liTwiftHnT^^^tgfg THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW *~ K^h^ .-tytyO JyU-au The sheriff is commanded that he take Charles Long, to wit. i late of Bmford in the County of Oxford, if lie may be found in his bailiwick, and him safely keep, so that he may have bis body before the Lord the King at Westminster, on "\^'ednesday next after fifteen days of Easter, to answer William Burton, gentleman, of a plea of trespass, [and also to a bill of the said William against the aforesaid Charles, for two hundred pounds of debt, according to the custom of the court of the said Lord the King, before the King himself to be exhibited ;] and that he have there then this precept. The within-named Cliarles Long is not found in my bailiwick. George the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth ; to the slieriflf of Berkshire, greeting. Whereas we lately commanded our sheriff of IMiddlesex that he should take Charles Long, late of Burford, in the county of Oxford, if he might be found in his bailiwick, and him safely keep, so that he might be before us at Westminster, at a certain day 1 3 Blackstoue'3 Com. 272. ORIGINAL WRITS AND PROCESS. 5 now past, to answer unto William Barton, gentleman, of a plea of tres- pass ; [and also to a bill of the said William against the aforesaid Charles, for two hundred pounds of debt, according to the custom of our court, before us to be exhibited ;] and our said sheriff of Middle- sex at that day returned to us that the aforesaid Charles was not found in his bailiwick; whereupon on the behalf of the aforesaid William, in our court before us, it is sufficiently attested that the aforesaid Charles lurks and runs about in your county: therefore we command you that you take him, if he may be found in your baili- wick, and him safely keep, so that you may have his body before us at Westminster on Tuesday next after five weeks of Easter, to answer the aforesaid William of the plea [and bill] aforesaid; and have you there then this writ. Witness, Sir Dudley Ryder, Knight, at Westmin- ster, the eighteenth day of April, in the twenty-eighth year of our reign. By virtue of this writ to me directed, I have taken the body of the within named Charles Long, which I have ready at the day and place within contained, according as by this wiit it is commanded me. " In the king's bench they may also (and frequently do) proceed in certain causes, particularly of actions of ejectment and trespass, by original writ, with attachment and capias thereon ; returnable, not at Westminster, where the common pleas are now fixed in con- sequence of Magna Carta, hut ' uldcunqite fuerimus in Anglia' wheresoever the king shall then be in England ; the king's bench being removable into any part of England at the pleasure and dis- cretion of the crown. " But the more usual method of proceeding therein is without any original, but by a peculiar species of process entitled a bill of Middle- sex : and therefore so entitled, because the court now sits in that county ; for if it sat in Kent, it would then be a bill of Kent. Eor though, as the justices of this court have, by its fundamental con- stitution, power to determine all offences and trespasses by the common law and custom of the realm, it needed no original writ from the crown to give it cognizance of any misdemeanour in the county wherein it resides ; yet, as by the court's coming into any county it imvnediately superseded the ordinary administration of justice by the general commissions of eyre and of oyer and terminer, a process of its own became necessary within the county where it sat, to bring in such persons as were accused of committing any forcible injury. " The bill of Middlesex (which was formerly always founded on a plaint of trespass quare clausttm /regit, entered on the records of the court) is a kind of capias, directed to the sheriff of that county, and 6 CASES ON COMMON-LAW PLEADING. commanding him to take the defendant and have him before our lord the king at Westminster on a day prefixed, to answer to the phiintitt" of a plea of trespass. " For this accusation of trespass it is, that gives the court of king's bench jurisdiction in other civil causes, as was formerly observed ; since when once the defendant is taken into custody of the mar- shal, or prison keeper of this court, for the supposed trespass, he being then a prisoner of this court, may here be prosecuted for any other species of injury. Yet, in order to found this jurisdiction, it is not necessary that the defendant be actually the marshal's pris- oner ; for, as soon as he appears, or puts in bail, to the process, he is deemed by so doing to be in such custody of the marshal as will give the court a jurisdiction to proceed. And upon these accounts, in the bill or process a complaint of trespass is always suggested, whatever else may be the real cause of action. " This bill of Middlesex must be served on the defendant by the sheriff, if he finds him in that county ; but, if he returns ' non est inventus' then there issues out a writ of latitat to the sheriff of another county, as Berks ; which is similar to the testatum capias in the common pleas, and recites the bill of Middlesex and the pro- ceedino-s thereon, and that it is testified that the defendant ' latitat et discurrit,' lurks and wanders about in Berks ; and therefore commands the sheriff to take him, and have his body in court on the day of the return. But, as in the common pleas, the testatum capias may be sued out upon only a supposed, and not an actual, preceding capias ; so in the king's bench a latitat is usually- sued out upon only a supposed, and not an actual, bill of Middlesex. So that, in fact, a latitat may be called the first process in the court of king's bench, as the testatum capias is in the court of common pleas. Yet, as in the common pleas, if the defendant lives in the county wherein the action is laid, a common capias suffices ; so in the king's bench likewise, if he lives in Middlesex, the process must still be by bill of Middlesex only." ^ WRIT OF QUO MINUS IN THE EXCHEQUER. Presented 3 Blackstone's Commentaries, 363 (App.). George the Second, bj- the grace of God, of Great Britain, France, and Ireland King, Defender of the Faitli, and so forth ; to the sheriff of Berkshire, greeting. AYe command you that 3'ou omit not by reason of any Hberty of your county, but that you enter the same, and take Charles Long, late of Burford, in the county of Oxford, gentleman, 1 3 Blackstone's Com. 285. ORIGINAL WRITS AND PROCESS. 7 wheresoever he shall be found in your bailiwick, and him safely keep, so that you may have his body before the Barons of our Exchequer at Westminster on the morrow of the Holy Trinity, to answer William Burton, our debtor of a plea, that he render to him two hundred pounds, which he owes him and unjustly detains, whereby he is the less able to satisfy us the debts which he owes us at our said Exchequer, as he saith that he can reasonably show that the same he ought to render : and have you there this writ. Witness, Sir Thomas Parker, Knight, at Westminster, the sixth day of May, in the twentyrsighth year of our reign. By virtue of this writ to me directed, I have taken the body of the ■within named Charles Long, which I have ready before the barons within written, according as within it is commanded me. "In the exchequer the first process is by writ of quo minus, in order to give the court a jurisdiction over pleas between party and party. In which writ the plaintiff is alleged to be the king's farmer or debtor, and that the defendant hath done him the injury com- plained of; quo minus suffieiens existit, by which he is the less able to pay the king his rent, or debt. And upon this the defend- ant may be arrested as upon a capias from the common pleas." ^ In the Exchequer an action may also be commenced by a venire facias ad respondendum, which is in the nature of an original writ, and is the process used in this court against peers and members of the house of commons. On this writ the defendant is summoned ; and if he do not appear, a distringas issues, and after that, if necessary, an alias, pluries, or testatum distringas. Tidd's Practice, 67. An action by an attorney or officer of this court is commenced by a capias of privilege, and against attorneys, officers, or prisoners by bill. Ibid. 68. Archbold. [3 Blackstone's Com. 286 n.] So much for an abstract knowledge of original writs. But how were such writs procured? A. has told X, his attorney, the facts of his case. X. wishes to sue out an original writ. What shall he do ? " The original writ is issued by the cursitor [an officer of the Court of Chancery] who is so called from the writs de cur so ; [i. e. the formed writs] ; and vi^here no capias [arrest process] lies, as against peers or members of the house of commons, or against corporations or hundredors on the statutes of hue and cry, etc. it is necessarily the first proceeding in the cause. And where a capias lies, but the defendant absconds, or keeps out of the way, so that 1 3 Blackstone's Com. 286. 8 CASES ON COMMON-LAW PLEADING. he cannot be arrested, or served with process against his person, it is usual to sue out an original writ, as a foundation of process against his goods, or in order to proceed to outlawry. But in all other cases, the practice is for the plaintiff's attorney to make out a praecipe for an original writ, and deliver it to the filazer, who there- upon issues the capias in the first instance, keeping the precipe as instructions for the original [writ], which is not in fact issued, unless it becomes necessary, in consequence of a writ of error, upon a judgment by default." Tidd's Practice, 96. Briefly, the original writ was procured by the plaintiff's lawyer from the cursitor upon a praecipe, the prsecipe being a note of instructions* as to the writ which the plaintiff's lawyer gave to the cursitor. For issue of process sub- sequent to the original writ, the attorney had to go to another officer, the filazer. The comparative importance of the praecipe and the writ are well illustrated by the fol- lowing case. OGLETHORP v. MAUD. Reported Hobart, 128 a. In assize between Ogle thorp and Maud, the writ was ad facien- dum recognitionem ilium, which should have been illam, and it was moved to have been amended, and Harrison the Cursitor was called into the Court, who made oath, that a note produced by him in court (which was right) was the original note, whereby the writ was made, yet because in Pennington's Assize, 11 Hen. VII., the like fault in the writ would not be amended, the Court would be advised. [As to amendment of writs, see page 9, n.] THE PROCESS. B., ordered by original writ to come into court to answer to A.^s suit, re/uses. What can A. do f " We have now to speak of the various processes which the law employs in order to compel men to come before its courts. They vary in stringency from the polite summons to the decree of outlawry. . . . The original writ itself will indicate the first step that is to be taken, in other words, the original process." But sup- pose the defendant is obstinate, and will not come into court ? Then " the subsequent steps (the ' mesne process ') . . . will be ordered by 'judicial' writs which the justices issue from time to time as defaults are committed." OUIGINAL WRITS AND PROCESS. V " Our readers would soon be wearied if we discoursed of mesne process. Its one general characteristic is its tedious forbearance. Very slowly it turns the screw which brings pressure to bear upon the defendant. Every default [i. e. failure to appear as commanded] that is not essoined [i. e. excused] is cause for an amercement, but the law is reluctant to strike a decisive blow. If we would understand its patience, we must transport ourselves into an age when steam and electricity had not become ministers of the law, when roads were bad and when no litigant could appoint an attorney until he had appeared in court. Law must be slow that it may be fair. ..." " When there was no specific thing that could be seized and adjudged to the plaintiff, as being the very thing that he demanded, the law had at its command various engines for compelling the appearance of the defendant. Bracton has drawn up a scheme which in his eyes is or should be the normal process of com- pulsion ; but we can see both from his own text and the plea rolls that he is aiming at generality and simplicity, and also that some questions are still open. The scheme is this : (1) Sum- mons, (2) Attachment by pledges, (3) Attachment by better pledges, (4) Habeas corpus, (5) A distraint by all goods and chattels, which however consists in the mere ceremony of tak- ing them into the king's hand; (6) A distraint by all goods and chattels, such as to prevent the defendant from meddling with them ; (7) A distraint by all goods and chattels which will mean a real seizure of them by the sheriff, who will become answer- able for the proceeds (issues, exitues) to the king ; (8) Exaction and outlawry." 2 Pollock and Maitland, 576, 589, 591, of Process in Bracton's Day.^ ^ " A little later this Habeas Corpus seems to disappear, but the writ of Distress commanils the sheriff ([und dislringat, etc , ft habeat corpus, see, e. g., Northumberland Assize rolls, pp. 51, 59, 60, 178, 199, etc. Theu Stat. Marlh. c. 12, aud Stat. West. 1, c. 45, accelerated tlie procedure by cutting away all that intervened between First Attachment and Grand Distress. Thus we ])ass to the process described by Britton, 1,125-134. Bracton's scheme does not provide for any 'imprisonment upon mesne process' ; tlie sheriff is not directed, as he is by the later Capias, to take the defendant's body and keep it safely ; but the Habeas Corpus would, we suppose, justify the sheriff in arresting the defendant wheu the court day was approaching in order to bring him into court." 2 1'. and M., 591. So mucli for the cumbersome mesne proce.ss, — a process that even in later times brought almost disgrace upon p]nglisli remedial law. See 'i'idd's I'ractice, c. 9-13. Amendment of Whits. Per Ctir. in King v. Bishop of Carlisle, Barnes, 9. " The doctrine of amendment of original writs, by Stat. 8 H. VI.,is settled in tlie books. 1st. No amendment of an original writ can be made, unless for nescience or misprision of the clerk. 2. There must be something to amend by." Impey, Common Pleas, 443. CHAPTER II. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. Enacted 13 Edward I. c. 24. The introductory note to the first chapter hmts that even personal actions are of several kinds. Actions for wrongs committed vi et armis, i. e., criminal in nature but civil in remedy, were seen to be peculiarly adapted in early times to the Court of King's Bench; while actions for recovering one's goods not taken vi et armis were not to be brought there. The natural conclusion is that rights or wrong-s arising; from certain sets of facts were to be vindi- cated or remedied, as the case might be, by specific actions applicable to specific sets of facts. Thus : A. strikes B., in- flicting damage ; A., with force and wrongfully, carries off from the possession of B. his chattel, and thus inflicts dam- age ; A. rightfully acquires B.'s chattel, as bailee for a year and a day, and wrongfully but peaceably retains possession beyond the bailment period, and thus by the deprivation inflicts damage. In each case B. will have an action, but since the actions are on fundamentally different species of facts the actions will be different. We shall later see why the remedy in the first case is called trespass vi et armis ; why the remedy in the second case is called trespass de bonis asportatis ; and why tlie remedy in the third case is called detinue. The present chapter, then, deals with the several actions, or rather, with a group of them historically classified. "So great is the ascendancy of the Law of Actions in the infancy of Courts of Justice, that substantive law has at first the look of being gradually secreted in the interstices of procedure ; and the early lawyer can only see the law through its envelope of technical forms." Maine, Early Law and Custom, 389. ACTIONS BEFORE THE STATUTE OF AVESTMINSTER II. 11 " These forms [in the time of Edward I.] had ceased to be ade- quate. Thus there were many cases that did not fall within the definition of a trespass, but for which it was proper that a remedy should be furnished. In order to furnish a remedy, the first thing to be done was to furnish a writ." Holmes, Common Law, 274. " The metaphor which likens the chancery to a shop is trite ; we will liken it to an armory. It contains every weapon of medieval warfare from the two handed sword to the poniard. The man who has a quarrel with his neighbor comes thither to choose his weapon. The choice is large ; but he must remember that he will not be able to change weapons in the middle of the combat, and also that every weapon has its proper use and may be put to none other. If he selects a sword, he must know the rules of sword play ; he must not try to use his crossbow as a mace. To drop metaphor, our plaintiff is not merely choosing a writ; he is choosing an action, and every action has its own rules." 2 P. and M. 559. Section I. DEBT. Probably the oldest personal action is debt. We shall show how debt traces its origin to ancient writs savoring of the feudal system in England (land writs, real writs) and how later from these there was evolved the writ of debt for money loaned. We shall examine the scope of the action in the reign of King Edward I., 1272-1307, and note in what classes of cases it lay. We shall see that the key note of debt in its early history was the recovery of a specific chattel, or of a certain quantity of a chattel (like wheat or malt) not in its nature specific, or of a certain sum of money. The latter marks it to-day. thp: history of debt. Reported Y. B. 12 Edwakd IV. 9, pl. 22. Per Brian, C. J. " If I bring cloth to a tailor to have a cloak made, if the price is not ascertained beforehand that I shall pay for the work, he shall not have an action against me." (a) Origin and Early History. " The history of the modern writ [of debt] may be thus summarized : 1. A period in which the precept was form- 12 CASES ON COMMON-LAAV PLEADING. less, imsettled material. This was coming to an end in the time of Henry the First. 2. Then a period tending to dis- tinct settlement of form, during which there is little differ- ence between a writ for the non-performance of services due by reason of tenure and a writ for the non-payment of money loaned. 3. The time of Glanvill's treatise, when each of these writs assumes definite form and becomes de cursu ; the writ for money loaned being the parent of the modern writ of debt." Bigelow, History of Procedure, 165. Writ of the year 1106, reign of Henry I., directed by the king to Gotselin de Riparia, warning him to perform engagements of tenure on pain of distraint. '•'■ Prcecipio ut faciatis Faritio abbatl de Abbendona tcde servitium defexido qitod de eo et de abbatia sua tenes, quale fralris tui fecerunt antecessori suo A." (Athelelm, predecessor of Faritiiis.) ^ Quod nisi feciritis^ ijose abbas inde te constringat per feudum tuum. [I command that you do to Faritius abbot of Abingdon such service for tlie fend which you hold of him and of his abbey, as the ancestors of your brother did to his predecessor. Unless you shall do this, let the abbot himself compel you thence b}' jour feud] Writ of the year 1110, reign of Henry I., granted by Roger, Bishop of Salisbury, the king's treasurer and justi- ciar, against two tenants of the church of Abingdon, jointly sued for money-debt by express contract of tenure. '''• P reed piov obis quod reddatis ecclesice de Abbendona rectitudines^ quas illi dehetis de ecclesia vestra Kiugstuna. Et nisi feceritis, 11- bertus decanus interdiciat dioinxini officium apud Kingstuna" 2 [I command you that you render unto the church of Abingdon the obligations wliich you owe it on behalf of the church of Kingston. And unless you shall do it, let Ilbert the dean forbid divine service at Kingston.] Writ of the time of Glanvill, Justiciar to Henry IT., n54-1189, for money due by loan, and of the specific coins of which tlie plaintiff is being deforced, as of land.^ '■'Rex vicecomiti salutem. Proecepe JV. quod Juste et sine dilatione reddat H. centum marcas quas ei debet ut dicit, et unde queritur quod 1 Biff. Hist. Proc. 160. 2 ibid. ICl. 3 o P. and M. 172. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. lo ijyse ei injuste deforciat, et nisi fecerit, summone eum per honos sum- mo)dtores quod sit coram me vel justiciis apud Westmonasterium a clauso FaschcB in qulndeciin dies ostensurus qucere no?ifecerit."^ [The king to tlie sheriff: liealth. Command N. tliat justly and with- out delay he render unto R. one hundred marks which he owes him as he says and from which he complains that he unjustly deforceth hira, and unless he shall do it, summon him by good summons tliat he may be before me or my justices at Westminster within fifteen days from the end of Easter to show wliy he has not done it.] (b) Sco2)e and Proprietary Nature of Debt in the Reign of Edward I." Reported Y. B. 32 Edward I. 15. Anno 1304. In a case where Robert de Cystone, parson of the church of Great Sayhani, demanded certain debts from Robert de Chastel and Eleanor his wife, for money lent by him to the woman while she was single, etc. ; Robert and Eleanor said that Eleanor never borrowed any money from him, nor did they owe any money to him, and that they were ready to deny, etc. ; and they both did their law, first the husband and afterwards the wife, with their twelve compurgators. (This, however, is remarkable.) Reported Y. B. 30 Edward I. 235. Anno 1302. Adam Scarlett brought his writ of Debt against the prior of Bodenne, and counted that tortiously he withheld from him ten marks, which, etc. for cloth bought of him, &c. ; and he put forward an obligation under seal. — Mutford. He can claim nothing, for he was made bailiff of the town of B. in satisfaction of the debt. — Middleton. We did not take the office of bailiff in satisfaction, but simply to account to you for the issues ; ready, etc. — And the other side said the contrary : therefore a jury. Reported Y. B. 21 Edward I. 2 Anno 1293. One Adam brought a writ of Debt against B. for sixty shillings for land that he had sold to him for the sixty shillings. — Mutford. Sir, we tell you that he enfeoffed us of the said land by this charter which states that he was paid beforehand the sixty shillings which he now demands, and on the same contract ; wherefore we pray 1 2 Pollock and Maitland, 210 (2d ed.). 2 For a case of debt for money due from a surety, sec Y. B. 7 Edw. II. 242. Cf. 2 Pollock and Maitlaud, 200 ; Holmes, Coiuuiou Law, 264 ; contra, Ames, 8 Harv. Law Rev. 252. 14 CASES ON COMMON-LAW PLEADING. judgment. — Metingham. Do you wish to say anything else? — Mutford. What have you to show the debt ? — Asseby. Good suit. — Mutford. Sir, that he owes him a penny or a farthing as he demands, he (B.) denies against him and against his suit, and he is ready to make (his law) whenever the court adjudges. — Therefore to law. Reported Y. B. 21 Edward I. 35. Anno 1293. One Adam brought a writ of debt against Henry de Bray, and counted that he tortiously detained and did not pay to him forty marks • and tortiously for this that whereas he delivered to him the manor of N. for the term of fifteen years, yielding to him one penny by the year, with a provision that, if he chose to hold the manor over the fifteen years, he should pay to the aforesaid A. and his heirs twenty marks by the year ; and Henry held the manor for two years after the fifteen years ; yet he withholds the forty marks for the two years, whereas the said Adam has often come to him and prayed him, etc., tortiously, etc. — Heyman. Sir, inasmuch as by his writ and his count he demands a rent issuing out of a frank tenement, by the form of the charter, and he does this by a writ of debt, we pray judgment if on this writ of debt he ought to be answered. — Seleby. We cannot recover by any other writ ; neither can we distrain, because we are seised of the manor. Judgment if he ought not to answer. — Metingham. You might have distrained when the manor was in Henry's hand. — Seleby. Sir, the land lay uncultivated during the two years. — Metingham. Why did you not bring a quia cessavit, by virtue of the statute ? — Seleby. Because the manor is not in their seisin but in our seisin. Judgment if, etc. (c) Evolution of the Action. To-day debt is classed as a contract action, and a con- tract usually presupposes a promise. The promise is the basis of the action. To what extent, if any, debt in its origin was a contract action, to what extent to-day it pre- serves its ancient characteristics, may be gathered from the following pages. " The writ of debt as given by Glanvill [and above stated] is closely similar to that form of writ for land which is known as a prcecipe in capite. The sheriff is to bid the defendant render to the plaintiff so many marks or shillings, ' which, so the plaintiff says, ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 15 the defendant owes him, and whereof he unjustly deforces him ' ; and if the defendant will not do this, then he is to give his reason for not doing so in the king's court. The writ is couched in terms which would not be inappropriate were the plaintiff seeking the restoration of certain specific coins, of which he was the owner, but which were in the defendant's keeping." 2 Pollock and Mait- land, 171. "In its earliest stage the action is thought of as an action whereby a man 'recovers ' what belongs to him. . . . The case of the unpaid vendor is not essentially different from that of the lender : he has parted with property and demands a return. It enters no one's head that a promise is the ground of this action. No pleader propounding such an action will think of beginning his count with ' Whereas the defendant promised to pay ' ; he will begin with 'Whereas the plaintiff" lent or (as the case may be) sold or leased to the defendant.' In short he will mention some causa dehendi and that cause will not be a promise." 