the strict, original principles of tlie common law, no defences would appear to be admissible, in any case, under the general issue, ex- cept such as go in denial of the truth of the declara- tion : And therefore all special matters of defence, (c) 5 Co. 23. a. 11 Ib. 27. a. b. 28. b. Doct. PI. 259. 262. 2 Show. 28-9. Gilb. Ev. 109. (6) Where the seal is lost or destroyed, otherwise than by the act of the party, claiming under it, he may be relieved against the accident, in equity. OF THE GENERAL ISSUE, &c. 329 which admit, but go in avoidance of, the declaration, CHAP. would seem to require special pleas in bar, as being vi. inconsistent with the general issue. PART i. General & 45. In the original common-law actions of debt issue, defences on specialty covenant broken account detinue A a tocensei or any other justification^) a former under. recovery release accord and satisfaction, &c(o). 56. These special defences, however, and all others which confess the truth of the declaration, may be specially pleaded, instead of being given in evidence, under the general issue : A rule, which holds in assumpsit also. For regularly, no plea which admits the truth of the declaration can be said to amount to the general issue ; though the mat- ter of it might have been given in evidence, under that issue(j?). ^ 57. In the single case of trover, however, it has been held that there is but one good special plea to the action, viz. release : All other such pleas amounting, it is said, to the general issue(q). And if we are here to understand the word ' release, 7 not as meaning exclusively a formal, technical re- lease or acquittance, but as including whatever ex- tinguishes or discharges a right of action once exist- (m) 3 Burr. 1353. 1 Black. R. 388. 1 Wils. 45. 1 Chitt, PJ. 486-7. (n) 8 East, 308. 2 Mod. 6. 7. (o) 2 Mod. 276. 3 Ib. 166. Com. R. 273. 1 Wils. 44. 175. 2 Phill. Ev. 108. Bac. Abr. Pleas, &c. I. 1. 1 Keb. 305. (p) 1 Ld. Ray. 88-9. 1 Salk. 394. 5 Mod. 18. Carlh. 356. Lawes' PI. 112. Tidd. 591. 599. (g) Bac. Abr. Pleas, &c. I. 1. 1 Keb. 305. Telv. 174. a. (n. 1.) Reg. PI. 268. OF THE GENERAL ISSUE, &c. 335 ing as accord and satisfaction, a former recovery, CHAP. or a former bar, an award of arbitrators, &c. (and vi. in this sense the term appears to have been used) ; PART i. the position will appear to be not destitute of a foun- Gencral dation in principle. For as the conversion, which is i ) ss v ie . defences the gist of the action in trover, is, ex vi termini, a under - tortious act, which cannot in law be justified or ex- cused ; it is manifest that any plea alleging matter of justification or excuse, (as a license from the plain- tiff an authority derived from the law, &c.) is equivalent to the plea of not guilty ; since it must involve a denial of the conversion. ^ 58. In slander, the defendant is allowed to prove, under the general issue, that the words were spoken by him as counsel in a cause ; or in honest confidence, and for a justifiable reason (as in fairly giving the character of a servant) ; or to show any other fact, in general, which conduced to prove that the words were not uttered maliciously (r) : Malice being, in this action, of the gist of the action (8). (r) 2 Selw. N. P. 929. 1066. 1 Saund. 131. (n. 1.) Cro. Jac. 90. 1 B. & A. 232. 1 M. & S. 644. 15 Mass.R. 50. 57. 4 Ib. 1. 2 Pick. 310. Bull. N. P. 8. 1 T. R. 110. 1 Bos. & P. 525. 1 Caiupb. 267. 3 Johns. R. 180. (8) Yet the defendant, in slander, is not allowed to prove the truth of the words, under the general issue, (2 Stra. 1200. Bull. N. P. 9. Willes, 20. 1 Saund. 130. (n. 1.) 1 T. R. 748. 1 Bos. &, P. 525. 2 Ib. 225. (n. a ) Com. Dig. Pleader, 2 L. 2) : Though the truth of the words plainly conduces to rebut the legal presumption of malice. 336 OF THE GENERAL ISSUE, &c. All these and similar defences may however be pleaded specially(s). But it seems impossible to reconcile all the differ- ent rules admitting and excluding special matters of defence, under the general issue, in actions on the case, either with the strict principles of the common law, or with each other. 59. The universal principle which, by the common law, renders any given evidence admissible under any given issue, is its relevancy to the issue i. e. its conduciveness, or tendency, to prove the affirmative or negative of the issue. And according to this principle, no evidence is admissible, on the part of the defendant, under the general issue, except such as conduces to disprove the declaration. But in actions on the case, as has been shown, many deviations from this simple principle have been sanctioned by courts of justice ; and various similar deviations from the same principle have been in- troduced, and extended to other actions, both in England(0 and in the United States, by legislative enactments, and rules of court, for the purpose of enlarging the office of the general issue, and of allowing the defendant to give in evidence, under it, many special matters of defence, which, as being inconsistent with it, are by the strict original rules of the common law, required to be pleaded specially. (s) 1 Saund. 130-1. (n. 1.) (/) Com. Dig. Pleader, E. 13, OF THE GENERAL ISSUE, &c. 60. Instead of pleading the general issue, the CHAP. defendant may, in some cases, effectually answer vi. the declaration by a special issue i. e. by directly PART i. denying some one material and traversable allega- "iii i IT i Special tion in the declaration, and concluding to the coun- issue, try(w). ^61. A special issue, however, is not adapted to all cases. Its proper use is limited to those cases, in which the declaration alleges at least two distinct substantive facts, both of which are essential to a right of action. In such a case, a denial of one of those facts though it does not put the whole declaration in issue is nevertheless as complete an answer in law to the whole right of action, as the general issue itself would be. For where two or more facts are necessary to constitute a right of recovery, it is self-evident, that a denial of any one of them is a denial of the entire right of recovery. 62. Thus, in assumpsit on a special agreement, where the right of action depends upon a condition precedent, and where the declaration specially al- leges, as it must, performance of the condition the defendant may, instead of pleading the general issue, deny the alleged performance of the condition only, and put himself upon the country(V). If, f) lid. Yelv. 174. b. (n. 1.) OF SPECIAL PLEAS IN BAR. CHAP. a ^ s ) where in trover, the defendant pleaded title vi. in himself, to the goods, the plea was held ill, as PART ii. amounting to a denial of the conversion, which is the gist of the action, and therefore as tantamount to the general issue (9-). 79. The ground of objection to a plea of this kind is, that it tends to unnecessary prolixity in the pleadings, and refers to the court, instead of the jury, matter of mere fact matter which goes in denial of the declaration, and not in avoidance of it(r). The fault in the plea, however, is not in its substance (for whatever denies the declaration is substantially a sufficient answer to it) ; but in its form only (5). When % 80. But the above general rule is subject to allowable. ^ nree exceptions, or qualifications : 1. A special plea, amounting to the general issue, is good, if it contains special matter of justifica- tion^) : In other words, an entire special plea, an- swering the whole declaration, and alleging matter of justification, is good ; although, as to part of the declaration, it amounts to the general issue. For (q) Cro. Car. 157. (r) Hob. 127. Bac. Abr. Pleas, &c. G. 3. () 10 Co. 95. a. Bac. Abr. Pleas, &c. G. 3. Com. Dig. Pleader, E. 14. Hob. 127. & note(2)by Williams. 1 Freem. 39- (0 3 Lev. 40. Bac. Abr. Pleas, &c. G. 3. Trespass, I. 3. (2) Cro. Eliz. 268. Esp. Dig. 318. OF SPECIAL PLEAS IN BAR. 347 matter of justification is matter of laiv(Il), which CHAP. ought to be referred, by the plea, to the court. And vi. therefore such matter, when it goes in avoidance of PART n. a material part of the declaration, is allowed to be pleaded specially ; though, as to some other part of the declaration, it may amount to a mere denial. For, as the matter of one entire plea cannot be sepa- rated, by a reference of one part of it to the jury, and of the other to the court, and as it would be at least as improper to refer matter of law to the jury, as matter of fact to the court ; the defendant is al- lowed to refer the whole to the latter. Thus, in trespass for entering the plaintiff's close, treading down his grass, and driving his beasts to places un- known, so that they could not be replevied, the de- fendant pleaded that the locus in quo was his own waste, (in which, as appeared in another part of the pleading, the plaintiff had a right of common) ; and that the beasts of the plaintiff were there, inter- mixed with the beasts of strangers, which had no right there ; and that because the latter could not there be separated from the plain tiff's beasts, the defendant drove them all to a pound in the waste, to separate them, and having separated them, left the plaintiff's beasts in the waste : On demurrer to this plea, as amounting to the general issue, the (11) In this, as in other rules, pointing out what should, and what should not, be pleaded specially, ' matter of law" 1 is synony- mous with ' matter of avoidance,' as distinguished from matter of denial. Hence, whatever amounts to a denial of the adverse party's allegations, is termed ' matter of fact,' whatever confesses and avoids them, 'matter of law.' 348 OF SPECIAL PLEAS IN BAR. CHAP. COUI> t held, that though the allegation, that the vr place where was the defendants waste was a mere PART ii. denial of his alleged entry into the plaintiffs close ; yet as it was a necessary part of the defendant's justification, in driving the plaintiffs beasts to the pound, (which was part of the alleged trespass) ; the plea, being entire, was good(w)(12). ^81. 2. The general rule under consideration admits of another exception, (or rather an evasion), in trespass qu. cl. Jr. and assise in which, though a simple plea of a possessory title in the defendant is ill, as amounting to the general issue ; he may, nevertheless, plead that defence, if the plea gives color to the plaintiff^). To give color to the plaintiff, is to assign to him, in the plea, some colorable (i. e. defective), but ^fictitious title, of which (it being matter of law,) the jury is incom- petent to judge in order to justify, in opposition to it, a special statement of the defendants title ; so that the question, which is the better title of the two, may appear, upon the face of the plea, as a question of law(w). And thus, by alleging a fic~ titious and defective title in the plaintiff, which (M) 3 Lev. 40. (t>) 3 Black. Com. 309. Lawes' PI. 51. 1267. 150. 10 Co. 90. 91. 8 T. R. 404. Bac. Abr. Pleas, &c. I. 8. Trespass, I. 2. (to) lid. Com. Dig. Pleader, 3 M. 40. 41. 2 Chitt. PL 555-6. (12) The more simple and better mode, however, of pleading in such a case, would be to plead, as to that part of the declara- tion, which the defence contradicts, not guilty ; and to plead the special matter of justification, in avoidance of the other part only OF SEPCIAL PLEAS IN BAR. cannot be traversed, the defendant is enabled to plead CHAP. specially what, in fact, is neither more nor less than vi. the general issue. He may, for example, plead a PART n. possessory title in himself, under a feoffment with livery, from A. (which plea would, by itself, amount to the general issue), provided he adds, that the plaintiff entered, claiming title under color of a certain prior deed of feoffment, without livery, by which nothing passed : In which case, the title, al- leged in the plaintiff, is clearly defective, at com- mon law (a:). ^ 82. The colorable title alleged to be in the plaintiff, in a plea of this kind, is not traversable(y). Indeed if the title, which the defendant alleges in himself, is in law a sufficient bar ; a traverse, by the plaintiff, of the fictitious title assigned to him in the plea, would seem necessarily fatal to his action : Since it w r ould imply a confession of the defendant's title, as alleged in the plea. But the plaintiff is at liberty to contest the alleged title of the defendant, in the same manner in which he might contest any other matter, pleaded specially in bar, in the usual way (z). 83. If the defendant, when intending to give color to the plaintiff, assigns to him a title, sufficient for the maintenance of the action ; the plea is ne- (ar) 2 Chitt. PI. 555-6. (y) 1 Chitt. PI. 501. (*) 3 Black. Com. 310. Lawes' PI. 150, 45 350 OF SPECIAL PLEAS IN BAR. cessarily ill(a) : Since it is, in effect, a confession of the plaintiff's right of action. 84. There is no use in pleading title specially, and giving color, except where the defendant wish- es instead of submitting his defence to the jury, under the general issue to have the question of title presented distinctly upon the face of the plead- ings ; to the end that it may be the more formally and deliberately judged of by the Court ; and that he may, with the more ease and certainty, take advan- tage of any error in law, that may intervene. 85. 3. According to various authorities, a spe- cial plea, amounting to a denial of the declaration, and without giving color, may in some cases be allowed, at the discretion of the court(ft). The cases, in which such a plea is held to be thus allow- able, are those in which the matter pleaded is such as may ' breed a scruple, in the lay gents' or, in more familiar language, such as is likely to perplex a jury, and therefore unfit to be determined by them. Manner of ^ 86. In regard to the manner of excepting to a excepting i i special plea amounting to the general issue, when not thus allowable, there is some apparent contra- riety of opinion in the books. According to one (a) Com. Dig. Pleader, 3 M. 40. Cro. Jac. 122. (6) Hob. 127. 1 Leon. 178. Com. Dig. Pleader, E. 14. Bac. Abr. Pleas, &c. G. 3. Trespass, I. 2. 2 Mod. 274. to. OF SPECIAL PLEAS IN BAR. 35] class of authorities, such a plea is demurrable(c). CHAP. But according to other opinions equally respectable, vi. it is held that the fault in question is not a proper PART n. cause of demurrer ; and that the only proper mode of taking exception to the plea is by a motion to the court for an order, that the general issue, or a nil dicit, be entered (d) : And that if the order is made, the defendant must enter the general issue, or the plaintiff may take judgment, as by nil dtcit(e). ^ 87. The question, whether this latter course, or that of demurring, is the proper mode of except- ing to such a plea, appears manifestly to depend upon the correctness or incorrectness of the rule, (before stated), asserting a discretion in the court, in regard to the allowance of it. If such a discretion can legally be exercised by the court, (and it has been actually exercised, by high and repeated au- thority) ; the proper mode of objecting to the plea must be by motion. For questions raised by a de- murrer are stricti juris, and admit of no discretion. 88. The objection to a plea of this kind has, however, been taken, and the question decided, in each of the above modes. And perhaps the most (c) 10 Co. 95. a. Cro. Car. 157. Cro. Eliz. 147. Bac. Abr. Pleas, &c. G. 3. N. 6. Trespass, I. 3. (2). Com. Dig. Pleader, E. I4. Vid. 4 B. & C. 547. 4 Bing. 470. (d) Hob. 127. 1 Leon. 178. Cro. Jac. 165. Bro. Ab. Traverse, pi. 14. 2 Mod. 274. Com. Dig. Pleader, E. 14. Bac. Abr. Pleas, &c. G. 3. Trespass, I. 2. (2). 2 Day, 431. Esp. Dig. 413. (e) Bac. Abr. Tresp. I. 2. (2). Cro. Jac. 165. 352 OF SPE .^ IAL PLEAS IN BAR. CHAP, satisfactory view of the subject will be found to be, vi. that the proper mode of objecting to the plea is, in PART ii. the first instance, by motion and upon this suppo- sition, if the plaintiff should demur, instead of moving the court, the defendant would not be bound to join in the demurrer ; but might still refer the question to the discretion of the court : But that if, on the plaintiff's demurring, the defendant accepts the de- murrer, by joining in it, and thus waves his right to appeal to the discretion of the court ; the question may be decided under the demurrer. This supposi- tion, if correct, may serve to explain how it hap- pens, that two such dissimilar and apparently incon- sistent modes of excepting to pleas of this kind, have been pursued ; since according to this view of the subject, each of those modes may, under different circumstances, be correct(/). 89. Not only special pleas, amounting to the general issue, but also pleas which allege no new matter, and which expressly and merely deny the declaration, but which vary, in their form and terms, from the general issue, are in general not allowable. The reason for disallowing pleas of this kind is not, however, that they tend to inconvenient prolixity, or that they refer matters of fact to the court (for they are not, like pleas of the former class, liable to either of those objections) ; but that they lead to innovation and confusion, in the established modes of pleading, and tend, not only to destroy the settled (/) Vid. 10. Co. 95. a. Bac. Abr. Pleas, &c. N. 6. Yelv. 174. b. note. OF SPECIAL PLEAS IN BAR. 353 distinctions between the different species of pleas, CHAP. but also to the introduction of new pleas, unknown vi. to the law. PART n. 90. If therefore to a declaration, alleging the beating of J. S. the plaintiff's servant, by reason whereof/ he lost the service of J. S., the defendant pleads that the plaintiff did not lose the service of J. S., the plea is ill(g"). For the loss of service being the gist of the action ; the plea is, essentially, the general issue, in an argumentative and improper form. So also, where in trespass for entering the plaintiff's garden, the defendant pleaded that the plaintiff had no such garden and where, in trespass for depasturing the plaintiff's herbage, the defendant pleaded, that he did not depasture the plaintiff's herbage the pleas were, respectively, held to be ill, for the same reason (h). & 91. Although, as has before been shown, 3 , (ttwfe, 77), a special plea, alleging the possessory l " title to be in the defendant, and not giving color, mn bar is ill, as amounting to the general issue, in trespass quare clausum fregit ; yet the plea of liberum tene- mentum, (that the locus in quo was the defendant's freehold), has, by a long series of authorities, an- cient and modern, been sanctioned, as a good special plea in that action, though it never gives color(i) (g) Bac. Abr. Tresp. I. 2. (2). Bro. Ab. Trav. pi. 378. (h) 10 H. 6. 16. Doct. PI. 42. ' () 1 Saund. 299. b. (n. 6.) Com. Dig. Pleader, 3 M. 40. 41. TVilles, ai8. Lawes' PI. 128. 2 Chitt. PI. 551-3. 2 Black. R. 1089. 2 Salk. 453. 1 Ld. Ray. 333. 7 T. R. 335. tenemen- im or ie com- 354 OF SPECIAL PLEAS IN BAR. 92. For the purpose of explaining why this latter plea does not amount to the general issue, it must be observed that every trespass upon property is an invasion of another's possession ; and that the action of trespass, which is called a possessory action, is so called, because it is founded upon a possessory title. Every plea, therefore, which denies such a title in the plaintiff, whatever may be its form, is in . effect the general issue. But the plea of liberum tenementum, or, (as it is frequently called) * the com-' mon bar\ is perfectly consistent with the existence of a possessory title in the plaintiff ; Since a freehold, in one person, may co-exist with an actual and right- ful possession of the same subject, in another. The freehold, for example, may be in A., while B. is in rightful possession, under a subsisting term for years, or otherwise ; or the latter may, without any de- rivative title, be in the actual and quiet possession, which of itself confers a possessory title against all persons, except him, who has the right of possession. And as the plea in question does not deny such a title in the plaintiff, it does not amount to the general issue. ^ 93. But although these considerations do, in- deed, show that the plea of liberum tenementum does not amount to the general issue ; they also seem to show that, on strict principles, the plea is defective in substance as some highly respectable opinions hold it to be(&) : Inasmuch as it impliedly admits Vid. Willes, 222. 1 Saund. 299. c. (n. 6.) OF SPECIAL PLEAS IN BAR. 355 a possessory title, and consequently a right of action, in the plaintiff. Indeed, it is difficult to understand how the matter of this plea could ever have been supposed to be a strict and full bar to the action. And it appears to have been sanctioned, not so much on account of its own inherent sufficiency, as from a kind of necessity that is to say, from its being the only means of protecting the defendant against ^^disadvantage, to which he would otherwise be ex- posed, from the ancient mode of declaring in trespass quare clausum fregit. For formerly, the almost uni- versal mode of describing the plaintiff's close, in this action, (a mode, which still may be, and some- time&.is pursued)(7), was merely to mention it as the plaintiff's ' close at A.', or his ' close lying in the parish of A.' without giving its name or abut- tals, or any other designation. The consequence was, that the defendant could not discover from the declaration, in ivhat particular close within the parish named, the plaintiff intended to prove the al- leged trespass ; and consequently, could not know, with certainty, how to frame his defence. He was, therefore, allowed to plead that the close, mention- ed in the declaration, was ' his close, soil and free- hold'^) without giving it any name, or further description. For the description of the close, in the declaration, being general; that in the plea was allowed to be equally so : And hence the plea was called the common (i. e. general) bar ; the main object (/) 2 Chitt. PI. 385-6. 387. (note n.) 2 Black. R. 1089. 1 Saund. 299. b. c. (n. 6.) (MI) 2 Chitt. PI. 551-2. Com. Dig. Pleader, 3 M. 34. 356 OF SPECIAL PLEAS IN BAR. CHAP, of which was, and still is, (though it may be useful vi. for certain other purposes)(V), to drive the plaintiff PART ii. f-0 a new assignment of the trespass, and thus to compel him to particularize his close so that the defendant may know how to adapt his defence to the actual ground of complaint : An object easily attained, in most cases. For if the plaintiff traverses the plea ; the defendant, by proving a freehold ii himself, in any close within the parish or vill na in the declaration, supports his plea, and defeats the action. And when the plaintiff has made a new as- signment, which is in nature of a new declaration ; the defendant may, in his rejoinder, plead to it, as to an original declaration. ^ Alle in 94. A special plea, alleging facts which would, facts, which j n evidence, maintain the general issue, does not, in would prove the general ^\\ cases, and necessarily, amount to the general is- issue. ' J 1 sue. For no plea whether it admits or denies that there was once a right of action can properly be said to amount to the general issue, unless it goes in denial of the declaration. ^ 95. Thus in assumpsit -payment, release, ac- t cord, &c. all which admit that the alleged cause of action once existed as also, infancy, coverture, du- ress, usury, &c. which deny that it ever existed, may respectively be pleaded specially ; although each of Ante, 47. these defences would, in evidence, maintain the (n) 2 Chitt. PI. 551. (n. s.) 8 T. R. 404. OF SPECIAL PLEAS IN BAR. 357 general issue(o). For they all admit the truth of C HAP. the declaration. vi. PART II. And this right in the defendant, either to plead special matters of defence, or to give them in evi- dence under the general issue, exists, to a great ex- tent, as has been before shown (ante, ^ 54. 