2 Pollock and Maitland, 210. Briefly, the plaintiff demanded the money because it was his. Ex, A. sold his ox to B. Of course B. got title to the ox at the moment of sale, and it was conceived that at the same instant A. got title to the unpaid money in B.'s pocket. When B. refused to pay, A. was being deforced of his specific coins. To recover them, he brought his action of debt. Hence, the action was not ex contractu^ but proprietary. Indeed, " Any formulated doctrine of quid pro quo was still in the future." 2 Pollock and Maitland, 210. "The action of debt passed through three stages. At first, it was the only remedy to recover money due, except when the lia- bility was simply to pay damages for a wrongful act. It was closely akin to — indeed it was but a branch of — the action for any form of personal property which the defendant was bound by contract or otherwise to hand over to the plaintiff. If there was a contract to pay money, the only question was how you could prove it. Any such contract, which could be proved by any of the means known to early law, constituted a debt. There was no theory of consideration, and therefore, of course, no limit to either the action or the contract based upon the nature of the considera- tion received. " The second stage was when the doctrine of consideration was introduced in its earlier form of benefit to the promisor. This applied to all contracts not under seal while it prevailed, but it was established while debt was the only action for money payable IG CASES ON COMMON-LAW PLEADING. by such contracts. The precedents are, for the most part, prece- dents in debt. "The third stage was reached when a larger view was taken of consideration, and it was expressed in terms of detriment to the promisee. This change was a change in the substantive law, and logically it should have been applied throughout. But it arose in another and later form of action, under circumstances peculiarly connected with that action. . . . The result was that the new doc- trine prevailed in the new action, and the old in the old, and that what was really the anomaly of inconsistent theories carried out side by side disguised itself in the form of a limitation upon the action of debt. " That action did not remain, as formerly, the remedy for all binding contracts to pay money, but, so far as parol contracts were concerned, could only be used where the consideration was a bene- fit actually received by the promisor. With regard to obligations arising in any other way, it has remained unchanged." Holmes, Common Law, 270.^ " It follows, from what has been written [in Dean Ames's arti- cle whence the following is quoted] that the theory that ' consid- eration is a modification of quid pro quo ' is not tenable. On the one hand, the consideration of indebitatus assujnpsit was identical with quid pro ^mo, and not a modification of it. On the other hand, the consideration of detriment was developed in a field of the law remote from debt ; and, in view of the sharp contrast that has always been drawn between special assumpsit and debt, it is im- possible to believe that the basis of one action was evolved from that of the other." Ames, History of Assumpsit, 2 Harv. L. Kev. 18. A Word by Way of Further Note as to the Development of Consid- eration ill the Form of Detriment to the Promisee in the Actioii of Debt. " Originall}' there was no quid pro quo to create a debt against a defendant if the benefit was conferred upon a third person, aUhough at the defendant's request. . . . [Later,] it became a settled rule that 1 It is no part of the .scheme of the present work to enter into a discussion of the merits of tlie controversy between great writers as to conflicting theories of the origin of consideration in the E^nglish law of contracts. To do so would be presumptuous on the part of the editor, and confusing to the student. More, it would be an unwarrant- able trespass upon the field of sub.stantive law. But the student has a right to know that there is such a conflict. Hence he should read the above-quoted words of Mr. Justice Holmes in the light of the following words of Dean James Barr Ames. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 17 whatever would constitute a quid j^ro quo^ if rendered to tlie defendant himself, would be none the less a quid pro quo, though furnished to a third person, provided that it was furnished at the defendant's request, and that the third person incurred no liabilit}' therefor to the plaintiff. . . . But it is an indispensable condition of the defendant's liability in Debt in cases where another person received the actual benefit that this other person should not himself be liable to the plaintiff for the benefit received. For in that event the third person would be the debtor, and one quid pro quo cannot give rise to two distinct debts." Ames, Parol Contracts Prior to Assumpsit, 8 Harv. L. Rev. 262, 263. The above may be ioWo^Qdi pari passu in the following cases. Reported Y. B. 9 Henry V. 14, pl. 23. Ancient rule as to detriment a consideration in debt. One man brought an action of debt against another and declared by Strange that on such a day and year and place he had recovered a debt of ten pounds in the Exchequer of our lord the king at West- minster against one T. and the defendant came to him in the same Exchequer, and said to the plaintiff if he would release execution against this same T. that then he would become debtor to him of the same ten pounds by virtue of which agreement he released to T. the execution, which is of record, and so he is become debtor to us, etc. Westbury. You see well how he hath shown how if he would release the execution to the said T. that then he would become debtor, the which is not sufficient matter in law to charge him, for which judg- ment, etc., and upon this demurrer. Cokaine. To my understanding the matter is not half sufficient. Qucere, Ex nudo patco non oritur actio, etc., such is the opinion, etc. Reported Y. B. 37 Henry VI, 9, Pl. 18.i Later rule. Per Moyle, J. "If I say to a surgeon that if he will go to one J. who is ill, and give him medicine and make him safe and sound, he shall have 100 shillings, now if the surgeon gives J. the medicines and makes him safe and sound, he shall have a good action [debt] against me for the one hundred shillings, and still the thing is to another and not to the defendant himself, and so he has not quid pro quo, but the same in effect." 1 The case is long. Only a brief quotation is given, but it illustrates the point. 18 CASES OX COMMON-LAW PLEADING. SANDS V. TREVILIAN. In the King's Bench. 1629. Reported Croke's Charles, 193. To make defendant liable in debt when another received the actual benefit, that other should not be liable to plaintiff. Error of a judgment in the common pleas ; where Trevilian, being an attorney, brouglit an attachment of privilege against Sands, and de- manded against him debt of ten pounds ; and declares, That he being an attorney' there, the said Sands retained him to prosecute a suit in the common pleas betwixt one Symms and Worlich, and desired the plaintiff to be attorney for AVorlich, and promised to pay him all his fees, and all that he should la}' out to counsel and officers of the court in that suit ; and shows, that he laid out such sums, which amount to the mone}- demanded ; whereupon he brought this action. The defendant then pleaded nil debet, and found against him, and judgment for the plaintitf. Error was now^ assigned, That in this case debt lies not against him who so entreated him to be attorne}- ; for there is no contract between them, nor hath he any quid pro quo; but he ought to have had an assumpsit (because he did it at his request), if he for whom he is retained doth not pa}' him his fees. — And thereto agreed all the court ; but if he should have debt the\' doubted. But Rolls, for the defendant, in the writ of error, showed, that he well might bring an action of debt, because he retained him, which is a consideration in itself; and he relied upon 37 Hen. VI. pi. 10, if one entreat a carpenter to make such a thing for another, or to serve an- other for such a time, and proraiseth him ten pounds, debt lies; so 17 Edw. IV. pi. 0, if one promise one hundred pounds if he will marr}' his daughter, he marries at his request, etc. And he showed a precedent, Bradford v. AVoodhouse, Cro. Jac. 520, wherein it was adjudged and affirmed in a writ of error, that debt lies. And he said there was a diiference where one is retained generally for another with such a promise to i)ay his fees, and as much as he should expend in the suit, there debt lies : but if I retain one to be attorney for another, and promise if the other doth not pay, that I will pay, there if the party for whom the retainer is doth not pay, an action of the case lies against me upon my promise, and not an action of debt ; but here an action of debt lies. But all the court conceived, that no action of debt lies here, but an action upon the case onl}' : for the retainer being for another man, and be being attorne}' for another man who agreed to that retainer, there is no cause of debt betwixt him who retained and the attorne}', and no contract nor consideration to ground this action ; and he who is so re- tained may well have debt for his fees against him for whom he was ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 19 retained, he having agreed thereto; wherein there cannot be any wager of law ; but against the defendant, who is a stranger to the suit, and at whose request lie took upon him to be attorney, debt lies not, as 27 Hen. VIII. pi. 24 ; and in the case of Rolls v. Germyn (Cro. Eliz. 425, Moor, 366) it was so resolved. Whereupon it was adjudged, that the first judgment should be reversed. Richardson, Chief Justice, and Hutton and Harve}-, justices of the common pleas, being moved herein, said, that this point was never moved before them ; and they were of the same opinion, that debt lies not, but only an action on the case. HARRIOT V. LISTER. In the Common Pleas. 1762. Reported 2 Wilson, 141. One quid pro quo cannot give rise to two debts. Case upon eight several counts in assumpsit, upon the general issue there was a general verdict and damages given for the plain- tiff upon all the counts. And now it was moved in arrest of judg- ment that one of the counts was bad, and therefore as entire damages were taken upon this count as well as the rest, judgment ought to be arrested ; the count objected to runs thus : " Whereas James Lister (such a day and year, at such a place) was indebted to Thomas Marriott in £20 for the like sum before that time lent and advanced by the said Thomas to James Dalrymple, at the speciiil instance and request of the said James Lister, and being so indebted, he the said James Lister in consideration thereof after- ward, to wit, at such a time and place, promised to pay to the plaintiff the said £20 when requested." Per Curiam. The word lent is a technical term, and no man can be indebted to another for money lent, unless the money be actually lent to that person him- self; but this count alleges that the defendant is indebted to the plaintiff for money lent to a stranger James Dalrymple. Now James Dalrymple is certainly indebted to the plaintiff, because the money was lent to James Dalrymple, and the law raises the promise which is not necessary to be proved ; therefore if James Dalrymple is indebted to the plaintiff for this sum lent to him, the defendant cannot be also indebted to him for it, because there cannot be a double debt upon a single loan. This is a special undertaking or promise to pay a sum of money lent by the plaintiff to a stranger, which the law does not raise, and therefore such special promise is traversable, and must be proved ; but upon an indchitatus assitm2)sit for money lent to a defendant the law raises the promise, which is not traversable, and need not be proved. In short it is absurd to afi&rm A. is indebted to B. for money lent to C, for the 20 CASES ON COMMON-LAW PLEADING. same money cannot be lent to two persons severally; and so is 1 Salk. liiitclier against Andrews. And the judgment was arrested. Hewitt, Serjeant, for the defendant, Davy and Burland, Serjeants, for the plaintiff'. CHAKACTEEISTICS OF DEBT. So much for the ancestry of debt. We now come from the genealogy of the action to the action. The following cases, each illustrating some element of the definition of debt, make its characteristics plain. "Debt is, in some respects, a more extensive remedy for the recovery of money than assumpsit or covenant ; for assumpsit is not sustainable upon a specialty, and covenant does not lie upon a contract not under seal ; whereas debt lies to recover money due upon legal liabilities; or upon simple contracts express or implied, whether verbal or written ; and upon contracts under seal, or of record ; and on statutes by a party aggrieved or by a common informer ; whenever the demand is for a sum certain, or is capable of being readily reduced to a certainty." Chitty on Pleading, 121. Taking Blackstone's definition (below quoted by Judge Bibb) as a basis we shall analyze the characteristics of debt. "THE LEGAL ACCEPTATION OF DEBT IS A SUM OF MONEY," ETC. WATSON AND M'CALL v. M'NAIRY. Court of Appeals, Kentucky, Spring Term. 1809. Reported 1 Bibb, 356. Debt does not lie for a specific chattel. Opinion of the court by Judge Bibb. In an action of debt, M'Nairy declared upon a writing under seal, dated, etc., by which the defendants, Watson and M'Call, bound themselves to pay him "in the month of June, ensuing the date, one horse, at the value of thirty pounds." He averred the defendants " had not delivered the horse in June (although his residence in Fayette was well known to them), nor upon demand on the day of , in the year ," etc. whereby an action accrued to him to demand and have the said ACTIOXS BEFORE THE STATUTE OF WESTMINSTER 11. 21 sum of £30 in money ; and then assigns hreach in non-payment of the money. . . . [Judgment was rendered for the plaintiff in the sum of £30 for the debt, £4 Is. damage, and costs. To this judgment the defend- ants therein now brought this writ of error. — Ed.] The sole question is, did the action of debt lie upon the obliga- tion as declared upon ? Blackstone, in his Commentaries, 3 vol. p. 153, says, " the legal acceptation of debt is a sum of money due by certain and express agreement, where the quantity is fixed and specific, and does not depend on any subsequent valuation to settle it. The non-payment of these is an injury, for which the proper remedy is, by action of debt, to compel the performance of the contract, and recover the special sum due." So in Comyn's Digest, title debt, 2 vol. p. 637, it is said, "Debt lies upon every express contract to pay a sum certain." And herewith agrees the decision in 4 Coke, Slade's Case. In Bacon's Abridg. title debt, it is defined as an action founded upon an express or implied contract, in which the cer- tainty of the sum or duty appears, and " therefore the plaintiff is to recover the same in mcmero, and not to be repaired in damages " by the jury, as in those actions sounding in damages. In Esp. Nisi Prius, p. 172, the same definition is given, and it is again said the plaintiff in the action is to recover in numero the sum he goes for, and not in damages. The great essentials in the action of debt are, that the contract be, first, for money; secondly, a sum certain ; and thirdly, specifically recoverable. That the first and third members of this definition cannot apply to this contract, is clear at first blush. The contract is not for money, but a horse; and as that horse is uncertain, described only by price or value, the contract cannot be specitically enforced by a judgment. For being so indefinite, as equally to apply to every horse of such value, an action in the detinet, that is to say of detinue, would not lie, and that action is the only one in which a specific judgment for prop- erty can be rendered. That the second member of the definition does not apply, is perhaps not so self-evident, but not less true. That the sum mentioned in the writing is only descriptive of the property, and not necessarily the extent of the recovery, seems not to be questioned. That the recovery in case of a failure to deliver the horse ought not to fall short of the value at which he was to have been delivered, will be readily granted. But yet a greater sum might be recovered, and the plaintiff in the action below has actually obtained an assessment of extra damages. The recovery, however, does not arise out of a contract to pay the amount in 22 CASES ON COMMOX-LAW PLEADING. money, as the declaration lias supposed, but sounds in damages for the breach of a contract, being the only relief which the forms of proceeding in our law are competent to give in a contract for such an indefinite property. If, upon failure to pay the horse, the de- mand became instanter a liquidated demand for money, as is sup- posed, then being due by a specialty, the interest would immediately attach as a legal consequence. But that the latter is not the oper- ation of law, and that the action sounds in damages, in which a jury may or may not give interest, was decided by the court, at the Spring term, 1807, in the case of Henderson v. Stainton. Hard. 118. That decision was given after solemn argument, and the reasons of the decision need not be here repeated. As this question is of considerable expectation, much agitated, . . . we have looked into the authorities, and find the judges and lawyers, who have treated of the action of debt, bearing uniform and harmonious testimony, concurring in the definitions before given. The numerous examples of cases in which debt for money will lie, put by Comyns in his digest before quoted, as well as by others, are all of contracts or agreements express or implied, or otherwise accruing for money, certainly due, a sum recoverable in numero, not sounding in damages. We have found a report of a case seemingly variant from the principles before laid down. This is contained in a loose note to Bacon's Abridgment, title, debt, (A), for which the annotator refers to And. 117. "We would gladly have examined the case, but have not been able to find the book referred to, and must therefore be content, for the present, w^ith the statement (such as it is) in the note before mentioned. It is in the words and figures following : " If one makes a bill to another in these words. Memorandum — I owe A. B. £20, to be paid in watches ; an action of debt must be brought for the money, and not an action for the watches, for the number of watches is not certain." That the note itself is a very loose abstract of the case referred to, or the case very loosely reported, or that the decision itself, if truly reported, is a very loose one, is clearly demonstrable. First. The argument of the case is, that the action wouhi not lie for the watches, because the number of watches is uncertain. But sup- pose the number was certain, say four, would trover or detinue lie for four watches without other description of them ? clearly not : for, after the number was fixed, the uncertainty and want of iden- tity would be equally as fatal as before. Again, the argument is, because an action for the watches would not lie, therefore "debt must." Surely there is no such imperative consequence : case or ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 23 covenant, according to the predicament of the writing, would be a more appropriate action than debt. If any rational deduction can be drawn from the citation, it is nothing more than this : that the watches could not be recovered in kind, for want of a certain de- scription to identify them in detinue, and therefore that the action must go for money. That the action must necessarily be in debt, would be an illegal and illogical conclusion. Therefore, some meaning must be attached to et cetera after the word debt ; and according to the latitude and examples given by Coke in his ex- planations in like cases, that is implied by " etc." which the proper doctrines of the law, and the consistency thereof may require. This being supplied, the sentence should be read, " an action of debt, or rather of case or covenant, must be brought for the money." At any rate, we consider the testimony of a judge or reporter, whose mere dicta are so loosely and carelessly thrown together, to be totally insufficient to prove the law is so, in opposition to a host of lawyers and judges who have testified to the contrary. The result from Slade's Case, before cited, p. 92, 4 Coke, is, that actions of debt are founded on contract, in which the plaintiff sets forth his demand in certainty, and insists upon being restored to it in numero. The doctrine seems to be clearly settled, that debt will not lie but where, according to established forms and prece- dents, judgment can be rendered for the very thing contracted for, and not for damages only. And proceeding on the same principle, Blackstone, in his Commentaries, 3 vol. pp. 155-6, after saying the writ shall be in the debet and detinet, and sometimes in the detinet only, thus emphatically says : " So also if the action be for goods, for corn, or an horse, the writ shall be in the detinet only; for nothing but a sum of money, for which I (or my ancestors in my name) have personally contracted, is properly considered as my debt. And, indeed, a writ of debt in the detinet only, for goods and chattels, is neither more nor less than a mere writ of detinue, and is followed by the very same judgment." Suppose the defendants below had offered a plea of tender of thirty pounds, in money, in the month of June, would it have been any answer to the action ? The obligors had contracted to deliver a horse, and, therefore, had no lawful excuse in a tender of money ; the obligee had contracted for a horse, and could not have refused the horse, if tendered in time, and demanded to have money. Upon the whole, we consider that the action of debt on the obligation will in no shape lie ; not in the detinet only, or in detinue, because the horse was not certain, nor marked individually by con- tract, so that judgment could not be given for the thing specifically ; 24 CASES ON COMMON-LAW PLEADING. not in the debet and detinet, because not money, but a horse was contracted for. The action should have been in covenant to recover damages for a breach of the contract, if one had been committed, in non-performance of the act in the deed mentioned, — judgment reversed. ANONYMOUS. In the Queen's Bench. 1584. Eeported Anderson, 117. One made a bill to another in these words, " Memorandum. I owe A. B. £20 to be paid in watches ;" on which it was demanded of the full court if the action of debt ought to be brought on the money or not, or if he shall be put to an action for the watches, and all the court said that an action ought to be brought for the money and not for the watches ; for the number of watches is not certain. And this case is not parallel with the case 39 Hen. VI. fol. 36, to wit. If one sells to another twenty cloths for £500, on condition that he shall take two precious stones in lieu of £200, and certain pearls in lieu of £100, and £200 in money; for the action lies on the stones, pearls, and money which are certain, and whereupon an action might be based, but it is not so in the principal case. And note that it is said that if one sells a horse for £10, on condition that the vendee pay him in wheat to such a value, or if one sells a chattel for [so much] grain, an action lies in both cases for the corn and not for the money, to which the court assent ; but this only applies when the quantity of the wheat is shown, other- wise, action does not lie to demand the wheat, for [the amount] is uncertain. BRIKHED V. WILSON. Anno 1538. Reported 1 Dyer, 24 b. Debt lies for some kinds of chattels. See Trin. 12 Hen. VIII. Eot. 542. One Brikhed brought an action of debt against Wilson for forty quarters of malt, and declared upon two bills obligatory, by which the defendant " acknowledged him- self to owe to the said plaintiff twenty quarters of good and proper malt, to be delivered on such a day in London, in an house, etc., and if he failed at the day, that then he should lose and forfeit forty quarters ; " and the plaintiff averred, that he did not deliver the twenty quarters at the day, etc., by reason whereof an action accrued, etc. And the defendant pleaded a tender at the day and ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 25 place aforesaid, of the twenty good and sufficient quarters, and that the plaintiff then and there refused to receive them, and this, etc. Upon which the plaintiff" demurred, and adjudged for the plaintiff, and he remitted twenty quarters, etc., for he ought to have said that he was still ready to deliver the twenty quarters, etc.^ Reported Y. B. 34 Edward I. 151. Anno 1306. Debt may lie upon contract of barter. A writ of debt was brought, and demanded ten quarters of wheat which he bought of him, to be paid on a certain day, and he did not, etc. — Lanfar. You did not buy any wheat of us, ready, etc. — Til- tone. And if your bailiff has received our money in your name, and for your profit, ought you not to answer? — Lanfar. We acknowl- edge that you bought of us so much wheat, to be paid on a certain day, on which day you were fully paid, and on the same day you re- ceived forty shillings' worth of timber for the forty shillings, ready, etc. — Tiltone. Since you have admitted the debt, and do not show any acquittance, judgment, etc. — Hengham. Do you accept the averment? — Tiltone. As before. — Hengham. Do you accept the averment ? — Tiltone. Not paid, ready, etc. — But he was not driven to that by judgment; nor ought he to be, as appears by a similar plea in Michaelmas Term, in the twentieth year of King Edward. " DUE." BECKWITH V. NOTT. Ix THE King's Bench. 1618. Keported Cro. Jac. 504. In case of a recognizance payable at two days, no action of debt should be brought until the whole sum is due. C£. decision in Rudder v. Price, post. Error of a judgment in an action on the case, upon an assumpsit made at Southwark. The first error assigned was, That the declaration was not good ; for he declares. Whereas, the defendant was indebted to him in four pounds, he promised at Southwark, upon such a consideration, that he would pay it him by five shillings the month ; and allegeth, in fact, that he had not paid the said four pounds, nor any parcel 1 " This form of the action ' of debt ' differs from detinue, in that the propert}- in any specific goods need not he vested iu the plaintiff at the time the action is brought, which is essential iu detinue. But this form of action is probably a survival of the time when debt in the debet and debt in the detiuet were the same action." Perry on PI. 55. 26 CASES ON COMMON-LAW PLEADING-. thereof, according to his promise; and the action was brought within four months after the promise made, so before the money was due; and declares to his damage of six pounds. Upon non assumjjsif pleaded, it was found for the plaintiff; and the damages were assessed to four pounds, and judgment given accordingly. And it was alleged to be erroneous; for he ought to have stayed the bringing of his action until all had been due, or to have demanded the sum which was due for the four months only, and not the entire debt : as in debt upon a bill or recognizance payable at two days, he may not bring his action until the whole sum is due upon the bill. But it was thereto answered,. that this is not like to the case of a bill of debt, which is grounded upon the specialty, and cannot be demanded until the entire sum be due; but here it is (rrounded upon the promise, which is broken by every non-payment according to the promise ; and he doth not demand any sum certain, but only damages ; and it is at the discretion of the jury, whether they will find the entire sum in damages, or only so much as is due. But when they give the entire damages, as here, Doderidge, J., said, that it is with an averment that it is given for the entire sum ; and it shall be a good bar in a new action on the case upon that promise. And of that opinion were all the justices, except Houghton, who doubted thereof, and held that the declaration was not good, because he did not declare in certain, that the promise was not performed by the non-payment at such days, and did not demand damages for it: and not to say that the four pounds is not paid nor any parcel thereof ; for the four pounds is not yet due. Vide 4 Co. 94, Dyer, 112. The judgment was therefore affirmed. — Xote ex hoc, that where a man brings such an action for breach of an assumpsit upon the first day, it is best to count of damages for the entire debt, for he cannot have a new action.^ "BY CERTAIN" AND EXPEESS." YOUNG AND ASHBURNHAM'S CASE. In the Common Pleas. 1587. Reported 3 Leonard, 161. In an action of debt, brought by the administrators of Young against Ashburnham, the defendant pleaded nihil debet : and the enquest was taken by default. And upon the evidence given for the plaintiff, the case appeared to be this, that the said Young was an innholder in a great town in the County of Sussex where the ses- ^ Another cause of error, not here relevant, is omitted. ACTIOXS BEFORE THE STATUTE OF WESTMINSTER II. 27 sions used to be holden ; and that the defendant was a gentleman of quality in the country there ; and he, in going to the sessions, used to lodge in the house of the said Young, and there took his lodging and his diet for himself, his servants and his horses : upon which, the debt in demand grew : but the said Young was not at any price in certain with the defendant, nor was there ever any agreement made betwixt them for the same. It was said by Anderson, Chief Justice, that upon that matter, an action of debt did not lie. And there- fore afterwards, the jury gave a verdict for the defendant. THE SIX CARPENTERS' CASE.^ In the King's Bench. 1610. Reported 8 Coke, 147. " Brown held. That if I bring cloth to a tailor to have a gown made, if the price be not agreed in certain before how much I shall pay for the making, he shall not have an action of debt against me ; which is meant of a general action of debt ; but the tailor in such a case shall have a special action of debt; Sed, that A. did put cloth to him to make a gown thereof for the said A. and that A. would pay him as much for making, and all necessaries thereto, as he should deserve, and that for making thereof, and all necessaries thereto, he deserves so much, for which he brings his action of debt ; in that case, the putting of his cloth to the tailor to be made into a gown, is sufficient evidence to prove the said special contract, for the law implies it: And if the tailor over- values the making, or the necessaries to it, the jury may mitigate it, and the plaintiff shall recover so much as they shall find, and shall be barred for the residue. But if the tailor (as they use) makes a bill, and he himself values the making and the neces- saries thereof, he shall not have an action of debt for his own value, and declare of a retainer of him to make a gown, etc., for so much, unless it is so especially agreed. But in such case he may detain the garment till he is paid, as the hostler may the horse. Vide Br. Distress, 70, and all this was resolved by the court." " In an action of debt the plaintiff must recover the whole debt he claims, or nothing at all. Yox the debt is one single cause of action, fixed and determined, and which therefore, if the proof varies from the claim, cannot be looked npon as the same contract whereof performance was sued for. If therefore I bring an action 1 Ouly an extract is given. 28 CASES ON COMMON-LAW PLEADING. of debt for £30, I am not at liberty to prove a debt of £20, and recover a verdict thereon ; any more than if I bring an action of detinue for a horse, I can thereby recover an ox. For I fail in the proof of that contract which my action or complaint has alleged to be specific, express, and determinate." Blackstone's Commentaries, Book III. page 154. BLADWELL v. SLEGGEIN. In the Queen's Bench. 1562. Heported Dyer, 219, b. In debt the plaintiff declared upon a sale of certain woods for twenty pounds, and the defendant pleaded nil debet per patriam. And upon evidence it appeared that the bargain was only twenty marks. The jury (by the 'opinion of Catlyn, Chief Justice, and A. Browne) shall be bound to give a verdict for the defendant in this case as well as when the variance of the contract is of things sold, according to 21 Edw. IV. [22 a, pi. 2], because it cannot be in- tended the same contract. Qucere, whether there be not some difference, because the plea is, he does not owe the sum or any part thereof in form as, etc., whence in detinue 22 Edw. IV. [2 a, pi. 8] of a chain containing three ounces, and in truth it contained only two, the defendant may safely wage his law; otherwise is it if the variance be only in the price or value. GAMMON V. VERNON. In the King's Bench. 1678. Reported Sir Thomas Jones, 104. The lessor brought debt against the assignee of the moiety of the term for the moiety of the rent reserved on the lease, and it was resolved by the whole court, that the action well lay. INGLEDEW V. CRIPPS.^ In the Queen's Bench. 1702. Reported Lord Raymond, 814. Debt. The plaintiff declared upon a bill penal, sealed and deliv- ered by the plaintiff to the defendant, reciting, that whereas the plaintiff had agreed with the defendant to sell him so many stacks of wood, the defendant for that covenanted to pay to the plaintiff 1 So mucli of the case as does not illustrate the principle, " That is certain which can be so made," is omitted. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 29 £35 for every hundred of the said stacks ; and bound himself in the penalty of £100 to do it; then the plaintiff shows, that there was so many stacks, etc., and brings his action for £310, etc., as the total for all the said stacks. The defendant demurred. And it was objected [among other things, Ed.] by Mr. Branthwaite for the defendant; (2) that admitting that the plaintiff might sue for the wood sold, yet he ought to have covenant and not an action of debt, because the duty was not certain, for the agreement is to pay so much for every hundred stacks that should be in such a place, and it [was, Ed.] altogether uncertain how many stacks were there. Sed non allocatur. For, per curiam, the plaintiff may have cov- enant or debt at his election. For the rate being certain, viz., £35 for every hundred stacks of wood ; when the defendant has the wood, the agreement becomes certain, for which debt lies. JAMES H. KNOWLES v. INHABITANTS OF EASTHAM. Supreme Judicial Court, Massachusetts. 1853. Reported 11 Cdshixg, 429. Debt does not lie for a certain sum -which is the wrong sum. This was an action of debt to recover the sum of $32, the amount of damages alleged to have been awarded the plaintiff by the select- men of Eastham, occasioned by laying out a town-way across the plaintiff's land. At the trial in the Court of Common Pleas, before Bishop, J., the plaintiff produced the report of the selectmen of Eastham, laying out said way, which, so far as [here] material, was as follows : " In locating said road, we have agreed with the owners of the land for the following sums as damages by them sustained in consequence of said road. James H. Knowles, $48 ; $32." The names of nine other land-owners were also given, each being followed by a double colunni of figures, the aggregate amount in the second column being $126.66, or two-thirds of the aggregate of the sums set in the first column. This report was presented at a town meeting, April 3, 1848, and it was voted not to accept it. The county commissioners thereupon, upon a petition of several persons,^ adjudged that " the common con- venience and necessity of a part of the inhabitants of Eastham required that the report of said selectmen should be confirmed. They therefore approve and allow said road as laid out by the selectmen, as and for a, town way, and direct the town clerk of Eastham to record the report of said selectmen of the same. The 1 The petition set forth that the town refused to accept the road. 30 CASES ON COMMON-LAW PLEADING. selectmen having agreed with the owners of the laud over which said road passes for damages, tlie sum of $126.66, as specified in the last column of their report, which sum we hereby confirm," etc. The defendants, among other objections not material to be re- ported, objected that there had not been such a legal determination and assessment of damages sustained by the plaintiff as to support the action, but the presidmg judge ruled otherwise, and a verdict was rendered for 'the amount claimed. H. A. Scudder, for the defendants. G. Marston (X. Marston, w4th him), for the plaintiff. Dewey, J. Against each of the ten names of the land-owners is stated two different sums, thus, " James H. Knowles, $48 ; $32." Taking this report literally, both these sums are awarded to the plaintiff. But that is not supposed by either party to have been the intention of the selectmen. If not both, which one is to be taken to be the true estimate ? It is then proposed by the plaintiff to take the smaller one. But that he cannot do, unless the smaller one is the actual estimate of damages fixed upon by the selectmen. This sliding scale of damages will not answer for practical purposes. Suppose the party should apply for a jury, and the question arises whether the jury have increased tlie damages awarded by the select- men, which of these two sums is to be taken as the damages allowed by the selectmen. It seems to us that this award of damages is too uncertain and indefinite in its amount to be the basis of an action against the town to recover the same in an action of debt. New trial granted.^ AGEEEMENT.2 ANONYMOUS. In the King's Bench. 1712. Reported 1 Salkeld, 209. Fer Curiam. Debt lies in the Marshalsea, or any other courts, upon judgments in C. B. or B. R, and upon nul tid record the issue shall be tried by certiorari and mittimus out of Chancery. The judgment being the gist of the action, queers, How that can be alleged to be within the jurisdiction ? which is necessary. 1 Both the statements of facts and the opinion are abridged. 2 The error in Blackstoue's definition becomes apparent from this case and the following cases. They are not ca.ses of " agreement," but debt lies. Hence Black- stoue's definition is too narrow. — Ed. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 31 BIGELOW V. THE CAMBRIDGE AND CONCORD TURNPIKE CORPORATION. Supreme Judicial Court, Massachusetts. 1810. Reported 7 Massachusetts, 201. By the Court.^ " Whenever a statute gives a right to recover damages, reduced, pursuant to the provisions of such statute, to a sum certain, an action of debt lies, if no other specific remedy is provided. " Let judgment be entered for the plaintiff for the amount agreed by the parties." UNDERHILL AND ANOTHER v. ELLICOMBE, CLERK. ExciiEQUKR OF Pleas, Trinity Term. 1825. Repouted 1 M'Cleland and Younge's Reports, 450. Where a statute points out a remedy for the recovery of money no other remedy exists. This was an action of debt brought by the plaintiffs, surveyors of the highways, in the parish of Alphington, Devon, against the defendant, who is rector of the same, to recover X29 2s. 10^^^., being the amount of composition-money assessed upon him in lieu of statute duty, which he was charged to be liable to, in respect of the great and small tithes of the parish. At the trial at the Devonshire Summer Assizes for 1824, before Abbott, L. C. J., a verdict was taken for the plaintiffs, subject to the opinion of the court, on the following case. The plaintiffs were lawfully appointed surveyors of the high- ways of the said parish, under the 13 Geo. III. c. 78, and the assess- ment, which is as follows : — "Tithes, great and small — annual value £649 — assessment £29 2.9. IQ^d." was duly made in form and amount. The defend- ant receives no tithes in kind, but is under a parol composition with all the tithe payers in the parish, for the whole of their tithes (great and small), from year to year. The composition is made with the farmers of the respective lands in which the tithes arise, is determinable only at six months' notice, and is made prospec- tively, without reference to the respective modes of cultivation on the particular estates in any particular year. The money assessed had been duly demanded ; and the defendant had refused to pay it. Application had been made to the magistrates of the division for a 1 The reporter's statement of facts and the arguments of counsel are omitted. 32 CASES ON COMMON-LAW PLEADING. warrant of distress, which they had refused, entertaining doubts of the defendant's liability. The questions for the opinion of the court were; — 1st, whether the plaintiffs, as surveyors of the highways, had any right of action ? and 2d, whether, under the circumstances stated, the defendant is an occupier of tithes within the meaning of the several highway acts ? April 30. The case came on now for argument ; but before it was commenced, Hullock, B., asked whether there was any objec- tion to turning it into a special verdict, in order to afford an oppor- tunity of bringing a writ of error from tlie decision of the court, if it should be thought expedient. To this Manning, on the part of the plaintiffs, assented, but Coleridge said he did not feel himself at liberty, on the part of the defendant, to accede to it, and the argument proceeded. Manning, for the plaintiffs, said, that the question came before the court on the construction of the statutes 13 Geo. III. c. 78, 34 Geo. III. c. 74, and 54 Geo. III. c. 109, ss. 4 and 5. On the second point, he cited The King v. The Justices of Buckinghamshire, 1 B. 6 C. 485, E. C. L. R vol. 1, 2 D. & K. 689, E. C. L. R. vol. 16; Rex V. Lambeth, 1 Str. 525, 8 Mod. 61 ; Regina v. Bartlett, 6 Vin. Abr. tit. " Poor," 427 (and Hullock, B., referred to Rex v. Turner, 1 Str. 77, Id. 100, and Rex v. Skingle^). On the first, he argued that the plaintiffs had a right of action, relying on the three j)lacita stated, in 1 Roll. Abr. 598; "Dett." K. pi. 18, 19, 20, and 7 Vin. Abr. 346, (K. 2), "Debt," 1, 2, 3. The first of these was thus, "where by the statute of 14 Hen. VIII. c. 5, and the letters patent of the king, it is enacted, that every one that practises physic in London, without license of the College of Physicians, shall forfeit for every month £5, one moiety to the king, and the other to the college; though no action is appointed for it, yet they have an action of debt for it, Trin. 4 Jac. B. R." [Hul- lock, B. — How would you get at that penalty, unless by action of debt ?] In this instance, as the magistrates refuse to grant a warrant of distress, and the Court of B. R. will not compel them to do so by mandamus, there is no other method of recover- inMoney in a certain sum. Whence came the writ of detinue? We have already seen that anciently debt lay for a certain sum of money or a certain chattel ; that in later years an action of debt was refused for a certain chattel, and limited to money and the anomalous case of a certain quantity of a chattel (like malt or wheat) not in its nature specific. The parting of the ways between the action of debt for the recovery of a sum certain and the action for the recovery of a chattel certain marks the origin of detinue. The writ of debt in Glanvill's day contained words of " owing" and " deforcing" ; no other word in English legal history is so eloquent of the propri- etary nature of the ancient writ of debt as is Glanvill's "deforces." Soon, however, the "deforces" was dropped, and the writ became " debet et iniuste detiiiet " — defendant " owes and unjustly detains." To speak of " owing " money was perfectly natural ; the idea of owing a chattel was in- congruous. Who ever heard of owing an ox ? But it is a usual and an easy use of words to speak of "detaining" one's ox, or of deforcing of one's ox. Every writ of debt ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 49 for chattels, therefore, was tainted with a word that shocked the sensibiHties of the pleader. Had the writ of detinue developed in Glanvill's day, it would probably have been called the writ of deforcement (deforciat), coming at a later day, it vitalized the lifeless word '^ detinet" in the writ of debt, and became the writ of detinue. It lay to recover, anciently, a specific chattel, rightfully taken, wrong- fully detained ; later, any specific chattel, wrongfully de- tained. From the following pages, the student may clothe this skeleton history with living flesh. WEIT IN DETINUE. The King to the sheriff, etc. Command A. that, etc. he render to B. a certain writing by which B. hath given and granted all his goods and chattels lately being in the manor of N. to I. of L. which he unjustly detains from him, etc. Fitzherbert's Natura Brevium, 138.^ OEAL DECLARATION 2 UPON A WRIT OF DETINUE.^ " In the case of a bailment, the plaintiff said, 'This showeth you A., that B. wrongfully detains from him chattels to the value of £20, and therefore wrongfull\-, for that whereas the said A., on a certain day, year, and place, bailed to the aforesaid B. linen and woollen cloth, to keep till he demanded it, the said A., on such a day, year, and place requested the said B. to return the aforesaid chattels, j'et he was not willing yet to return them, nor yet will,' etc." * Reported 1 Rotuli, 6; Abbrev. Plac. 5, Anno 1194,^ Savoring of Detinue. " Richard de W. puts all his land and whatever he has in pledge to convict Henry de M. that his (Ricliard's) brother handed over to him a war-horse on his march to Jerusalem, which he thus far detains. Henry defends and says that he gave to his own lord a palfrey for his march, and his lord gave to him a trotting pack horse. Pledges of Henry for standing to right (i. e. proving his plea). Roger E. and Albin." 1 Bi^. L. C. on Torts, 420. " The first mention of this writ is in the Statute of Wales {Sfatulnr/i Wallm, 12 Edw. I.)." 2 For modern declaration in detinue, see Dame v. Dame, iwst, 52. * See also Old Nat. Brev. 40 6, 41 ; 2 Reeves's Hist. 379; Finl. Ed.; Big. L. C. Torts, 421. * Big. L. C. Torts, 421. 6 2 Big. Hist. Proc. 283. 4 50 CASES ON COMMON-LAW PLEADING. THE PAETING OF THE WAYS BETWEEN DEBT AND DETINUE. DEBT IN THE DEBET AND IN THE DETINET. Reported 20 Edward I. 188. Anno 1292. Eoger Mortymer brought a writ of detinue of a charter against dame Maud de Mortymer ; who came, by attorney, and said, Sir, on the day and in the year in which they say that the charter was bailed to dame Maud, Pvoger le Mortymer her husband was alive ; so that she could not then bind herself. Judgment if she be bound to answer. If you adjudge that she ought, she will do so willingly. — Huntindone. Sir, our plaint is of a tortious detinue of a charter which the lady now at this time detains from us. Judgment if she ought not to answer as to her tort. — Louther. The cause of your action is the bailment; and at the time [of the bailment] she could not bind herself. Judgment if now she ought to answer of a thinsj for which she could not bind herself. — Spigornel. If you had bailed to the lady when she was coverte, etc., thirty marks to take care of, and to restore them when you should demand them, would she be bound now to answer ? I think not.- So in this case. — Howard. This case is not similar. In a writ of debt you would say, " she owes," and here you will say, " which she unjustly detains " ; judgment, etc. And on the other hand, our action arises from the tortious detinue and not from the bailment ; judgment, etc. — Louther. As before. — Howard. If I had bailed twenty shillings or a charter to a woman, in this case I should, during her husband's life, have an action against the hus- band and wife jointly : for the same reason I should have a good ac- tion against the woman alone, after the death of her husband, in respect of a bailment made to the woman ; and in like manner I should have a good action against the woman alone after the death of her husband in respect of a bailment made to the husband and wife. So in this case, in respect of a thing bailed to the wife alone during the life of her husband. THE DISTINCTION BETWEEN DEBT AND DETINUE DRAWN. Reported Y. B. 13 Edward III. 244.1 Anno 1339. Detinue of chattels to the value of £100 against an abbot by a man and his wife, on a bailment, made by the father of the wife 1 The note to the above, substantially a repetition, is here omitted. ACTIONS BEFORE THE STxVTUTE OF WESTMINSTER II. 51 when slie was under age, of chattels to he delivered to his daughter when she was of full age, at her will ; and they counted that he delivered pots, linen, cloths, and £20 in a bag sealed up, etc. — Pole. He demands money, which naturally sounds in an action of debt or account ; judgment of the count. — Stouford. We did not count of a loan which sounds in debt, nor of a receipt of money for profit, which would give an action of account, but of money delivered in keeping under seal, etc., which could not be changed ; and if your house were burnt, that would be an answer. — Schardelowe. Answer over. — Pole. We do not detain in manner as he has counted; ready to defend by our law. — Stou- ford. We have counted of the bailment made by another ; where- fore, do you intend this to be your answer ? THE CLOSE RELATIONSHIP OF DEBT AND DETINUE AFTER THE TIME OF EDWARD U Reported Y. B. I" Edward III. 141.2 Anno 1342-3. Henry le Warde and Margaret his wife brought a writ, and de- manded the reasonable part of the goods of Margaret's first husband against the executors of her first husband ; and they demanded £200, and counted how by the custom of the realm a moiety of the goods which were her husband's on the day on which he died belonged to Margaret, and they showed how the husband had goods and chattels on such a day, and in such a place, when he died, to the amount of £400, whereof a moiety belongs to her portion, because he had no issue, etc. — Thorpe. This writ is brought against two executors, and notwithstanding tliat the grand distress is served, though it be the fact that one of thein appears, one shall not answer without the other, because this is an action of detinue of which the statute^ makes no mention, but only of an action of debt. — Grene. This action is properly an action of debt, because the goods could not be hers during the life of her husband, nor. can tliey be hers after his death until she has recovered tliem. — Hillary. The process is quite the same in debt and in detinue; and in a plea of detinue the essoin and the warrant of attorney shall be in the words " de placito debiti." — Thorpe. That is only a form ; but the actions are different; and Privilcgia Statuti sunt stricti juris ; and in detinue 1 The line between these action.s was fir.st clearly drawn in his time. 2 For a longer report, see 17 Edw. III. 145. The version giveu is shorter, clearer, and better adapted to this work. 3 9 Edw. III. c. 3. 52 CASES ON COMMON-LAW PLEADING. of a writing against executors one shall not answer without the other. — Hillary. We have spoken among ourselves, and it seems to us that process in detinue as well as in debt is included in the statute ; and therefore answer. — And afterwards the writ abated for false Latin. DEBT AND DETINUE MAY BE JOINED IN THE SAME ACTION, FOR THEY AEE OF THE SAME NATURE.i DALSTON, BART., v. JANSON. In the King's Bench. 1695. Reported 5 Modekx, 90. Doubts as to joinder of detinue and debt. This was an action on the case brought against a common carrier upon the custom, and also a trover was laid in the same declaration. Upon not guilty pleaded, there was a verdict for the plaintiff. It was moved in arrest of judgment, that these are different actions, and ought not to be joined in one and the same declaration ; for one is grounded upon a contract in law, to which non assumpsit is the proper plea, and the other upon a tort, etc. To which it was answered that . . . these are not actions of different natures, and therefore they may be joined ; and the like has been done in many other cases ; as debt upon a bond and detinue were joined, etc. Curia. "A plaintiff cannot join two actions which require several issues ; so that the question now is, whether actions may be joined where the same pleading will answer both ? In such cases as this, the defendant in former times pleaded particularly to the neglect ; but it has been lately ruled, that not guilty is a good plea. But it seems strange, that debt and detinue should be joined, because those actions have different judgments." Upon the first debate of this case, they inclined for the plaintiff. But afterwards, when Eokeby, justice, came into the court in Michaelmas Term following, they were all of opinion that these were distinct actions ; for an action against a common carrier, upon the custom of England, is not so much upon a tort as upon a con- tract ; for by receiving the goods, and taking a reward for the car- riage, the defendant implicitly undertakes to deliver them safely, and therefore the law implies a contract to answer the value, if robbed. The case of Matthew v. HopkLns,^ the carrier of Tiverton, was upon 1 The arguments are not reported iu full, and the facts are abridged. 