55), in actions of trespass on the case, ex delicto(p). % ^ 96. Every special plea must contain issuable matter(^) ; for the plain reason, that it would not otherwise be triable. The same rule extends to all special pleading, in all its stages. If therefore, in debt or assumpsit, the defendant pleads only that he was ready, or willing, to pay according to his con- tract ; the plea is ill because the fact averred is not issuable. Such a plea would indeed be ill for another reason, viz. that the fact of mere readiness, or willingness, is immaterial ; since it is neither a performance nor a discharge of the contract. Its not being issuable is, however, a sufficient objec- tion to it. ^ 97. On the same principle, every special plea, Must con- in which matter of fact and matter of law are so & matter. blended, that they cannot be separated, is ill(r). (o) 1 Ld. Ray. 88-9. 566. 1 Salk. 394. 3 Ib. 273. 5 Mod. 18. Com. Dig. Pleader, E. 14. Chitt. on Bills, 197-8. Lawes' PI. 112. Tidd, 591. 599. Sayer, 270. (p) 3 Burr. 1353. 1 Chitt. PI. 486-7. 1 Black. R. 388. 1 Wills. 45. 8 East, 308. 2 Phil. Ev. 108. (g) Lawes' PI. 137-8. 2 Wills. 74. (r) 9 Co. 25. a. Lawes' PI. 138. 2 Mod. 55. 46 OF SPECIAL PLEAS IN BAR. CHAP. If therefore, to trespass for false imprisonment, the vi. defendant pleads that he arrested the plaintiff, by PART ii. lawful authority, without showing what the authority was ; the plea is bad, as not being issuable. For a traverse of the plea would put in issue all matters of law, as well as of fact, which might conduce to show the defendant's authority : Whereas matter of law is never issuable. The plea, in such a case, ought to state the defendant's authority specially no| only that its legal sufficiency may be judged of by the court, from the record ; but also that the plain- tiff may be enabled to traverse, distinctly, the matter of fact alleged in it. So also where the defendant, being bound by a condition, to produce to the^)lain- tiff a sufficient discharge of a certain demand, plead- ed that he had produced ' a sufficient discharge', without stating its tenor or contents, the plea was held ill, on the principles above stated(s), SSer ^S. A plea in bar, pleaded to the whole decla- the whole ra tion, must contain a sufficient answer in law to gravamen. the whole gravamen, or cause of action : Otherwise it is ill for the whole(i) ; and the plaintiff is enti- tled to recover for the whole. Thus, if in trespass for assault, battery and mayhem, the defendant pleads to the whole, matter which is in law a justi^ fication of the assault and battery only ; the plea is (s] 9 Co. 25. a. (0 Co. Litt. 303. a. 1 Saund. 28. (n. 2.) 2 Ib. 50. 127. 210. b. c. (n. 1). Yelv. 225. Com. Dig. Pleader, E. 1. Lawes' PI. 135. 171. Cro. Eliz. 268. 331. Cro. Jac. 27. 5T. R. 553. 1 Lev. 48, OF SPECIAL PLEAS IN BAR. 359 ill in toto, and the plaintiff is entitled to damages, as C HAP. well for the assault and battery, as for the mayhem. vi. For an entire plea, going to the whole declaration, is PART n. indivisible in its effect ; and cannot operate as a bar to any part of the cause of action, unless it consti- tutes in law a bar to the whole. ^ 99. Thus also, if to an action of trespass, the defendant pleads a justification, (as a license), on any day different from that laid in the declaration ; he must traverse the commission of the trespass on any other day, either before or after that mentioned in his plea, and before the commencement of the suit(w) : Otherwise the defence will not be co- extensive with the declaration ; or in other words, will not cover the whole time, within which the plaintiff is at liberty to prove the trespass complain^ ed of. For the day in the declaration being imma- terial ; the plaintiff has a right to prove the trespass on any day before the date of the writ. But the justification, if true, applies only to the particular day laid in the plea^-and without the traverse-, would therefore imply an admission, that the tres- pass complained of was committed on any other day than that. Upon the same principle, if the defend- ant in trespass pleads a release on a particular day ; he should traverse his guilt, as to all subsequent time, before the commencement of the suit : Or if he pleads title, acquired by himself -as by a feoffr (u) Hob. 104. Bac. Abr. Pleas, &c. H. 4. 1 Saund. 14. 298. (n. 2.) 2 Ib. 5. a. (u. 3.) 1 T. R. 636. 1 Chitt. PI. 531 Post. ch. 7, $ 45. 360 OF sp ECIAL PLEAS IN BAR. CHAP. ment on a particular day ; he should traverse, as vi. to all previous time(V) : Otherwise, the plea will PART ii. not cover all the time covered by the declaration. Vid. ante, ch. 3(13). ^ 100. The general principle above stated, that an entire plea is indivisible, extends to all the sub- sequent pleadings ; and therefore an entire replica- tion, if bad for part of the plea or an entire re- joinder, if bad for part of the replication, is so for the whole(iv}. 101. Upon the same principle, if two co- defendants join in a plea, which is in law a suffi- cient justification for one of them only ; it is bad as to both of them(V). If therefore an arrest is made under irregular process, (which though irregular, justifies the officer executing it, but not the party who prayed it out) and in an action for false im- prisonment, against both of them, they join in a plea, justifying the arrest by virtue of the process ; () Hob. 104. Bac. Abr. Pleas, &c. H. 4. (to) 1 Saund. 28. (n. 2.) 2 Ib. 127. 1 T. R. 40. (x) Stra. 509. 993. 1184. 1 "\Vils.. 17. 3 T. R. 377. Cas. Temp. Hardw. 62. 69, 3 Mass. R. 312. (13) In cases like these two last, however, the simpler and better, and at this time the more usual, mode of pleading is, to divide the defence into two pleas, by pleading as to all time, ex- cept the day or time covered by the justification, or other matter of avoidance, not guilty, concluding to the country ; and as to that day or time, by pleading the matter of justification, &c. specially, with a verification. (2 Chitt. PI. 519. 520. n. y.) OF SPECIAL PLEAS IN BAR. judgment must go against both. For the plea, which CHAP. is joint, being ill quoad one of them, is consequently vi. ill for both. The officer should have pleaded sep- PART n. arately. 102. But though the defence must, in all cases, answer the whole declaration, or alleged cause of action ; it is not necessary that the whole be answered by one plea : It is necessary only, that the whole matter of defence pleaded, cover the whole complaint. The defendant may, therefore, plead several different matters of defence, in several differ- ent pleas, to as many different parts of the declara- tion, or alleged cause of action. And if all the pleas, taken together, form a sufficient answer to the whole matter of complaint ; the defence is com- plete. 103. Thus, in trespass for cutting down ten of the plaintiff's timber-trees, the defendant may plead, as to all the trees except one not guilty ; and as to the remaining one, any matter of avoidance as a license, or other justification ; or a release, a former recovery, &c. So also in debt, or assumpsit, for 1000 dollars, the defendant may plead as to 500 dollars, (parcel of the 1000), nil debet, or non assump- sit ; and as to the residue, release, payment, tender, &c. : or he may plead several special pleas to differ- ent parts of the demand as payment of part, and tender of the residue(i/) : Or finally, he may plead (y) Co. Litt. 304. a. Lawes' PI. 107. Bac. Abr. Pleas, &c. K. 1. N. 1. OF SPECIAL PLEAS IN BAR. CHAP. to P art f tne declaration, and demur to the resi- vi. due(2). Thus, if in covenant broken, the declara- PART ii. tion alleges two breaches, one (of which is) well assigned, and the other ill ; the defendant may plead to the former assignment, and demur to the latter. 104. Every plea to the action is taken, as ex- tending to the whole declaration or gravamen, unless expressly limited to a part of it, by beginning as an answer to a part only. And as to the mode of tak- ing advantage of a plea, which does not answer the whole ground of the complaint, the three following rules are to be observed : When answering only part of the gravamen, how to except to it. 1. Where matter, pleaded as an answer to the whole, is in law a good answer to a part only, the proper mode of excepting to it is by demur- rer(a) as in the case before mentioned, where to assault, battery and mayhem, the defendant pleads to the whole, what is an answer in law to the as- sault and battery only. So also, if in an action against a bailee, for goods delivered to him * to keep and carry', he pleads to the ivhole declaration, that he was discharged from keeping them, without answering his obligation to carry; the plea is de- murrable(b). For in these cases, the ground of ob- jection to the plea is, not that it is irregular and in- (z) Bac. Abr. Pleas, &c. N. 1. (a) 1 Saund. 28. (n. 3.) 1 Salk. 179. 1 Stra. 303. Lavves' PI. 135-6. (6) lid. OF SPECIAL PLEAS IN BAR. admissible ; but merely that it is insufficient in law. CHAP. And such is the proper course for the plaintiff, vi. whenever a plea, purporting to be an answer to the PART u. whole declaration, (as it does of course, unless ex- pressly limited, as mentioned above), is in law a sufficient answer to part of it only. 105. 2. But if the plea purports to answer only apart of the declaration, and is in law a suffi- cient answer to that part only, the other part being left unanswered (as if, in an action like that stat- ed above, against a bailee, for goods delivered to him to be kept and carried, he pleads, as to his un- dertaking to keep, that he was discharged thereof, without answering, in any way, the other part of his undertaking) ; the plea is void, and of course considered as no plea. The plaintiff therefore should not, in such a case, demur; but should sign judg- ment, as by nil dicit, that is, as for want of a plea(c), For such a plea, being considered in law as no plea, is a discontinuance, on the defendant's part. And therefore, if the plaintiff accept it as a plea, by de- murring to it, he discontinues the whole action, ^ 106. To explain the reason of this rule, it must be observed that the court has no right, in any case, to determine any one part of an entire cause of action, leaving the rest undecided. The whole must be, in some way, determined : Otherwise a < (c) Com. Dig. Pleader, E. 1. 1 Saund. 28. (n. 3.) Gilb. A. G. P. 158. 1 Salk. 179. 180. 1 Stra. 302. 2 Ld. Ray. 841. 7 Mod. 124. 4 Co. 62. a. 1 Selw. N. P. 5. (n. 7.) Lawes' PI. 135-6. OF SPECIAL PLEAS IN BAR. CHAP, single right of action might require several suits, vi. If then, the defendant makes answer to only a part PART ii. of the plaintiff's complaint ; the answer is regarded as no plea ; because it does not enable the court to determine the whole. It is therefore tantamount to a nil dicit, and discontinues the whole defence. It results then, that if the plaintiff, who has a right to treat such an answer as a nullity, accepts it as a plea, by demurring or pleading to it ; and thus, in effect, prays judgment for only apart of his cause of action ; he discontinues his whole action. ^107. 3. And if the defendant pleads, in apart of the cause of action, matter which would be in law a sufficient answer to the whole, if pleaded to the whole ; the rule is the same and the plaintiff must not demur, but take his judgment, as in the preced- ing case, and for the same reason ( For the court appear to have considered the inconsistency of the plea with itself, as rendering it anomalous, and as thus taking it out of the rule stated in the last section. 109. But no plea is ever required to answer, atrarava . tion needs no answer. Matter of expressly, any part of the declaration which is not of the gist of the action. Hence, matter of aggra- vation as the alia enormia, in a declaration in trespass requires no express answer(y). Thus, where in trespass for assault and battery, the de- claration, after alleging the assault and beating, adds, ' and other wrongs to the plaintiff then and there did', a plea, justifying the assault and battery only, is a sufficient answer to the whole complaint. (e) 2 Bos. & P. 427. (/) 1 Saund. 28. (n. 3.) 3 Wils. 20. 2 Ib. 313. 2 Campb. 175. 3 T. R. 297. 47 OF SPECIAL PLEAS IN BAR. CHAP. % HO. Thus also, in trespass for breaking and vi. entering the plaintiff's house, and expelling him PART ii. therefrom, or destroying his goods, a plea to the ~~ whole, and which in law justifies the breaking and What an- * swers the entering the house, though silent as to the other al- gist of the action, Wed wrongs, is a good answer to the whole de- covers all matters of claration : The breaking, &c. being the gist of the aggrava- tion, action ; and the expulsion, &c. only matter of ag- gravation^). For as the action is, in its title, and consequently in its character, trespass quare domum fregit ; the breaking, &c. of the house constitutes the whole gist of the complaint. Yet if the plain- tiff, in the case now supposed, relies upon the expul- sion, or the injury to his goods, as a distinct ground of damages ; he may, by a new assignment of it, in his replication, convert it into a substantive cause of action, and thus entitle himself to a recovery, not- withstanding the justification of the breaking of the house(A)(14). (g) 1 T. R. 479. 636. 3 Ib. 292. 3 Wils. 20. 1 H. Black. 555. 3 N. Hamp. R. 511. (h) lid. (14) A novel or new assignment consists in alleging, with all necessary particularity, in the replication, facts which the declara- tion has alleged in general terms ; and in this way, the plaintiff may convert into a substantive cause of action, what appears, in the declaration, as matter of mere aggravation as in the exam- ple given in the text, (2 Chitt. PI. 653-7. Lavves' PI. 165. 1 Saund. 299. a. b. (n. 6.) A new assignment being in the nature of a declaration ; the defendant may plead to it, de oto, as to a common declaration, (3 East, 294. Lawes' PI. 165. 1 Saund. 299. a. b. (n. 6.) A new assignment must, in general, conclude OF SPECIAL PLEAS IN BAR. ^111. Every justification pleaded must, express- CHAP. ly or tacitly, confess the act which it is intended to vi. justify (/). For it is absurd to plead in avoidance PARTII. of a fact, which the plea does not admit. If there- fore, to a declaration charging assault, battery and wounding, the defendant, as to the assault and bat- tery, confesses, and justifies an act not amounting to a battery, with a qua est eadem transgressio ; the plea is ill, for the above reason; but ill only on special demurrer as the fault is only formal(A:). The plea, in such a case, should be the general isstte. Anciently, if the defence to an action consisted of matter of avoidance ; it was necessary for the defendant to state specially, in his plea, all the particular facts, which constituted the defence, however multifarious they might be(7). And this rule is, undoubtedly, conformable to the strict prin- ciples of pleading. For each fact, essential to the (i) 1 Saund. 13. 14. (n. 3.) 28. (n. 1.) 1 Salk. 394. 3 T. R. 298. Carth. 380. Esp. Dig. 318. (k) 1 Saund. 14. (n. 3.) 28. (n. 1.) (/) Co. Litt. 303. 8 Co. 133. Bac. Abr. Pleas, &c. I. 3. with an averment, that the wrongs, or causes of complaint, alleged in it, are different from those mentioned in the plea, (1 Saund. 299. (n. 6.) Lawes' PI. 164-5. 240. 241) : For otherwise a new assignment is unnecessary. And if the averment is untrue, the defendant may, for that cause, plead the general issue to the new assignment as that issue involves a denial of the averment.; (1 Saund. 299. c. (n. 6.) Lawes' PI. 241. Post. ch. 8, 75- 77.) 368 OF SPECIAL PLEAS IN BAR. CHAP, defence, being matter of law, ought, in strictness, vi. to be shown to the court by the plea. But from PART ii. necessity, or at least for the avoiding of great incon- venience, this rule has been somewhat relaxed. General pleading when al- lowed. 113. And now, as in declarations (ante, ch. 4), so also in special pleas in bar, general pleading is sometimes allowed, for the purpose of avoiding great prolixity : (it being now an established rule, that no greater particularity can be required in pleading, than the nature of the subject will con- veniently admit of. ] When therefore, one is sued on an obligation, binding him affirmatively to the per- formance of an indefinite number of acts, the par- ticular recital of which would render the pleadings inconveniently prolix, he may plead performance, in general terms ; and thus leave it to the plaintiff to assign any particular breach or breaches, in the re- plication. And as the breach or breaches, thus as- signed, must be specific ; the matter in controversy will of course be presented with sufficient cer- tainty (m). 114. Thus, if a sheriff executes a bond, with condition that he shall return all writs delivered to him, &c. ; he may, in an action on this obligation, plead performance in general terms, by averring that he has returned ' all writs delivered to him,' &c. (pursuing the words of the condition) without (m) Cro. Eliz. 749. 916. Co. Litt. 303. b. Bac. Abr. Pleas, &,c. I. 3. 1 Saund. 117. (n. 1.) 2 Tb. 410. (n. 3. 4.) 1 T. R. 753. 1 Sid. 215. 334. Sayer, 317. OF SPECIAL PLEAS IN BAR. specifying any particular writ(n). So also, where CHAP. the defendant was bound in an obligation to deliver vi. to the plaintiff, upon request, all the fat and tallow PART ir. of all beasts, which he, his servants, &c. should kill " before such a day a plea, that upon every request made to him, he delivered to the plaintiff all the fat and tallow of all beasts, which were killed by him, his servants, &c. before the said day, without spe- cifying any particular act of delivery, was adjudged sufficient(o). So also, if the defendant is bound in an obligation, with condition that he should pay over to the plaintiff ' all the monies which he should receive for the plaintiff,' within a certain time ; it is a sufficient plea of performance, that he has paid over to the plaintiff ' all the monies' so received, within that timeQ?). Again : When the obligation is still more general as that the obligor shall per- form all the duties of a certain office, during a cer- tain time, it is sufficient on his part, to plead that he has performed ' all the duties' of the office, during that time() 2 Saund. 409. 410. (to) Bac. Abr. Pleas, &c. I. 3. & see 1 Saund. 117. (n. 1.) (x) 2 Chitt. PI. 421-2. (y) 2 Chitt. PI. 593-4. 615. 616. OF PLEAS PUIS BAHREIN CONTINUANCE. 373 Of Pleas Puts Darrein Continuance. 122. As the defendant is allowed, by the com- mon law, to plead only one plea, of any one kind or class ; so also, after having pleaded, within the time allowed for that purpose, any one matter of defence, he cannot, in general, and as a matter of right, retract it and substitute another^). If it were otherwise, the defendant might protract the proceed- ings interminably, by repeatedly shifting his ground of defence. 123. But to this general rule there is an ex- ception, when new matter of defence arises, after he has once pleaded, and after the last continuance (or adjournment) of the cause(a). For it would be unreasonable to preclude him from pleading matter thus arising, and which it was not in his power to plead in the first instance. The new plea, which this exception to the general rule allows, is called a plea puis darrein continuance since (or after) the last continuance. It is here to be observed, that during the whole proceedings in a suit, from the time of the defendant's appearance, until its final determination, the cause is to be continued, (or as it is sometimes expressed, the parties must be ' con- tinued' in court), from day to day, or from time to (2) Lawes' PI. 173. Bac. Abr. Pleas, &c. Q. 1 Chitt. PI. 635. Doct. PI. 297. (a) lid. 3 Black. Com. 316. 317. Oilb. H. C. P. 105. 48 OF PLEAS PUIS DARREIN CONTINUANCE. 374 CHAP, time, by regular entries, to be made for that pur- pose. And when any new matter of defence arises, VI. PART ii. between two of these continuances or adjournments, it may be pleaded puis darrein continuance, before the next continuance, notwithstanding the pendency of a prior plea(6). 124. Pleas of this kind may be either 'in abate- ment, or in bar ; and may be pleaded, even after an issue joined, either in fact or in law, if the new matter has arisen after the issue was joined, and is pleaded before the next adjournment(c). Thus, if the plaintiff, being a feme sole, has married since the last continuance ; her marriage may be pleaded, before the next continuance, to her disability, al- though the regular time for pleading such a plea has elapsed. So also, if the plaintiff has, since the last continuance, released the right of action ; the de- fendant may, in the same manner, plead the release in bar, although he has previously pleaded, and issue has been joined upon a different matter of defence. But if he suffers another continuance to intervene, before he pleads such new matter ; he waves it, and cannot afterwards plead it( no inducement, for this, or any other purpose(c). Such is always the case, where a common traverse (z) Com. Dig. Pleader, 3 M. 16. Skin. 387, (a) 2 Keb. 623. 1 Vent. 70. (6) Bac. Abr. Picas, &o. I. 6. Coin. Dig. Pleader* R. 5. (c) 1 Sainul. 103. b. (n. 1.) 51 t, not necessa 398 OF TRAVERSE. CHAP. ' ls a proper form of denial ; and this form is often vn. proper, in cases, in which the precedents usually employ an inducement. Thus, if a defendant pleads that his co-defendant is dead ; there can be no doubt that the plaintiff may safely reply, that he is not dead instead of alleging that he is alive, absque hoc, that he is dead. For it is clear that the traverse, in the form first stated, contains no impli- cation, which can render it a negative pregnant. To a plea of usury, also, alleging a corrupt agree- ment, in the usual form, a replication that it was not corruptly agreed, &c. (instead of the usual in- ducement of a ' good and lawful consideration' with an absque hoc, &c.) is doubtless good, and for the same reason(J). 39. But without accumulating examples of the same kind, it may suffice to add, that whenever a traverse is to be tendered, the pleader has only to determine for himself, whether, without an induce- ment, it would be a negative pregnant, or not, (a point easily decided, in most cases) ; and then to traverse, with or without it, as his judgment may direct. An affirma- & 40. Whenever a traverse, or negative allega- tive implica- . . . ~, ,. tion.not tion of any kind, involves an affirmative implication, aiding the . . 71- / ; 7 adverse which does not maintain the pleading oj me adverse party, does . . . not vitiate, party, the implication does not injure the tra- verse^). Thus, if a plea of usury alleges a corrupt (d) 2Stra. 871. 1 Saund. 103. b. (n. 1.) () Com. Dig. Pleader, R. 6. Lawes' PI. 114. OF TRAVERSE. 399 agreement for the payment of ten per cent for for- CHAP. bearance ; and the plaintiff replies, by a common vn. traverse, that it was not corruptly agreed that he should pay ten per cent ; the traverse, it is con- ceived, is clearly good though it impliedly admits a reservation of nine, or any other per cent, not amounting to ten. For the admission does not main- tain the plea, which must be proved precisely, to de- feat the action. And it is very obvious, that no im- plication, on one side, which does not aid the other, can injure any traverse, or other pleading. 41. * An issue, joined upon an absque hoc, &c. jf n c /^ b u s s q t ue ought to have an affirmative after it'(/) : In other f J^_ words, no other than an affirmative allegation can be mative - properly traversed with an absque hoc. For if a negative be thus denied, the traverse will consist of tivo negatives ; and though these amount, in English, to an affirmative ; yet such a mode of expressing an affirmative tends to confusion and perplexity, and is therefore, in point of form, not allowable in pleading. Ex. gr. If the defendant pleads that the plaintiff did not deliver such a certain writing ; a replication, * absque hoc that he did not deliver,' &c. is the same thing, in effect, as saying ' he did not deliver.' A negative allegation, then, can be properly traversed, only by an affirmative(). (/) Co. Litt. 126. a. Bac. Abr. Pleas, &c. H. 1. 