2 1 Sid. 244, 1 Vent. 365. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 53 the common custom of the realm, for negligently carrying a bag of wool, in which there was fifty pounds, and in the same declaration there was a trover for the said money ; and it was held, that these were different actions, and ought not to be joined, which is the case in point. So judgment was given for the defendant. " ViNER, Abridgment, "Actions," 40, Pl. 22. *' A man may have debt and detinue in one and the same writ by several prsecepes, for they are of one and the same nature. Br. Joinder in Action, pl. 97. cites 3 H. IV. 13." NATURE AND CHARACTERISTICS OF DETINUE. " In this action of detinue it is necessary to ascertain the thing detained, in such manner as that it may be specifically known and recovered. Therefore it cannot be brought for money, corn, or the like ; for that cannot be known from other money or corn ; unless it be in a bag or sack, for then it may be distinguishably marked. " In order therefore to ground an action of detinue, which is only for the detaining, these points are necessary : 1. That the defend- ant came lawfully into possession of the goods, as either by delivery to him, or finding them ; 2. That the plaintiff have a property ; 3. That the goods themselves be of some value ; and 4. That they be ascertained in point of identity. " 3 Blackstone, Com., 152. " The action of detinue is the only remedy by suit at law for the recovery of a personal chattel in specie, except in those instances where the party can obtain possession by replevying the same, and by action of replevin." Chitty, Pleading, 136. DETINUE IS THE ONLY REMEDY BY SUIT AT LAW.] DUKE OF SOMERSET v. COOKSON. In the High Court of Chancery. 1735. Reported 3 Pere Williams, 389. The Duke of Somerset, as lord of the manor of Corbridge, in Northumberland (part of the estate of the Piercys, late earls of Northumberland), was entitled to an old altar-piece made of silver, remarkable for a Greek inscription and dedication to Hercules. His Grace became entitled to it as treasure trove within his said manor. This altar-piece had been sold by one who had got the pos- session of it, to the defendant, a goldsmith at Newcastle, but who had notice of the Duke's claim thereto. The Duke brought a bill in equity to compel the delivery of this altar-piece in specie, undefaced. 54 CASES ox COMMON-LAW PLEADING. The defendant demurred as to part of the bill, for that the plain- tiff had his remedy at law, by an action of trover or detinue, and ought not to bring his bill in equity ; that it was true, for writings savoring of the realty a bill would lie, but not for anything merely personal ; any more than it would for a horse or a cow. So, a bill might lie for an heirloom ; as in the case of Pusey v. Pusey, 1 Yern. 273. And though in trover the plaintiff could have only damages, yet in detinue the thing itself, if it can be found, is to be recovered ; and if such bills as the present were to be allowed, half the actions of trover would be turned into bills in chancery. On the other side it was urged, that -the thing here sued for, was matter of curiosity and antiquity ; and though at law only the in- trinsic value is to be recovered, yet it would be very hard that one who comes by such a piece of antiquity by wrong, or it may be as a trespasser, should have it in his power to keep the thing, paying only the intrinsic value of it : which is like a trespasser's forcing the right owner to part with a curiosity, or matter of antiquity, or ornament, nolens volens. Besides, the bill is to prevent the defend- ant from defacing the altar-piece, which is one way of depreciat- ing it ; and the defacing may be with an intention that it may not be known, by taking out, or erasing some of the marks and figures of it ; and though the answer had denied the defacing of the altar-piece, yet such answer could not help the demurrer ; that in itself nothing can be more reasonable than that the man who by wrong detains my property, should be compelled to restore it to me again in specie ; and the law being defective in this particular, such defect is properly supplied in equity. Wherefore it was prayed that the demurrer might be overruled, and it was overruled accordingly. THOMAS KETTLE v. THOMAS BROMSALL. In the Common Pleas. 17oS. Reported Willes, 118. Willes, Lord Chief Justice, gave the opinion of the court as follows : Detinue. The plaintiff declares in the first count that he was possessed of a handle of a knife with an old English inscription purporting it to be a deed of gift to the monastery of St. Albans, a ring with an antique stone with one of the Cccsar's heads upon it in basso-relievo, and of several other things of the like nature, partic- ularly specified in the declaration, and laid togetlier to be of the value of £500 as of his own proper goods ; and that being so pos- ACTIONS BEFORE THE STATUTE OF WESTMINSTEE II. 55 sessed he casually lost the same, and that afterwards by finding they came unto the hands and j)ossession of the defendant, by reason whereof an action accrued to the plaintiff to demand the same of the defendant. In the second count he declares that he delivered to the defend- ant the same things, specifying them again, of the value together of X500 to be safely kept and to be delivered to the plaintiff when required ; that nevertheless the defendant, though often requested, has not delivered the same or any part thereof to the plaintiff, but refused and still doth refuse to deliver the same and unjustly de- tains them ; to the plaintiff's damage £1000. The defendant pleads that the plaintiff delivered to him the said goods and chattels to take care of them as his own proper goods, and to show them to any person or persons to know the value of them ; and that the defendant having the said goods and chattels in his pocket to show them to such persons as were likely to tell him the value of the same, the said goods and chattels were feloniously taken from him by some person unknown to him without his wilful default or privity ; and this he is ready to verify, therefore he prays judgment whether, etc. The plaintiff" replies that he did not deliver to the defendant the said chattels, in the declaration mentioned to take care of them as his own proper chattels, or to show them to any person or persons to know the value of them, as the defendant by the said plea hath alleged ; and concludes to the country. The defendant demurs; and for causes of demurrer shows that the plaintiff doth not by his replication fully answer to the matter in bar above pleaded, and that the said replication concludes to issue when it ought to have concluded with an averment, and thereby have given the defendant an opportunity to rejoin, and to have put the whole matter in issue in a direct affirmative and negative. The plaintiff' joins in demurrer. Sergt. Comyns, for the defendant, took three objections ; two to the declaration and one to the replication.^ 1st. That the writ is for £1000 and the goods are laid in the declaration to be but of the value of £500. But there is not the least color for this objection ; for there are two counts, and the goods in each are laid to be of the value of £5U0 and the damage at £1000. 2dly. Tliat the first count is in trover, and the second in de- tinue ; and that trover and detinue cannot be joined. That if the 1 The objection to tlie replication is not material here. 56 CASES ON COMMON-LAW PLEADING. first be taken to be in trover, there is no conversion ; and if in de- tinue, there is no demand; and consequently that it cannot be good in either. To show that trover and detinue cannot be joined, he cited 8 Co. 87 b, Buckmere's Case ; because they require different pleas.i But we are all of opinion that this objection will not hold ; for that both counts are in detinue. Detinue will lie for things lost and found, as well as for things delivered ; so it is expressly laid down in Fitz. N. B. tit. "Detinue" (E), a book of the greatest au- thority. It was so also held as long ago as the 27 and 34 Hen. VIII, and there are several cases to the same purport in Glisson and Gulston, tit. " Detinue," a book of good credit. There are likewise several precedents of this sort in Townsend's tables, tit. " Detinue," a book of very good authority. And it would be very absurd if it were otherwise; for if so, a person might be greatly injured, and have no adequate remedy. For in trover only damages can be recovered ; but the things lost may be of that sort, as medals, pic- tures, or other pieces of antiquity (and this seems to be the present case), that no damages can be an adequate satisfaction, but the party may desire to recover the things themselves, which can only be done in detinue. So that taking it for granted (which I believe is so) that trover and detinue cannot be joined, yet this objection will be of no weight in this present case ; and this likewise will answer the other part of the objection ; for though there be no request or conversion in the first count, yet there is a request laid in the last count, and if one of the counts be good the general demurrer to both will not hold. Judgment for the plaintiff. FOE THE EECOVEEY OF CHATTELS WEONGFULLY TAKEN OE DETAINED. ELIZ. COUPLEDIKE v. HESTER COUPLEDIKE. In the King's Bench. 1605. Reported Cro. Jac. 39. Error of a judgment in detinue in the Common Pleas. A second 2 error assigned was. For that the writ supposeth a de- tainer de unci domo vocat a beehouse, which cannot be, that a detinue should lie of an house.^ — Wherefore it was reversed. 1 See Brown v. Dixon, 1 Durnf. and E. 276. 2 The first error assigned related to matter not here relevant. 8 But see Dame v. Dame, 43 N. H. 37. ACTIONS BEFOKE THE STATUTE OF WESTMINSTER II. 57 "EXCEPT IN THOSE INSTANCES WHERE THE PAETY CAN OBTAIN POSSESSION BY REPLEVYING THE SAME, AND BY AN ACTION OF REPLEVIN." DAME V. DAME. Supreme Court of New Hampshire. 186L Reported 43 N. H. 37. In replevin, subject to an exception hereinafter stated, the original taking must be wrongful: in detinue, at the early law, it must have been i-ightful; at the later law, it may be wrongful or rightful. This was an action of detinue, brought to recover a house and barn alleged to be the property of the plaintiff, and situated on the land of the defendant, in Farmington, in said county, all of which is fully set forth in the plaintiff's declaration, which is as follows : " In a plea of detinue for that whereas the plaintiff heretofore, to wit, on the first day of July, 1856, at Farmington aforesaid, was lawfully possessed of a certain house and a certain barn, both sit- uated on the land of the said Daniel Dame, being the house built by the plaintiff in the year 1842, said house being about thirty-six feet long and about twenty-six feet wide, and one story and one quarter high, and of the value of $300.00 ; and said barn being about twenty-four feet long and about twenty feet wide, and of the value of $200.00, situated between the house of Eleazer Rand and the house now owned by Benjamin Chesley, on the left hand side of the road leading from the Bay road, so called, to the Ten Rod road, so called, as one goes toward the Ten Rod road, as of his own house and barn, and being so possessed, the said plaintiff afterward, to wit, on the third day of July, 1856, casually lost the same out of his possession, which thereafterward, to wit, on the same day, came into the hands and possession of the said Daniel Dame, by finding ; and the plea further saith, that although the said Daniel Dame well knew that the said house and barn were the proper house and barn of the plaintiff, and although requested by the said plaintiff, to wit, at said Farmington, on the nineteenth day of May, 1860, to deliver the same to the plaintiff, yet the said Daniel Dame hath not delivered up the said house and barn to the plaintiff, but wholly refuses so to do, and still unlawfully detains the same." To this declaration the defendant filed a general demurrer, and the plaintiff joined in demurrer ; and the question of law was reserved. L. Bell, for the plaintiff. 58 CASES ox COMMOX-LAW PLEADING. Sanborn, for tlie defendant. Sargent, J. The only question here raised is whether in this State an action of detinue can be maintained. It is claimed by the defendant that this form of action was never introduced into this State, or if it ever has been used or authorized here, that it has from recent entire disuse become obsolete so that it cannot now be maintained. This action was early held to be an appropriate remedy in a cer- tain class of cases. It would seem that the original distinction between replevin and detinue was very similar to that between trespass and trover. . Trespass de bonis asportatis was brought, not to recover the identical thing taken, but damages for the illegal taking and loss of the same, when such taking was un- just and unlawful, while trover was brought for the unjust deten- tion and conversion of property where the original taking was lawful and proper. So replevin was originally brought to recover the possession of a chattel in specie when the original taking was wrongful, and deti- nue to recover the article in specie when the original taking was lawful. 3 Black. Com. 144-152. Hence we find that the forms of the declaration in trover and detinue are similar, it being alleged in both that the property came to the hands and possession of the defendant by finding. To be sure Blackstone says that replevin can be maintained only in one instance of an unlawful taking, to wit, that of an unlawful distress. 3 Black. Com. 145. However this may have been in early times, when personal property was of but small consequence, and when legal remedies were mainly if not solely sought to acquire possession of real estate, or to enforce some right connected therewith, or to collect the rents chargeable thereon, yet in modern times it is held that the law is otherwise, and numerous authorities of the greatest weight lay it down that this action lies in all cases of illegal taking. Chitty says, by replevin the owner of goods unjustly taken and detained from him may recover possession thereof. It is prin- cipally used in cases of distress, but it seems that it may be brought in any where the owner has goods taken from him by another. 1 Chit. PI. 162. And again, "It has been said that replevin lies only in one instance of an unlawful taking: namely, that of an unlawful distress of cattle, damage feasant, or of chattels for rent in arrears ; but as before observed, it appears that this action is not thus limited, and if goods be taken illegally, though not as a distress, replevin may be supported." 1 Chit. PI. 164, and au- thorities cited. 2 Saund. PI. & Ev. 760 ; 2 Wheat. Selw. N. P. 1194. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 59 Eeplevin was generally a coextensive remedy with trespass de bonis asportatls. Pangburn v. Patridge, 7 Johns. 148, and authorities cited. Thompson v. Button, 14 Johns. 87. Tliere is one exception stated by Blackstone (Vol. Ill, 151), where he says, " If I distrain another's cattle damage feasant, and before they are impounded he tenders me sufficient amends, now, though the original taking was lawful, my subsequent detain- ment of them, after tender of amends, is wrongful, and he shall have an action of replevin against me to recover them." But that this is an exception to the general rule would seem evident from the manner and position in which it is stated. On page 145, an unlawful taking is stated as the first injury to the right of personal property or possession, for which the remedy is by an action of re- plevin. On page 151, he speaks of the second injury, which is an unjust detainer of another's goods when the original taking was lawful, for which the remedy in all cases stated, with the single exception above mentioned, is either detinue or trover. Now the learned commentator cites as his authority for the exception above named, Fitzherbert's Nat. Brev. 69, where the doctrine is stated thus : " If a man take cattle for damage feasant, and the other tenders him amends and he refuseth it, etc., now if he sueth a re- plevin for the cattle, he shall recover damages only for the detaining of them, and not for the taking of them, for that the same was law- ful, therefore no return shall lie." Baron Gilbert, in his treatise on distresses and replevin, says this is the onhj instance in which re- plevin lies where the original taking was not tortious. Hammond (in his Nisi Prius, 334) says the same, and assigns the reason, namely, " that replevin is the proper action to try all questions arising out of a distress." Here is the cause why this single ex- ception to the general rule was made, because this was the remedy so universally applied in all cases of distress, and so seldom in any other case, that Blackstone (erroneously) lays it down as ap- plicable only there ; it was held, therefore, as a matter of conven- ience in practice, that it should be extended to cover all cases of distress, even though in a single instance it should thus be carried beyond its original and appropriate limits. With this single exception the common law rule is believed to be uniform tliat replevin does not lie unless the original taking was unlawful in fact, or made so in law by relation, under such circum- stances as would have made the taking a trespass ah initio. [Our statute makes other exceptions. Kimball v. Adams, 3 N. H. 182.] To sustain these views, see, in addition, Com. Dig. & Peplevia, A; Buller's N. P. 52 ; 3 Wooddeson's Lectures, 219; 2 Eolle's Abr. 60 CASES ON COMMON-LAW PLEADING. 441 ; Lord Eedesdale in Ex parte Mason, 1 Sch. & Lef, 320, note ; and also in Ex parte Chamberlain, 1 Sch. & Lef. 322 ; and in Shan- non V. Shannon, 1 Sch. & Lef. 324 ; 7 Johns. 140 ; Story's PI. 422, note ; Osgood v. Green, 30 N. H. 210 ; Gardner v. Campbell, 15 Johns. 401. But we find in different States that these actions have been gen- erally regulated by statute and made to apply often to very differ- ent uses and purposes from those for which they were originally designed. To be sure we find in all the States, perhaps, the actions of trespass and trover retained, trover being generally extended in practice, so as to cover all cases of wrongful detention and con- version, without regard to the fact as to whether the original tak- ing were legal or illegal ; but we find that the actions of replevin and detinue have met with very unequal favor in the different States. In Massachusetts, it has been held that replevin may be main- tained in all cases of wrongful detention of the plaintiff's goods, although the original taking may have been justifiable. Badger v. Phinney, 15 Mass. 359; Baker v. Tales, 16 Mass. 147 ; Marston v. Baldwin, 17 Mass. 606 ; and in that State, too, it is held that detinue is obsolete. Baker v. Fales, 16 Mass. 154; Colby's Prac, and Howe's Prac, Detinue. But these decisions in Massachusetts, so far as they claim to rest upon the common law, have been so often and so seriously questioned, and are opposed by such an overwhelm- ing weight of authority, both English and American, that they may well be considered as having very little weight upon the question. See argument of Webster and Metcalf, in Baker v. Fales (page 148), and authorities cited ; and, also, the numerous notes by the editor, and authorities cited upon this case of Baker v. Fales, in the recent editions of Massachusetts Reports ; and particularly, note 23, upon the action of detinue. See also Wheat. Selw. N. P. 1194, and note and authorities. But it is said that these decisions in Massachusetts are author- ized by their statutes ; and if that were so, they would stand well enough, whether they accord with the common law or not. Mellen, C. J., in Seaver v. Dingley, 4 Greenl. 315, in speaking of these Mas- sachusetts cases, says, that the court, after mature consideration, de- cided " that whatever might be the strict principles of the common law, the statute of 1789 had so altered the common law, that an action of replevin may be maintained in case of an unlawful de- tention, though the taking was not tortious and unlawful." But even this position is disputed, and it is claimed, with apparent rea- son, that these decisions cannot be sustained either upon the prin- ciples of the common law or upon the statute of that State. See ACTIONS BEFORE THE STATUTE OF WESTMINSIER II. 61 notes 36 and 37 to Baker v. Fales, and authorities cited, where it is said, that neither the form of the writ, as prescribed in that State, nor their statute " give any countenance to the notion that replevin may be maintained for an unlawful detention ; but, on the contrary, extend only to cases of supposed unlawful taking." And, also, "that it is quite clear that at the common law no action of replevin could be maintained in this case." Judge Story also seems to doubt whether these decisions in Mas- sachusetts can stand even upon the statute of that State, and he does not hesitate to pronounce their doctrines as innovations upon the common law (Story's PI. 442, note), where, in speaking of the doctrine that replevin may be maintained for goods unlawfully detained, although there may have been no tortious taking, he says, " this innovation on the common law, whether attributable to the statute or to the construction given to it, is to be regretted. The gist of the action is altered. It is no longer an unlawful taking, but an unlawful detention. The general issue, non ccpit, 'though it can hardly be overruled as a good plea in replevin, has ceased to be a logical defence ; indeed, is no more to the purpose than nil debet in assumpsit. It unsettles former decisions, unless some exceptions are set up without any other reason than a desire to avoid over- ruling former cases. Thus, it was formerly held that replevin would not lie on a bailment by the plaintiff ; but if replevin will lie in all cases of unlawful detention, then it may be maintained in many cases of bailment ; and, lastly, it has destroyed the analogy between the actions of trespass and replevin, where it existed before." In Pennsylvania, it was decided at an early date that replevin would lie wherever one man claimed goods in the possession of another, no matter how the possession was acquired. But in that State the action of replevin is authorized and regulated only by statute. Wallace v. Lawrence, 1 Dall. 157. And the law continues the same. Staughton v. Eappalo, 3 S. and Pt. 5G2 ; Keite v. Boyd, 16 S. and 11. 300. There could of course be little necessity for the action of detinue in that case. In Virginia, it has been held that at common law replevin lay in all cases where goods were unlawfully taken. And this was the law in that State till 1823, when an act of the legislature confined the writ to the case of distress for rent. Vaiden v. Bell, 3 Randolph, 448. In that State we find the action of detinue in veiy common use, as it is believed to be in all the Southern and some of the Western States. In South Carolina, while detinue was in common use, it is said 62 CASES ON COMMON-LAW PLEADING. in Byrd v. O'Harlin, 1 Rep. Con. Ct. 401, that it is not decided in that State whether replevin will lie in any other case than that of a distress for rent. So in Connecticut, while it is admitted that hy the English au- thorities, as well as those of some of the contiguous States, replevin lies for any tortious or unlawful taking of goods and chattels, yet it is held that, under their statute, it lies only in cases of attachment and distress. Watson v. Watson, 9 Conn. 140 ; s. c. 10 Conn. 75. In New York, previous to their Eevised Statutes, they adhered strictly to the common law distinction between replevin and detinue, and both actions were used. See 7 Johns. 140 ; 10 Johns. 373 ; 14 Johns. 87, and 15 Johns. 402, before cited, which were cases of replevin ; and Todd v. Crookshanks, 3 Johns. 432, which was detinue. But by their Revised Statutes (Vol. II, 533), the action of detinue was abolislied, and the action of replevin was made, by express provision of law, to cover the same ground, or nearly so, that detinue had before covered. But in North Carolina, on the other hand, it is held that detinue lies in every case in which the property is wrongfully detained, without regard to the manner in which the defendant acquired possession. Johnson v. Preston, Cameron and Norwood, 464. It is said in 3 Black. Com. 151, that there is one disadvantage which attends this action (detinue) : namely, that the defendant is herein permitted to wage his law, that is, to exculpate himself by oath, and thereby defeat the plaintiff in his remedy, and that for this reason the action itself is much disused, and has given pla(;e to the action of trover. See, also, Bac. Abr. Detinue. But the 3 and 4 WiU. IV, c. 42, s. 13, abolished the wage of law in all cases ; since which, this action has been much in use in England, and is said to be a very advantageous remedy, especially where it is mate- rial to embrace in the same action with a count in detinue, another count in debt, for a money demand as due upon a contract. 1 Chit. PI. 121 and 125. It does not seem to be clearly settled upon authority, whether the action of detinue should be confined to those cases where the pos- session was at first rightful, and only the detention wrongful, or whether that remedy, like trover, should be extended to all cases where the detention is wrongful, without regard to the quality of the original possession. The early authorities all favor the former view. Lord Coke says, "that detinue lyeth where any man comes to goods either by delivery or finding." Coke Litt. 286, b. Black- stone lays down this rule, that in order to maintain detinue the first point to be proved is, that the defendant came lawfully into ACTIONS BEFORE THE STATUTE OF ^yESTMIXSTER II. 63 possession of the goods, as either by delivery to him or by finding them. 3 Bl. Com. 151 : Bac. Abr., Let. ; Wheat. Selw. K P. 665. But it is said by Chitty (1 Chit. PI. 123) that it is a common doc- trine in the books, that this action cannot be supported if the de- fendant took the goods tortiously ; but he pronounces the reasoning upon which that opinion is founded as fallacious, and holds that it may be maintained in any case when the detention was wrongful, without regard to the manner in which the defendant acquired possession. And while there would seem to be no good reason for enlarging the remedy by replevin, any more than there is that of trespass de bonis ; yet it may well admit of a qucere whether, as a matter of convenience in practice, and not inconsistently with prin- ciple, the action of detinue should not be so far enlarged beyond its original limits, as to keep pace with its kindred action of trover. It is alleged that detinue has never been used or authorized in this State, and that replevin, trespass, and trover afford ample rem- edies for all cases and classes of injuries. But trespass and trover are no substitute for detinue, for they only give damages for the goods taken or converted, without giving the party any chance to recover the chattel in sjjecie. In regard to replevin, we understand that the common law is in force here, and that this action only lies in case of a wrongful taking in fact, or by intendment of law with the single common law exception of cases of cattle taken damage feasant, when amends are tendered before impounding, and other exceptions made by our statute in case of animals impounded, when it is held that it lies for a wrongful detention as well as a wrong- ful taking ; Kimball v. Adams, 3 N. H., ante ; but it must be against the person impounding, and cannot be against the pound-keeper while the creatures are in his legal custody; BiUs v. Kinson, 21 N. H. 448, where it is said that our statute has added to the causes for which this action may be instituted at common law, not only in the above case of animals impounded, but in case of goods attached on mesne process, when claimed by a third person, and in case of goods exempt from attachment. Kev. Stat., c. 204, ss, 1, 2, and 3 ; Comp. Laws, 520. In accordance with these views is the form of the writ prescribed by law in the action of replevin (Rev. Stat., c. 182, s. 14; Comp. Laws, 464), commanding the sheriff to replevy the goods belonging to A. P., of, etc., "wrongfully taken and detained," as it is said, etc. It would seem that this form embraces the common law, as nearly as may be, as stated in the English cases, replevin there being held to be the proper remedy in cases where property has been wrong- fully taken and detained, whether as a distress or in any other way. 64 CASES ON COMMON-LAW PLEADING. Replevin then does not encroach upon the common law ground of detinue, but leaves all that ground for the application of that remedy. It is only when replevin is carried beyond the common law limit, as in Massachusetts, by the court, and as it is in some States, as in New York, by statute, that it can be said at all to supersede the necessity of detinue as a remedy where the original taking was lawful, and it is desired to recover the thing detained, in specie. Nor do we find our statutes silent concerning the action of detinue. In the statute of limitations of 1791, detinue is twice mentioned and enumerated with trespass, trover, -and replevin, and the time of limitation is fixed for each. N. H. Laws of 1815, 164 and 165. In the later statute of limitations, passed in 1825, we find similar pro- visions, and the same enumeration of actions, in which detinue is twice repeated, as before. N. H. Laws of 1830, 76. And in the Revised Statutes, after specifying that certain actions, such as for words, etc., shall be brought within two years, it is provided, that all other personal actions shall be brought in six years. Rev. Stat., c. 181, ss. 3 and 4. Although detinue is not here enumerated specifically, yet the same is true of trover, trespass, debt, and all other actions having the same term of limitation. It would seem that detinue was a remedy as fully recognized by our laws, and provided for as specifically as any of the other forms of personal actions. Nor is its place superseded by any other form of action. There are also good and sufficient reasons why it should be used, even if it were a concurrent remedy with replevin. In the latter, the plaintiff resumes the property in the first instance, and if he does not prevail, he must pay the defendant the value of the property, as by our practice there is no judgment for a return. Bell V. Bartlett, 7 N. H. 188. But in detinue, though the claim be to recover the specific chattel, yet it is not taken from the hands of the defendant till the right is determined, and the plaintift" takes his property on his execution. No bonds are required. Detinue may also be joined with debt in the same declaration, which, in a large class of cases, is a decided advantage. It may also be brought for several articles, part of which are in existence, andean be recovered, and a part of which may have been converted, conveyed away, or destroyed ; as the judgment in detinue is in the alternative, first, that the plaintiff do recover the goods in question specifically; or, secondly, if the plaintiff cannot have the goods, that he recover the value thereof, and his damages for the detention. The jury must therefore find the value not only of all the goods in the aggregate, but of each article separately, so that the plaintiff ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 65 may have all that can be found of his property in specie, and for the balance, whatever it may prove to be, he may recover his damages, and this all in one suit and by a single judgment and execution. 1 Wheat. Selw. N. P. 667 ; Saund. PL and Ev., ante. The difference in the course of proceedings, in the two cases (replevin and detinue), results naturally from the different injuries for the redress of which these remedies were invented. Where the taking was illegal and wrongful, the redress was by replevin, in which the possession of the property was immediately returned to the party from whom it had been thus wrongfully taken ; and the parties were then left to determine their several rights. But where the possession was legally and rightfully obtained, as by a bailment, or a finding, but the further detention was claimed to be wrongful, the plaintiff was not allowed to take the property in any summary manner from the hands of the defendant, to whom, perhaps, he had himself committed it; but he must first try his title and estab- lish his right, and if he proved the detention to be wrongful, he then recovered his goods. We think, then, that there are sufficient grounds, both upon the statute and upon authority and reason, as well as convenience, for holding that detinue in this State can be maintained. JUDGMENT. Adapted from Pollock and Maitland, History of English Law. " Now at first sight the writ of detinue seems open to every one who for any cause whatever can claim from another the possession of a chattel — X., the defendant, is to give up a thing which he wrongfully detains {i7iiuste detinet) from A., the plaintiff', or explain why he has not done so." A. V. X. Detinue for an ox, which X. obstinately refuses to give up. In his count A., being bound to put some value upon the creature, says it is worth five shillings. Judgment for A., that he recover the ox, or five shillings, the value assessed by the jury. " If X. chooses to pay the money rather than deliver up the ox, he will, by so doing, satisfy the judgment. If he is still obstinate, then the sheriff will be bidden to sell enough of his chattels to make the sum awarded by the jurors, and will hand it over to the plaintiff." 2 Pollock and Maitland, 173. 66 CASES ON COMMON-LAW PLEADING. Section III. REPLEVIN. BEPLEVIN. In the anomalous case below noted. A taking. X., a tenant of A., is stubborn, and refuses to pay his rent. X. owns cattle, and to his cattle he looks for his daily bread. The law gives A., his landlord, a remedy. A. may distrain X.'s cattle. The adequacy of the remedy is plain, for distraint amounts to dispossession. Z., a ten- ant, has paid his rent, but A., his landlord, is unscrupu-^ lous. Z. also owns cattle, and to his cattle he looks for his daily bread. A., wishing to extort money from Z., wrong- fully distrains Z.'s cattle, and thus imperils Z.'s existence. A. is strong and Z. is weak. The law must be just. It must give Z. a remedy, and an adequate remedy. Money damages will not suffice. Z. must be repossessed of his cattle. He will have a writ of replevin. The early law records at least one important case, however, where replevin will lie for other than a wrongful taking. Y. finds T.'s ox in Y.'s field. Y. has a right to distrain and impound this damage-doing ox. Y. starts to lead T.'s ox to the pound, when T. comes and tenders the amount of the damage, and ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 67 says, " Give me my ox." Y. says, " You shall not have your ox." T. may maintain replevin, though the taking by Y. was rightful.^ In replevin, therefore, we can say, as a general proposition, that the taking must be wrongful, and in detinue, that by the early law it must, and by the later law it may, be rightful. Thus one distinction between, replevin and detinue is already drawn. The others will as plainly appear. HISTOKY OF EEPLEVIN.2 " To replevy {replegiare, that is, to take back the pledge) is, when a person distrained^ upon applies to the sheriff or his officers, and has the distress returned into his own possession, upon giving good security to try the right of taking it in a suit at law, and, if that be determined against him, to return the cattle or goods once more into the hands of the distrainor. This is called a replevin." 3 Blackstone's Commentaries, 13.^ "A distress is the taking of a personal chattel, without legal process, from the possession of a wrong doer, into the hands of the party grieved ; as a pledge, for the redress of an injury, the per- formance of a duty, or the satisfaction of a demand." Bradby, The Law of Distresses, 1. " Goods may be replevied two manner of wayes, viz., by writ, and that is by the common law, or by the pleint, and that is by the statutes for the more speedy having againe of the cattell and goods. A replegiare lyeth, as Littleton here teachetli us, where goods are distreined and impounded, the owner of the goods may have a writ de replegiai^i facias, whereby the sherife is commanded, taking sureties in that behalfe, to redeliver the goods distreined to the owner, or upon complaint made to the sherife he ought to 1 The action, too, always lay for a flistress loj^al in the heginiiing, but l)oconiing illegal because of a detention after gage and pledge. 1 Brad. 1.56. '^ Martin. 93. " Tiie autiiorities all agree that replevin originated iu common law as a remedy against the wrongful exercise of the riglit of distress for rent." 3 Martin, 93. "The use of replevin in other takings was so rare for several cen- turies that we find Blackstone asserting that it lies only against a distrainor. liut this restriction of the remedy never existed, even in theory. 3 Bl. Com. 145. Cf. Sciiannon v. Schannon, 1 Sch. & Lef. 327 ; George i-. Chambers, 11 M. & W. 149; Allen V. Sharp, 2 Exch. 3.52 ; Comyn, Dig. Repl. A. " Blackstone's statement was challenged as erroneous, and the action held to lie in all wrongful takings, except when done under process against the plaintiff." Comyn, Dig. Kepi. D. * See also Co. Litt. 145, b ; 2 Roscoe Ac. 621 ; 3 Bl. Com. 145 ; as to the origin of Kepleviu. GS CASES ON COMMON-LAW PLEADING. make a replevy in the [county], riepleginre is compounded of re and pleyiare, as much as to say, as to redeliver upon pledges or sureties." Coke on Littleton, 145 h. VEE DE NAM (or de vetito namio), THE CONTEMPORAEY OF EAELY REPLEVIN. " A landlord at common law had the right without writ or precept to take the chattels of his tenant and retain them in his possession as security for rents due him, A wrongful exercise of this right was regarded as a serious offence against the Crown, which could not he redressed by the inferior courts without special authority emanating from the sovereign." Martin, Civil Procedure, 94. Reported 30 and 31 Edward I. 222. Anno 1302. A tradition of the ancient lawyers fixed the origin of " de vetito namio " in the reign of King John. Sed qucere. Vide post. The king brought his quo ivarranto against the burgesses of Laun- caston, and demanded by what warrant they claimed to have a burrough, and several other franchises, and also to hold pleas " de vetito namio." Hunt. We claim these franchises because we and our ancestors, and all the burgesses of the said town, have, ever since the Conquest, had and used these kinds of franchises. Ber- rewick. And what say you to the pleas " de vetito namio ! " Hunt. We give the same answer. Berrewick. You claim to hold pleas " de vetito namio " from a time of which there is no memory ; and the plea "de vetito namio " was first invented in the time of King John, and so within time of memory. Hunt. Although that name was first invented in the reign of King John, yet we, before time of memory, held pleas of tortious takings of beasts and chattels by attachment and distress. Berrewick. Therefore you ought to have claimed in that form ; but now you have claimed by the phrase " de vetito namio." Hunt. We hold them to be one and the same thing. Brumpton. By God, they are not; for the plea " de vetito namio " is properly had before the sheriff, and it is a matter against the king's crown, and affected the king's peace in a high degree ; tlierefore, tell us how you claim to hold these pleas. Hunt. If the defendant fall to do his law, he will be amerced, and the plaintiff will recover his damages ; and if he do his law, the plaintiff will be amerced for his false plaint. Mutford. He claims to have held pleas " de vetito namio " before the time of memorv ; and as this kind of ACTIONS BEFOEE THE STATUTE OF WESTMINSTER II. 69 plea had its origin in the time of King John, and so within time of memory, we pray judgment. De Vetito Ncimlo Defined. " The action for vee de nam (de vetito namii) [was one] brought against a distrainor, who, though he has now given back the beasts,^ has been guilty of detaining them against gage and pledge." 2 Pollock and Maitland, 524 (2d edition). " If the distrainor will not deliver the beasts after gage and pledge have been offered, then it is the sheriff's duty to deliver them. For this purpose he may raise the hue, call out the whole power of the county (posse comitatus) and use all necessary force. ' When gage and pledge fail, peace fails,' says Bracton ; in other words, the distraining lord is beginning a war against the state and must be crushed. The offence that he commits in retaining the beasts after gage and pledge have been tendered, is known as veti- titin namii, or vee de nam. It stands next door to robbery ; it is so royal a plea, that very few of the lords or franchises have power to entertain it. It is an attack on that judiciary system of which the king is the head. Disputes about the lawfulness of a distress were within the sheriffs competence. He could hear them without be- ing ordered to do so by royal writ. But when he heard them he was acting, not as the president of the county court, but as a royal justitiar." 2 Pollock & Maitland, 577 (2d edition). Relationship between De Vetito Namio and Replevin. " Before the end of the thirteenth century, the action based upon the vee de nam was losing some of its terrors : either party could easily procure its removal from the county court to the king's court. Under the name of replegiare or replevin, an action was being de- veloped which was proving itself to be a convenient action for the settlement of disputes between landlord and tenant; but it seems to have owed its vigour, its rapidity, and therefore its convenience, to the supposition that a serious offence had been committeti against the king." 2 Pollock and Maitland, 577 (2d edition). 1 Note that in vee r/e nam the plaiutiff does uot seek his cattle in the defendant's possession, as he does in replevin. 70 CASES ON COMMON-LAW PLEADING. EEPLEVIN IN GLANVILL'S TIME. i. e. in the Reign of Henry II. OKIGINAL WRIT OF EEPLEVIN.i [Glanvill (Bmmes), 238, c. 12.] "The king to the sheriff', healtli. I command you, that justly and without delay, you cause G. to have his beasts by gage and pledges, of wliich he complains that R. has taken the'm, and unjustly detains lliem, for the customs which he exacts from him, and which he does not acknowledge to owe him ; and in the meantime, cause him justly, etc., least, etc.'"^ " In the former part of this inquiry, into judicial proceedings, we have seen that when land was seised in the king's hand for default or contempt of the tenant, he might within a certain time replevy his land, upon performing what was required of him by the court. The power of distraining, which lords exercised over their ten- ants, required a similar qualification, either that the tenant should perform what was due, or at least till it was ascertained by judg- ment whether anything or what was due, he should replevy ; that is, have a return of his goods upon pledges given as a security to stand to the award of justice in the matter. In order to affect this, several writs of replegiare or replevin were devised." Eeeves, His- tory of English Law, Vol. I, p. 439. 1 2 Pollock and Maitland, 578. " The replevin writ in Glanvill, XII, 15, differs in important respects from that in Bracton, f. 157, and Reg. Brev. Orig. f. 81," Thus, " The king to the viscount, greeting : Because A. has assured us, or otherwise because B. has assureil you, &c. Put under bail and safe pledges II. that he should present himself before our justices, &c., at Westminster, on such a day, to show cause wliy he has taken tlie beasts of A. in such a county, where the said B. has nor lands nor tenements, although he has feuds, and has driven them from such county aforesaid as far as your county in fraud, beyond the power of so-and-so, our viscount, and there detains them as he savs, against our peace." Brae. f. 157. 2 For a full descripdon of how proceedings in replevin were removed from the sher- iff's court *to the superior courts hy pi uries writs of replevin, see Martin, s. 107. If the sheriff failed to execute the original writ, an alias, not returnal)le to the Superior Court, was sued out. The next step was to sue out the pluries writ already mentioned, which contained the clause vel cmisnm twhis signifces, and was hence returnable \m> cess. It became usual to sue out the alias and the pinriex writs at the same time. Wilk. Repl. 143; Intzh. N. B., 68, 69, 70; Freeman v. Blewitt, 1 Salk. 410; Morris, Replevin, 53 ; Martin, s. 107. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 71 EEPLEVIN m BEACTON'S TIME. (i. e. In the reign of Henry III.) THE STATUTE OF MARLEBRIDGE. [a.d. 1267.] Enacted 52 Henry III. A Statute "providing for the better estate of his" (the king's) "realm of England, and for the more speedy ministration of justice, as belongeth to the office of a king." Cap. XXI. WHO MAT MAKE REPLEVIN OF BEASTS DISTRAINED. "It is provided also, That if the beasts of anj- man be taken, and "wrongfully withholden, the sheriff, after complaint made to him thereof, may deliver them without let or gainsaying of him that took the beasts, if they were taken out of liberties. And if the beasts were taken witiiiu any liberties, and the bailiffs of the libert}' will not deliver them, tlien the sheriff, for default of those bailiffs, shall cause them to be de- livered." PLAINT. 1 A. B. complains against C. D. in a plea of taking and unjustl}' de- taining his cattle against sureties and pledges, etc. E. F.2 Pledges to prosecute, }>■ and G. H. If the replevin be executed, and the deliverance made, where it is by plaint, the bailiff at the time he makes deliverance ought also to attach the defendant by his goods depending iu the county court, to make him appear at the next court day; for in this action the attachment is the first process, because the replevin complains of a tortious taking, which is in nature of a trespass. Gilb. L. of Distresses, 80 ; McKelvey, 48. 1 " To take away all the delays that attended the replevin by writ, the sheriff by this act [the Statute of Marlhridge] may upon complaint made, command his bailiff either by word or precept to replevy the ])laintiff's beasts, for possibly the sheriff cannot write (which was frequently the case in those days), or has not the materials of writing with him, and this the sheriff may do out of his county court; for this act being made for the more speedy administration of justice, hath received the most favorable construction. . . . But then, the sheriff must enter the plaint at the next court, that it may appear on the Kolls of the Court." Gilb. L. of Distresses, 69. 2 Gilb. L. of Distresses, 257. 72 CASES ON COMMON-LAW PLEADING. Procedure in Replevin upon Plaint. " The subject of replevin and distress will be understood better if we trace it from its commencement through all its stages. When any one had a complaint that his cattle were taken or detained against gage and pledge, he either applied for a writ commanding the sheriff quod replegiari facias, as we saw in Glanville's time ; ^ or made a verbal complaint to the sheriff, who, upon having secur- ity de prosequendo, properly given, would, without a writ, proceed to make replevin. The manner of replevying was this : The sheriff went in person, or sent one of his officers, to the place where the cattle were detained, and demanded a sight of them. If this was denied him, or any violence was done to prevent it, he might im- mediately raise the hue and cry, and apprehend the oflenders, as persons who acted in manifest violation of the king's peace, and put them in prison. If he could not find the cattle to make de- liverance of them, and it appeared that they were driven away ; then, if the taker had any land and chattels in the county, the sheriff's officer was to take some of his cattle to double the value, and detain them until the distress was brought back, which, in af- ter times, was termed a taking in withernam. If the sheriff's power could reach no further, recourse must be had to a writ of attach- ment as follows : ' Si A. fecerit, etc., prone per radium et salvos plegios B. quod sit eorum justitiariis nostris apud Westmonasterium, etc., ostenens quare cepit averia ipsius in comitatu, etc., ubi idem B. non habet terras nee tenementa et ipsa fugavita a prsedicto comitatu, etc., usque ad comitatum tuum in fraudem, extra potesta- tem vice comitis, etc., et ibidem ea detinet, contra pacem noctram,ut dicit, etc' 2 " If no opposition was made to the sheriff or his officer, but he was suffered to have a sight of the cattle, he was immediately to cause them to be delivered to the complainant ; and then he gave a day to both parties, to appear at the next county, that the taker (who could not deny the taking against the sheriff's testimony, he, in this case, having the authority of a record) might show his tak- ing to be just ; and the complainant, that it was unjust. At the day appointed in the county, the taker could have no essoin, as an unjust taking and detention against gage and pledge was considered in the unfavorable light of a robbery, and was held to be against the peace even more than a disseisin was. At the day, the taker was to state his reasons for the caption. The grounds upon which 1 VoL I. Reeves' History of English Law, 440. ^ Bracton, 157. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 73 a justification for taking cattle might be rested were many," [Thus,] " The defendant might avow the taking to be just, because he had a freehold in which neither the plaintiff nor any one else had a right of common, or other easement, and yet the plaintiff had put his cattle there without any right, and l^herefore he took them ; though he was ready to restore them if the plaintiff would abstain from the like trespasse, which he refused to do." Eeeves' History of English Law, Vol. II. pp. 308, 309, 310. KEPLEVIN AFTER THE STATUTE OF MARLEBRIDGE. STATUTE OF WESTMINSTER THE SECOND. [1285.] Enacted 13 Edward I. c. 2, s. 1. A RECORDARE TO REMOVE A PLAINT TO PLEDGES TO PROSECUTE SUIT. SECOND DELIVERANCE. Cap. II. Forasmuch as lords of fees distraining their tenants for services and customs due unto them, are manj' times grieved, because tlieir tenants do replevy the distress b}- writ, or witliout writ : And when the lords, at the complaint of tlieir tenants, do come by attachment into the count}-, or unto another court, having power to hold pleas of withernam, and do avow the taking good and lawful, bv reason that the tenants disavow to hold aught, nor do claim to hold anything of bim which took the distress and avowed it, he that distrained is amerced, and the tenants go quit ; to whom punishment cannot be assigned for such disavowing by record of the county, or of other courts having no record. "II. It is provided and ordained from henceforth, That where such lords cannot obtain justice in counties and such manner of courts against their tenants, as soon as they shall be attached at the suit of their tenants, a writ siiall be granted to them to remove the plea before the justices, afore whom, and none other where, justice ma}' be minis- tered unto such lords ; and the cause shall be put in the writ, because such a man distrained in his fee for services and customs to hira due. 3. Neither is tliis act prejudicial to the law commonly used, which did not permit that any plea should be moved before justices at the suit of the defendant. 4. For though it appear at the first show that the ten- ant is plaintiff, and the lord defendant, nevertheless, having respect to that, that the lord hath distrained, and sueth for services and customs being behind, he appeareth indeed to be rather actor, or plaintiff, than the defendant. 