1 Chitt. PI. 687. (6) It may be added, that when negative matter is to be con- tradicted by an affirmative, the latter generally advances such new OF TRAVERSE. CHAP. 4*2. It is a general rule, that a traverse, well vii. tendered on one side, must be accepted on the oth- r(g). And hence it follows, as a general rule, upon a that there cannot be a traverse upon a traverse, if generally the first traverse is mtfm"/(/i)(7). The meaning not allowed. ,, . . , , of this rule is, that when one party has tendered a material traverse, the other cannot leave it, and ten- der another traverse of his own, to the same point , upon the inducement to the first traverse, but must join in that first tendered : Otherwise the parties might alternately tender traverses to each other, in unlimited succession, without coming to an issue. Ex. gr. The defendant pleads title, under a devise from J. S. alleging that he died seised in fee : The plaintiff replies, that ' J. S. died seised in tail, absque hoc, that he died seised in fee', with a verification : The defendant cannot now rejoin that J. S. died seised in fee, absque hoc that he died seised in tail ; but must join in the plaintiff's traverse, by re-affirm- ing that J. S. died seised in fee, as alleged in the plea, and conclude to the country. For both traverses (o-) Gilb. H. C. P. 66. Hob. 104. Bac. Abr. Pleas, &c. H. 4. (h) Hob. 104. Bac. Abr. Pleas, &c. H. 4. 1 H. Black. 403. 1 Anst. 231. 1 Saund. 22. (n. 2.) Co. Litt. 282. 1 Salk. 222. 1 Ld. Ray. 121. Com. Dig. Pleader, G. 17. Vaugh. 62. matter, as must be left open, to be answered by the adverse party, (2 Lev. 5. 1 Vent. 121. 2 Burr. 772) in which case, the following up of the new matter with a traverse, would be mani- festly inadmissible. (7) A traverse upon a traverse is one going to the same point (or subject-matter) as is embraced in a preceding traverse, on the other side. OF TRAVERSE. 40] would go to the same point, viz. whether or not CHAP. J. S. died seised in fee the only material point in vn. controversy, and to the determination of which the first traverse is precisely adapted. If the defend- ant, then, might traverse the plaintiff's inducement, (the alleged seisin in tail) ; the plaintiff might, on the same principle, traverse that of the defendant, as at first, with a verification ; and if this might be once done by either party, it might be repeated on both sides, to any indefinite extent, without produc- ing an issue. ^ 43. But the above general rule does not ex- Traverse tend to cases, in which the traverse first tendered is traverse, immaterial. In such a case, there may be a traverse eV. 611 upon a traverse i. e. the traverse first tendered may be passed over, and the inducement to it, if ma- terial, may be traversed ; although both traverses go to the same point(i). Thus, in an action of waste for felling timber-trees, the plaintiff declares, that the defendant, (the lessee), felled and sold them : The defendant, confessing that he felled them, justifies that act, by pleading that he bestow- ed them in repairing the demised buildings, absque hoc, that he sold them. Now the plaintiff may re- fuse to join in the traverse tendered upon the sale of the trees because that point is immaterial ; and may himself traverse the inducement to the defend- (t) Hob. 104. & Williams' note (1). Co. Litt. 282. b. 1 Saund. 20. 22. (n. 2.) 1 Ld. Ray. 125. Bac. Abr. Pleas, &c. H. 4. 1 H. Black. 376. 406. Com. Dig. Pleader, G. 19. Vaugh. 62. 1 Anst. 231. 402 OF TRAVERSE. CHAP. ant ' s traverse, viz. the alleged repairing ; for this is viz. the only material point in the plea. Both the traverses here go to the same point, viz. the use or disposition made of the trees, when felled ; upon which point the justification depends. Instead of answering the plea at all, however, the plaintiff might specially demur to it, for the immateriality of the defendant's traverse(&). ^ 44. And there is one class of cases, in which there may be a traverse upon a traverse, although the first traverse includes what is material. The cases, here referred to, are those in which false pleading, on the part of the defendant, might other- wise oust the plaintiff of some right or liberty, which the law allows him(7). Ex. gr. To an action of assault and battery and false imprisonment, laid in the county of A., the defendant pleads a local justi- fication, in the county of B., viz. that he was sheriff of the latter county, and arrested the plaintiff there, under a capias, (or other lawful authority), absque hoc, that he is guilty in the county of A., &c. Now as the defendant's alleged authority, which is the inducement to the traverse, may be false ; the plain- tiff, instead of joining in the traverse, may traverse that authority. For, assuming that the alleged tres- pass was actually committed in the county of B. still, (the action being transitory), the plaintiff has by law a right to sue and recover for it, in any other (k] Hob. 104. Cro. Jac. 221. 1 Saund. 21. (n. 1.) 22. (n. 2.) Yelv. 151. (/) Poph. 101. Mo. 350. Com. Dig. Pleader, G. 18. Bac. Abr. Pleas, &c. H. 4. Hob. 104, marg. Cro. Eliz. 99. 418. OF TRAVERSE. county. But if he were obliged to join in the de- CHAP. fendant's traverse, by re-affirming that the defendant vn. committed the trespasses in the county of A. ; the plaintiff would necessarily fail on that issue al- though he has, by the supposition, a right by law to recover in that county. And thus the plaintiff would, by the falsity of the defendant's justification, be de- prived of the liberty, which the law allows him, of laying his action in what county he pleases, in a transitory action. On the other hand, if the de- fendant's justification be true ; the traverse taken upon it can subject him to no disadvantage : Since by proving it true, he must prevail, upon the issue. The object of the rule, in cases like the above, is to prevent the defendant, in a transitory action, from ousting the plaintiff's venue, by false pleading. ^ 45. A traverse after a traverse i. e. one go- Traverse 7 /y. -i r- after a ing to a different point or subject-matter, from that traverse, ,. . allowable. embraced in a preceding traverse, on the opposite side is allowed, even though that first tendered be material(m). Thus if in trespass, the defendant Ante, C H. e, pleads a justification on a particular day, with a traverse that he is guilty on any other day ; the plaintiff, instead of joining in the traverse, by alleg- ing a trespass within the time embraced in it may pass by the defendant's traverse, and traverse the matter of justification ; in which case, the traverse in the replication will be a traverse after a traverse ; (m) Hob. 104. Bac. Abr. Pleas, &c. H. 4. Co. Litt. 282. b. 1 Saund. 21. 22-3. Com. Dig. Pleader, G. 18. 404 OF TRAVERSE. CHAP. si nce it does not embrace the same point, as is em- vn. braced in the first traverse. For the plaintiff's traverse applies only to the trespass justified, which is a supposed trespass, on the particular day laid in the justification : Whereas the traverse in the plea extends only to a trespass on any different day. The reason, for allowing the plaintiff to traverse, in this manner, is, that the day, mentioned in the justifica- tion, may have been the day of the trespass com- plained of; and yet the justification may be false : Upon which supposition, if the plaintiff were not permitted to deny the justification, he would neces- sarily be defeated of a recovery though having a complete right of action : For, by the same suppo- sition, he would not be able to prove the trespass on a different day. ^ 46. When the right of recovery, as alleged in the declaration, is in its nature divisible, so that the plaintiff is by law entitled to recover for as much as he can prove title to, (though it should be less than he declares for), the defendant cannot make that part of his plea, which is in answer to a part of the plaintiff's demand, the inducement to a traverse of the residue(n). Ex. gr. in an action for obstructing three of the plaintiff's lights, the defendant cannot justify as to one of them, with an absque hoc, that he obstructed three. For the plaintiff, in the case sup- posed, is by law entitled to recover for the obstruction (n) 1 Saund. 267 9. Com. Dig. Pleader, G. 20. Lawes' PL 118. Yelv. 225. 1 Bulstr. 116. Vid. 8 Taunt. 190. 9 Pick. 66. Steph. PL 259. Of TRAVERSE. of two, or of one only, if his proof goes no fur- CHAP. ther. Hence, even assuming that the justification vii. pleaded is true, and also that only two lights were obstructed ; yet the plea is ill. For if the plaintiff should join in the traverse, by re-affirming the ob- struction of three lights, he would fail, on the trial, unless he could prove three lights obstructed which, upon the state of facts now supposed, he could not do. And thus his action would be de- feated, though he is, by the supposition, legally en- titled to recover for the obstruction of one light. In all cases like this, if the traverse were good, (upon which supposition, the plaintiff' must join in it), it would oblige him to prove the whole gravamen al- leged, in order to maintain his action ; although the law confessedly entitles him to recover, on proof of any part of it. In the case here supposed, then, the defendant ought to plead, as to the part not justified, i. e. two of the lights, not guilty ; and as to the remain- ing one, to plead specially his matter of avoidance. 47. A traverse can properly be tendered, only Must b on a point inaterial(o) for the obvious reason, that what is immaterial cannot decide the contro- versy. Hence matter of mere inducement or aggra- vation cannot, regularly, be traversed. Hence also, if a traverse includes time or place, when not mate- rial ; it is i e on ' (o) Com. Dig. Pleader, E. 34. G. 12. 14. Bac. Abr. Pleas, &c. H. 1. 6 Co. 24. a. Lawes' PI. 118. 2 Saund. 5. 28. 1 Ib. 23. (n. 5.) (p) Com. Dig. Pleader, G.^12. 14. R. 7. 8. 9. 2 Saund. 318. 12 Mod. 507. 52 OF TRAVERSE. CHAP. 48. So also a traverse can properly be tender- vii. ed only on an issuable point( <* gle point, i. e. a single ground of demand, or defence : Otherwise it will be objectionable, as being dou- ble(f). The meaning of the rule is, that when the pleading, on one side, consists of several distinct and material points, all of which are necessary to its legal sufficiency, the adverse party is allowed to traverse only one of them. For in every such case, a denial of one of them is, in law, a sufficient answer to the whole ; and he may traverse which of them he pleases(w). (5) Com. Dig. Pleader, E. 34. Bac. Abr. Pleas, &c. H. 1. (r) lid. Com. Dig. Pleader, G. 12. 14. 1 Saund. 23. (n. 5.) 298. (n. 3.) 11 Co. 10. 2 Black. Rep. 776. 3 Wils. 234. 2 Keb. 607. (*) lid. (0 Bac. Abr. Pleas, &c. H. 1. 5. 8 Co. 67. Co. Litt. 126. a. 1 Burr. 316. 321. 3 Lev. 40. 1 Bos. & P. 80. Lavves' PL 48. 152. Bull. N. P. 93. () 1 Saund. 22. (n. 2.) 6 Co. 24. b. 1 Wils. 338. Vid. Duplicity, post. ch. 8. V OF TRAVERSE. 4Q7 50. If therefore, in trespass for false imprison- CHAP. ment, the defendant justifies under a capias directed vn. to the sheriff, and a warrant from the sheriff to him- . self, the plaintiff may traverse either the capias, or the warrant, but should not traverse both. For the denial of either of them is a sufficient answer to the plea; since the capias, without the warrant, or the warrant, without the capias, would be no justifica- tion : And a traverse of both would, in effect, ten- der two issues instead of one, upon one and the same plea. Upon the same principle, if the defendant pleads title in a stranger, and justifies as servant to the latter, and by his command ; the plaintiff may traverse the title, or the command ; but should not traverse both(v). 51. But it is not indispensable, that the 'sin- gle point,' mentioned in the above rule, consist of a single fact : Since two or more distinct facts may be, and often are, necessary to constitute one com- plete point or ground of complaint, or defence ; and in such a case, all the particular facts, which go to that one point, may be traversed(ty). Ex. gr. To an action of trespass, for breaking and entering the plaintiff's close, and depasturing it with beasts, &c. the defendant justified the depasturing, &c. under a prescriptive right of common in the locus in quo, and alleged, according to the established form of plead- ing in such a case, that 'the cattle were his own cattle, and that they were levant and couchant upon (v) 8 Co. 67. b. (M>) Bac. Abr. Pleas, &c. II. 1. 1 Burr. 320. Lawes' PI. 153. rv OF TRAVERSE. CHAP tne P rem i ses a d were commonable cattle,' (i. e. oi' vii. the species of cattle, called commonable) : The plaintiff traversed the whole of the last allegation, in the terms of it thus including in the traverse the three distinct facts, that the cattle were the defend- ant's own cattle that they were levant and couch- ant and that they were commonable ; and on a special demurrer to this replication, for duplicity, the traverse was held good(x). ^ 52. Of this case it may be observed, that the defence, to which the traverse applied, consisted of three distinct points : 1 . The existence of a pre- scriptive right of common 2. the defendant's title to share in that right, as tenant of the manor, or lordship 3. that the particular beasts in question were entitled to common. The replication applied to the last point only, viz. that the beasts were entitled to common. But to entitle them to common, in the defendant's right, they must have been, as alleged in the plea, his own cattle and also levant and couchant on his tenement and commonable cattle. i These three last facts, therefore, the plaintiff pre- cisely traversed ; and the court held that the tra- verse was not double inasmach as it embraced only the simple point, that the cattle were entitled to common. Must be ^ 53. In general, nothing but what is expressly matte n alleged, or necessarily implied in what is thus alleged, alleged, or implied in r^ecL (JO 1 Burr. 316322. OF TRAVERSE. 4QQ can be the subject of a traverse(?/). For a traverse C HAP. is in its nature a denial, on one side, of something vii. before alleged, on the other. It would, indeed, be plainly absurd for either party to tender an issue upon matter, which the other had not actually, or virtually, pleaded. Still, a traverse may be taken upon matter which, though not in terms alleged, is necessarily implied in what is so alleged^). Thus, if the defendant justifies under J. S., alleging that he ivas seised of the close in question ; the plaintiff may reply that he himself was seised of one moiety of the close, absque hoc that J. S. was sole seised(a). For though the plea does not expressly aver that J. S. was solely seised ; yet the general unqualified averment, that he was seised ' of the close\ must be understood to mean a seisin of the whole, or a sole seisin. 54. But there is one case, in which it is Exception i -i . , to the last necessary to include, m a traverse, what is neither rule. expressly nor impliedly alleged on the other side : viz. when to debt on an obligation, payable ' on or before' a certain day, (as the tenth day of May), the defendant pleads payment, on a day before that named m the condition, (as the first day of the same month) : In which case, if the plaintiff would deny the plea, he must reply that the defendant did not (j/) Com. Dig. Pleader, G. 8. 13. 1 Ld. Ray. 63. 1 Saund. 206. 312. d. (n. 4.) 2 Ib. 10. (n. 14.) 1 Salk. 298. Carth. 99. Bac. Abr. Pleas, &c. H. 1. 5. (*) lid. (a) 6 Mod. 158. 2 Salk. 629. Com. Dig. Pleader, G. 13. OF TRAVERSE. CHAP. pay Oil tne first of May, nor at any time before the VH. tenth, nor OF TRAVERSE. 41 1 self-evidently a denial of the inducement to the CHAP. VTT traverse. 56. On the other hand, when the inducement and the traverse go to different points, (as in the ieL'nt case of a traverse after a traverse, ante, 45), joining in the traverse, first tendered, admits the truth of the inducement. Thus, if the defendant in trespass pleads a justification, (as a license), laid on some particular day, different from that laid in the declaration, and traverses that he is guilty on any other day ; a replication, joining in the traverse, by alleging a trespass on another day than that laid in the plea, is an implied admission of the license, or other matter of justification averred in the in- ducement : It being a general principle, heretofore stated, that each party impliedly admits all such traversable allegations on the other side, as he does not traverse, (ante, ch. 3, ^ 166). And in the ex- ample now given, the plaintiff, instead of joining in the traverse, might have traversed the inducement. It may also be observed, that in the case just sup- posed, (as in every similar case), if the replication is true, and supported in proof; the plaintiff can suffer no disadvantage, from his admission of the inducement, even though the latter should be untrue ; because, even upon this supposition, he must prevail, on the issue tendered by the defendant. 57. If however the party, joining in such a traverse, wishes to prevent his implied admission of and use of> the inducement from operating against him, as an 412 OF TRAVERSE. CHAP, estoppel in any future controversy ; he may attain vii. that end, by a protestation, or, (as it is often called) a protestando ; and in general, any allegation or in- ference, which stands impliedly admitted by the pleadings, may, to the same effect, be denied or ex- cluded, in the same manner(^). ^ 58. A protestation, which, according to Sir Edward Coke's definition, is ' the exclusion of a conclusion', has no other effect, than that of exclud- ing or preventing some adverse allegation, or infer- ence, (which stands confessed by the pleadings), from estopping the party protesting, in any other suit between the same parties, or their privies(e). For it. is a general principle, in the law of evidence, that any fact, admitted by the pleadings in a suit, will, if not thus excluded, be forever conclusive, (between the same parties, and those in privity with them), in any other suit, in which the same fact may come in question. ^ 59. Thus, if the defendant pleads in bar a collateral satisfaction as a pipe of wine deliv- ered to the plaintiff, and by him accepted, in full satisfaction ; and the plaintiff, wishing to put the acceptance only in issue, is nevertheless unwilling to let the fact of delivery stand, as an estoppel to him (d) 3 Black. Com. 311. fiac. Abr. Pleas, &c. H. 1. 4. Co. Lilt. 124. b. 126. Plowd. 276. b. 2 Saund. 103. a. b. (n. 1.) Litt. 192-3. (e) lid. 2 Saund. 103, a. (n. 1.) Lawes' PI. 141. 143. Com. Dig. Pleader, N. OF TRAVERSE. in any other case ; he may deny the delivery, by a CHAP. protestation, and then, 'for replication', traverse the vn. acceptance^). And in general, when on one side, - two material facts are pleaded, of which the opposite party can traverse but one, without making his plead- ing double, he may exclude the other, to the intent above explained, by a protestation(g). & 60. A protestation is, strictly, no part of the is no part 7 J- J T i I / i r ofthc pleadings, and is distinguished from them in its form, pleadings. by always commencing with the word, ' protesting,' or in Latin, ^ protest and o^h). It has therefore no effect whatever, in the principal case, the legal merits of which are, upon the face of the record, precisely the same as if the protestation were omitted. In- deed all traversable facts, which are denied under a protestation, are, for the purpose of deciding the principal cause, admitted(i). Thus, in the case last stated, the delivery of the wine, which the protesta- tion denies, stands upon the face of the record, (so far as regards that case), as confessed. 5} 61. From these principles it follows, that a Re( i uires * no answer. protestation requires no answer ; and that the facts, denied or excluded by it, require no proof(k). Hence it also follows, that a protestation, which is idle or superfluous, or even repugnant to the pleading, (/) 2 Chitt. PI. 602. 644-5. 1 Lill. Ent. 105. 106. (g) 2 Chitt. PI. 602. * (A) Lawes' PI. 141. 2 Chitt. PI. 602. 2 T. R, 441. (i) Bac. Abr. Pleas, &c. H. 4. Lawes' PI. 141-3. (A;) Com. Dig. Pleader, N. B;-c. Abr. Pleas, &c. II. 4. Lawes' PI. 143. 53 * OF TRAVERSE. CHAP, with which it is connected, does not injure the vii. pleading, even on special demurrer(7) ; since the protestation forms no part of the pleading. Such a protestation is, however, of no avail, and cannot, therefore, exclude an estoppel(m)'. 62. And it seems, that in general, a protesta- tion does not avail the party protesting, if the issue be found against him(?i) : The reason of which may perhaps be, that as his pleading is found to be false ; the protestation is, therefore, presumed to be so. This rule, however, appears to apply only to those cases, in which the facts protested against might have been directly traversed(o). When the issue is found in favor of the party protesting, the protestation has its full intended effect, as above explained^). It is also observable, that a protestation is the only mode of denying such facts, as cannot be put in issue(q). ont % 63. The inducement to a traverse must consist f issuable matter whether the inducement and mat- t raverse go to one and the same point, or to different pomts(r). The correctness of this rule has been (/) Com. Dig. Pleader, N. Plowd. 276. b. Lanes' PI. 142. (f) lid. (n) Co.Litt. 124. b. 126. a. Com. Dig. Pleadcr,~N. 2 Saund. 103. a. b. (n. 1.) Lawes' PI. 142. (o) 2 Saund. 103. a. b. (n. 1.) (p) 2 Saund. 103. c.(n. 1.) (q) Plowd. 276. b. Lawes' PI. 141. (r) Bac. Abr. Pleas, &c. H. 1. Com. Dig. Pleader, G. 20. Cro. Car. 336. 3 Salk. 353. 2 Leon. 32. \ OF TRAVERSE. 415 questioned, as it regards cases, in which the induce- CHAP. ment and traverse both go to the same point(s). vn. For as the party, to whom such a traverse is ten- dered, must (regularly) join in it, (if material), and cannot traverse the inducement(6) ; why, it may be asked, is it necessary that the inducement should consist of issuable matter ? It will appear, however, upon examination, that the rule is founded upon sound principle. For ^ 64. 1. When the inducement and the traverse Reasons of go to the same point, they cannot, in the nature of rufc." the thing, be properly adapted to each other, unless the traverse follows, as a necessary inference, from the inducement (ante, ^ 14) ; so that if either of them is true, the other must necessarily be so. In- deed, the inducement and the traverse, when thus adapted to each other, (as they must be, in order to be secure against a demurrer), assert substantially the same thing, though in different forms the one being in the affirmative, and the other in the nega- tive. It is clear, therefore, when they are thus adapted to each other, that if the traverse consists of issuable matter, as it confessedly must ; the induce- ment will, and ' must of necessity, consist of similar matter, or ratker of the same matter, differently ex- pressed. (s) Bac. Abr. Pleas, &c. H. 1. in notis. (6) Because a traverse of the inducement would be a traverse upon a traverse, (ante, 42). A16 OF THAVKUSE. CHAP. 65. This exposition of the rule may be suffi- vn. ciently illustrated, by a single and very simple ex- ample : If a defendant pleads that his co-defend- ant is dead, and the plaintiff replies that he is alive, absque hoc that he is dead ; the inducement, (that he is alive), asserts in substance the same fact, as does the traverse : That * he is alive? and that ' he is not dead? being in effect the same proposition, ex- pressed in different terms ; and a denial of either of these assertions is a denial of the other. It is mani- fest then, that if the traverse, in this case, consists of issuable matter ; so, necessarily, does the induce- ment. A similar explanation will be found applica- ble to every other instance, in which the inducement and traverse go to the same point, if they are adapt- ed to each other ; and if not, the pleading is, for that cause, demurrable(^). ^ 66. 