5. And to the intent the justices may know upon what 74 CASES ON COMxMON-LAW PLEADING. fresh seisin the h)rcls ma}- avow the distress reasonable upon their ten- ants. 6. From henceforth it is agreed and enacted, That a reasonable distress may be avowed upon the seisin of an}' ancestor or predecessor since the time that a writ of novel disseisin hath run. 7. And because it chanceth sometimes that the tenant, after that he hath replevied his beasts, doth sell or aliene them, whereby return cannot be made unto the lord that distrained, if it be adjudged. " III. It is provided. That sheriffs or bailiffs from henceforth shall not only receive of the plaintiffs pledges for the pursuing of the suit, before they make deliverance of the distress, but also for the return of the beasts, if return be awarded. 2. And if any take pledges other- wise, he shall answer for the price of the beasts, and the lord that dis- traineth shall have his recovery by writ, that he shall restore unto him so many beasts or cattle ; 3. And if the bailiff be not able to restore, his superior shall restore. 4. And forasmuch as it happeneth sometime, that after the return of the beasts is awarded unto the distrainor, and the party so distrained, after that the beasts be returned, doth replevy them again, and when he seeth the distrainor appearing in the court readv to answer hitn doth make default, whereby return of the beasts ouglit to be awarded again unto the distrainor, and so the beasts be replevied twice or thrice, and infinitely, and the judgments given in the King's Court take no effect in this case, whereupon no remedy hatlx been yet provided : 5. In this case such process shall be awarded, that so soon as return of the beasts shall be awarded to the distrainor, the sheriff shall be commanded by a judicial writ to make return of the beasts unto the distrainor; in which writ it shall be expressed, that the sheriff shall not deliver them without writ, making mention of tiie judgment given by the justices, which cannot be without a writ issuing out of the rolls of the said justices before wliom the matter was moved. 6. Therefore when he cometh before the justices, and desireth replevin of the beasts, he shall have a judicial writ, that the sheriff taking surety for the suit, and also of the beasts or cattle to be returned, or the price of them (if return be awarded) shall deliver unto him the beasts or cat- tle before returned, and the distrainor shall be attached to come at a certain day before the justices, aforewhom the plea was moved in pres- ence of the parties. 7. And if he tliat replevied make default again, or for other cause return of the distress be awarded, being now twice replevied, the distress shall remain irrepleviable. 8. But if a distress be taken of new, and for a new cause, the process aforesaid shall be observed in the same new distress." ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 75 HALLET V. BYRT. In the King's Bench. 1C96. Reported 5 Modern, 252. Since the sheriff in his county court could not make reple\'in, but by writ in open court, at least before the statute of Marlebridge which gave the per- mission ; the hundred courts, which are derived out of the county courts, and to which the statute of INIarlebridge does not extend, cannot grant replevins out of court. Trespass against Byrt and Hallet, for taking and detaining the plaintiff's cattle. The defendants plead not guilty as to all, but the taking of three cows ; and as to that, they say, that the hundred of Beanii li- ster is an ancient liundred, whereof the Bishop of Salisbnry was seised in fee, and that he and his predecessors have time out of mind kept a court there from three weeks to three weeks, for the trial of personal actions under the value of 40.s'., and so prescribes to grant replevins either by himself or steward in court or out of court, upon complaint made to them of the taking and unjustly detaining any cattle within the said hundred. That the Bishop did afterwards convey this hundred to one Whirlock for three lives, by virtue whereof he was seised. That the plaintiff and one Rodbart took and impounded the cows within the said hundred, being the cows of a stranger, who made comphiint thereof to the steward, and he directed his warrant to the bailiff of the hundred and to the said Hallet, commanding them to replevy the cattle, by virtue whereof Hallet and the other defendant Byrt, in auxilium ejus, did take and deliver them to the owner, and traversed that they were guilty of the taking at any time before the warrant, or after the return, aliter vel alio modo. The plaintiff hath demurred, and showed for cause, that this plea did amount to the general issue. But the court did not spealv to this point. They [the court] held that at common law no replevin was made by plaint, for that was a remedy given by the statute of Westminster the first, cap. 16, the other was by writ of justifies in replevin directed to the sheriff', who thereupon either went him- self, or made a precept to his bailiff to make deliverance. Now if the sheriff in his county court, which is a court incident to his office, could not make a replevin, but by writ in open court, before the statute of Marlbridge, which gives a quicker remedy by plaint, and was made for the benefit of the owner of the cattle, that he 76 CASES ox COMMON-LAW PLEADING. should not stay from them till next court ; how can the hundred- court, which is derived out of the county court, prescribe to grant replevins out of court, when the authority of the sheriff himself so to do began by an act of parliament ? It is true, all these courts do hold plea in replevins, but it is illegal, for the party ought to go to the sheritf fur that purpose, whose court is in nature of a court- baron. Therefore this custom [for the hundred courts thus to grant replevins] was held to be void, for it was against law and reason ; and so the plaintiff had judgment, the plea being naught. STATUTE XI. GEORGE II. [1738]. Cap. XIX. AN ACT FOR THE MORE EFFECTUAL SECURING THE PAYMENT OF RENTS, AND PREVENTING FRAUDS BY TENANTS. XXIII. And to prevent vexatious replevins of distresses taken for rent, Be it enacted by the authorit}* aforesaid, That from and after the said twenty-fourth day of June, one thousand seven hundred and thirty-eight, all sheriffs, and other officers liaving authority to grant replevins, may and shall iu every replevin of a disti'ess for rent, take in their own names, from the plainlitf, and two responsible persons as sureties, a bond in double the value of the goods distrained (such value to be ascertained b}- the oath of one or more credible witness or witnesses not interested in the goods or distress, which oath the person granting such replevin is herein- authorized and required to admiuistur) and conditioned for prosecuting the suit with effect and without delay, and for duly returning the goods and chattels distrained, in case a return shall be awarded, before any deliverance be made of the distress; and that such sheriff, or other officer as aforesaid, taking an}' such bond, shall at the request and costs of the avowant, or person making conuzance, assign such bond to the avowant or person aforesaid, by indorsing the same, and attesting it under his hand and seal, in the presence of two or more credible witnesses ; which ma}- be done without any stamp, i)rovided the assignment so indorsed be dnly stamped before any action brought thereupon; and if the bond so taken and assigned be forfeited, tlie avowant, or person making con- uzance, may bring an action and recover thereupon in his own name ; and the court where such action shall be brought may by a rule of the same court give such relief to the. parties upon such bond, as may be agreeable to justice and reason ; and such rule shall have the nature and effect of a defeasance to such bond. ACTIONS BEFOEE THE STATUTE OF WESTMINSTER II. 77 WRIT DE WITHERNAM. The king to the sheriff of Lincolnshire, greeting; Whereas we have many times commanded jou that justly, etc. to A. his cattle which B., etc. or signify the cause, etc. wherefore you would not or could not execute our command many times directed to you thereupon ; and you have signified to us, that after the aforesaid B. took the cattle of the aforesaid A. in your county, he drove them out of the said county, into tlie county of B. whereby you could not replevy them to the same A. AVe being willing to counteract the malice of him the said B. in this behalf, command you, that you take the cattle of the aforesaid B. in j'our bailiwick in withernam, and detain them until you can, according to the law and custom of our kingdom, replevy to the same A. his cattle aforesaid, according to the tenor of our commands aforesaid before to you, etc.^ SCOPE AND NATURE OF THE ACTION. FLETCHER v. WILKINS. In the King's Benxh. 1805. Reported 6 East, 286. Replevin does not lie for damages merely. Lord EUenboroiigh, C. J., delivered the unanimous judgment of the court. " This was an action of replevin against four defendants, in which the two first defendants avow as overseers of the poor of the ham- let of Milton, in the parish of Shipton, in the county of Oxford ; the third, as churchwarden of the same hamlet ; and the fourth defendant, as their bailiff, makes cognizance for taking the plain- tiffs cows under the warrant of two justices of peace for levying by distress upon the goods and chattels of the plaintiff a poor's rate, after the same had been duly demanded. The defendants conclude their avowry and cognizance by averring, that no demand of the perusal or copy of the warrant was ever made upon or left at the usual place of abode of the defendants by the plaintiff, or his attorney, or agent, as required by the statute; and pray judg- ment and a return of the cows, etc. To which avowry there is a frivolous plea in bar, and a demurrer thereto ; assigning for cause, that the plaintiff has not by his plea to the avowry and cognizance 1 " And in the writ of withernam he ought to rehearse tlie cause which the sheriff returneth for which he cauuot replevy them." Fitz. N. B., 73 F. 78 CASES ON COMMON-LAW PLEADING. in any manner answered that part thereof in which it is alleged, 'that no demand was made of the perusal and copy of the warrant therein mentioned;' but hath by his said plea admitted that no such demand was made. To this there is a joinder in demurrer. And the question arising upon these pleadings is, whether the stat. 24 Geo. II. c. 44, s. 6 (which, provides that no action shall be brought against any constable or other officer for anything done in obedience to the warrant of a justice until demand shall have been made, in the manner prescribed by that act, of the perusal and copy of such warrant, and the same hath been refused or neg- lected for the space of six days after such demand) extend to the action of replevin. The cases upon this subject are Milward and Caffin, 2 Sir W. Blackstone's Rep. 1330 ; in which case the court determined that the action of replevin was ' an action in rem to which that statute had been never holden to extend : ' and Pearson V. Eoberts, Willes's Rep. 668 ; in which it was decided that an action of replevin could not be maintained against persons making a dis- tress for not performing the highway duty, as a demand had not, previous to the commencement thereof, been made of the justices' warrant. And Lord Chief Justice Willes there distinguished be- tween a replevin by plaint or mandatory writ to the sheriff, to have the goods again, which he stated not to be within the statute, and replevin by action to recover damages. And in addition to this there is the authority of an oUter dictum of Lord Ken yon in Har- pur V. Carr, 7 Term Rep. 270,^ that but for the case of Milward and Caffin he should have thought replevin within the statute. And one cannot but feel the force of the observation made by Lord Kenyon on that occasion, 'that convenience requires that it should be so, otherwise it is in the plaintiff's power to evade the provi- sions of the act, by adopting a particular mode of proceeding which depends on his own choice.' The case in Willes's Reports seems to go on a distinction between an action of replevin where dam- ages are to be recovered, and a proceeding only to have the goods again. But the industry of the gentleman who very ably argued this case has not succeeded in discovering such first-mentioned mode of proceeding by action of replevin to recover damages, as contradistinguished from proceedings to have the goods again. There does not appear in any of the books any proceeding in re- plevin which has not commenced by writ, requiring the sheriff to cause the goods of the plaintiff to be replevied to him, or by 1 In that case it was decided, that a churchwarden taking a distress forwi poor's rate under a warrant of magistrates was entitled to the protection of the statute 24 Geo. n. c. 44, in an action of trespass. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. /9 plaint in the sheriffs' court, the immediate process upon which is a piecept to replevy the goods of the party levying the plaint. Both those modes of proceeding are in rem, i. e. to have the goods again ; and if so, and there should not be any action of replevin for the recovery of damages only, then the case in Lord Chief Jus- tice Willes's Reports will be an authority, in addition to that of Milward and Caffiu, to show that the statute 24 Geo. II. does not extend to the case now before the court. The reason assigned by Lord Kenyon ab inconvenienti has undoubtedly great weight ; but on the other hand it appears to us that the inconvenience of de- priving the subject of his remedy by replevin is full as great, if not greater: for it may happen that no damages which a jury is prop- erly authorized to give can compensate the loss of a particular chattel which the owner may be forever deprived of, if he cannot sue a replevin." Judgment for the plaintiff.^ SHANNON IN REPLEVIN v. SHANNON. Irish Court of Chaxcery. 1804. Reported 1 Schoales and Lefroy, 324. For replevin to lie, there must have been a taking. Mr. Bell had obtained a conditional order for an attachment against the plaintiff for an abuse of the writ in replevin, in issuing and executing it in such a case as the present, and for restitution of the goods taken. The affidavit of the defendant "William Shan- non, on which the rule was made, stated that a writ had issued to the sheriff of the county of Down to replevy one mahogany desk, etc., that the said goods were the property of the defendant, (he having bought them) and were in his possession at the time of the taking, and that they were not taken as a distress for rent. That the plaintiff, Samuel Shannon, who is the defendant's father, is far advanced in years and become weak iti understanding: that he had been seduced from the defendant's house where he had before resided, to the house of one Francis Moore, who employed an at- torney to endeavor to get the goods in question. The affidavit then stated the circumstances of the taking and carrying away of the goods ; and that a bill had been filed in the Exchequer at the suit of Samuel Shannon against defendant, to impeach certain deeds under which the defendant claimed to hold these goods. 1 The reporter's statement of facts, the arguments, and part of the opinion are omitted. 80 CASES ON COMMON-LAW PLEADING. On the part of the plaintiff were read, the affidavit of Francis Moore and of Mr. John Norman the attorney for the plaintiff, which stated the belief of the deponent that the goods were the property of the plaintiff Samuel Shannon, who had been obliged to leave the house of the defendant, (his natural son) from the ill treatment he received there; that the plaintiff had had the goods in his possession while he lodged in the defendant's house, and that when he quitted the house, defendant wrongfully detained them. And Mr. Norman swore that having stated these facts to eminent counsel, he was advised to take this proceeding by replevin. Mr. Saurin, for the plaintiff, referred to the authorities already cited in Chamberlain's case and the usage in this country : ^ and ob- served that as trespass rnay be brought upon a constructive taking founded on a detention without right, so also might replevin. Mr. Bell for the defendant. Eeplevin is founded solely on a taking by distress ; 3 Bl. Com. 146. The Lord Chancellor (after observing that no taking (which is the foundation of replevin) was suggested in this case, and that it was not denied on the part of the plaintiff that the bill in the Exchequer related to the same goods) proceeded. " I have, in consequence of what passed the other day, conversed with the Lord Chief Justice on this subject ; and he thinks (and it is the opinion of the other judges as he informs me) that the use of the writ of replevin in cases like the present is a crying griev- ance : the courts of law are put into a difficulty : they do not know how to deal with it. How is a party to be put into the situation he ought to be in when a right to property is to be tried ? the first evidence of property is possession, and that you take from him in the first instance, and you throw the onus of proving title upon him, on whom, as having the jprima facie title,, possession, that onus ought not to be thrown. The defendant in this case may have conducted himself extremely ill, but the law has provided certain remedies adapted to certain cases ; and upon the affidavits which are made on his behalf, it appears that his remedy is either detinue or trover. "Here is a son — a natural son it is said, who has got deeds of gift (perhaps fraudulently) of his father's property: the father having resided in the house of his son where the goods were, quits the house, and demands the goods. The goods were in his son's possession all along; at least the possession was equivocal, and that is not a case to which the writ of replevin can be applied ; it must be to the case of an unequivocal possession, and of a taking; 1 Ireland. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 81 it would Otherwise not be reasonable ; for if there had not been a taking from the plaintiff, but that the defendant had the goods in his quiet possession by other means, the law presumes that they are prima facie the property of the defendant, and there is no reason why it should in such a case give a writ to change the possession in the first instance against such presumption of prop- erty. It is much fairer, to throw the onus on the person who has not had the possession tlian on him who has had it. " On the other hand, what has been said by the defendant's coun- sel would confine it too much ; it is an action founded upon any takiiig by the party. The writ is founded on a taking, and the right which the party from whom the goods are taken has to have them restored to him, until the question of title to the goods is determined. The person who takes them may claim property in them, and if he does, the sheriff cannot deliver the goods until that question is tried: but that claim of property can be made only when there has been a taking : and it appears to me that the writ of replevin was calculated in such cases to supply the place of detinue or trover, and to prevent the party from whom the goods are taken, being put to those actions, except where the other can shew property. But if this writ could be thus used, I do not see why it was necessary ever to bring detinue or trover. " I am always sorry to hear Mr. Justice Blackstone's commen- taries cited as an authority : he would have been sorry himself to hear the book so cited: he did not consider it such. His definition of the action of replevin is certainly too narrow : many old author- ities will be found in the books of replevin being brought where there was no distress. "As the practice has existed in this country, of issuing the writ in cases like the present, I shall not grant the attachment in this case, provided the goods are returned and the costs of this motion paid." MATTER OF WILSONS, BANKRUPTS. Irish Court of Chancery. March 1, 1804. Reported 1 Sciioales and Lefroy, 320. For replevin to lie, there must have been a wrongful taking. A person claiming property in some corn, which was in posses- sion of the bankrupt, and which the assignees insisted on holding as part of the bankrupt's effects, brought a replevin, and under it took the corn from the assignees. The replevin suit proceeded; 6 82 CASES ON COMMON-LAW PLEADING. the assignees pleaded property, and the cause was proceeding to trial, when a motion was made, in the matter of the bankrupt, by the person claiming the corn, founded upon aftidavits as to the property, for an order on the assignees to deliver it up to him, and that the assignees miglit be restrained from compelling him to go to trial at law. Upon this motion the Lord Chancellor expressed his astonisliment at the use made of the writ of replevin in this country ; ^ and observed that this was not such a taking as was intended by the writ, which is merely meant to apply to this case, namely, where A. takes goods wrongfully from B. and B. applies to have them redelivered to him upon giving security until it shall appear whether A. has taken them rightfully. But if A. be in possession of goods, in which B, claims a property, this is not the writ to try that right ; there are other actions to try the right of property. It was ordered, " That a special issue should be tried at the expense and risque of the claimant, whether the bankrupt had in his possession, at the time of his bankruptcy, the corn in ques- tion, and whether the same was the property of the petitioner, and the replevin suit to be discontinued, the claimant paying the cost thereof." MENNIE V. BLAKE. In the Queen's Bench. 1856. Reported 6 Ellis and Blackbdrn, 842. For replevin to lie, there must have been an unlawful taking by fraud or violence. Eeplevin. Plea : Non cepit. Issue thereon. The cause came on to be tried before Crowder, J., at the last Spring Assizes for Devon. The following account of the facts which then appeared in evidence is taken from the judgment of this court. " One Facey was indebted to the plaintiff. He brought him £15 towards payment of the debt, but requested and obtained permis- sion to lay the money out in the purchase of a horse and cart, which were to be the property of the plaintiff, but of which Facey was to have the possession and the use, subject to such occasional use as plaintiff might require to have of them, and to their being given up to plaintiff when he should demand them. Accordingly Facey made the purchase : the possession and the use were substantially with him ; he fed, stabled, and took care of the horse ; there was 1 Ireland. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 83 some evidence that his name was on the front of the cart ; certainly pLaintifif's was on the side ; under what circumstances placed there the evidence was contradictory, the plaintiff alleging it to have been placed in the ordinary way as an evidence of property, the defendant insinuating that it was so placed in order to protect it from Facey's other creditors. It is not however material, because on the one hand the plaintiffs property we take to be indisputable, and on the other we do not think there is evidence enough to charge the defendant with fraud or collusion in the cir- cumstances under which he obtained possession, and which we now proceed to state. " Facey determined to emigrate ; and the defendant knew of his intention ; but the plaintiff did not. The horse and cart were used in transporting Facey's effects to the pier at which he was to em- bark ; and the defendant, to whom he owed money for fodder supplied to the horse, went with him to procure payment if he could ; at parting Facey delivered the horse and cart to him, telling him to take them for the debt, but adding that he owed the plain- tiff money also, and that, if he would discharge the debt due to the defendant, which was much less than their value, he was to give them up to him. In this manner the defendant acquired his pos- session. The plaintiff for some time remained in ignorance of what had passed ; and afterwards, coming to the knowledge of it, de- manded them ; but the defendant refused to deliver them unless his debt were paid: whereupon the plaintiff proceeded to replevy the goods, and so brought the present action." Upon these facts the learned judge directed a verdict for the plaintiff, with leave to move to enter a verdict for the defendant or a nonsuit, if under such circumstances replevin did not lie. Montague Smith, in the ensuing term, obtained a rule nisi accordingly. Collier and Karslake, in last Hilary Term, showed cause. [Argu- ment omitted.] Montague Smith and Coleridge, contra. [Argument omitted.] Cwr. adv. vult. Coleridge, J., now delivered judgment. " This was a rule to enter a nonsuit or verdict for the plaintiff on a plea of no7i cepit to a declaration in replevin." His lordship then stated the facts as ante, p. 843, and then proceeded as follows : — "Upon these facts the question raised is, Whether there was any taking of the horse and cart from the plaintiff by the defendant ? 84 CASES ON COMMON-LAW PLEADING. And we are of opinion, looking to tlie nature and purpose of the action of replevin, that there was no taking in the sense in which that word must be understood in this issue. The whole proceed- ing of replevin, at common law, is distinguished from that in tres- jiass in this, among other things ; that, while the latter is intended to procure a compensation in damages for goods wrongfully taken out of the actual or constructive possession of the plaintiff, the object of the former is to procure the restitution of the goods themselves ; and this it effects by a preliminary ex parte interfer- ence by the officer of the law with the possession. This being done, the action of replevin, apart from the replevin itself, is again dis- tinguished from trespass by this, that, at the time of declaring, tlie supposed wrongful possession has been put an end to, and the litigation proceeds for the purpose of deciding whether he, who by the supposition was originally possessed, and out of whose posses- sion the goods were taken, and to whom they have been restored, ought to retain that possession, or whether it ought to be restored to the defendant. Blackstone (3 Com. 146), after observing that the Mirror ascribes the innovation of this proceeding to Glanvil, says that it 'obtains only in one instance of an unlawful taking, that of a wrongful distress.' If by this expression he only meant that in practice it was not usual to have recourse to replevin ex- cept in the case of a distress alleged to be wrongful, he was prob- ably justified by the fact. But there are not wanting authorities to show that the remedy by replevin was not so confined ; and in the case of Shannon v. Shannon [1 Sch. & Lef. 324, 327], Lord Eedesdale finds fault with this passage, saying that the definition is ' too narrow,' and that ' many old authorities will be found in the books of replevin being brought when there was no distress ' : and the learned reporters, in a note to the passage, refer to Spel- man's Glossary, 485 (tit. Eeplegio) ; Doctrina Phicitandi, Eeplevin, 313 ; Com. Dig. Eeplevin (A) ; and Gilbert, Distress and Eeplevin, 58 (4th ed. p. 80). " There is no doubt that passages, such as those referred to, may be found stating the definition very broadly ; yet we believe that, when the authorities on which some of them rest are examined, and when due attention has been paid to the context in others, it will appear in the result questionable, at the least, whether the commentator's more qualified definition was not correct ; at least that replevin was instituted as a peculiar remedy, and under the statute of Marlbridge, by plaint as a festinum remedium for the injury of an unlawful distress. '• Thus in 2 Eoll. Abr. 430, Eeplevin (B) 2, it is said, if trespasser ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 85 take beasts, replevin lies of this taking at election ; the authority for this is Yearb. Mich. 7 Hen. IV. fol. 28 B; where, the counsel, or another judge, alleging the contrary, Gascoigne [C. J. of K. B.] says, 'He may elect to have replevin or writ of trespass;' but he adds, or the reporter adds, 'and some understand that he cannot,' for which last a reason is given. "Again, Com. Dig. Eeplevin (A), 'Replevin lies of all goods and chattels unlawfully taken ; ' for this no authority is cited ; but the context shows that the Chief Baron was thinking, not so much of the circumstances under which taken, as of the things them- selves ; for he adds, ' whether they be live cattle, or dead chattels/ or ' a swarm of bees,' or ' iron of his mill,' citing Fitzherbert's Natura Brevium, in whose chapter on replevin we do not find the law so broadly laid down. As to the passage to which reference is made in Lord Chief Baron Gilbert, it should be remembered that the treatise is on the law of distresses and replevins, and the pas- sage occurs in a chapter in which replevin is treated of with refer- ence to distress, as if the two formed parts of one subject-matter. Little therefore can be inferred from the generality of the language in a single sentence. A dictum of Lord ElJenborough has also been referred to in Dore v. Wilkinson, 2 Stark. N. P. C. 287, from which the inference is that he thought replevin might conven- ientlv be had recourse to more often than it was, instead of brinsintr trover; but it was an observation thrown out in the course of a cause, a recollection of what Mr. Wallace used to say, not ruling any point, nor deciding anything in the cause ; much importance ought not to be attached to such casual observations, even of so great a judge, at Nisi Frius. On the other hand, Lord Coke seems to be authority the other way. In Co. Lit. 145 h, is the follow- ing passage : ' A replegiare lyeth, as Littleton here teacheth us, where goods are distrained and impounded, the owner of the goods may have a writ de replegiare facias, whereby the sheriff is com- manded, taking sureties in that behalf, to redeliver the goods dis- trained to the owner, or upon complaint made to the sheriff he ought to make a replevy in that county. Replegiare is com- pounded of re and plegiare, as much as to say, as to redeliver upon pledges or sureties.' " From a review of these and other authorities which might be added, it may appear not settled whether originally a replevy lay in case of other takings than by distress. Nor is it necessary to decide that question now ; for, at all events, it seems clear that replevin is not maintainable unless in a case in which there has been first a taking out of the possession of the owner. This stands 86 CASES ON COMMON-LAW PLEADING. upon authority and the reason of the thing. We have referred already to a dictum of Lord Redesdale. Three cases are to be found : Ex farte Chamberlain [1 Sch. & Lef. 320], In re Wilsons [1 Sch. & Lef. 320, note «], and Shannon v. Shannon [1 Sch. & Lef. 324], in which the law is so laid down by Lord Redesdale. And these are cases of great authority ; for that very learned judge found the practice in Ireland the other way. He felt the incon- venience and injustice of it : he consulted with the Lord Chief Justice and obtained the opinion of the other judges, and then pro- nounced the true rule, which, in one of these cases, hi re Wilsons \sii'pTa\ he thus states: The writ of replevin 'is merely meant to apply to this case (namely), where A. takes goods wrongfully from B. and B. applies to have them redelivered to him upon giving secur- ity until it shall appear whether A. has taken them rightfully. But if A. be in possession of goods, in which B. claims a property, this is not the writ to try that right.' In the course of these cases his Lordship points out how replevin proceeds against the general presumption of law in favor of possession ; how it casts upon him who was in possession the burden of first proving his right; and he puts (^Ex parte Chamberlain [1 Sch. & Lef. 322]), as a rcductio ad ahsurdum, a case not unlike the present. ' Suppose,' says he, ' the case of a ])erson having a lien on goods in his possession, and who insists on being paid before he delivers them up ; I do not see on the principles insisted on, why a writ of replevin may not issue in that case.' The reason of the thing is equally decisive : as a general rule it is just that a party in the peaceable possession of land or goods should remain undisturbed, either by the party claiming adversely or by the officers of the law, until the right be determined and the possession shpwn to be unlawful. But, where, either by distress or merely by a strong hand, the peaceable pos- session has been disturbed, an exceptional case arises ; and it may be just that, even before any determination of the right, the law should interpose to replace the parties in the condition in which they were before the act done, security being taken that the right shall be tried, and the goods be forthcoming to abide the decision. Whatever may be thought of Lord Coke's etymology, what he says of replegiare, wliile it shows his understanding of the law, gives a true account of what replevin is, a redelivery to the former pos- sessor on pledges found. But this is applicable clearly to excep- tional cases only. If, wherever a party asserts a right to goods in the peaceable possession of another, he has an election to take them from him by a replevin, it is obvious that the most crying injustice might not unfrequently result. Now, in the present case, ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 87 Facey was not the servant of the plaintiff; nor was his possession merely tlie possession of the plaintiff ; he was the bailee of the plaintiff, and had a lawful possession from the delivery of the owner, which conferred on him a special property. This did not authorize him to transfer his possession to the defendant; nor could he give him a lien for his debt against the paramount right of the true owner the bailor ; after a demand and refusal, upon the admitted facts in this case, the plaintiff could clearly have main- tained trover against the defendant ; but yet there was nothing wrongful in his accepting the possession from Facey ; he acquired that possession neither by fraud nor violence ; at least none is found, and we cannot presume either ; and he retained the posses- sion on a ground which might justify the retainer until the alleged ownership was proved. This therefore, in our opinion, was a case in which the plaintiff could not proceed by replevin, but should have proved his prior right in trover or detinue. . . . " The rule should be absolute ; not to enter a verdict, but a non- suit." Eule absolute for a nonsuit.^ JAMES DUGAN v. DANIEL A. NICHOLS. Supreme Judicial Court, Massachusetts. 1878. Keported 125 MASSACnusETTS, 576. Replevin lies for a wrongful detention merely. Eeplevin of 13 barrels of oil. Writ dated July 10, 1874. The plaintiff offered evidence tending to prove that he bought the oil of the firm of Shaw & Bruce, of which the defendant was the assignee in bankruptcy, and paid for the same ; and that the oil was, when purchased, in a shed belonging to the firm, where it remained until it was replevied. The plaintiff also offered evidence tending to prove a demand of the defendant before the date of the writ. The defendant testified that he found the oil in question on the premises of Shaw & Bruce ; that he never heard that the oil be- longed to the plaintiff, until the plaintiff told him so about a week before the date of the writ: and that the plaintiff never made any demand upon him, and upon cross-examination, in reply to the question, " If you had understood Dugan demanded the oil, should 1 Arguments of counsel and part of the opinion in criticism of the fact that the sheriff's deputy for the issuing of replevins was the plaintiff's attorney are here omitted. 88 CASES ON COMMON-LAW PLEADING. you have given it up ? " answered, " I should not, unless my coun- sel had ordered me to." Upon examination he testified that he had no recollection that the question of what he might have done had ever entered his mind until he was asked the question as above. The defendant requested the judge to rule that it was not a question of what the defendant now thought he might have done ; that if the defendant's testimony was taken as true, it would not exempt the plaintiff from making a demand before bringing his action ; and that there was no evidence of a conversion. The jury returned a verdict for the plaintiff; .and the defendant alleged exceptions. C. Sewwall, for the defendant. S. B. Ives, Jr., for the plaintiff, was not called upon. By the Court. The testimony of the defendant warranted the jury in finding an unlawful detention of the goods, which was all that was necessary to support replevin. Gen. Sts. c. 143, § 10 ; Whitman v. Merrill, 125 Mass. 127.1 Exceptions overruled.^ " When any goods exceeding in value twenty dollars, are unlaw- fully taken or detained from the owner or person entitled to the possession, or when any goods of that value attached on mesne pro- cess or taken on execution are claimed by a person other than the defendant in the suit, in which they are so attached or taken, such owner or other person may cause them to be replevied." General Statutes, Massachusetts, c. 143, § 10. 1 Part of the opinion is omitted. 2 Per Lord, J., in Whitman v. Merrill, 125 Mass. 127 : " A fallacy of the plaintiff's is the assumption that a judgment for the plaintiff in replevin necessarily implies an unlawful taking of the replevied goods by the defendant. This is not so. Replevin lies for an unlawful detention, although the original taking was lawful." Badger v. Phinney, 15 Mass. 359 (1819) ; Baker v. Fales, 16 Mass. 147 (1819); Marston v. Bald- win, 17 Mass. 606 (1822) ; Esson v. Tarbell, 9 Cush. 407 (1852) ; Lathrop v. Bowen, 121 Mass. 107 (1876); of. Bemis v. De Land, 177 Mass. 182 (1900), accord. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 89 Section IV. TEESPASS. Direct force attended with damage in re- spect to plaintiff's We have thus far considered (1) an action for the recov- ery of one's debt (almost, indeed, for the specific coins of one's debt) ; (2) for the recovery of one's specific chattels, rightfully taken and wrongfully detained (or, in later law, perhaps, wrongfully taken) ; (3) for the recovery of one's specific chattels (cattle) wrongfully taken. The first very indirectly seeks, the second and third directly seek, per- sonal property of which the plaintiff is being unlawfully deforced. They have one important thing in common — an ancestry not traceable to the criminal law. (Though replevin certainly has a criminal tinge at its origin.) ^ 1 " Just because the power of extra-judicial distress is originally a justiciary power, the king's courts and oiHeers are much concerned when it is abused. If the distrainor will not deliver the beasts after gage and pledge have beeu offered, then it is the sheriff's duty to deliver them. For this purpose he may raise the hue, call out the whole power of the county (posse comitalus) and use all necessary force. ' Wlien gao-e and pledge fail, peace fails,' says Bracton ; in other words, the distraining lord is beginning a war against the state and must be crushed. The offence that he commits in retaining the beasts after gage and pledge have been tendered, is known as vetitum nnmii, or vee de nam. It stands next door to robbery ; it is so royal a plea, that very few of the lords of franchises have power to entertain it. It is an attack on that judiciary system of which the king is the head. Disputes about the lawfulness of a distress were within the sheriff's competence. He could hear them without being ordered to do so by royal writ. But when he heard them he was acting, not as the president of the county court, but as a royal ju.stitiar. Before tlie end of the thirteenth century the action based upon the ree di'. nam was losing some of its terrors; either party could easily procure its removal from the county court to the king's court. Under the name of Keplegiare or Replevin an action was being developed wiiich wns proving itself to be a convenient action for the settlement of disputes between land- lord and tenant; but it seems to have owed its vigor, its rapidity, and therefore its convenience, to the supposition that a serious offence had been committed against the king." 2 Pollock and Maitland, 575. 90 CASES ON COMMON-LAW PLEADING. The trespasses, if we except trespass quare clausum /regit, are of criminal ancestry. We shall trace their genealogy, showing how certain criminal processes called appeals finally evolved into indictments on the one hand, and into actions for civil torts on the other. And finally we shall note that one essential of trespass is a direct force to the plaintiff's lands, his chattels, his body, or his servant,^ to be compen- sated by money damages. It is interesting to note that in some of the United States, certain trespasses to land are to-day by statute crimes as well as torts. HISTOEY OF TEESPASS. Pkesented 2 Pollock and Maitland, 510. r Felonies to be prosecuted by appeal. Anciently, trespasses ' or wrongful acts were 1 Mere trespasses giving rise to actions in L which no words of felony were used. „„ , ra. In civil actions. Later, otlences less , tt .. 4. -u c ^ ^ i j h. Upon presentment betore local courts. . , , "^ ] c. Upon presentment before the king's punished • .• '- ^justices. r ( Treasons. -r , , , oc I Upon indictment. \ Felonies. In later days, otlences I ^^T■^ . / ' -< I. Misdemeanors, were punishable yy ^ I Upon summary convic- Ition. " ' Trespassed Transgressio derivatur h transgrediendo , because it passeth that which is right: Transgressio autem est, cum modus non servatur, nee mensura : debet enim quilibet in suo facto modum habere, et mensuram. Nota, in the lowest and the highest offences there are no accessaries, but all are principals ; as in ryots, routs, forcible entries, and other transgressions vi et armis, which are the lowest offences ; and so in the highest offence, which is crimen Icesw majestatis, there be no accessaries ; but in felonies there be accessaries both before and after." Coke upon Littleton, 57 a. Trespass " became common near the end of Henry III.'s reign. It was a flexible action ; the defendant was called upon to say why 1 In the following pages separate treatment of trespass per quod servltium amisit has been deemed unnecessary. — Ed. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 91 with force and arms and against the king's peace he did some wrongful act. In course of time the precedents fell into three great classes ; the violence is done to the body, the lands, the goods of the plaintiff." 2 Pollock and ]\Iaitland, 165. A. The Genesis of Trespass to Plaintiff's Person. " It is commonly known that the early forms of legal procedure were grounded in vengeance. Modern writers have thought that the Roman law started from the blood feud, and all the authorities agree that the German law begun in that way. The fend led to the composition, at first optional, then compulsory, by which the feud was bought off. The gradual encroachment of the composition may be traced in the Anglo-Saxon laws, and the feud was pretty well broken up, though not extinguished, by the time of William the Conqueror. The killings and house burnings of an earlier day became the appeals of mayhem and arson. The appeals de pace et plagis and of mayhem became, or rather were in substance, the action of trespass which is still familiar to lawyers." Holmes, Common Law, 2. DE APPELO DE PACE ET PLAGIS. Reported Bractox, f. 144. " The appeal is made in these words. ' A. appeals B. that on a certain day, as he was in the peace of the lord the king in such a place, or as he travelled in the peace of the lord the king on the highway of the lord the king between such a vill and such a vill, on such a day, before such a feast or after such a feast, in such a year, at such an hour, the said B. came with his force and against the peace of the king in felony and witli a premeditated assault, made an attack upon him, and inflicted a certain wound upon him in such a place, with such kind of arms, and that he did this wickedly and in felony, he offers to prove against him by his body, as the court thinks fit.' And B. comes and defends himself against having broken the peace of the king, and against the felony and the wound, and whatever is against the peace of the lord the king (and the whole record word for word, wliatever is imputed to him and according to what is imputed to him), by his body according as the court of the king has thought fit." 92 CASES ON COMMON-LAW PLEADING. APPEAL OF MAYHEM. " Umberd, who is here, appeals Maimound who is there, for that whereas, etc., there came this Maimound running in forethought assault and with such manner of arms cut off the foot or the hand of this Umberd, or with such a staff struck him on the head, so that he broke the crown of his head, or with a stone knocked out three of his front teeth so that he maimed him. This mayhem did he feloniously," etc. — Mirror (Sel. Soc), Book 2, c. xix. " Mayhem is so termed when any one is rendered in any part of his body disabled from fighting, and chiefly by him whom he ap- peals, as if portions of bone shall have been extracted from his head, and a great crust is raised. Likewise if a bone be broken, or a foot, or a hand, or a finger, or a joint of a foot or of a hand, or any other member be cut off, or the nerves or some limb have become contracted by the wound so made, or the fingers have been rendered crooked, or if an eye has been scooped out, or anything else has been done to the body, whereby a man has been rendered less able and competent to defend himself. But what shall be said of him who has his teeth broken ? if the breakage of teeth is to be adjudged a mayhem ? To which it is to be answered, that everything whereby a man is disabled from fighting as above said, is a mayhem." Bract, f. 145 b. THE CHAPtACTEPJSTICS OF TEESPASS TO PLAINTIFF'S PERSON. GREEN V. GODDARD. In the Queen's Bench. Between 1703 and 1705. Reported 2 Salkeld, 641. The essence of trespass. Trespass, assault, and battery laid on the first of October, 3 reg. The defendant, as to the vi et armis, pleaded non cut. And as to the residue says, that long before, namely, on the 13th of Septem- ber, a stranger's bull had broke into his close, that he was driving him out to put him in the pound, and the plaintiff came into the said close, et manuforti impedivit ipsum ac taurum prced. recussisse voluit, et quod ad prcevemend. etc. ipse idem defend, parvum Jiagel- lum super querentem molliter impostdt, quod est idem residuum^ etc., absque hoc quod cut. fuit ad aliquod tempus ante eundcm 13 diem. The plaintiff demurred. Mr. Eyre, for the plaintiff, argued ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 93 that they should have requested him to go out of the close. 19 Hen. VI. 31 ; 11 Hen. YI. 23 ; 2 Eo. Tresp. 547, 548, 549, and that flagellum molliter iinponere is repugnant. 1 Sid. 4. M per Cur. There is a force in law, as in every trespass quare dausum /regit : As if one enters into my ground, in that case the owner must request him to depart before he can lay hands on him to turn him out ; for every impositio mamiam is an assault and battery, which cannot be justified upon the account of breaking the close in law, without a request. The other is an actual force, as in burglary, as breaking open a door or gate ; and in that case it is lawful to oppose force to force ; and if one breaks down the gate, or comes into my close fi et armis, I need not request liim to be gone, but may lay hands on him immediately, for it is but returning violence with violence : So if one comes forcibly and takes away my goods, I may oppose him without any more ado, for there is no time to make a request.^ UNDERWOOD v. HEWSON. In the King's Bench. 1724. Reported 1 Strange, 596. The defendant was uncocking a gun, and the plaintiff standing to see it, it went off and wounded him : and at the trial it was held that the plaintiff might maintain trespass. Strange, ^jro defendente. COLE V. TURNER. Before Holt, C. J., at Nisi Prius. 1704. Reported 6 Moderx, 149. Battery defined. Upon evidence in trespass for assault and battery: Holt, C. J. , declared, 1. That the least touching of another in anger is a battery. 2. If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it will be no battery. 3. If any of them use violence against the otlier, to force his way in a rude inordinate manner, it will be a battery ; or any struggle about the passage to that degree as may do hurt, will be a battery. Vide Bro. Tresp. 236, 336 ; 7 Edw. IV. 26 ; 22 Ass. 60 ; 3 Hen. IV. 9. 1 Part of the case, not here relevant, is omitted. 94 CASES ON COMMON-LAW PLEADING. Note. It was in action of battery by husband and wife, for a battery upon the husband and wife, ad damnum ipsorum ; and though the plaintiff had a verdict, yet the Chief Justice said, he should never have judgment: and the judgment was after arrested above upon that exception. STEPHENS V. MYERS. At Xisi Prius. 1830. Keported 4 Carkington and Payne, 349. Assault defined. Assault. The declaration stated, that the defendant threatened and attempted to assault the plaintiff. Plea — Not guilty. It appeared, that the plaintiff was acting as chairman, at a parish meeting, and sat at the head of a table, at which table the defend- ant also sat, there being about six or seven persons between him and the plaintiff. The defendant having, in the course of some angry discussion, which took place, been very vociferous, and inter- rupted the proceedings of the meeting, a motion was made, that he should be turned out, which was carried by a very large majority. Upon this, the defendant said, he would rather pull the chairman out of the chair, than be turned out of the room ; and immediately advanced with his fist clenched toward the chairman, but was stopped by the church-warden, who sat next but one to the chair- man, at a time when he was not near enough for any blow he might have meditated to have reached the chairman ; but the witnesses said, that it seemed to them that he was advancing with an inten- tion to strike the chairman. Spankie, Serjt., for the defendant, upon this evidence, contended, that no assault had been committed, as there was no power in the defendant, from the situation of the parties, to execute his threat — there was not a present ability — he had not the means of executing his intention at the time he was stopped. Tindal, C. J., in his summing up, said : It is not every threat, when there is no actual personal violence, that constitutes an assault, there must, in all cases, be the means of carrying the threat into effect. The question I shall leave to you will be, whether the defendant was advancing at the time, in a threatening attitude, to strike the chairman, so that his blow would almost immediately have reached the chairman, if he had not been stopped ; then, though he was not near enough at the time to have struck him, yet if he was advancing with that intent, I think it amounts to an assault ACTIONS BEFORE THE STATUTE OF "WESTMINSTER II. 95 in law. If he was so advancing, that, within a second or two of time, he would have reached the plaintili', it seems to me it is an assault in law. If you think he was not advancing to strike the plaintiff, then only can you find your verdict for the defendant ; otherwise you must find it for tlie plaintiff, and give him such damages, as you think the nature of the case requires. Verdict for the plaintiff. Damages, Is. Andrews, Serjt., and Steer, for the plaintiff. Spankie, Serjt., and Thesiger, for the defendant. TURBERVELL v. SAVADGE. In the King's Bench. 16G9. i Reported 2 Keble, 545. Dictum. The intent may be material in trespass. In trespass of assault, battery, and wounding, the defendant pleaded the plaintiff began first, and the stroke he received, whereby he lost his eye, was on his own assault, and in defence of the de- fendant ; and on trial at bar now by the evidence it appeared the plaintiff threatened the defendant, and said, were it not Assize time, he would tell more of his mind, which was said bending his fist, and with his hand on his sword, yet per Curiamthis is no assault, as it would be without that declaration ; but it was farther sworn the plaintiff with his elbow punched the defendant, which if done in earnest discourse, and not with intent of violence, is no assault, nor then is it a justification of battery after retreat, as Phineas Andrew's case, and the jury, not believing the defendant, found pro plaintiff, and £500 damages.