2. When the inducement and traverse go to different points, (of which, it is believed, no in- stance occurs, except in the defendant's plea), the rule, requiring the inducement to consist of issuable matter, is founded on equally clear, though different, reasons from those mentioned above. In cases of this kind, the inducement is, itself, traversable ; as it forms a substantive and distinct ground of defence, not embraced in the traverse, and is indispensably necessary, to render the defence complete, or co- extensive with the declaration. And it is manifest, that whatever constitutes the defendant's answer to any material part of the complaint, must itself be (/) Cro. Car. 266. 336. Com. Dig. Pleader, G. 20. OF TRAVERSE. material, and capable of being put in issue. Thus, if CHAP. in trespass, the defendant justifies for a single day, vn. with a traverse that he is guilty on any other day ; it is obviously necessary that the matter of justifica- tion, which constitutes the inducement to the tra- verse, be, itself, material and issuable ; since the de- fence would otherwise be defective in substance, as not answering the whole gravamen, (ante, ch. 6, 98. 99.) The rule, then, that the inducement to a traverse must consist of issuable matter whether it goes to the same point as the traverse, or to a differ- ent point appears to be fully supported by the sound principles of pleading. 67. It has been supposed by some(w), that an u ses of the 7 . , i r inducement. inducement to a traverse is but an arbitrary lorm, an- swering no useful purpose, and therefore always un- necessary. And it is doubtless true, that where the inducement and traverse go to the same point, (in which case the inducement cannot, in general, be itself traversed, or otherwise answered), an induce- ment, in many cases, answers no necessary purpose (ante, ^ 38). But on the other hand, it is certain that in many cases, an inducement is at least useful, and in some, absolutely necessary. 68. Thus, 1. Where the inducement and tra- verse both go to the same point, the former must, in fair and liberal practice, be deemed useful, in dis- closing the particular grounds or facts, on which the () 1 Swift's Dig. 692. 418 OF TRAVERSE. CHAP, traverse is founded, and by which it is to be inain- vii. tained in proof. 2. In many cases of this kind, an inducement is indispensably necessary^ to avoid a negative pregnant, which the traverse would other- wise be, (ante, ^ 35. 36.) 3. Where the induce- ment and traverse go to different points, the induce- ment, as has just been shown, is a substantive and indispensable part of the defence. It may also be suggested, that an inducement, by way of protesta- tion (which is, indeed, no part of the pleadings}, may often be necessary, for the purpose of excluding an estoppel, (ante, 58. 59.) CHAPTER VIII. PART I. OF DUPLICITY. SECTION I. Duplicity, or double pleading, con- CHAP. sists in alleging, for one single purpose or object, two vm ' or more distinct grounds of complaint, or defence, when one of them would be as effectual in law, as Duplicity, both or'all. This, by the principles of the common "' law, is a fault in all pleading ; because it produces useless prolixity, and always tends to confusion, and to the multiplication of issues(a). Dtfplicity in the declaration has been heretofore described, (ch. 4, 99) ; and it now remains to treat of the same fault in the subsequent pleadings. 5> 2. The rule forbidding double pleading * ex- \ a , fau | t in all pleading. tends', says Lord Coke, ' to pleas perpetual, or pe- remptory, and not to pleas dilatory ; for in their time and place, a man may use divers of them'(6). But by this, is not meant that any dilatory plea may be double, or in other words, that it may consist of distinct matters, or answers ' to one and the same (a) Co. Litt. 304. a. Finch's Law, 393. 3 Black. Com. 311. Bac. Abr. Pleas, &c. K. 1. (b) Co. Litt. 304. a. 420 OF DUPLICITY. thing' ; but merely, that as there are several kinds, or classes, of dilatory pleas, having distinct offices and effects ; a defendant may use ' divers of them' successively, (each being in itself single), in their proper order, (vid. ch. 5; ^ 45.) And Lord Coke thus distinguishes dilatory pleas, from pleas per- petual, or to the action ; because the latter are pleas, all having one and the same effect that of perpetual- ly barring the action. And as any one of these lat- ter pleas, if good, is as effectual, for this purpose, as any number of them ; the common law allows but one of them ' to one and the same thing' i. e. to the whole, or to one and the same part, of the declaration, or demand. J"eadin"s, 3. As to duplicity iii the pleadings which iow ( the f de- follow the declaration, the rule of the common law ciarauon. -^ ^^ ever y pj ea mus t be simple, entire, connected, and confined to a SINGLE POINT, i. e. a single ground of complaint, or defence(c). And this rule extends as well to traverses, or matter of denial, (ch. 7, ^ 49), as to the allegation of new matter(rf) ; and as well to the replication, and all the later stages of the pleadings, as to the defendant's plea(e). ^ 4. According to the general description already given of duplicity, a double plea is one, which (c) 3 Black. Com. 311. (d) Bac. Abr. Pleas, &c. H. 1. 5. Co. Litt. 126, a. 1 Stra. 317. Bull. N. P. 93. 1 Burr. 316. 321. (e) Cas. Temp. Hardw. 290, Com. Dig. Pleader, F. 16. Fort. 335. 1 Stra. 317. OF DUPLICITY. consists of several distinct and independent matters, CHAPe alleged to the same point, (i. e. to the whole, or to vm. one and the same part, of the demand, or defence), PART i. and requiring different answers(f). Thus, if the defendant pleads to the same trespass, a justification and a release or to the same debt, duress and pay- ment or pleads, in one and the same suit, two causes of disability in the plaintiff as two differ- ent outlawries, or outlawry and alienage ; the plea is ill for duplicity^'). 5. But the giving of different answers, (each being in itself single), to different parts of the de- claration, or writ, does not constitute duplicity : Since the different matters, so pleaded, are not al- leged to one and the same point, or thing(A). Ex. gr. The defendant may, at the same time, as to j)art of the declaration, plead the general issue, and matter of avoidance to the residue or one matter of abate- ment to one part of the writ, and another, to another part(z) : or he may, in the same manner, plead in abatement, as to one part of the demand, and in bar as to another(/c) ex. gr. in debt on two bonds, he may plead a nonjoinder, or other matter of abate- (/) Co. Litt. 303, b. 304, a. Bac. Abr. Pleas, &c. K. 1. (g) Com. Dig. Abatement, C. & I. 3. 4. Tidd, 589. Lawes' PI. 108. (Vide ch. 5, 4. 5.) (h) Co. Litt. 304, a. Bac. Abr. Pleas, &c. K. 1. N. 1. Lawes' PI. 107. (i) Com. Dig. Abatement, I. 5. Lawes' PI. 107-8. Ante, eh. 5, 6. (*) 2 Bos. & P. 420. Lawes' PI. 108. Vid. 10 Mod. 285-6. 54 422 OF DUPLICITY. CHAP, ment, as to one of them, and non est factum, or a viii, special plea in bar, as to the other, (vid. ch. 5, ^ 7.) FART i, ^ 6. And where there are several defendants in Co-defend- J ants , n ?. i $ the same suit, each of them may, regularly, plead for plead differ- _ J ' nt pleas, himself a single matter of defence to the whole, or different matters to different parts, of the writ or declaration(T). In other words, each of the defen- dants may plead for himself, as if he were a sole de- fendant. For otherwise, any one of them might, through obstinacy or ignorance, or even by collusion with the plaintiff, reduce the others to the alternative of joining in a false or frivolous plea } or of foregoing all defence whatever. Exception 7. But this rule does not hold, where in an rule 1 . e ' action on contract, against several co-defendants, who are charged as joint contractors, they all plead the same defence to the action as where, for ex- ample, they all plead the general issue, or the same matter of avoidance. In this case, they cannot sever in pleading ; but must plead jointly(w). Thus, in assumpsit against two or more, if they all plead non assumpsit, or any other common defence ; they must do it in one and the same plea, and cannot plead it, each for himself, or severally (n). For in an action on contract, against several, where they all rely on the same matter of defence, there can be no neces- (/) Hob, 70. 250. Slra. 509. filO. 1140. 2 Ld. Ray. 1372. Co. Litt. 303, a. Lawes' PI. 132, 2 M, & S. 26. (n) 6 Mass. R. 444. OF DUPLICITY. 423 shy for their severing in pleading : Any matter of CHAP. defence, which is good for any one of them, being vm. necessarily good for all ; because, a joint contract PART i. being alleged a joint liability must be established, or there will be a variance between the evidence and the declaration, and consequently there can be no recovery. And therefore, if they all agree as to the kind of answer to be given to the action ; they are respectively as safe in pleading it jointly, as they could be in alleging the same matter of defence sev- erally : Whereas in an action ex delicto, against several, the same matter of defence, which may be good for one of them, may be ill for the others ; and therefore they are allowed to plead the same thing, (the general issue, for example) severally ; and if they plead thus, one may be convicted and another acquitted : Torts, though charged as joint, being sev- eral as well as joint. (o)(l) 8. And even, in an action on contract, against several, if they choose different defences, they may plead severally, i. e. each a separate plea, for him- self/?). For such a case is not within the reason of the above exception ( 7). Thus, in assumpsit againt two, one may plead non assumpsit, and the (0) 1 Saund. 207. a. b. (n. 2.) (p) 3 Esp. Rep. 76. 5 Ib. 47. 2 M. & S. 444. (1) If however, several defendants, charged jointly in tort, join in a plea, which is ill for either of them, it is so for all of them (ante, ch. 6, 101). For an entire plea cannot be severed, in its effect ; and the defendants might have pleaded the same matter, severally. OF DUPLICITY. CHAP, other matter of avoidance as infancy. For each vin. defendant must be at liberty to choose the ground of PART i. his own defence : Otherwise, several defendants charged as joint contractors, might all be unjustly subjected, by the refusal of any one of them to unite with the others in a proper plea. The piea, k 9. The * single point,' to which each plea, re- &c. need * not be con- plication, &c. is required to be confined, need not, fined to a r ' single fact. as o f course, consist of a single fact(2). For several connected facts may be, and frequently are neces- sary, to constitute a single complete ground of de- mand, or defence^). Thus, in pleading an award of arbitrators, the defendant may, and must, allege the submission, with a statement of the substance of it, and the making of the award by the arbitrators, together with a statement of the terms, or substance of it : All these facts being necessary to the estab- lishment of the single defence of a decjsion of the controversy, by an award of arbitrators(r). And a single traverse either of the submission, or of the award, will be a sufficient answer to the whole plea. 10. Thus also, in an action for malicious prosecu- tion or in false imprisonment against a sheriff, for (q) Bac. Abr. Pleas, &c. K. 2. 2 Black. Rep. 1028. 1 Burr. 320-1. 3 Salk. 142. 3 M. & S. 180. 2 Johns. R. 433. 462. (r) 2 Chit. PI. 437-8. (2) This rule, as applied to a traverse, has been already ex- plained, ch. 7, 51. OF DUPLICITY. an arrest made on suspicion of felony the defend- CHAP . ant may plead in bar all such circumstantial facts viu. (however numerous), as conduce to show reasonable PART i. grounds of suspicion, as the cause of the prosecution, or arrest. For all such facts go to constitute the single defence of probable cause(s) ; and the repli- cation, de injuri", &c. absque tali causa, answers the whole plea so that the different facts pleaded do not require different answers, and consequently do not conduce to multiply issues. The general replication, de injuria, frc. absque tali causd, is a sufficient tra- verse of all the facts pleaded. 11. But if the defendant, in the case last sup- posed, relies for his justification, upon any criminal act of the plaintiff as, when he justifies the arrest, on the ground of a felony actually committed by the plaintiff; he can allege in his plea only one such act, without making his defence double : Because one actual felony is as complete a justification as several would be. 12. When however the fact, relied on as the gist of the defence, is but the consequence of another fact or when one of them is a necessary or proper inducement to the other, both may be pleaded, with- out making the plea double (u). And therefore an executor, when sued for a debt due from his testa- tor, may plead that he has ' fully administered, and () Cro. Eliz. 134. 871. 900. Bridgm. 61. 2 Hawk. P. C. ch. 12. 816. (tt) Plowd. 140. a. Poph. 186. Mo. 25. Com. Dig. Plead- er, 2. March, 74. Latch, 149. 1 Burr. 320. OF DUPLICITY. CHAP. so -has nothing in his hands.' For the allegation of vni. ' fully administered,' serves merely to show how and PART i. why the defendant has nothing in his hands. So also, to an action by a woman, the defendant may plead that after the cause of action accrued, she took husband, and that the husband afterwards re- leased the action. For it would be of no avail to plead the release, without showing the marriage. Neither of these pleas, it may be observed, requires more than a single answer. ^13. In debt on bond, the assignment of more than one breach of the condition, in the replication, is by the common law, duplicity(v) : Because, at common law, one breach incurs the forfeiture of the whole penalty ; and nothing more could ensue in the plaintiff's favor, from any number of breaches. Be- sides, they would all go to one and the same point, viz. the forfeiture of the entire penalty. 14. But in covenant broken, the plaintiff may, by the common law, assign as many breaches as he may think proper(w). For in this action, the plain- tiff can recover only the damages actually incurred from a breach or breaches of the covenant ; and can legally prove no other breaches than those alleged. ^15. And now, since the statute 8 & 9 W. 3, c. 11, 8, by which courts of laiv are enabled to () Com. Dig. Pleader, C. 33. Comb. 297. 3 Salk. 108. 2 Wils. 267. Lawes' PI. 25-7. (>) Com. Dig. Pleader, C. 33. Cro. Car. 176. Bac. Abr. Covenant, I. OF DUPLICITY. 427 relieve against penalties, in bonds for the perform- CHAP. ance of covenants, or agreements in indentures, vin. deeds, &c. the plaintiff, in all actions on penal bonds, PART i. falling within that statute, may, by express provi- sion in the act, assign as many breaches as he pleases ; and ought for his own sake, to assign as many as there are(^) Because in all cases within the statute, the plaintiff can recover for such breaches only as are assigned ; and thus the same rule of damages, and of pleading, is now, in England, established in these cases, as by the common law prevails in actions of covenant broken. The same rule exists in the state of Connecticut, in all actions, in general, on penal obligations. 16. Mere surplusage, pleaded in connexion with Surplusage what is material, never renders a plea doubled?/) make a P lea . 7 . .. * . . ^ double. not only because utile per inutile non vitiatur ; but more particularly, because matter of surplusage re- quires no answer, and consequently does not tend to multiply issues. If therefore the defendant pleads payment, and also a previous readiness to pay ; the plea is not double : For the alleged readiness to pay is not issuable, 17. But any thing in itself material, though ill pleaded, will, if pleaded in connexion with other (x) Bac. Abr. Covenant,!. 2 Black. Rep. 1016. 1111. 2 Burr. 820. 2 Wils. 377. Cowp. 357. 2 Chitt. PI. 153. 8 T. R. 126. 6 East, 550. 613. 1 Saund. 58. (n. 1.) 2 Mass. R. 542. (y) 1 Keb. 661. 1 Sid. 175. Doct. PI. 138. Bac. Abr. Pleas, &c. K. 2. 4,28 OF DUPLICITY. CHAP, issuable matter, render the pleading double(z). And vin. therefore, where in trespass for assault and battery, PART i. the defendant justified, by alleging a molliter manus imposuit for the due correction of the plaintiff as his servant, and also averred that the plaintiff had releas- ed the cause of complaint, but without averring that the release was by deed; it was resolved, that the latter averment made the plea double(a) : Because the alleged release, though ill pleaded, in not being alleged to be by deed, was nevertheless issuable. And it was held, in the same case, that any matter which, if ivell pleaded, would make a pleading double, would have the same effect, though ill plead- ed : Since such matter cannot be regarded as sur- plusage, nor the plea, which alleges it, as void.(3) , ^18. As instances frequently occur, however, in which there exist two or more distinct grounds of defence, to one and the same demand ; it is obvious^ that the common law rule, confining the defendant to a single plea consisting of a single matter of de- fence, must sometimes have operated unjustly against him : Inasmuch as any misapprehension on his part, (z) Bac. Abr. Pleas, &c. K. 2. (a) Ib. 1 Keb. 661. 1 Sid. 175. (3) By a void plea, is to be understood one, of which the ad- verse party is not bound to take notice in any way, and which he may therefore entirely pass over, by signing judgment as for want of a plea. OF DUPLICITY. 429 or on that of his counsel, in regard to the law, or CHAP. the facts of the case, or as to the eventual state of vm. the proof, might sometimes induce him to choose PART i. an unavailing defence, in preference to another, " which would have been successful. And thus he may have been subjected to a recovery, when the right of the controversy, both in law and in fact, was on his side. These considerations occasioned the enactment of the statute 4 Ann. c. 16, 5> 4, TWO or j more pleas which provides that ' it shall be lawful, for any de- allowed b y J statute 4 fendant, or tenant, in any action or suit, or for any -Anne. plaintiff in replevin, in any court of record, with leave of the court, to plead as many several matters thereto as he shall think necessary for his de- fence'(6)(4). ^19. Under this statute, the defendant, in any English court of record, may, with leave of the court, plead as many different pleas in bar, (each being in itself single), as he may think proper(c). But though this statute allows the defendant to plead several distinct and substantive matters of defence, (in several distinct pleas), to the whole, or one and the same part of the plaintiff's demand ; yet it does not authorize him to allege more than one (b) Bac Abr. Pleas, &c. K. 3. (c) 3 Black. Com. 308. Lawes'-Pl. 27-8. (4) There is a similar statute in the state of Connecticut, and probably iu most of the states in the American Union. 55 430 OF DUPLICITY. CHAP, ground of defence, in one plea. Each plea must vin. still be single, as by the rule of the common law(o?). PART I. 20. Whenever the defendant pleads, in pursu- ance of this statute, more than one plea in bar, to one and the same demand, or thing, all of them, except the first, should (regularly) purport to be pleaded, with leave of the court as in the follow- ing form, viz. ' and for a further plea in this behalf, the said C. D. by leave of the court here for this purpose first, had and obtained, according to the form of the statute in such case made and provided, says' &c.(e) This, or some similar form, seems neces- sary by the terms of the statute ; which makes it lawful for the defendant, only ' with leave of the court,' to plead more than one plea. The omis- sion of this formula, however, is held to be an ir- regularity only, and not error, nor cause for demur- rer(ee). 21. This statute extends only to pleas to the declaration, and does not embrace replications, rejoin- ders, or any of the subsequent pleadingsQT). For in these later stages of the pleadings, the privilege of making several answers to the same thing, can seldom be necessary or useful. As to these plead- ings, therefore, the common law rule against dupli- city still remains in full force. And therefore the (d) Lawes' PI. 131. 1 Chitt. PI. 512. 513. (e) Lawes' PI. 132. 2 Chitt. PI. 421-2. Com. Dig. Pleader, E. 2. Story's PI. 72, 76. (ce) Andr. 109. 1 Wils. 219. 3 N. Hamp. R. 523. (/) Bac. Abr. Pleas, &c. K. 2. Com. Dig. Pleader, E. 2. OF DUPLICITY. 43 1 plaintiff cannot, under this statute, reply two several CHAP. maters to one plea, nor the defendant rejoin differ- vui. ent matters to one replication^). PART i. 22. The plaintiff is at liberty, however, to reply separately, to each of the defendant's pleas so that he may still plead as many replications, (each being itself single), as there are separate pleas ad- mitting of answers. For, according to the first principles of pleading, each party must have a right to answer, in some form, all that is alleged against him(^). 23. The statute is also limited, in construction, to such pleas of the defendant as go to the action, and does not extend to dilatory pleas(^). For though the terms of the statute do not exclude pleas of the latter class ; yet as these are not favored by the law ; the court will not, in its discretion, give the defendant leave to plead two of them to the same thing. 24. If any one of several pleas pleaded togeth- er, under this statute, is determined in the defend- ant's favor ; it is a good bar to the action, or at least to so much of the plaintiff's demand, as the plea extends to ; although all the others should be determined in favor of the plaintiff. For one good defence is as available, as far as it extends, as two Or) lid. (A) 1 Saund. 337. b. (a. 2.) () 1 Sell. Pract. 275. Steph. PI. 295. OF DUPLICITV. CHAP. or more would be. If therefore, any one of the vni. pleas, pleaded to any one count in the declaration, PART i. prevails, either on an issue in fact or in law ; it is an effectual bar as to that count ; and if any one plea to the whole declaration thus prevails, it bars the whole action(fc). ^ 25. When several pleas in bar are pleaded, in virtue of this statute, to one and the same thing or demand, each of them is treated, and operates, as if it were pleaded alone : It being an established rule, that one of them ' cannot,' in the language of Lord Ch. J. Willes, 'be taken in to help, or destroy anoth- er ;' but that ' every plea must stand or fall, by it- self ^(l). And the opinion of Mr. J. Sutler is ex- pressed in terms almost literally the same(//). No one of them, therefore, can have the effect of dis- pensing with the proof of what is denied by anoth- er(m). Hence if the defendant pleads, first the general issue, and then pleads specially matter in avoidance, which impliedly confesses the declaration (as if he pleads first, non est factum, and adds a special plea of usury, duress, infancy, payment, &c. ; or pleads all these, in successive special pleas or pleads first, not guilty, and then special matter of justification or discharge) ; the matter of avoidance (fc) 2 Burr. 753. 1 Saund. 80. (n. 1.) (/) Willes, 380. (//) 1 T. R. 125 Ace. 5 Serg. & R. 411, per Duncan, J. (m) 2 East, 426. 5 Tb. 463. 2 Johns. R. 437. 2 Phil. Ev. 97. n. a. 1 Stark. Ev. 296. n. 389. n. 1 Chitt. PI. 543. 5 Taunt. 233. 2 N. Hamp. R. 89. OF DUPLICITY. 433 thus pleaded, though inconsistent with the general CHAP. issue, does not supersede the necessity of the plain- vm. tiff's proving his declaration^). For a contrary rule PART i. would defeat the very object of the statute which manifestly is, to enable the defendant, not only to plead, but on the trial, to rely upon, as many differ- ent defences, as he may choose to put upon the re- cord. But if a plea in avoidance were held to de- stroy the effect of the general issue ; it is manifest that the statute, allowing the defendant to plead both pleas, would be altogether nugatory. And the effect would, plainly be the same, if one of two in- consistent pleas in avoidance (as payment, and accord and satisfaction, both pleaded to the whole demand), were held to disprove the other. Indeed, it appears clear, that the benefit or privilege intended to be con- ferred upon the defendant, by this statute, must be lost to him, unless his several pleas are treated, and allowed to operate, as entirely independent of each other. (5) See a contrary opinion, 15 Mass. R. 48, where, in an ac- tion of slander, the defendant pleaded (in virtue of a statute, simi- lar to that of 4 Jinn.} the general issue, and also a special justifi- cation: In which case it was resolved, that the admission contain- ed in the special plea, that the words charged were uttered by the defendant, was sufficient proof of that fact ; and that the plaintiff was, consequently, not bound to prove the uttering of the words. And in the very ingenious argument of the learned judge, who delivered the opinion of the court, the same rule is held to extend to every case, in which the general issue, and a special plea in avoidance, are pleaded to one and the same demand. But this opinion appears to be opposed, not only to the spirit of the statute, but to the general practice under it. What different pleas are allowed under the statute of Anne. OF DUPLICITY. 26. Many questions have heretofore arisen, as to what several defences in bar may be pleaded to- gether, under this statute, to one and the same de- mand ; and a copious catalogue of such pleas as may, and of such as may not, be thus pleaded to gether, is presented in Comyns' Digest, Pleader, E. 2. For an opinion was formerly entertained, that mere inconsistency between two given pleas was a decisive objection to their being pleaded together, under the statute. But if such a rule should pre- vail, the statute would, in a great measure, be practically repealed. For the general issue, which is almost universally the first of the several pleas pleaded together under the statute, is, on strict common-law principles, inconsistent with almost every special matter of defence whatever(6) : Since the general issue denies, while a plea in avoidance admits, the truth of the declaration. At this day, however, it appears to be generally understood as a sound rule, in the construction of the statute, that mere inconsistency, between two or more pleas in bar, is no objection to their being pleaded together(w) : (n) 1 Chitt. PI. 540542. 2 Ib. 431, n. d. 4 T. R. 194. 13 East, 255. 2 Phill. Ev. 97, n. a. Com. Dig. Pleader, E. 2. 1 Sell. Pract. 299. 5 Taunt. 340. 3 Bing. 635. 3 Pick. 388. (6) This proposition, as applied to actions on the case, and especially the action of assumpsit, must be understood with some modification. In these equitable actions, which were unknown to the ancient common law, the general issue is deemed consistent with, and comprehends many matters of mere avoidance. ( Vid. ch. 6, 46 to 54.) OF DUPLICITY. 435 A rule, which would appear to follow of course from CHAP. one before laid down, viz. that each of several pleas, vin - thus pleaded together, is to be considered as inde- PAR pendent of all the others, and to operate as if plead- ~ ed alone. 27. And it seems now, that when the several matters of defence, proposed to be pleaded, all re- quire the same mode of trial, (as by jury), the de- fendant may plead, with the general issue, any spe- cial plea, except that of tender (o). The reason, why tender cannot be pleaded with the general issue, is not, however, merely or chiefly, that it is inconsistent with that issue (for so, generally, are all special pleas in bar) ; but that the former admits the debt or damages demanded to be still due, and in its effect goes only in bar of the costs, and the nominal damages of detention while the general issue and other pleas in bar, in general, deny any existing lia- bility or legal duty on the part of the defendant. Actions on penal statutes are, by the express words of the statute of Anne, excluded from its opera- tion(p). And it is held, that the statute does not extend to actions at the suit of the king(^p). 28. Neither at common law, nor under the statute of Anne, can a party plead, and demur, to (o) 4 T. R. 194. 5 Ib. 97. 1 Chitt. PI. 541. Steph. PI. 293. (p) 2 Stra. 1044. 4 T. R. 701. 1 Chitt. PI. 541. 2 Wils. 21. Barnes, 365. Cas. Temp. Hardw. 262. (pp) Parker's Rep. 1. Forrest's Rep. 57; \vhereitissaid that the case in Com. R. 422, is misreported. PART I. OF DUPLICITY. CHAP, tne same matter or thing( OVER. CHAP. 37. And in the English practice, if he, who is vni. bound to give oyer, does not give it, within two days PART ii. from the day of the demand, (excluding that day) ; the adverse party may sign judgment against him(z) : Otherwise, the party, bound to give oyer, might, by neglecting it, delay the proceedings indefinitely. As however the right to oyer on one side, results from the profert made on the other ; the first proper inquiry, under the present head, is, in what cases it is necessary, for him who pleads an instrument, to make a profert of it, in his pleading ? ^ 38. It has already been stated (^ 32), that he, who pleads a deed, and makes title under it, must plead it with a profert. For the deed being, in every such case, the foundation of the pleader's suit, or defence, is therefore a matter, which the adverse party should have an opportunity to answer, direct- ly upon the record ; which, however, he cannot do, without having obtained oyer(a). or what & 39. As a general rule, profert is required of no instruments * . J " profert muat other instruments than deeds: Ihese being; the be made. . . . . . . only private writings, which, by the original princi- ples of the common law, are considered as instru- ments, on which an action of defence can be directly founded. And consequently, he who pleads a writ- ing, not under seal as a bill of exchange, promis- (2) 2 T. R. 40. Com. Dig. Pleader, P. 1. Barnes, 245. (a) 1 Keb. 513. Hutt. 33. 1 Saund. 317. (n. 2.) Bac. Abr. Pleas, &c. I. 12. (2.) 2 Ld. Ray. 1135. 2 Black. R. 1108. 1 Stra. 227. 2 Saund. 60. (n. 3.) 366. (n. 1.) 409. 410. OF PROFERT AND OVER. 441 sorj note, or other unsealed written agreement is CHAP . not bound to make profert of it(6). For written con- vni. tracts not under seal, are regarded by the common PART u. law, not as instruments, on which actions are found- ed ; but merely as simple contracts, or, (more pre- cisely), as evidence of parol contracts(c). Of such instruments, therefore, oyer is not demandable. ^ 40. Yet, as it has been customary, under the practical extension of the law-merchant, in modern times, to count upon bills of exchange and promis- sory notes, as instruments ; it has become a practice, for the court, on the prayer of the defendant, to or- der a copy of such instrument, when declared upon, to be delivered to him, before he is obliged to plead (d). In this practice, however, the defend- ant, it seems, cannot found his plea upon a recital of the copy on the record : Since this can be done, only on oyer(e) ; which is the technical, and only mode, in which the party, against whom an instru- ment is pleaded, can avail himself of any thing in it, by plea. ^ 41. Nor is profert necessary, of a will, or an award, though under seal(f). For neither of these (6) 3 Lev. 205. Com. Dig-. Pleader, O. 3. P. 1. 1 Sid. 386 Bac. Abr. Pleas, &c. I. 12. (2.) Chitt. on Bills, 185. (c) 7 T. R. 351. n. 7 Bro. P. C. 550. 1 Salk. 215. 2 Black. Com. 465-6. Rob. on Fr. Conv. 99. 1 Povv. on Cont. 332-3. 341. Chitt. on Bills, 9. (d) Tidd, 532. Vide Com. Dig. Pleader, P. 1. 1 Salk. 215. (e) 1 Keb. 513. Hutt. 33. Bac. Abr. Pleas, &c. I. 12. (2.) 50. Yet a tenant by the curtesy. who pleads a Profer *" requir deed, to which his deceased wile was party, and tenant b y 1 . 'he curtesy, makes title under it, must make profert of it ; of deed r J 7 to his wife. though he comes in by operation of law : Because he (o) 10 Co. 93-4. Bac. Abr. Pleas, &c. I. 12. (1). Garth. 316- Cro. Car. 441. 1 Ves. 389. Com. Dig. Pleader, O. 8. (p) Com. Dig. Pleader, O. 8. Cro. Jac. 217. Carth. 316. Cro. Car. 441. (q) Co. Litt. 225. Bac. Abr. Pleas, &c. I. 12. (1). 5 Co. 75. Com. Dig. Pleader, 0. 8. (12) When he, who makes title under a deed, in pleading, is parly or privy to it, he is presumed to have the control of it, until the contrary is shown. But a stranger to it is, in general, pre- sumed unable to produce it. 57 OF PROFERT AND OYER. CHAP. ls presumed to have possession of her muniments of VIIL title, and may retain them, during his life(r). PART II. vant. or a ser- 51. So also, where a servant justifies, under a deed to his master, without alleging any right or in- terest in himself, he must make profert of the deed(s). For the master's title is the gist of the defence ; and the servant standing in, and voluntarily assuming, his master's place, and in the character of his repre- sentative, must plead the deed, as the master himself would be required to do, if he were defendant. % 52. 2. That the deed pleaded is in the hands of the adverse party, or has been destroyed by him, dis- penses with the necessity of making profert of it, when profert would otherwise have been neces- sary^/). The reason is the same, as under the first general exception, above stated ( 48). 53. 3. It also appears, now, and for the same reason, to be established, that when a deed has been lost or destroyed, by time or casualty, it may be pleaded, and title made under it, without profert(u) : Though it was formerly supposed, that the only re- (r) Co. Litt. 226. a. Bac. Abr. Pleas, &c. I. 12. (1). 10 Co. 94. Com. Dig. Pleader, 0. 9. (s) 10 Co. 92. a. Com. Dig. Pleader, O. 5. Co. Litt. 226. a. Cro. Jac. 292. Bac. Abr. Pleas, &c. I. 12. (1). (0 5 Co. 75. a. 1 Saund. 9. a. (n. 1). 3. T.R. 151. 153. 2 H. Black. 259. 1 Chitt. PI. 349. 2 Ib. 154. n. (k). () 1 Saund. 9. a. (n. 1). 2 H. Black. 259. Peake Ev. 97. 302. (2d ed.) OF PllOFERT AND OVER. 447 lief against such an accident was in equity(v). C HAP. And even of late, this exception to the general rule, in a court of law, has been recognized with apparent PAR ' reluctance(to). 54. It follows from the preceding principles, The special that when a party, who is presumed to have the con- dpeMe - trol of a deed, pleads and makes title under it, he fert.mustbo must make profert of it, unless the profert is dis- pensed with, in virtue of one of the two last excep- tions ; and in either of these two cases, he musk > in order to justify the omission of a profert allege, in his pleading, the special facts, which bring the case within the exception : As that the deed is in the hands of the adverse party, or lost, or destroyed, &c. For if he omits to make profert, and assigns no sufficient cause of the omission ; his pleading is demurrable. And if he unadvisedly makes profert^. in such a case ; he enables the adverse party to de-r mand oyer, and to sign judgment against him, for not giving it(V) : Because, having pleaded that he brings the deed into court, he cannot, while that al- legation remains, retract or deny it, by proving what might have dispensed with it. Yet, under the law of amendments, the court will, on motion, in the last case, allow the pleader of the deed to amend his pleading, by striking out the profert, and stating (v) 1 Yes. 389. 1 Atk. 61. 6 Ves. jun. 812. 813. 9 Ib. 464. 1 Madd. ch. 25. 1 Ridgway's Rep. 361. (to) 10 East, 55. (a-) 1 Wils. 16. 2 Stra. 1186. 1 Mod. 2G6. 4 East, 580. 1 Saund. 9. a. (u 1.) Ante, 37. OF PROFERT AND OYER. CHAP, the special facts, which dispense with it(y) ; with VIIL an averment, that by reason of those facts, he can- PART II. Must be ^ 55. Whenever an original party to a deed would, privies u> according to the preceding distinctions, have been the original , -. . / ,^ ..,-,.., . party. bound to make projert ot it, in pleading it, those in privity with him must plead it, in the same man- ner(13). Thus if an heir, as such, pleads and makes title under a deed to his ancestor ; he must regularly make profert of it. And the rule is the same, when an executor or administrator sues upon a specialty, given to his testator or intestate(z) : It being presumed that privies possess, or can com- mand, deeds given to those with whom they are in privity. ^ 56. When profert of a deed is required by law, and is actually made, the adverse party, as has been heretofore stated, is entitled to oyer of the deed ; but if profert is made, unnecessarily, and the plead- er does not make title under the deed, (as where it is pleaded only as inducement) ; oyer of it is not demandable(a). The profert, in such a case, is sur- (y) 1 Saund. 9. a. (n. 1.) 1 Wils. 16. 8 T. R. 153. n. Vid. 1 Stark. R. 74. (60.) (z) Co. Litt. 267. 317. 10 Co. 92. 94. Bac. Abr. Pleas, &,c. I. 12. (1.) Com. Dig. Pleader, O. 4. (a) Tidd, 529. 2 Salk. 497. Lawes' PI. 96. 97. Doug. 476-7. 8 Wheat. 695. (13) For the different sorts of privily, see Co. Litt. 352. Gilb. Ev. 81. Bull. N. P. 232. 3 Co. 23. OF PROFERT AND OYER. plusage. For the deed, being but inducement, can- CHAP. not be the proper subject of any answer or notice, VI11 - in the pleading of the adverse party. PART II. ^ 57. He who is entitled to, and obtains, oyer of a deed, is not bound to take any notice of it in his pleading(6) : The object of granting it being merely to enable him to do so, at his pleasure. He may, however, after reciting the instrument, verba- tim, on the record, avail himself of any advantage, which any part of it, not set out by his adversary, may afford him. The mode, in which such advan- tage may be taken, may be either by pleading, or demurring, as the case may require (ante, ^ 35). Thus, to debt on bond, the defendant, after re- citing the condition, on oyer, may plead perform- ance, or tender of performance, of the condition ; or any illegality in the contract, not appearing on the face of the instrument ; or any other extrinsic fact, which may defeat a recovery on the bond(c). 58. Or if the instrument sued upon, or upon which the defence is founded, is, upon the face of it, void, either from illegality, or otherwise ; or is, from any other cause, insufficient, upon the face of it, to maintain the demand or defence founded upon it ; or if there is any material variance between the in- strument, as recited on oyer, and the description of (6) Lawes' PI. 98. 2 Stra. 1241. 1 Wils. 97. Com. Dig. Pleader, P. 1. (c) 3 Black. Com. 299. 300. Bac. Abr. Pleas, &c. I. 12. (2.) Lawes' PI. 98. 99. 6 Mod. 28. 450 OF PROFERT AND OVER. CHAP, it in the pleading of him, who has made profert of VIIL it ; the adverse party may demur to the pleading in H " which the profert is made(d). For in the two first cases, the voidness or insufficiency of the instru- ment, and in the last, the variance, will, from the recital, appear upon the record; and the deed, as recited, is considered as parcel of the pleading of him, who pleads it ; and consequently, has the same effect, as if it had been set out, verbatim, in his own pleading (e). Effect of a k 59. But if the party, who has obtained over of false recital, r it onoyei. a deed, and who professedly sets it out upon the record, recites it falsely, or omits to recite the whole of it ; he who pleaded it, may relieve himself of the effect of the misrecital, in either of two ways. Thus, 1. he may sign judgment, as for want of a plea. For he, who undertakes to set out his adver- sary's deed, on oyer, is permitted to do so, only on the implied condition, that he recite it truly, and in full. And his failure, in either of these particulars, being a breach of this condition, has the same ef- fect, as the failure of a party to plead in his proper turn. Or, 2. the pleader of the deed may, instead of signing judgment, pray that his deed may be enrolled upon the record, by a proper officer of the court ; and on its being truly enrolled, may demur (d) Hob. 217. 1 Saund. 317. 2 Ib. 366. (n. 1.) Com. Dig. Pleader, P. 1. Bac. Abr. Pleas, &c. I. 12. (2.) 2 Wils. 342. Lawes' PI. 99. (e) lid. OF PROFERT AND OYEU. 451 as the misrecital, or omission, will, on the enrol- CHAP. VIII. merit, appear upon the record(f). ^ 60. On profert made, the awarding of oyer, wrongful when it is not of right demandable, is not error ; ^^ but denying it to a party, legally entitled to it, is (g). For the ordering of oyer is supposed to have been of no prejudice to the party giving it ; but the refusal of it is presumed to have been injurious to him who demanded it ; as he is supposed to have been unable to plead, advantageously, without it. 61. But in order to take advantage of the er- ror, in the latter case, the party praying oyer, must either enter his prayer upon the record, to the intent that the error may be there apparent ; or file a bill of exceptions, by which the same end may be attain- ed^.). The former, however, appears to be the more usual course. 62. And when a prayer of oyer is entered upon the record, it is in nature of a plea ; to which the opposite party may counterplead or demur, as the case may appear to require ; and on which the court will give judgment, awarding or refusing oyer, as upon an interlocutory plea(t). (/) 4 T. R. 370. 1 Saund. 9. b. (n. 1.) 316. 317. Carth. 301. Com. Dig. Pleader, P. 1. Stra. 227. 1241. Lawes' PI. 100. 101. 1 Wils. 97. 1 Chitt. PI. 418. 2 Ib. 461. n. (m). (n). (g) 2 Salk. 498. 2 Lill. Ab. 338. 1 Saund. 9. b. (n. 1). 1 Chitt. PI. 417. Lawes' PI. 99. 2 Mass. R. 494. (h) Bac. Abr. Bill of Exceptions. 2 Inst. 427. (i) 2 Salk. 498. 1 Saund. 9. b. (n. 1.) Lawes' PI. 99. 2 Ld. Ray. 969. 452 OF PROFERT AND OVER. CHAP. 63. If profert of an instrument, when requir- VIIL ed by the rules of pleading, be omitted ; the omis- n ' sion, according to the preponderance of authority, is, Omission of by the common law, matter of substance, arid fatal whln rt ne- n general demurrer(&) : Inasmuch as it deprives the adverse party of the benefit of oyer, without which he is supposed to be unable to plead advantageous- ly. But by the statute 16 and 17 Car. 2, c. 8, the omission is cured by verdict ; and by that of 4 & 5 Ann. c. 16, it is aided, except on special demur- rer^). 64. In the state of Connecticut, it has long been an established rule, that a profert, in pleading, is in no case necessary, even in point of form : But that, whenever a party is, by the rules of the com- mon law, entitled to oyer, on profert made, he is, in that state, entitled to it, withoutgdofert('ni). The general practice of the profession m the state, how- ever, is to make profert of instruments pleaded, whenever the rules of the English common law re- quire it. (k) Com. Dig. Pleader, 0. 17. 10 Co. 94. Cro. Jac. 292. 409. 412. Hob. 83. Cro. Eliz. 551. 3 Bulstr. 223 Dub. 1 Leon. 300. 310. Cont. 2 Salk. 497. (/) Com. Dig. Pleader, E. 29. O. 17. Bac. Abr. Pleas, &c. I. 1.2 (1.) (m) 1 Root, 566. OF DEPARTURE. PART III. Of Departure. 65. Departure in pleading is the dereliction of an antecedent ground of complaint, or defence, for another, distinct from, and not fortifying, the for- mer^). 66. This is a fault in all pleading. For, as has been heretofore explained, (ch. 2, ^ 27, 28, 29,) each succeeding stage of the pleadings, on each side, must fortify, or go in support of, what has been pre- viously pleaded on the same side(o). Thus, the replication must support the declaration ; the rejoin- der, the plea in bar.. &c. For otherwise, the parties might, at pleasure, change one cause of action, or one ground of defence, for another, entirely foreign to the first. Thus, if to debt or assumpsit, the defendant pleads infancy, and to a replication of necessaries rejoins duress, payment, release, usury, &c. ; the rejoinder is a departure, and a good cause of demurrer though either of the matters alleged in it, would have been a good bar, if Jirst pleaded as such. ^ 67. In assumpsit, brought by an executor, on an alleged promise to his testator, if the defendant pleads the statute of limitations ; a replication al- (n) 3 Black. Com. 310. Co. Litt. 303. b. 304. a. Finch's Law, 50. 391. Lawes' PI. 162. Bull. N. P. 17. (o) lid. 2 H. Black. 280. 1 Stra. 422. Reg. PI. 112. 58 453 CHAP. VIII. PART III. OF DEPARTURE. CHAP. l e g m g a promise, within six years, to the plaintiff vin. himself, is a departure(jo) : The promise replied, not P fn T S om S ^ n support of that counted upon. To justify a recovery, on the second promise, it should have been declared on. 68. If the defendant pleads in bar a feoffment in fee-simple, and in his rejoinder varies his title, or the mode of acquiring it as by alleging a conveyance by lease and release, or a gift in tail ; the rejoinder is a departure^) : Since it substitutes a new ground of defence, for that first pleaded. ^ 69. Thus also, when the matter, first alleged as the ground of action or defence, is pleaded as at com- mon law, any subsequent pleading by the same party, supporting it by a particular custom, is a departure(f). Ex. gr. If in covenant broken, against an apprentice, upon his indenture of apprenticeship, the plaintiff declares in common form, (i. e. as at common law,) and the defendant pleads infancy ; a replication of the custom of London (under which an infant may bind himself, as apprentice), is a departure ; inas- much as it abandons the legal foundation of the suit, as laid in the declaration, for another, distinct from, (p] Willes, 27. 1 Salk. 28. 3 East, 409. 3 B. & A. 631-2. 3 Har. & McHen. 152. 5 Binn. 573. 4 McCord, 93. 1 Hen. & Munf. 563. & vid. 1 B. & C. 248. Cow/. 8 Mass. R. 133. 9 Pick. 493. 3 N. Hamp. R. 467. (q) Co. Litt. 304. Bac. Abr. Pleas, &c. L. (r) Finch's Law, 392. Bac. Abr. Pleas, &c. L. 1 Keb. 376. 469. 512. 1 Lev. 81. OF DEPARTURE. and independent of it. The plaintiff should have CHAP. declared upon the custom. mi. PART ^ 70. Again, a declaration or plea, asserting a right at common law, is not fortified by the subse- quent allegation of a right created by statute. If therefore, to an action of trespass, laid in common form, for taking the plaintiff's cattle, the defendant justifies the taking of them damage feasant, by dis- tress ; and the plaintiff replies, that the defendant drove them out of the county, (which is not actionable by the common law, though made so by the statute 52 H. 3, and 1 & 2 Ph. & M. c. 12) ; the replica- tion is a departure^) ; for the same reason, as in the last case. The plaintiff, in this case, should have founded his action upon the statutes. But if the plaintiff declares upon a sta- tute, and the defendant pleads that it is repealed ; a replication, that it has been revived by a subsequent act, is no departure(^). Here the replication fortifies the ground taken in the declaration. For the revi- ving act gives renewed effect to the first, on which the action is founded. 72. If, in covenant broken, the defendant pleads performance in general terms, and the plain- tiff replies non-performance of a particular act ; a rejoinder, that the defendant was ready to perform, and tendered performance, and that the plaintiff pre- (s) Bac. Abr. Pleas, &c. L. 3 Lev. 48. Finch's Law, 392-3. (t) 1 Lev. 81. Bac. Abr. ub. sup.vid. Yelv. 14. 15. OF DEPARTURE. CHAP, vented it, is a departure from the plea(w) : Perform- vin. ance, and tender and refusal, being distinct and incon- P m T s i stent grounds of defence. The matter rejoined - should have been pleaded in the first instance. Varying in 73 j} ut yarving in an immaterial point, from an iramate- i .7 & rial point yvhat has been before alleged on the same side, is from a pre- no departure : As a departure consists in changing depart- ^g or jg ma i ground or foundation of the action, or defence. Thus, in assumpsit on a parol promise, if the promise is laid more than six years before the commencement of the suit, and the defendant pleads the statute of limitations ; the plaintiff may reply a promise within six years(V). For as the day, laid in the declaration, is immaterial ; the replication, in stating a different day, cannot be considered as pre- senting a new ground of action. ^ 74. So too, when the promise is laid, as in the last case, and the place laid in the declaration is immaterial, a replication, (in answer to a plea of the statute of limitations) of a different place, in order to bring the case within .the saving in favor of persons ' beyond the seas,' is, for the same reason, no departure(w). (u) Co. Lilt. 304. a. Bac. Abr. Pleas, &c. L. 1 Sid. 10 Vid. 14 Mass. R. 103. (v] 2 Saund. 5 b. (n. 3.) 1 Ib. 299. (n. 6.) 1 Salk. 222. 223. Cro. Car. 245. 333. 1 Lev. 110. 143. 1 Stra. 21. 1 Keb. 566. 578. 10 Mod. 348. 16 East, 420. 9 Pick. 494. (w) 1 Lev. 143. 10 Mod. 349. OF DEPARTURE. 457 ^ 75. When the gravamen, or cause of action, CHAP. is stated generally in the declaration, and the defend- vm. ant pleads an evasive plea(14), a more particular P tn. T statement of the cause of action, by way of new as- signment, in the replication, is no departure(V). ^nmenVis For a new assignment, when properly made, does [" u e. epa not substitute a new cause of action, for that alleg- ed in the declaration ; but merely states the origi- nal one with more particularity, in order to repel the effect of the plea or, (as may sometimes be necessary to the same end) assigns, as a substantive ground of damages, what the declaration has alleg- ed only as aggravation. 76. Thus if, to an action of any kind, the de- fendant pleads in bar a former recovery, for the same cause, when in fact it Wcis for a different cause of the same kind ; the plaintiff may, by a new assign- ment, state more particularly the specific cause of action, on which his complaint is founded, and show that it is a different one from that to which the plea applies(y). (x) 3 Black. Com. 311. Bull. N. P. 17. Lawes' PI. 164-5. 3 Wils. 20. 2 Saund. 5. a. b. (n. 3.) Willes, 218. (?/) lid. 2 Chitt. PI. 653. n. (e.) 9 Wentw. 10. (14) Any plea, which makes a new assignment necessary, is called an evasive plea i. e. as I understand it, a special plea, which, though apparently avoiding the whole gravamen, or ground of complaint, as laid, generally, in the declaration, does still not avoid the particular ground or cause, on which the plaintiff ac- tually founds his right of recovery ; as in the examples, which follow in the text. (See also ch. 6, 110, and note 14). PART III. OF DEPARTURE. CHAP. 77. Thus also, if to an action against a sheriff, vin. for an escape, he pleads recaption on fresh suit, be- fore action brought, (which is a good defence for . a negligent, though not so for a voluntary escape) ; the plaintiff may, by way of new assignment, re- ply a voluntary escape ; and it will be no departure. It fortifies the declaration^). ^ 78. By the common law, departure is a good cause of general demurrer(a). Some, however, have supposed that under the statute 4 & 5 Ann. c. 16, it is aided, except on special demurrer(6). But this opinion seems clearly opposed to the au- thorities, last before cited ; and on principle, the fault appears to be matter of substance : Inasmuch as it is an entire abandonment of the ground of ac- tion, or defence, first taken by the pleader, and for which he has, by law, no right to substitute any other. And see 2 Saund. 84, d. (n. 1), where Mr. Serjeant Williams retracts the opinion, that the fault is but formal ; though he had previously advanced that opinion in 1 Saund. 117, (n. 3). 79. Yet a verdict, in favor of him who makes a departure, cures the fault, if the matter, pleaded by way of departure, is a sufficient answer, in sub- (z) 1 Vent. 211. 217. 2 T. R. 126. Bac. Abr. Escape, H. (a) Com. Dig. Pleader, F. 14. 2 Wils. 96. 1 Ib. 122. Willes, 638. 4 T. R. 504. 2 Saund. 84. d. (n. 1.) 1 Ib. 117. 1 Salk. 221-2. T. Ray. 22. 94. 1 Stra. 422. 10 Johns. R. 262. 16 Mass. R. 1. 2 N. Hamp. R. 180. 308. (6) Com. Dig. Pleader, F. 0. 1 Saund. 117. (n. 3.) 1 Chitt. PI. 623. n. (e.) OF DEPARTURE. 459 stance-, to what is before pleaded by the adverse CHAP. party ; i. e. if it would have been sufficient, provided vm. he had pleaded it, in the first instance(c). For after such a finding, it will necessarily appear, from the whole record taken together, that he is, in law, enti- tled to judgment. Ex. gr. The defendant, in as- sumpsit, pleads infancy; the plaintiff replies neces- saries ; and defendant rejoins a release : Now, if issue is taken upon the rejoinder, and a verdict found for the defendant, he must have judgment. For by the finding, it appears conclusive upon the record, that there is no right of action : Whereas, upon a demurrer to the rejoinder, this result could not thus appear. For the release being ill pleaded ; a de- murrer would not confess it. (Vid. Demurrer, ch. IX, 4.) (c) 1 Lill. Ab. 444. T. Ray. 86. 2 Saund.84. Tb. 84. d. (n. ].) 1 Keb. 566. 1 Lev. 110. Tidd, 689. 1 Chitt. PI. 623. CHAPTER IX. OF DEMURRER. PART I. Of Demurrer to the Pleadings. CHAP. SECTION 1. To demur, is to rest, or pause; and ix. the party who demurs in law, to, (or upon), his ad- PART i. versary's pleadings, rests, or pauses, upon it, as re- quiring no answer, by reason of its supposed legal insufficiency (d). ^ 2. A demurrer, as has before been shown, (ch. 2, 43), is, in strictness, no plea(e) ; since it neither asserts nor denies any matter of fact, but merely advances a legal proposition, viz. that the pleading, demurred to, is insufficient in law, to maintain the case shown by the adverse party. It may be taken by either party, and to any part of the pleadings, until issue joined(y). ^ 3. A demurrer, though frequently called ' an issue' in law(^), may, with more propriety, be said (d) Reg. PI. 125. 3 Black. Com. 314. (e) 3 Wils. 292. Bac. Abr. Pleas, &c. N. 1. (/) Co. Litt. 72. a. Reg. PI. 126. Bac. Abr. Pleas, &c. N. 1. Com. Dig. Pleader, Q. 6. 1 Lill. Ab. 435. (g) 3 Black. Com. 314. 316. Co. Litt. 71-2. OF DEMURRER. to tender such an issue. For the issue is not form- CHAP. ed, until there is a joinder in demurrer ; which af- ix. firms the legal sufficiency of the allegations demurred PART i. to, in contradiction of the demurrer, which affirms their legal insufficiency (ti). & 4. As the office of a demurrer is to deny, not What facts 3 'it confesses. the truth, but only the legal sufficiency, of the allega- tions demurred to ; it therefore admits all such facts, alleged by the adverse party, as are well pleaded(i) ; and refers the question of law, arising upon them, to the court. 5. But a demurrer regularly admits no other facts, than those which are well pleaded ; and by the common law, which does not distinguish between the offices of a demurrer, assigning a special cause, and one assigning none, a demurrer of either kind con- fesses no other allegations, in general, than such as are sufficient, both in substance and form(k). For facts, insufficient in substance, cannot affect the right of the cause ; and material facts, if ill pleaded, and demurred to, even generally, are, by the com- mon law, as unavailing, as if they w r ere altogether immaterial. (h) 2 Chitt. PI. 678. 682. 3 Black. Com. App. No. Ill, 6, p. xxiv. (i) 1 East, 636. Bac. Abr. Pleas, &c. N. 1.3. Co. Litt. 71. b. 1 Saund. 338. (n. 3.) Hob. 233. Com. Dig. Pleader,^. 5. 6. 1 Lill. Ab. 437-8. (k) Tlob. 233. Lawcs' PI. 167. 3 Salk. 122. 1 Chitt. PI. 640. Com. Dig. Pleader, Q. 5. Bnc. Abr. Pleas, &c. N. 3. 59 462 OF DEMURRER. Kinds of. 6. The rule, that a demurrer does not confess facts ill pleaded, means only, that it does not confess them, to the intent of concluding the party demur- ring, by way of estoppel, in any other suit, or of affect- ing the determination of the principal case. 7. The pleading of a party may be ill, either in not alleging sufficient matter, or in alleging what is sufficient, in an informal or improper manner (I). And in neither case, is the matter, which is pleaded, confessed, according to the rule of the common law, even by a general demurrer. For by the common law, advantage might, in general, be taken of de- fects in form, by a demurrer of the same kind, as would reach defects in substance (m) : Though now, in consequence of statute-enactments, there exists an important difference, as regards the manner of demurring, between formal and substantial faults in pleading. ^ 8. To explain this difference, it must be ob- served, that demurrers are of two kinds general, and special : The latter being called ' special', be- cause they assign some special cause of demurrer ; while the former assign none(w). But at common law, the distinction, between the one and the other, consisted in the mere form of "demurring ; since the office and effect of both, as has been before sug- (/) Hob. 164. Bac. Abr. Pleas, &c. Inlrod. (m) Lawes' PI. 167-8. Com. Dig. Pleader, Q. 5. () Co. Litt. 72. a. Bac. Abr. Pleas, &c. N. 5. Lawes' PI. 167. 168. 2 Bulstr. 267. OF DEMURRER. 463 gested, were the same : Faults, in mere, form, being CHAP. reached, at common law, as well by a general, as by ix. a special demurrer(l). PART i. 9. But by the statute 27 Eliz. c. 5, 1, on An ^ 5 ch - demurrer to the pleadings, on either side, (other Ditfer ent uses of gen- than dilatory pleas), all defects and imperfections, g r ^ ci ^ e . merely formal, except such as are expressly and r [|" s ' s " a n t ~ specially ' set down?, and assigned for cause of de- " A ^"* murrer, are aided, and may, by the court, be amend- ed(o). By the operation of this statute, all mere- ly formal defects in pleading, except in dilatory pleas, are aided, on general demurrer, ^10. But doubts having arisen, upon the con- struction of this statute, whether certain particular defects in pleading were to be deemed formal, or substantial ; the statute 4 & 5 Ann. c. 16, was enacted, partly in explanation, and partly in exten- sion, of the healing operation of the former act and also expressly specifying a variety of particular (o) Bac. Abr. Pleas, &c. N. 6. Lawes' PI. 167-8-9. Com. Dig. Pleader, Q. 7. (1) To this proposition there appears to have been a single ex- ception, and but one, viz. in the case of a demurrer for duplicity ; for taking advantage of which, the demurrer, it seems, must, by the common law, have been special, (3 Salk. 122. Comb. 297. Bac. Abr. Pleas, &c. N. 6.) The reason of this exception may, perhaps, have been the peculiarity of this particular fault ; which consists neither in want of substance, nor in the absence of techni- cal form, in the pleader's averments ; but in the statement of *i- pcrfltious matter of more substance than is necessary. 464 OF DEMURRER. defects, which, though before deemed substantial, are, by this latter act, virtually converted into mat- ters of form, and thus aided on general demur- rer(p)(2). The statute of Elizabeth, then, requires demurrers to be special, for formal defects, in gen- eral ; and that of Anne, after re-enacting the same general provision, extends, or applies it to certain particular defects, expressly named in the act. ^11. These statutes, however, relate to plead- ings in^ civil actions only being confined, in their terms, to proceedings in any ' action or suit ;' and the former contains an express proviso, that it shall not extend to criminal proceedings^). Formal de- fects, in indictments and other criminal prosecutions, remain, therefore, proper subjects of general demur- rer, as at common law. The statute of Anne also contains a proviso, that it shall not extend to actions on penal statutes, which are strictly civil suits. But this last proviso is repealed by the statute 4 Geo. 2, c. 26, 4(r). (p] Bac. Abr Pleas, &c. N. 6. 1 Lill. Ab. 439. 440. 1 Chitt. PI. 641-3. (g) Bac. Abr. Pleas, &c. N. 6. Com. Dig. Pleader, Q. 7. (r) Willes, 601. Tidd, 822. 1 Chitt. PI. 642. (2) The defects specifically enumerated, and cured, by this latter statute, are immaterial traverses the omission of profert of deeds, &c. or of the words vi et armis, and contra pacem or of a verification per recordum or of a prout patet per re- cordum. All these defects are therefore aided by this statute, on demurrer, unless specially assigned for cause of demurrer. OF DEMURRER. 12. There is also, in civil cases, as has before CHAP. been suggested, one class of pleas, to which these ix. statutes do not extend, viz. pleas in abatement, or PART i. rather, dilatory pleas, generally(s). For these pleas, not being favored in the law, are held not to be within the spirit of these enactments ; the object of which,! as expressed in the title of the statute of Elizabeth, is for the 'furtherance of justice? (i). In dilatory pleas, therefore, defects in form are still reached by general demurrer. The same rule holds, and for the same reason, of demurrers to writs of error, for duplicity, in assigning errors in fact, and in law, together (u). 13. As the general enactments, above referred to, in these two statutes, are precisely similar, even to the letter ; (those in the statute of Anne being only a repetition of the first section of that of Eliz- abeth) ; it will be sufficient so far as regards the different natures and offices of general and special demurrers to explain the provisions of the statute of Elizabeth only : That act being the original foun- dation of the important distinction, which now exists in the English law, between the uses and effects of the two kinds of demurrer. 14. It has been observed, in a former chapter (ch. 3, 1), that to all good pleading there are two (a) Ld. Ray. 337. 1015. 1 Salk. 194. Tidd, 686. 3 T.R. 186. 1 Chitt. PI. 456. 2 Ib. 679. 2 M. & S. 485. 1 Mass. R. 501-2. (0 Hob. 232. () Sty. 69. Carth. 338-9. Bac. Abr. Error, K. 2. ^QQ OF DEMURRER. CHAP, requisites : 1 . That the matter pleaded be suffi- ix. cient ; and 2. that it be alleged, according to the PART i. forms of law(V). The omission of either of these requisites is, therefore, a good cause of demurrer. But as, under the above-mentioned statute of Eliza- beth, defects of the latter kind can be reached only by special demurrer ; it becomes necessary to distin- guish, correctly, between the two kinds of de- murrer. 15. A general demurrer is one, not specially assigning any particular cause of demurrer, but sim- ply asserting, in general terms, the legal insuffi- ciency of the pleading, to which it applies : A spe- cial demurrer is one, which assigns, and points out specially, some particular cause, or causes, for de- murring^). 16. But to constitute a special demurrer, with- in the statute of Elizabeth, some specific cause of demurrer must not only be assigned, but must be assigned and set out specially (x). The assignment of a cause, in general terms, does not answer the requisition of the statute ; which is, that the cause be ' specially and particularly set down.' Hence, a demurrer for duplicity, assigning for cause, merely that the pleading demurred to, ' is double, and infor- mal,' is considered as a general demurrer, and will (v) Hob. 164. Bac. Abr. Pleas, &c. Introd. Co. Litt. 303. (w) Co. Litt. 72. a. Bac. Abr. Pleas, &c. N. 5. Lawes' PI. 167. (x) 1 Wils. 219. Bac. Abr. Pleas, &c. N. 5. 1 Show. 250. Comb. 297. 2 Ld. Ray. 802. OF DEMURRER. 467 not reach the fault mentioned. The demurrer, for CHAP. such a cause, should point out, specially and pre- ix. cisely, where, and in what particular, the duplicity PART i. consists(y). And the same particularity is neces- sary, in all demurrers for faults in mere form. For the object proposed, in requiring a demurrer, in any case, to be special, is, that the precise point, in which the fault, in the pleading demurred to, consists, be designated as cause of demurrer. 17. The difference between matter of form, and JJ matter of substance, in general, under the statute of f u Elizabeth, as laid down by Lord Hobart, is, that that, 1 without which the right doth sufficiently appear to the court, is form ;' but that any defect, ' by reason whereof the right appears not,'' is a defect in sub- stance.(z). But this description is too general, to be easily applied in particular instances. 18. A distinction, somewhat more definite, is, that if the matter pleaded be in itself insufficient, without reference to the manner of pleading it, the defect is substantial ; but, that if the only fault is in the form of alleging it, the defect is but fwmal(a). Thus, the omission of a consideration, in a declara- tion in assumpsit or of the performance of a con- dition precedent, when such a condition exists of a conversion, or property in the plaintiff, in trover of science in the defendant, in an action for mischief (j/) Comb. 297. 1 Salk. 219. 1 Show. 250. Com. Dig. Pleader, Q. 9. Hob. 232. 2 Mass. R. 283-4. (*) Hob. 233. (a) Doug. 683. 468 Use of special demurrer. OF DEMURRER. done by his dog of malice, in an action for mali- cious prosecution, &c. are all defects in substance. On the other hand, duplicity a negative pregnant argumentative pleading a special plea, amounting to the general issue omission of day, when the time is immaterial of a place, in transitory actions, &c. are only faults in form (6). For the* defect, in the former class of examples, is in the matter pleaded ; while the fault in the latter, is only in the manner of pleading. ^ 19. A special demurrer reaches no other faults in form, than those which are specially assigned for cause of demurrer(c). For as to all others, it is, in effect, a general demurrer ; under which, no ad- vantage can be taken of imperfections, merely for- mal. ^ 20. But under a special demurrer, advantage may be taken, as well of all substantial defects, though not assigned for cause, as of those formal faults, which are so assigned(d) ; and this, for the reason last before stated, viz. that as to faults, not so assigned, a special demurrer operates precisely like a general one. ^21. It has already been stated, that by the common law, a demurrer confesses no other facts, (6) Bac. Abr. Pleas, &c. N. 5. 6. Com. Dig. Pleader, Q. 7. 10 Co. 95. a. 2 Stra. 694. (c) Bac. Abr. Pleas, &c. N. 5. 10 Co. 88. Com. Dig. Plead- er, Q. 8. (d) lid. 6 Greenleaf, 426. OF DEMURRER. alleged on the other side, than such as arc, in all CHAP. respects, well pleaded that is, such as are suffi- ix. cient, both in matter and form. And under the stat- PART I. ute 27 Eliz. the rule, in regard to insufficient mat- ter, is the same as at common law(e). But under this statute, a demurrer confesses not only all suffi- cient matter, well pleaded, as it does by the common law ; but also, all material facts, informally pleaded, except such as are expressly and specially assigned for cause of demurrer^). ^ 22. As under this statute, defects in form are aided, unless specially pointed out in a demurrer it follows, that all such defects are now aided, by the adverse party's pleading over, instead of demur- ring specially. In this way, therefore, formal de- fects in the declaration are aided, by the defendant's pleading in bar, either by way of traverse, or in avoidance ; in the same manner, those in the plea are cured by a replication ; and the same rule ap- plies to all the subsequent pleadings(g). But de- fects in substance are not thus aided(/i)(2 a). (e} Lawes' PI. 168. Bac. Abr. Pleas, &c. N. 3. Com. Dig Pleader, Q. 6. 2 Salk. 561. (/) Bac. Abr. Pleas, &c. N. 6. Com. Dig. Pleader, Q. 7. Lawes' PI. 167-8. Hob. 233. (g-) Bac. Abr. Pleas, &c. Inlrod. Com. Dig. Pleader, E. 37. 7 Co. 25, a. 8 Ib. 120. b. Co. Litt. 303. b. 2 Salk. 519. 14 Mass. R. 162. (h) lid. (2 a) That is, by the adverse parly's merely pleading over. But if he expressly admits, in his pleading, the matter of sub- 60 ' /; OF DEMURRER. CHAP. % 23. From the principles already laid down, it is ix. obvious that a demurrer aids no other pleading, than PART i. it confesses to be true. For what is not confessed by it, clearly cannot avail the adverse party, on the issue tendered by the demurrer ; since the question of law, presented by the issue, can arise only upon facts con- fessed (i). 24. And/as it confesses not what is ill pleaded, it of course does not confess any averment, contra- dicting what before appears certain, on the record. Thus, if a party having admitted an allegation on the other side, afterwards makes an averment inconsis- tent with it, a demurrer does not confess the latter averment(/c). 25. On a similar principle, a demurrer, though general, never confesses an allegation, which, it ap- pears upon the face of the pleadings, that the pleader is estopped to make ; as if, having pleaded or confess- ed a record, to which he is a party, he afterwards makes an averment, contradicting or impugning it. Thus, if to debt or scire facias, on judgment, the defendant pleads any thing in denial of the original right of action, on which the judgment was found- () 2 H. Black. 205. 206. (*) Com. Dig. Pleader, Q. 5. 6. 1 Sid. 10. stance omitted by the other side, such omission is supplied and cured. (Anle t c. 3, 192 and Com. R. 140. 10 Wheat. 287.) OF DEMURRER. ed(7) or if, after a judgment quod computet, in an CHAP. action of account, he pleads any matter, showing ix. that he ought not to account(m) ; a demurrer does PART i. not confess the plea : Because the latter impugns the judgment. And the plea, in this case, is ill in substance. For it is not the form of the averment, but the making of it, in any form, that constitutes the fault. In such cases, however, the party, in whose favor the matter of the estoppel operates, may, instead of demurring, reply the matter special- ly, and in this way avail himself of it(n). 26. Nor does a demurrer, of either kind, con- fess facts, however material, the pleading of which makes a departure(o). ^ 27. An averment of any thing, naturally or legally impossible, is not confessed by a demur- rer(/?). The averment being, upon the face of it, an absurdity. ^ 28. So also, allegations which are impertinent, or immaterial, are not confessed, by a demurrer^). For what a party cannot contest, he does not con- fess, by leaving it unanswered. (/) 1 Saund. 219. c. (n. 8.) Willes, 13. Lawes' PI. 170. 3 T. R. 693. 1 Salk. 310. 6 Mod. 308. (m) 3 Wils. 73. 101. 113. 114. Hetl. 114. Cro. Car. 116. (n) Willes, 13. Lawes' PI. 171. (o) Com. Dig. Pleader, F. 10. 2 Wils. 96. 1 Ib. 122. Willes, 638. 2 Saund. 84. d. (n. 1.) T. Ray. 22. 94. Ante, ch. 8, 79. (;>) 1 Sid. 10. Com. Dig, Pleader, Q. 6. Lawes' PI. 168. (q) 2 Salk. 561. Lawes' PI. 168. Bac. Abr. Pleas, &c. N. 3. 472 OF DEMURRER. CHAP. 29. Nor does a demurrer ever confess matter ix. of law deduced, by either party, from the facts PARTI, pleaded by him as the " pront ei bene licuit, in a plea of justification. For such matter is not a proper subject of a substantive averment, or of traverse, or avoidance, (vid. ch. 7, ^ 48) ; and con- sequently, not a subject of admission in the plead- ings : It being exclusively the province of the court, to apply the law to the facts alleged(r). 30. When an issue in fact, and an issue in law, are joined in the same cause (as they may be, to different parts of the declaration, plea, &c.), it is in the discretion of the court, which of the two is- sues shall be first determined^). In practice, however, the more usual course is, to determine first the issue in law : Inasmuch as the jury can then, on the issue in fact, assess, at once, the whole damages on both issues, if both are determined .in the plaintiff's favor which could not be done, if the issue in fact were first determined. ^ 31. After an issue in fact joined, as by a con- clusion to the country, on one side, and the similiter added, on the other, there can be no demurrer^). For the issue joined puts an end to the altercations of the parties, on the record ; and by joining in it, (?) Hob. 56. Vid. Com. Dig. Pleader, Q. 5. 6. () Co. Litt. 72. a. 125. b. Palm. 517. Bac. Abr. Pleas, &c. N. 1. 1 Saund. 80. (n. 1.) (0 Com. Dig. Pleader, Q. 6. 1 Show. 213. Bac. Abr. Pleas, &c. N. 2. OF DEMURRER. 473 the parties have placed the controversy upon a CHAP. question of fact involved in the issue, and referred it ix. to the jury. PART * 32. There cannot be a demurrer, on either e n r e r ^ r ur _ side, to a demurrer, on the other(w) ; but the party, j^ e ot al " to whose pleading a demurrer is taken, must join in it. And though a demurrer be informally taken ; (as by praying an improper judgment) ; the adverse party must still join in it. For being sufficient to present the whole record to the court, for its judg- ment ; the court must render such a judgment upon it, as the state of the pleadings requires, without reference to the manner, in which judgment is pray- ed, or the form,) in which the demurrer is express- ed^). 33. If then, the party, to whom a demurrer is tendered, demurs to it, or refuses to join in it ; he makes, in either case, a discontinuance of his action, or his defence, as the case may be(0) : That is, if the plaintiff thus demurs, he discontinues his ac- tion : If the defendant does so, he discontinues his defence. For a refusal or omission, on one side, to join in a demurrer on the other, has the same effect as an omission to] plead, when pleading is necessary. The omission, by either party, is therefore a virtual abandonment of his side of the case. ,(H) Com. Dig. Pleader, Q. 3. Bac. Abr. Pleas, &c. N. 2. Lawes' PI. 172. Comb. 306. 1 Ld. Ray. 20. 1 Salk. 219. (i>) 3 Lev. 222. (w) 1 Salk. 219. Bac. Abr. Picas, &c. N. 2. Comb. 306. Com. Dig. Pleader, Q. 3. 474 OF DEMURRER. 34. But according to a dictum of Ld. Holt(x), there is a single exception to the rule, that there can- not be a demurrer to a demurrer : viz. that where a demurrer to a plea in abatement is not apposite, the demurrer may itself be demurred to. But the reason of such an exception is certainly not obvious ; and Ld. Holt's opinion appears not to be recognized as law by the later authorities. 35. A demurrer, and joinder in demurrer, both usually add a verification, before praying judg- ment^) : But a verification appears to be unneces- sary^) ; as no proof is assumed, by either of the parties. itoks murrer % ^>. A demurrer, in whatever stage of the plead- whoi u e shthe i n s ** ls ta ken, reaches back, in its effect, through record. ^g W h l e record, and, in general, attaches ultimate- ly upon the first substantial defect in the pleadings, on which ever side it may have occurred defects in substance not being aided by the adverse party's mere pleading over, as formal defects are(#). ^ 37. Hence, though the parties join in demur- rer, upon any one particular point, in any stage of (x) Comb. 306. (y) 2 Chitt. PI. 679. 682. (*) 1 Leon. 24. Lawes' PI. 172. (a) Hob. 56. & (n. 4.) by Williams. 5 Co. 29. a. Com. Dig. Pleader, Q. 7. M. 1. 2. 2 Salk. 519. 1 Saund. 285. (n. 5.) 1 Stra. 303. 2 Wils. 150. Bac. Abr. Pleas, &c. N. 3. 4 East, 502. Vid. ante, note to 22. OF DEMURRER. 475 the pleadings ; judgment must, nevertheless, be CHAP. given, upon the whole record, and regularly, against ix. that party, in whose pleading the first substantial PART i, fault has oecurred(6). Thus if the declaration is ill, in substance the plea in bar frivolous and demurrer joined, on the plea ; judgment must be for the defendant. For though the issue in law is join- ed, immediately and in terms, on the plea only, and though that is worthless ; yet a bad plea is sufficient for a bad declaration. ^ 58. Upon the same principle, if the declaration is good the plea and replication both ill in sub- stance and demurrer joined on the replication ; judgment must, regularly, be for the plaintiff(c). For the first substantial fault is on the defendants- part ; and a bad replication is sufficient for a bad plea. ^ 39. But in the case last supposed, there is one exception to the general rule : viz. when the repli- cation to an insufficient plea is not only defective in matter, but also shows that the plaintiff has no cause of action. In such a case, judgment, on de- murrer to the replication, must be for the defend- ant though his plea is radically insufficient(W). For. in every such case, it will necessarily appear, from the whole record, that the plaintiff is not entitled to judgment. (b) lid. (c) lid. Doug. 9497. (d) 8 Co. 120. b. 476 OF DEMURRER. 40. Thus, when to a general declaration, on a penal bond, (as a bond, conditioned for the perform- ance of covenants, &c.), the defendant pleads an in- sufficient bar, and the replication assigns as a breach, what is in law no breach ; judgment, on demurrer to the replication, must be for the defendant ; though his plea is ill in substance(e). For, as in this, and all similar cases, the declaration counts only on the penal part of the bond ; the real ground of the action does not appear, until a breach of the condition is assigned in the replication; which is, in effect, a supplement to the declaration or a specification of the more general complaint presented in it. In effect, therefore, the first substantial fault in the pleadings is on the part of the plaintiff: For though, in the order of pleading, the plea precedes the repli- cation ; yet, in the order of title, the replication, in this class of cases, precedes the plea. judgment 41. The judgment, rendered upon a demurrer, regularly follows the nature of the pleading demurred to. Thus, as we have before seen, the judgment on demurrer to a plea in abatement, if for the defendant, is that the writ be quashed and if for the plaintiff, that the defendant answer over (ch. 5, 158. 159). And thus the form of the judgment corresponds to that of the prayer of judgment in the demurrer. 42. In like manner, when a demurrer is joined on any of the pleadings in chief- as on the declara- (e) Cro. Jac. 133. 220. 221. 3 Co. 52. 8 Ib. 120. b. 2 Bulstr. 94. Palm. 287. 1 Brownl. 105. Yelv. 152. 2 Ld. Ray. 1080. OF DEMURRER. 477 tion, plea in bar, or other pleading, which goes to CHAP* the action, the judgment is final i. e. if for the ix. plaintiff, it is, quod recuperet; if for the defendant, it PART i. is, quod eat sine die(f) : So that, on demurrer to any of the pleadings, which go to the action, the judg- ment, for either party, is the same as it would have been^ on an issue in fact, joined upon the same pleading, and found in favor of the same party. If the defendant demurs to the declaration, but con- cludes in abatement, (as by praying judgment, that the writ be quashed} ; the plaintiff may join in the demurrer, as in bar, by praying judgment, that his debt, or damages, be adjudged to him ; and if his declaration be good, he shall have judgment, quod recuperet. For by the demurrer, the declaration is confessed(g) ; and the defendant's having prayed judgment, as in abatement, cannot alter or impair the effect of that confession. ^ 43. A judgment, rendered upon demurrer, is conclusive, equally conclusive, (by way of estoppel), of the facts, estoppel. confessed by the demurrer, as a verdict, rinding the same facts, would have been(A) : Since they are established, as well in the former case, as in the latter, by matter of record. And facts, thus estab- lished, can never afterwards be contested, between the same parties, or those in privity with them. (/) Bac. Abr. Pleas, Sac. N. 4. 10 Co. 58. (g) 3 Lev. 223. Com. Dig. Pleader, Q. 3. Lawes' PI. 172. (h) 6 Co. 7. Cro. Eliz. 668. 2 Black. R. 827. Peake Ev. 36. (2d ed.) 1 Mod. 207. Bac. Abr. Pleas, &c. I. 13. 1 Freem. 198-9. 61 OF DEMURRER. CHAP. 44. If therefore, on demurrer to the declaration, ix. to the plea in bar, or to other pleading in chief, judg- PART i. ment is rendered for the defendant ; the plaintiff can never afterwards maintain, against the same defend- ant or his privies, any similar or concurrent action, for the same cause ; i. e. upon the same grounds, as were disclosed in the first declaration(i). For the judgment, upon such a demurrer, determines the merits of the cause ; and a final judgment, deciding the right in controversy, must put an end to the dis- pute or litigation would be endless. 45. But if the plaintiff, on demurrer, fails in his first action, from the omission of an essential allega- tion in his declaration, which allegation is supplied in the second ; the judgment in the first is no bar to the second ; although both actions were brought to enforce the same right(A;). For in this case, the merits of the cause, as disclosed in the second decla- ration, were not decided in the first. 46. Upon the same principle, if the declaration is adjudged ill, on demurrer, because the action is misconceived, (as if debt or assumpsit is brought, where account is the only remedy ; or if trespass is brought, where the only proper action is trover, or detinue) ; the judgment is no bar to a proper action, afterwards brought for the same cause(/). (0 lid. (fc) 1- Mod. 207. 1 Chitt.Pl. 195. Bac. Abr. Pleas, &c. I. 13. (I) Cro. Eliz. 668. 2 Vent. 169. 170. T. Ray. 472. Polexf. 634. 2 Brownl. 83. 2 Black. Rep. 779. 827. 831. Cro. Car. 35. 1 Chitt. PI. 195. OF DEMURRER TO EVIDENCE. 479 For in this case, as in the last, the merits of the CHAP. cause could not be determined in the first action. ix. PART II. PART II. Of Demurrer to Evidence. 47. In some cases, when the pleadings termi- nate in an issue in/act, joined to the jury, the party (whether plaintiff or defendant), who takes the ne- gative side of the issue, may withdraw the exami- nation of the cause from the jury, to the court, by demurring to, (or upon), the evidence, exhibited by the adverse party, in support of the affirmative of the issue(m). By this proceeding, the issue in/act^ closed to the jury, is exchanged for an issue in law ; and on the determination of this latter issue, either way, judgment follows, as it would have done, on a verdict found for the same party, on the issue in fact. ^ 48. A demurrer of this kind, though called a demurrer to evidence, is essentially, as will appear in the sequel, a demurrer to the facts shown in evidence ; and in this respect, it differs from the demurrer, already treated of, which is taken to the facts shown in the pleadings. 49. The object of a demurrer to evidence is, to bring in question, on the record, the relevancy of (m) Co. Litt. 72. 5 Co. 104. a. Cro. Eliz. 762. Aleyn, 18. T. Ray. 404. Bac. Abr. Pleas, &c. N. 7. Bull. N. P. 313. Reg. PI. 129. 480 OF DEMURRER TO EVJDEM/E. CHAP, tno evidence on one side, to the whole issue ; and to ix. make the question of its relevancy the sole point, on PART ii. which the issue in fact is to be determined. For upon this demurrer, the issue in fact is determined, by the determination of the issue in law: So that a decision on the demurrer, in favor of either party, is, in effect, a finding of the issue in fact in favor of the same party. The rele vancy of law ; it.s credibility, of fact. ^ 50. It must here be premised, that the relevancy evidence is o f evidence to any given issue (i. e. its condiiciveness matter of J o V or tendency to prove or disprove the issue), is matter of law, to be determined by the court : But its rele- vancy being established its weight, or the question how far it conduces to prove the issue, or fact in dis- pute, is matter of fact, to be determined by the jury(n) : In other words whether that, w hich is offered as evidence to any given point, is evidence to the point, is a question of law ; whether, being evidence, it is, or is not, sufficient to prove the point, is a question of fact. ^ 51. Evidence is always relevant to any issue, which it cpnduces, in any degree, to prove. And as its relevancy is the only point, of which the court can judge, on the demurrer; it follows, that it can never be safe for a party to demur to evidence, which is clearly relevant to the whole issue(o), i. e. which clearly conduces, in any degree, to prove the whole affirmative side of the issue. But where the whole (n) Doug. 375. 2 H. Black. 205." (o) 2 H. Black. 205. OF DEMURRER TO EVIDENCE. 481 evidence, exhibited in support of the affirmative of CHAP. the issue, is relevant to a part only of the issue, it ix. may be safely demurred to ; because, in such a case, PARTII. the evidence could not warrant a finding of the issue by the jury, in favor of the party exhibiting the evidence. ^ 52. As the question, raised by this demurrer, The demur- is, whether the evidence demurred to is sufficient in to the whole law to maintain the affirmative of the issue mfact; it the adverse is manifest, that the demurrer should be taken to the P whole evidence, exhibited by the adverse party Q?) : Since the whole of it may be sufficient to main- tain the issue, when a part of it would not be so. And as that party would have had the benefit of all the evidence, exhibited on his part, before the jury, from whom the issue is withdrawn by the demur- rer ; he is clearly entitled to the opinion of the court, upon the relevancy of the whole of it, on the demurrer. Jf therefore any particular part of the evidence, offered in support of the issue, is object- ed to, as irrelevant, but admitted by the judge ; the party objecting cannot demur to that part alone(q) ; but should file his bill of exceptions, or move for a new trial. 53. It appears manifest, from the nature and office of a demrurer of this kind, that it can be taken only to the evidence of that party, who takes the burden of proof, on the issue ; and this is, regu- (/) 1 Salk. 284. Bull. N, P. 314. (9) lid. 482 OF DEMURRER TO EVIDENCE. CHAP. l ar ty> the party who takes the affirmative of the issue. ix. For it is not incumbent on the other party to prove PART ii. his side of the question ; since, as a general rule, the finding must, of course, be in his favor, unless the affirmative is proved against him. 54. A demurrer to evidence, when accepted by the adverse party, or allowed by the court, puts an end to the trial of the question of fact, by the jury ; and refers to the court the application of the law to the facts shown in evidence. The demur- rer, therefore, when properly tendered, admits the facts thus shown ; but denies their sufficiency, in law, to maintain the issue in favor of the adverse party(r). 55. In the nature of the thing, therefore, the fact, or facts, which the evidence exhibited affirms, must be ascertained, before the question of law, in- tended to be raised by the demurrer, can arise(s). For, confessing simply the existence of the evidence offered, is not confessing the fact, intended to be proved by it ; nor is a confession of the truth of the evidence, in all cases, and necessarily, a confession of the fact intended to be proved by it. 56. And from this last consideration arises the necessity of requiring the party, demurring to evi- dence, to make, upon the record, certain admissions, (r) Co. Litt. 72. 4 Co. 104. a. Bac. Abr. Pleas, &c. N. 7. 2 H. Black. 205-6. (s) 2 H. Black. 205-6. OF DEMURRER TO EVIDENCE. which will be hereafter stated and explained, and CHAP. without which the opposite party cannot be required ix. to join in demurrer; nor, if he does join, can the PARTII. court pronounce any judgment upon it. ^ 57. Doubts, which no longer exist, were for- merly entertained, as to the kind of evidence, which might properly be demurred to ; but it is now well settled, that evidence of any kind, written or parol, direct or circumstantial, is a subject of demurrer : 'Though the manner of framing the demurrer, and of making the necessary admissions upon the record, is regulated by the nature of the evidence demur- red to(t). ^ 58. When all the evidence, exhibited in sup- port of the affirmative of the issue, is written, (as where, on the general issue, the plaintiff exhibits a bond, as evidence of the debt for which he sues, or a deed of conveyance, or record, as evidence of his title to land demanded), all the authorities, ancient and modern, agree that the defendant may demur to the evidence(w) : There being, in such a case, no danger of a variance, in the statement of it. But how far unwritten evidence is liable to be demurred to, is a point not fully settled, in the older books(V). (/) 2 II. Black. 206-9. (u) 5 Co. 104. a. Cro. Eliz. 752. Cora. Dig. Pleader, Q. 10. Co. Litt. 72. a. 3 Black. Com. 372. Bac. Abr. Pleas, &c. N. 7. Bull. N. P. 313. (v) Co. Litt. 72. a. 5 Co. 104. a. 1-Lev. 87. 2 H. Black. 206. Bac. Abr. Pleas, &c. N. 7. 484 OF DEMURRER TO EVIDENCE. CHAP. 59. According to an opinion, formerly held by ix. some, a party, exhibiting parol evidence in support PART ii. of an issue, is never bound to join in a demurrer to it ; because it is uncertain(iv) that is, because no tenor can be predicated of it ; and therefore, there is danger of a variance, in stating it upon the record. what ad- $$ 60. But there seems, now, to be no doubt missions the .... f party, de- that evidence of any kind, exhibited in support of murnng, m . must make, an issue, may be demurred to, under the restnc- 011 the re- > ^ _ * //!! rd- tions, or conditions, prescribed in the five following rules : So that if these conditions are complied with, by the party demurring ; the opposite party must join in the demurrer, or wave the evidence. ^61. 1. Though all the evidence, exhibited in support of the issue, rests in parol ; yet, if both par- ties voluntarily join in a demurrer to it, and if it is properly framed, and the necessary admissions, here- after to be stated, are entered upon the record ; the court must give judgment upon it(V). ^ 62. 2. When in support of the issue, a party exhibits evidence, written or parol, for the purpose of proving any definite fact, the opposite party may, by expressly admitting the fact itself, upon the record, demur, and oblige the party, exhibiting the evidence, to join in the demurrer, or to wave the (to) Cro. Eliz. 752. Com. Dig. Pleader, Q. 10. Bac. Abr. Pleas, &c. N. 7. (*} Cro. Eliz. 752. 2 H. Black. 206. Bac. Abr. Pleas, &c. N. 7. OF DEMURRER TO EVIDENCE. 435 evidence (y). For the fact being thus admitted ; CHAP. the question of law is distinctly presented to the ix. court, upon the face of the record. Thus if, in PART n. trover against a bailee, or finder of goods, the only evidence exhibited, of a conversion, is such as goes to prove mere negligence, on the part of the defend- ant, in keeping the goods ; the defendant, by ad- mitting, upon the record, the fact of negligence in the keeping, may demur, and oblige the plaintiff to join, or wave the evidence. And the defendant, in this case, would be entirely safe in making this confession ; because mere negligence never consti- tutes a conversion, in trover. 63. 3. When petrol evidence, exhibited in sup- port of the issue, is certain and direct, the adverse party, by entering the evidence upon the record, together with an admission that it is true, may de- mur to it, and oblige the party exhibiting it, to join in the demurrer, or wave the evidence(z). For in this case, an admission of the truth of the evidence, (which by the supposition is certain, and direct), is an admission of the fact affirmed by it. (3). (j/) Sty. 22. 34. Aleyn, 18. 2 H. Black. 207-8. (z) Aleyn, 18. 2 H. Black. 207-8. Corn. Dig. Pleader, Q. 10. 5 Co. 104. a. Co. Litt. 72. a. Bac. Abr. Pleas, &c. N. 7. Bull. N. P. 313. (3) To understand this, and the two following rules, in the text, it is necessary to distinguish correctly between the several kinds or qualities of evidence, of which they are predicated. As I understand these distinctions, evidence is ' CERTAIN', and ' m- 62 486 OF DEMURRER TO EVIDENCE. CHAP. 64. 4. If the evidence exhibited is LOOSE ix. AND INDETERMINATE'; the adverse party cannot PART ii. demur to it, without stating it upon the record, as certain and determinate, and admitting it, in that form, to be true(a). Thus, if a witness testifies, in support of the issue, that a fact is thus, according to his present impression recollection or belief; the adverse party, to entitle himself to demur to it, must state the evidence upon the record, as ' certain', i. e. as affirming absolutely, that the fact is thus, and must admit the evidence, as thus stated, to be true. For in this case, confessing the testimony, in the ivords of the witness, to be true, would not amount to a confession of the fact testified about ; but merely to an admission of the witness's belief of the fact : An admission, which, if allowed as sufficient, (a) 2 H. Black. 207. 208. Aleyn, 18. Bac. Abr. Pleas, &c. N. 7. Bull. N. P. 313. RECT', within the meaning of the rule, when it explicitly, absolute- ly, and without qualification, affirms the particular fact, intended to be proved by it : As, when a witness positively asserts a fact to be thus, or thus, without reservation. According to this explana- tion, evidence, which the rule terms ' certain', is contradistinguish- ed from such, as is called, ' loose and indeterminate'' ; by which appears to be meant evidence, affirming a fact, doubtfully, or with some reservation : As when a witness declares a fact to be thus, or thus, ' according to his best recollection, or belief. 1 ' CIR- CUMSTANTIAL' evidence is that, which, by affirming some colla- teral mailer of fact, conduces thereby to prove another (the princi- pal) fact, consequentially, as an inference, or conclusion from the former. And in this sense ' circumstantial' is distinguished from ' direct', evidence ; which is such, as in express and direct terms affirms the principal fact, or matter immediately in issue. OF DEMURRER TO EVIDENCE. 487 would refer the weight of the testimony to the court. CHAP. And as the jury, from whom the demurrer with- ix. draws the trial, might, from the testimony above PART n. supposed, have found the fact testified about ; the party exhibiting the testimony, is entitled to the full effect of such a finding. It follows, therefore, that unless the party, demurring to such evidence, makes the admission, required by this rule, the oppo- site party is not bound to join in the demurrer. ^ 65. 5. When the evidence, to which a demur- rer is offered, is ' CIRCUMSTANTIAL', the party de- murring must distinctly admit, upon the record, every fact, and every conclusion, in favor of the op- posite party, which the evidence conduces to prove in other words, every fact, which the jury might have inferred from it, in his favor(6) : Otherwise, he is not bound to join in the demurrer ; because, without such admission, the weight, as well as the relevancy of the evidence, would be referred to the court. For in this, as in the former case, merely confessing the evidence to be true, is not a confes- sion of any fact, on which the proper question of law can arise : Since the truth of all circumstantial evidence, however strong it may be, is always con- sistent with the possible non-existence of the fact, which it conduces to prove. If however, the party demurring makes the admission, required by the rule ; the other party must join in demurrer, or ivave the evidence. But without such admission, the latter is not bound to join ; and if he does, the (6) Aleyn, 18. 2 II. Black. 187. 209. 3 Peters, 40. OF DEMURRER TO EVIDENCE. CHAP, court can pronounce no judgment upon the denmr- ix. rer(c). PART II. ^ 66. This rule may be illustrated, by the fol- lowing case : Tn an action by the holder, against the acceptors, of a bill of exchange, payable to a fictitious payee, or order, and which, after the ac- ceptance, had been indorsed by the drawers, in the name of the fictitious payee, for valuable considera- tion, to the plaintiff the latter exhibited evidence . of a long course of dealing, in similar bills, between the drawers and acceptors for the purpose of rais- ing a presumption, from these circumstantial facts, that the defendants, at the time of accepting the bill, KNEW the payee to be fictitious ; and of then urging as matter of law, that if this presumption was established, the defendants were bound by their acceptance. To this evidence the defendant demurred, without admitting, upon the record, their knowledge, at the time of accepting the bill, that the payee was fictitious ; and the plaintiff joined in de- murrer. But it was resolved, in the House of Lords, by the unanimous opinion of the Judges, that, be- cause the defendant's knowledge of the payee's being a fictitious person, (which was the great point of fact in issue), was not expressly admitted, on the re- cord ; the point of law, intended to be raised by the demurrer, could not arise upon the record ; and con- sequently that no judgment could be given upon the demurrer(cT). (c) Sty. 34. 2 H. Black. 209. (rf) 2 11. Black. 187 to 209. 489 67. Before this determination in the House of CHAP. Lords, it had been resolved in B. R.(e), that on a ix. demurrer to circumstantial evidence, ' every fact, PART IT. which the jury could infer' from it, in favor of the party offering it, ' was to be considered as admitted? without any express admission upon the record. But, to avoid any doubt that might arise, as to the extent of any such implied admission, the rule, as now defi- nitively settled by the highest authority, is, as stated above, viz. that every such fact must be expressly admitted, upon the record. & 68. From the principles already stated, it is If the ne - 1 m * cessary ad- apparent, that if the party, demurring to evidence of m ^ s \ons any kind, does not make, upon the record, the ad- m i de > no . . . judgment missions required in the particular case, by the pre- c ? n be ceding rules ; and the opposite party nevertheless joins in the demurrer ; the court can give no judg- ment on the demurrer ; but must award a venire de novo that the issue in fact may be referred to another jury(/). ^ 69. As the only point in issue, on a demurrer to evidence, is, whether the evidence is sufficient, in law, to maintain the issue in fact ; no exception can, on such a demurrer, be taken to any defect in the pleadings ; as the demurrer does not extend to themfe). (e) D nig. 119-134. (/) Bull. N. P. 313. 2 H. Blaek. 209. Bac. Abr. Pleas, &c. N. 7. (-) Bull. N. P. 313. Doug. 218223. 490 OF DEMURRER T0 EVIDENCE. CHAP. % 70. But after the demurrer is determined, ad- ix. vantage may be taken of such defects, on motion in PART ii. arrest of judgment, as after verdict(/t). The motion " must, however, operate, I conceive, not as such a motion, made after a general verdict : For as the issue has not been found by the jury, no fact, not alleged, and not appearing in the evidence, as recited on the record, can be presumed, in favor of the party prevailing on the demurrer. The effect of such a motion, therefore, after a demurrer to evidence de- termined, must be the same, it would seem, as after a special verdict ; (finding the facts demanded to) ; from which nothing can be presumed, and by which no defect in the pleadings 'is aided, except such as would have been aided on general demurrer. 71. The party, to whose evidence a demurrer is offered, may always demand the judgment of the court, whether he is bound to join in the demurrer. And if there is no colorable cause of demurrer, the court will not allow it lest justice should be delay- ed, by frivolous exceptions(z). An offer to demur to evidence is, therefore, not stricti juris. 72. The whole proceeding, in demurring to evidence as the statement of the evidence, on the record, and the entering of the necessary admissions, required by the foregoing rules is under the di- rection and control of the judge, at Nisi Prius, or (M lid. 11 Wheat. 173. (t) Aleyn, 18. Sty. 34. Bull. N. P. 313. 2 Rol. Rep. 119. 2 II. Black. 205. 208. / (srt OF DEMURRER TO EVIDENCE. (if the trial be at bar), of the court in bank ; and if CHAP. no plausible cause of demurrer appears ; it is the ix. duty of the judge, or court, to disallow it(&). PARTII. ^ 73. On a demurrer to evidence, properly fram- ed, and joinder in demurrer, the usual course is, im- mediately to discharge the jury of the issue in fact ; and if the plaintiff prevails, on the demurrer, the writ of inquiry of damages is executed afterwards. The jury may, however, before they are thus dis- charged, be required to assess the damages provi- sionally^) ; And if the demurrer is determined in the plaintiff's favor ; he will have judgment for the damages, thus previously assessed. ^ 74. If a party, offering to demur to evidence, is wrongly overruled by the court ; his remedy is by a bill of exceptions, and a writ of error, founded upon (k) 2 Rol. Rep. 119. 2 H. Black. 208-9. (/) 1 Lill. Ab. 441. Bull. N. P. 314. Cro. Car. 143. 1 Ld. Ray. 60. Plowd. 410. 2 H. Black. 200. 201. (m) 9 Co. 13. b. Bac. Abr. Bill of Exceptions. Ib. Pleas, &c. N. 7. Cro. Car. 342. (4) For the form of a-demurrer to evidence, see Bull. N. P. 314. 2 H. Black. 198200. CHAPTER X. OF ARREST OF JUDGMENT AND REPLEADER. CHAP. SECTION 1. To arrest judgment, is to stay or x. prevent it. This is done, on motion, entered upon the record(). 2. This proceeding most usually takes place, after an issue in fact tried, and verdict found ; but the motion may also be made, after a default, or after a demurrer to evidence determined(6). 3. The principle of this proceeding is, that as the judgment of the court, which is a conclusion of law from the facts ascertained upon the record, must be collected from the whole record (ch. 9, ^ 36) ; the party who does not, upon the whole record, ap- pear entitled to judgment, cannot have it even though a verdict has been found or a default suffered, or a demurrer to evidence determined, in his favor (a) 3 Black. Com. 387. 393. Ib. App. No. II. p. xi. Bac. Abr. Pleas, &c. M. (6) 2 Burr. 900. Doug. 218. 223. 2 Stra. 1271. 9 Pick. 546. Ante, ch. 9, 70. OF ARREST OF JUDGMENT AND REPLEADER. For notwithstanding such verdict, default, fee. the CHAP. whole record may disclose no right of action, or x. no legal defence, in his favor(c). And there- fore, if a verdict is found for the plaintiff, upon a declaration radically defective or for the defend- ant, on a plea in bar totally void of substance ; judg- ment must, regularly, in either case, be arrested. ~ ^ 4. The question, raised by a motion in arrest of judgment, is a question of laiv, arising from the face of the record : Judgments being arrested, only for intrinsic causes, i. e. such only as are apparent on the record(t?). 5. Anciently, judgments were constantly ar- rested for defects or faults merely formal, in the pleadings, or other parts of the record ; but, by the various English statutes of amendments and jeofails, which extend from the reign of Edward the Third, to that of Annexe), this evil has been remedied. And as the law now is, judgments are, by these sta- tutes, protected against arrest, for mere formal de- fects in general, and also for various others, which have been deemed substantial, but which are speci- fically enumerated in, and expressly cured by, some one or other of tlfPSWW& statutes. (c) 8 Co. 120. b. 133. b. 1 Lutw. 608. 4 Burr. 2146. Wightw. 354. (d) 3 Black. Com. 393. (e) Bac. Abr. Malemeni, &c. B. 63 494 DF ARREST OF JUDGMENT AND REPLEADER. CHAP. 6. As to the specific defects and omissions, x. which are cured by the several statutes, above allud- ed to, it is unnecessary here to enter into any detail : As the several enactments, being in their nature pos- itive, cannot be referred to any one general and uniform principle, and can be understood, only by a recurrence to the statutes themselves^/). arrest CS of f ?. But as substantial defects, in general, are ift^veri not cure d by any of these enactments ; it remains to enquire, what defects and omissions are cured by verdict, or otherwise, without the aid of any statute, and upon common-law principles. For, independent- ly of any statute-provision, many defects in plead- ing, which have been formerly deemed substantial, and which would be otherwise fatal, are aided by verdict: And the principal object of enquiry, under the head of Arrest of Judgment, is, what defects of this sort are, and what are not, cured by verdict, on common-law principles ? ^ 8. Formal defects and errors in the record, being now harmless, except on special demurrer ; it follows, that judgment can be arrested, for no other than substantial faults ; and these may exist, either in the pleadings, or, where SiiiSrfiliriTas been found, in the verdict(g). Thus, if the declaration, on which the plaintiff has obtained a verdict, is totally defective in substance, or varies totally from the writ, (as, if the one sounds in debt, and the other in tort) ; (/) Vid. Bac. Abr. ubi sup. (- 3 Black. Com. 393. 1 Salk. 365. OF ARREST OF JUDGMENT AND REPLEADER. 495 judgment may be arrested on the defendant's mo- CHAP. tion : Or if the declaration being good the x. plea in bar, on which the defendant has obtained a verdict, is radically defective ; judgment may be ar- rested, on the motion of the plaintiff(h). In both these cases, the defect, which sustains the motion, is in the pleadings. ^ 9. And if the pleadings are perfect, but the Faults ia jury find a verdict varying materially from the issue, instead of finding the matter in issue itself, either way; judgment will be arrested, for the insufficien- cy of the verdict(i) : Because the court cannot learn from it, for which party judgment ought to be given, ^10. In regard to the arresting of judgment, after verdict, it is a universal rule, that any defect in the record, which would render a judgment, in pur- suance of the verdict, erroneous, is a sufficient ground for arresting the judgment (&). For no court should do so nugatory an act, as to render a judgment, which, when rendered, must be erroneous, In pursuing this subject, it will be proper to treat of arrest of judgment, I. For defects in the pleadings ; and II. For defects in the verdict. . (h) 3 Black. Com. 395. Cro. Eliz. 778. 2 Vent. 196. (i) 3 Black. Com. 393. (&) 1 Salk. 77. 2 Roll. Ab. 716. Com. Dig. Pleader, S. 47. 496 OF ARREST OF JUDGMENT AND REPLEADER. CHAP. 11. I. Under the first of these heads, it is an x. invariable rule, that no defect in the pleadings, which would not have been fatal to them, on gene- inthe ral demurrer, can ever be a sufficient cause for ar- resting judgment(T). The principle of this rule is apparent, from the consideration, that all merely formal defects in pleading are aided, except on spe- cial demurrer, assigning them for cause ; and conse- quently, that all defects, on either side, which would not have been fatal on general demurrer, are cured by the adverse party's pleading to issue, or by a default in other words, by his omitting to demur specially. f 12. It is, however, by no means universally true, converse, that every defect in the pleadings, which would have been fatal on general demurrer, is a sufficient ground for arresting judgment, after a general verdict(m)(l). For if the pleading of the party, for whom such a verdict has been found, is faulty, in omitting -some particular fact or circum- stance, without which he ought not to have judg- ment, but which is, nevertheless, implied in, or inferri- ble from, the finding of those facts, which are ex- (l) 3 Black. Com, 394. Carth. 389. (w) lid. Doug. 683. (1) By a general verdict is meant a verdict, found in the terms of the issue. A special verdict is one not following the terms of the issue, but finding certain special facts, and referring it to the court, as a question of law, whether those facts maintain the issue a question, bearing a strong analogy to that which is raised by a demurrer to evidence, (ante, ch. 9, 52 .) OF ARREST OF JUDGMENT AND REPLEADER. 497 pressly alleged and found ; the pleading is aided, . CHAP. (because the omission is supplied), by the verdict : j x. In other words, the court, in such a case, must prc- sume that the fact or circumstance omitted was 1 / proved to the jury (n). ^13. The criterion, by which to distinguish be^ tween such defects in a declaration, as are, and such as are not, cured by a general verdict for the plaintiff, is laid down by Lord Mansfield, in the case of Rushton v. Aspinall, to the following effect : Where the statement of the plaintiff's cause of ac-* tion, and that only, is defective or inaccurate, the defect is cured by a general verdict in his favor ; because ' to entitle him to recover, all circumstan- ces necessary, in form or substance, to complete the title so imperfectly stated, must be proved at the trial' ; and it is, therefore, ' a fair presumption, that they were proved'. But where no cause of action is stated, the omission is not cured by verdict. For, as no right of recovery was necessary to be proved, or could have been legally proved, under such a declaration ; there can be no ground for presuming that it was proved, at the trial (0). The same criterion extends, mutatis mutandis, to defects in (n) lid. Cro. Jac. 44. 1 Saund. 228. a. (n. 1.) T. Ray. 487. Carth. 304. 1 Salk. 365. Forrest's Rep. 54. Co) Doug. 683. See Plowd. 202. 1 Saund. 228. c. (n. 1.) 3 Black. Com. 395. 1 Salk. 365. Bac. Abr. Verdict, X. Hob. 56. c. (n. 4.) Williams 1 ed. Carth. 130. 1 Lev. 308. Cro. Car. 497. 1 Mod. 292. Com. R. 116. 3 Wils. 274. 4 T. R. 472. 7Ib. 523. 2 Burr. 1159. 2 Mass. R. 522. OF ARREST OF JUDGMENT AND REPLEADER. CHAP, the defendant's plea, or in any other part of thq x. pleadings. 14. The ground or principle, on which any fact, not alleged, is to be presumed, in support of a general verdict, is, that as the verdict must be con- sidered as true , and as founded on legal evidence ex- hibited at the trial ; the Court, (which can judge only from the record), must presume in support of it, that any and every fact, (not alleged), the proof of which ivas necessary to justify the jury in finding as they have done, was proved to them, on the trial : In other words, the court must, in support of such a verdict, presume every thing to have been proved, without proof of which, the jury could not have truly found from the evidence, as they have found(jt?). And thus the verdict, by legal and necessary intend- ment, SUPPLIES facts, omitted in the pleadings. This explanation of the principle, on which omis- sions in the pleadings are aided by verdict, will be found to coincide, in its result, with the statement, given in the twelfth section, of what is to be pre- sumed in support of a general verdict. But as this principle, though simple and rational in itself, has often presented nice and difficult questions, in its application to particular cases ; a somewhat detailed illustration of it may be useful : (p) lid. 1 Vent. 109. 1 Saund. 228. (n. 1.) 2 Ib. 171. c. T. Ray. 487. 1 T. R. 145. 545. 7 Ib. 518. Bull. N. P. 320.321. 1 Salk. 130. Cowp,. 827. OF ARREST OF JUDGMENT AND REPLEADER. 499 15. If, in an action of trespass, the declaration CHAP. omits to lay the trespass on any particular day (an x. omission, which by the common law, is a good cause of general demurrer), but the defendant pleads to issue, and a general verdict is found against him ; the declaration is cured by the verdict(^). For, as the court must presume that the trespass was duly proved to the jury ; it must also follow, as a neces- sary presumption, that the wrong was proved to have been done on some particular day, and that be- fore the commencement of the suit : Because proof of a trespass, subsequent to the issuing of the writ, would have been legally inadmissible. And thus, all that was necessary to be supplied in the declaration, viz. some particular time, when the trespass was committed is, by legal intendment, supplied by the verdict. ^16. Thus also, if in trover for converting, or trespass for taking away, the plaintiff's goods, the declaration omits to allege their value ; but the de- fendant pleads to issue, and the jury find a general verdict, with damages, for the plaintiff; the declara- tion, though it would have been ill, at common law, on general demurrer, is aided by the verdict(r). For it must be presumed, from the jury's having as- sessed the damages, that the value was in proof be- fore them. And thus by intendment, as in the last . " ( 17-21 jForwi, and substance, difference between ix, 17. 18 want of, how aided ix, 22 GENERAL ISSUE vi, 1. 7-38 in the several personal actions vi, 10. 11 goes to the count only vi, 14 manner of concluding vi, 19 defences admissible under vi, 38-58 in the original common-law actions vi, 45-59 in assumpsit vi, 47-53 in case ex delicto vi, 46. 5458 with an issint vi, 64-69 general denial, differing from the form of, ill vi, 89. 90 General pleading, when allowed iv, 32 ; vi, 113 117 Gist of the action iii, 7 Imparlance kinds, and effects of ii, 16-20 Inducement, what iii, 9 to a traverse, uses of vii, 67, 68 Inferences of law, when to be stated iii, 15 ISSUE how formed vi, 1-3 general ii, 38-40 ; vi, 7 special ii, 38 ; vi, 7. 60-62 immaterial vi, 27 ; x, 28-33 informal vi, 28 joined on a negative pregnant, ill x, 31-34 Joinder of parties iv, 52-78 Judgment actions on, local iii, 115 ofrespondeat ouster v, 159 when final, on pleas in abatement v, 159 JURISDICTION pleas to v, 13-30 the first, in the order of pleading v, 13 grounds of v, 1525 manner of pleading to v, 26 plea to, how signed v, 27 conclusion of v, 29 Justification must confess the acts justified vi, 1 1 1 Laic, matter of, not necessary to be alleged iii, 13 not traversable vii, 48 532 INDEX. Leases, actions on, when transitory, and when local iii, 116-123 Legal effect, pleading according to iii, 174-182 Liberum tenementum, plea of vi, 91-93 Local actions iii, 105-164 Material facts, how to be alleged iii, 28-35. 49 when alleged, by way of recital iii, 42-48 JWisjoinder of actions iv, 98 how amendable iv, 101. 102 JModo et forma when words of substance, and when not vi, 22-26 Negative averments time not necessary to iii, 98 nor place iii, 164 conditions, how to plead to vi, 113. 119 pregnant, ill vi, 29-33 ; x, 31-38 how aided vi, 34. 35 when not hurtful to the pleading vii, 40 New matter, what iii, 195 averment of, how to conclude iii, 195198 JViV debet, to debt on bond, effect of, if not demurred to vi, 12 Nolle prosequi v, 140 Notice -when necessary to be alleged iv, 15 Novel assignment, what, and office of vi, 110. (n. 14) ; viii, 75-77 Ouster, day of, not necessary to be laid, in ejectment iii, 100 Oyer, explained ii, 21 ; viii, 32-35 when demandable viii, 33. 56 how to take advantage of viii, 57. 58 effect of a false recital, upon viii, 59 wrongful refusal of, assignable for error viii, 60 ordering of, not assignable for error viii, 60 prayer of, how to be presented to the court viii, 61 Particular estates, how to be pleaded iii, 22-27 Place material in local, not so in transitory, actions iii, 104 (see VENUE). PLEADING, (in general), nature of i, 1-3 a logical process i, 617 special, what i, 18 general divisions of ii, 3-5. 22-39 first stage of ii- 3 INDEX. 533 PLEADINGS (continued). need not aver what already appears iii, 3 nor what is implied, in what is alleged iii, 6 need allege fads, only, and (sometimes) con- clusions from them iii, 12 of each party, taken most strongly against himself iii, 169 when aided, by the adverse party's pleading over iii, 192 Pleat order of ii, 22-26 on defendant's part, kinds of ii, 31 dilatory ii, 32-35 to the action ii, 36-42 two or more, to the action, when allowed by statute viii, 18-23 what two or more may be pleaded together viii, 26. 27 Precludi non, in replications, &c. vi, 121 PROFERT of deeds what, and when necessary to be made viii, 32 when unnecessary viii, 4750 of what writings required To be made viii, 3943 by what parties, required to be made viii, 43. 50. 55 what parties are not required to make viii, 48. 49 for what causes dispensed with, when primd facie necessary viii, 52-54 when primd facie necessary, the special causes, dispensing with, must be stated viii, 54 Protestation nature, and use of vii, 57-62. is no part of the pleadings vii, 60 requires no answer vii, 61 Proviso in a covenant, need not be set out iv, 21 Puis darrein continuance, pleas of vi, 122126 may be in bar, or abatement vi, 124 only one allowed, in one case vi, 125 QUCK est eadem transgressio use of iii, 79. 80 Repleader what, and for what object awarded x, 29-31. 36-40. 47-52 for what causes refused x, 32. 38. 39. 41. 42 Replevin is local iii, 111 Repugnancy effect of iii, 171 Request (special) when necessary to be alleged iv, 15. 16 68 534 INDEX. Rien en arrere a good plea to debt for rent vi, 10 not a good plea to covenant broken vi, 1 1 Scire facias any matter of defence, which might have been pleaded, in the original action, not pleadable to v, 154 Simililer what, and use of vi, 20. 21 omission of, remediable by amendment vi, 21 Special non estfactum vi, 64-69 SPECIAL PLEA IN BAR vi, 70-126 how to conclude vi, 74 in the negative, needs no verification vi, 75 amounting to the general issue, when allowed, and when not vi, 7885 manner of excepting to, in last case vi, 86-88 alleging facts, which would prove the general issue, good vi, 94. 95 must contain issuable matter vi, 96 blending law and fact, ill vi, 97 to the whole declaration, must answer the ivhole gravamen vi, 98. 99 being entire, cannot be divided in its effects vi, 98-100 two or more, pleadable to different parts of the complaint, by the common law vi, 102. 103 to the whole, or the same part, allowed by statute viii, 1823 leaving part of the gravamen unanswered, how to take advantage of vi, 105107 answering the whole gravamen, covers all matters of aggravation vi, 110 form of begining, and concluding vi, 120 Statutes, private to be recited iii, 16 difference between pleading, counting on, and reciting iii, 16. (n. 4) Statutes, misrecital of, effect of iii, 171 proviso in, need not be set out iv, 22 exceptions in the body of, must be set out iv, 22 Surplusage iii, H does not vitiate the pleading. iii, 170 TIME laid in pleading iii, 63-101 when immaterial iii, 64-66, 71. 72. 82 must be followed in the plea, &c. iii, 73-75 INDEX. 535 TIME (continued). laid with a continuando iii, 86-91 diversis diebus, &c. iii,'90 not necessary to negative matter iii, 98 not necessary, in the count in a real action iii, 99 nor in laying the ouster, in ejectment iii, 100 impossible, the effect of laying iii, 101 TRANSITORY and LOCAL ACTIONS iii, 104-164 TRAVERSE vii, 1-68 defined vii, 2 technical vii, 4 general, and special vii, 5. 6 absque tali causa vii, 9 common vii, 11-13 when proper vii, 12 when an inference, from the inducement to vii, 14. 15 manner of concluding vii, 1619 special, may, in some cases, conclude with an averment, or to the country vii, 22. 23 when the conclusion of must be with an averment vii, 21. 22 when to the country vii, 20. 24 wrong conclusion of, effect of vii, 25 absque tali causa, in what cases proper vii, 26-30 when necessary to be tendered vii, 32 when not proper vii, 33. 34 inducement to, sometimes necessary, to prevent a negative pregnant vii, 35-37 not necessary, in all cases vii, 38 upon a traverse, regularly ill vii, 42 allowed, when the first is immaterial vii, 43. 44 ajter a traverse, allowable vii, 45 must be upon a point, material and issuable vii, 47. 48 on a single point vii, 49-52 on matter, expressly alleged, or implied in what is alleged vii, 53 when required to embrace more than is al- leged, or implied vii, 54 when joining in, amounts to a denial of the in- ducement to vii, 55 when joining in, involves an admission of the inducement vii, 56 536 INDEX. TRAVERSE (continued). the inducement to, must consist of issuabU matter vii, 63-66 uses of the inducement to vii, 67. 68 Trial of issues in fact, different modes of vi, 16 by record vi, 17 by jury vi, 18 Value when necessary to be alleged iv, 37 omission to allege, cured by verdict x, 16 Variance v, 97-101 (See Abatement). VENUE iii, 102-165 necessary, in the declaration, for all travers- able facts iii. 102 laid in the declaration, draws to itself the trial of all transitory matters iii, 132134 not the trial of local matters iii, 135 seems unnecessary, in the plea, replication, &c. for transitory matters iii, 141-143. 146 may be changed, on motion, for sufficient cause iii, 103. (n. 19) 147 omission of, in the declaration, how aided iii, 155-157 how laid, when the cause of action arises in a foreign state iii, 112. 159 on the high seas iii, 161 not necessary for negative matters, &c. iii, 164 Venire de novo for what causes awarded ix, 68 ; x, 63 VfiRDicx-cannot contradict what is agreed in the pleadings iii, 168 defects in, a sufficient cause for arresting judgment x, 9 what defects in the pleadings are cured by x, 7. 8. 14-19 defects not cured by x, 20-25 what defects in, are grounds for arresting judgment x, 55-60 what faults in the issue are cured by x, 28-31 Vi et armis, and contra pacem, when necessary, in de- claring iv, 38-40 Videlicit use of iii, 35-41 Writ, original ii, 1 is the commencement of the suit ii, 2 defects in, pleadable in abatement v, 132-136 Writings, unsealed, need not be counted on iv, 43 (j4 OJU r c< LAW LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELES A 000 696 483 7 University of California SOUTHERN REGIONAL LIBRARY FACILITY _ 305 De Neve Drive - Parking Lot 17 Box 951388 LOS ANGELES, CALIFORNIA 90095-1388 Return this material to the library from which it was borrowed. University of Southern Reg Library Faci