^ MITCHIL V. ALESTREE. In the King's Bench. 1676. Reported 1 Ventris, 295. An injury which happens against the defendant's will may be a trespass. ^ In an action upon the case brought against the defendant, for that he did ride an horse into a place called Lincoln's Inn Fields, a place much frequented by the king's subjects, and unapt for such 1 iSe^^ (/wtre. Cf. Scott v. Shepard, reported post. 2 Cf. Gibbons v. Pepper, reported post. 96 CASES ON COMMON-LAW PLEADING. purposes) for the breaking and taming of him, and that the horse was so unruly, that he broke from the defendant, and ran over the plain tifi[', and grievously hurt him, to his damage, etc. Upon not guilty pleaded, and a verdict for the plaintiff, it was moved by Simpson in arrest of judgment, that here is no cause of action ; for it appears by the declaration, that the mischief which happened was against the defendant's will, and so dmnnum absque injuria; and then not shown what right the king's subjects had to walk there ; and if a man digs a pit in a common into which one that has no right to come there, falls in, no action lies in such case. Curia contra, it was the defendant's- fault, to bring a wild horse into such a place where mischief might probably be done, by reason of the concourse of people. Lately, in this court an action was brought against a butcher, who had made an ox run from his stall and gored the plaintiff ; and this was alleged in the declaration to be in default of penning of him. Wylde said : If a man hath an unruly horse in his stable, and leaves open the stable-door, whereby the horse goes forth and does mischief ; an action lies against the master. Twisden. If one hath kept a tame fox, which gets loose and grows wild, he that kept him before shall not answer for the dam- age the fox doth after he hath lost him, and he hath resumed his wild nature. Vide Hobart's Eeports, 134. The case of Weaver and Ward. Judgment for the plaintiff. 2 Lev. 172. WEAVER V. WARD. In the King's Bench. 1616. Reported Hobart, 134. Trespass, unlike felony, need not be done animo felonico . Weaver brought an action of trespass of assault and battery against Ward. The defendant pleaded that he was amongst others, by the commandment of the lords of the council, a trained soldier in London, of the band of one Andrews, captain ; and so was the plaintiff; and that they were skirmishing with their muskets charged with powder for their exercise in re militari, against another captain and his band ; and as they were so skirmishing, the de- fendant, casualiter et per infortunium et contra volimtatem suam, in discharging his piece, did hurt and wound the plaintiff; which is the same, etc., absque hoc, that he was guilty aliter sive alio modo. And upon demurrer, by the plaintiff, judgment was given for him ; ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 97 for though it were agreed, that if men tilt or tourney in the presence of the king, or if two masters of defence playing their prizes kill one another, that this shall be no felony ; or if a lunatic kill a man, or the like; because felony must be done atdmo felonico ; yet in trespass, which tends only to give damages according to hurt or loss, it is not so ; and therefore if a lunatic hurt a man, he shall be answerable in trespass, (for this is in the nature of an excuse, and not of justitication, proM^ ei bene licuit,) except it may be judged utterly without his fault ; as if a man by force take my hand and strike you ; or if here the defendant had said that the plaintiff ran cross his piece when it was discharging ; or had set forth the case with the circumstances, so as it had appeared to the court that it had been inevitable, and that the defendant had committed no negligence to give occasion to the liurt. (b) The Genesis of Trespass to Plaintiff's Goods. In the very early English law, " The typical action for the re- covery of a movable is a highly penal action ; it is an action against a thief, or at any rate it is an action which aims at the discovery and punishment of a thief as well as at the restitution of stolen goods. An action we call it, but it is a prosecution, a prosecution in the primary sense of that word, a pursuit, a chase ; a great part of the legal procedure takes yjlace before any one has made his way to a court of law. My cattle have been driven off; I must follow the trail ; it is the duty of my neiglibors to assist me, to ride with me. If we catch the marauder still driving the beasts before him, we take him as a 'hand having' thief and he is dealt witli in an ex- ceedingly summary fashion ; ' he cannot deny ' the theft. The prac- tice of ear-marking or branding cattle, the legal duty that I am under of publicly exposing to the view of my neighbors whatever cattle I have, makes it a matter of notoriety that these beasts, which this man is driving before him, have been taken from me. Even if we cannot catch a thief in the act, the trail is treated as of great im- portance. If it leads into a man's land, he must show that it leads out again, otherwise it will ' stand instead of a foreoath ' ; it is an accusing fact. If the possessor has no unbroken trail in his favor, then when he discovers the thing, he lays his hand upon it and claims it. He declares the ox to be his and calls upon the pos- sessor to say how he came by it. The possessor has to give up the thing or to answer this question. He may perhaps assert that the beast is his by birth and rearing; a commoner answer will be that he acquired it from a third person whom he names. Then the pur- 7 98 CASES ON COMMON-LAW PLEADING. suer with his left hand grasping one of the beast's ears, and his right upon a relic or a sword, swears that the beast is his and has been stolen from him, and the possessor with his left hand grasp- ing the other ear swears that he is naming the person from whom he acquired it. " Now at length there may be proceedings before a court of law. The possessor must produce this third person before the court ; he has vouched a warrantor and must find him. If this vouchee ap- pears and confesses the warranty, then the beast is delivered over to him and the accusation is made against him. He can vouch another warrantor, and so, by following backwards the course along which the beast has passed, we may come at length to the thief. ... If the possessor can name no warrantor, it is still possible that he should protect himself against the charge of theft by showing that he purchased the thing in open market before the proper wit- nesses ; but he will have to surrender that thing ; it is not his though he bought it honestly. . . . " In the thirteenth century this ancient procedure was not yet obsolete ; but it was assuming a new form, that of the appeal of lar- ceny. Bracton called it the actio furti. . . . " Now this old procedure, which is Glanvill's petitio rex ex causa furtiva and Bracton's actio ftirti, underwent a further change. The appellee against whom a charge of larceny was brought was ex- pected, if he would not fight, to put himself upon his country. This we may regard as a concession to appellees. The accused had no longer to choose between some two or three definite lines of de- fence ; he could submit his case as a whole to the verdict of his neighbors, and hope that for one reason or another — which reason they need not give — they would acquit him. The voucher of a warrantor disappeared, and with it the appellor's chance of recover- ing his goods from a hand which was not that of the thief. Men were taking more notice than they once took of the psychical ele- ment of theft, the dishonest intention, and it was no longer to be tolerated that a burden of disproving theft should be cast upon one against whom no more could be asserted than that he was in pos- session of goods that had been taken from another. The appeal had become simply a criminal prosecution ; it failed utterly if the appellee was not convicted of theft. If he was convicted, and the stolen goods had been seised by the king's officers, the appellor might, as of old, recover them ; a writ of restitution would be issued in his favor, if he proved that he made ' fresh suit.' But more and more this restitution is regarded as a mere subordinate incident in the appeal, and when it is granted, it is granted rather as a reward ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 99 and a favor than as a matter of strict right. The man who has been forward in the prosecution of a malefactor deserves well at the hands of the State ; we reward him by giving him his own. In order to explain this view of the matter we must notice that our law of forfeiture has been greedy. The felon forfeits his chattels to the king; he forfeits what he has; he forfeits even 'that which he seemeth to have.' If the thief is indicted and convicted, the king will get even the stolen goods ; if he is appealed then the appellor will perhaps, if he has shown himself a diligent subject, receive a prize for good conduct. Men will begin to say that the thief has ' property ' in the stolen goods and that this is the reason why the king takes them. As a matter of history we believe this to be an inversion of logic: — one of the reasons why the thief is said to have 'property' in those goods is that the king has acquired a habit of taking them and refusing to give them up. " But of course more than this must be said before we can under- stand the ascription of property to a thief or other wrongful taker. So long as the old practice of bringing an actio furti agSiinst the third hand was in use, such an ascription would have been impossible. As already said, that practice went out of use. The king's court was putting something in its place, and yet not exactly in its place, namely, a writ of trespass. This became common near the end of Henry III.'s reign. It was a flexible action ; the defendant was called upon to say why with force and arms and against the king's peace he did some wrongful act. In the course of time the prece- dents fell into three great classes : the violence done to the body, the lands, the goods of the plaintiff. The commonest interference with his goods is that of taking and carrying them away ; a well-marked sub-form of trespass, is trespass de bonis asportatis. If, however, we look back at the oldest precedents we shall see that the destruction or asportation of goods was generally complained of as an incident which aggravated the invasion of land, the entry and breach of a close, and this may give us a clew when we explore the remedy which this action gives. " It is a semi-criminal action. The procedure against a contu- macious defendant aims at his outlawry. The convicted defendant is imprisoned until he makes fine with the king. He also is con- demned to pay damages. The action is not recuperatory ; it is not rei perseeutoria. ... To have made the action recuperatory (jrei pp.rsecutoria) in the case of chattels, would have been an anomaly ; in Henry III.'s day it might even have been an improper interference with the old actio furti ; but at any rate it would have been an anomaly. Therefore the man whose goods have been taken away 100 CASES OX COMMON-LAW PLEADING. from him can by writ of trespass recover, not his goods, but a pecu- niary equivalent for them ; and the writ of trespass is beginning to be his one and only remedy unless he is hardy enough to charge the defendant with larceny. "This is not all. Whatever subsequent ages may think, an action of trespass de bonis asporlatis is not au action that should be brought against the third hand, against one who has come to the goods through or under the wrongful taker, or against one who has wrongfully taken them from him. The man who has bought or hired goods from the trespasser, how has he broken the king's peace and why should he be sent to jail ,? As to the second trespasser, the action de lonis asportatis would have fallen out of touch with its impor- tant and influential neighbor the action de clauso frado, if it could have been brought against any one but the original wrong-doer. If I am disseised of land and any one disseises my disseisor, a writ of trespass is not my remedy against him ; I want land, not money, and a proper action is provided for me. It would be an anomaly to suffer the writ of trespass to do for the disseisee of a chattel what it will not do for the disseisee of land. The mischief is that the two cases are not parallel. The disseisee of land has plenteous actions though the writ of trespass be denied him, while the dis- seisee of a chattel, when the barbaric actio furti was falling into oblivion, had none. And so we arrive at this lamentable result which prevails for a while : — If my chattel be taken from me by another wrongfully but not feloniously, then I can have no action against any third person who at a subsequent time possesses it or meddles with it ; my one and only action is an action of trespass against the original taker." 2 Pollock and Maitland, 156-158, 163-166. APPEAL OF LAECENY (Actio Furti). " Athelwold, who is here, appeals Osketel, who is there, for that whereas this Athelwold had his goods, and in particular, etc., these goods he (Osketel) stole from him larcenously as a larcener, etc." Mirror (Sel. Soc), Book 2, c. xvi. APPEALS OF EOBBERY. "Osmund, who is here, appeals Saxmund, who is there, for that whereas tiiis Osmund had a horse of such a price, there came this Saxmund and robbed him of the horse on such a day, etc., or of so much money, or of such a garment of such a price, feloniously. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 101 etc., or of his two oxen of such a price, or of such other kind of chattels of such a price, etc., or received the said goods thus taken in robbery, or was aiding or otherwise consenting." Mirror (Sel. See), Book 2, c. xvi. ("In these actions, two rights may be concerned — the right of possession, as is the case where a thing is robbed or stolen from the possession of one who had no right of property in it (for in- stance where the thing has been lent, bailed, or let) ; and the right of property, as is the case where a thing is stolen or robbed from the possession of one to whom the property in it belongs.") Mir- ror (Sel. Soc), Book 2, c. xvi. " ' John, who is here, appeals Peter, who is there, that whereas the same John on such a day in such a year had such a horse, which he kept in his stable,' or elsewhere in such certain place, ' the same Peter there came, and the same horse feloniously as a felon stole from him, and took and led away against the peace, and that this he wickedly did, the same John offers to prove by his body as the court shall award that he ought to do it.' " ^ Britton, 96. Nichols, Ed. TPtESPASS HOW FAR THE DISSEISIN OF A CHATTEL. Clearly to understand the ancient action of trespass for the asportation of goods, we must know something of the whole scheme of remedies for the disseisin of chattels. The action of trespass de bonis asportatis is, as has been observed, of criminal origin. The barbarous actio furti of ancient times, and the appeals of larceny and robbery of more recent date, are its ancestors. As in the case of trespass de honis asportatis, and in the cases of the actio furti and the appeals, the fundamental wrong was a taking without right of the plaintiff's chattel,^ — a disseisin of the plaintiff's chattel.^ " From the days of Glanvil[l] almost to the time of Littleton, ' seisin ' and ' possession ' were synonymous 1 "If Peter pleads that the horse was liis own, and that he took him as liis own, and as his chattel lost out of his possession, and can prove it, the appeal shall be changed from felony to the nature of a trespass." - " Originally any taking without right, like killing by accident, was felonious. In Bracton's time, if not earlier, the animus fiirdncU was essential to a felony. Bracton, f. 136 b." Ames, Disseisin of Chattels, 3 Harv. L. Rev. 28, n. 3 Ibid. 23, 28. 102 CASES ON COMMON-LAW PLEADING. ^ terms, and were applied alike to chattels and land. In a word, seisin was not a purely feudal notion." ^ " The word ' disseisin,' it is true, was rarely used with reference to per- sonalty.'^ Only three illustrations of such use have been found.^ ... In substance, however, the law of disseisin was common to both realty and personalty." The Disseisin of Land. " A disseisor of land, it is well known, gains by his tort an estate in fee simple. ' If a squatter wrongfully encloses a bit of waste land and builds a hut on it, and lives there, he acquires an estate in fee simple in the land which he has enclosed. ... He is not a mere tenant at will, nor for years, nor for life, nor in tail ; but he has an estate in fee simple. He has seisin of the freehold to him and his heirs.'"* The Disseisin of Chattels. "Compare with this the following from Fitzherbert : 'Note if one takes my goods, he is seised now of them as of his own goods, adjudged by the whole court.' "'" The Effect upon Title of Trespass to Goods, (a) The Ancient Rule. This prepares us for the following statement, which is startling : " Trespass in goods is the wrongful taking of them with pretence of title, and therefore altereth the propertie of those goods." Finch, Law, Book III. c. 6. Que Sera Dit Le Trespasser. 2 Roll. Abr. Trespass, 553. Trespass anciently altered the property in goods. 1. If my servant without my notice puts my beasts on the land of another, my servant is the trespasser and not I ; for by the voluntary putting of the animals there without my assent, he gains 1 Ames, Disseisin of Chattels, 3 Harv. L. Rev. 23. 2 Ibid. 24. 3 Ibid. 24; I Rot. Cur. Reg. 451 ; 1 Stat, of Realm, 230, or Bract, f. 136 b; Y. B. 14 Edw. II. 409. * Ames, Disseisin of Chattels, 3 Harv. L. Rev. 23, citing the quoted matter froraj, Williams, Seisin, 7. See also Leach v. Jay, 9 Ch. Div. 42, 44, 45. & See Ames, Disseisin of Chattels, 3 Harv. L. Rev. 24. ACTIOXS BEFORE THE STATUTE OF WESTMINSTER II. 103 a special property for the time, and tlius for this purpose they are his animals. 12 Hen. VIl. Kell. 3 b. 2. But, it seems, if my wife puts my beasts on the land of an- other, I myself am the trespasser, for that my ^ wife is not able to gain a property from me. "The legal effects of the disseisin of chattels are most vividly seen by looking at the remedies for a wrongful taking. The right of recaption was allowed only fingrante delicto. This meant in Britton's time the day of the taking. If the owner retook his goods afterwards, he forfeited them for his ' usurpation.' If the taking was felonious, the despoiled owner might bring an appeal of larceny, and by complying with certain conditions [stated below in cases there presented] obtain restitution of the stolen chattel. But such was the rigor and hazard of these conditions, that from the middle of the thirteenth century the appeal was largely superseded by the new action of trespass.'^ If the taking was not criminal, trespass was for generations the only remedy. " Trespass, however, was a purely personal action ; it sounded only in damages. The wrongful taking of chattels was, therefore, a more effectual disseisin than the ouster from land. The dispossessed owner of land, as we have seen, could always recover possession by an action. Though deprived of the res, he still had a right in rem. The disseisor acquired only a defeasible estate. One whose chattel had been taken from him, on the other hand, having no means of recovering it by action ^ [Replevin being anciently confined to cases of wrongful distress and detinue to cases of wrongful detainer after rightful, taking, not only lost the res, but had no right in rem. The disseisor gained by his tort both the possession and the right of possession ; in a word, the absolute property in the chattel taken. " What became of the chattel afterwards, therefore, was no con- 1 The word " le," which occurs in the original, should be " raon " to accord with the first use of the phrase, " Mes semble si nion feme," etc. 2 " A case of the year 1199 (2 Uot. Cur. Rej;. 34) seems to be the earliest reported instance of an action of trespass in the royal courts. Only a few cases are recorded during the next fifty years. But about 1250 the action came suddenly into great popularity. In the Ahbrevinfo Plaritnruin, twenty-five cases are given of the single year 1252-125.3. We may infer that that writ, which bad before been granted as a special favor, became at that time a writ of course. In Britton (f. 49), pleaders are advised to sue in tre:;pass, rather than by appeal, in order to avoid ' In perilouse aren- tnre dp batayles.' Trespass in the popular courts of the hundred and county was doubtle.ss of far greater antiquity than the same action in the Curia Rpf/is. Several cases of the reign of Henry I. are collected in Bigelow, Placita AngloNormaunica, 89, 89, 98, 102, 127." Ames. Disseisin of Chattels, 3 Harv. L. Rev. at 29. 3 Y. B. 21 Edw. IV. 74-76. 104 CASES ON COMMON-LAW PLEADING. cern of the victim of the tort. Accordingly, one need not be surprised at the following charge given by Brian, C. J., and his companions to a jury in 1486. ' If one takes my horse vi et armis and gives it to S.. or S. takes it with force and arms from him who took it from nie, in this case S. is not a trespasser to me, nor shall I have trespass against him for the horse, because the possession was out of me by the first taking ; then he was not a trespasser to me, and if the truth be so, find the defendant not guilty,' Brook adds this gloss : ' For the first offender has gained the property by the tort."'i The Effect upon Title of Trespass to Goods. (b) The 3Iodern Bale. " To-day, as every one knows, neither a trespasser, nor one taking or buying from him, nor the vendor of a bailee, either with or with- out delivery by the latter, acquires the absolute property in the chattel taken or bailed. The disseisee of goods, as well as the dis- seisee of land, has a right in rem. The process by which the right in personam has been transformed into a real right may be traced in the expansion of the writs of replevin and detinue." Ames, Disseisin of Chattels, 3 Harv. L. Rev. 30. Trespass and the Appeal of Robbery Compared. It will not be uninteresting, as we approach the parting of the ways between trespass the tort and trespass the crime, to look for a moment at the crime. B. has taken A.'s chattel with force and arms. He has committed a wrong against A. and another contra pacer)! regis. In developed law, A.'s wrong is remedied by a civil action, de bonis asportatis ; the king's wrong, by in- dictment for robbery or larceny, as the case may be. But we cannot understand the history of trespass if we deal simply with developed law. The civil action of tres- pass to chattels gave, to the successful plaintiff, not the specific chattel, but money damages ; the appeal of robbery, if certain conditions were fulfilled, would give him the very chattel wrongfully wrested from his hand. What some of those conditions were, let us here inquire. 1 Ames, Disseisin of Chattels, 3 Harv. L. Rev. 28, 29. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 101 EECOVEEY OF CHATTELS BY APPEAL OF EOBBEEY. (a) Fresh Pursuit. ROPER'S CASE. In Queen's Bench. 1587. Reported 2 Leonakd, 108. Roper was robbed by Smith, and within a week after the rob- bery he preferred an indictment against him, and within a month after the robbery he sued an appeal against Smith, and prosecuted the same until he was outlawed ; and thereupon Coke moved to have restitution of the goods taken : and B. of the Crown-office said, that the fresh-suit was not hiquired ; for upon an appeal one shall not have restitution without fresh-suit. Coke, The books are, that if the defendant in an appeal of robbery be attainted by verdict, the fresh-suit shall not be inquired of: but here he was attainted by outlawry, and not by verdict, and so the fresh-suit cannot be inquired : and here the indictment within a week, and the appeal within a month after the robbery, is a fresh-suit, Wray, Fresh-suit in our law is to pursue the felon from town to town, but the suing of an appeal is not in any fresh-suit : See 21 Edw. IV. 16. Restitution granted upon an outlawry in an appeal of rob- bery without fresh-suit inquired : 1 Hen. IV. 5, if he confess the felony : see 2 Rich. III. 13. (b) Capture by the Ajjpellor or One of Sis Band of Pursuers. Reported Y. B. 30 and 31 Edward I. 527. Anno 1302. A man pursued a thief who had several stolen things upon him and Hed with the oxen ; the owner of the oxen followed up the thief with his goods until they came near to a monastery, and the thief took refuge in the church, and remained there until the Coroner came, and summoned him to come to the peace ; he did not come, and would not come, but abjured the King's realm ; afterwards the Coroner delivered the chattels to the owners, because they had fol- lowed up and tried to take the thief who had stolen their goods until he got to the monastery, and because he abjured the realm. Tlie Coroner delivered their chattels, and for having foolishly de- livered them, he was brought to judgment before the Justices in Eyre. 106 CASES OX COMMON-LAW PLEADING. (c) Tliief to he Taken icith Stolen Goods in His Possession. DICKSON'S CASE. In the Common Pleas. 1627. Reported Hetley, 64. At Sergeant's Inn in Chancery Lane this question was debated, If a man steal goods, and the very owner makes fresh " sute " to take the felon, so that he waives the goods and flies ; and before the owner comes, the goods are seised as goods waived, and af[ter- wards] the owner comes and challenges them. Now if he shall have them, or tliey shall be forfeited was the question. And it was held by Harvey and Crook, that they are not at all forfeited ; for that the owner had done his endeavor and pursued from villnge. And that the goods shall not be said to be waived, but where it cannot be known to whom the property is. Hutton, Chief Justice, and Yellerton said. That goods waived shall be said those which are stolen, and that the felon being pursued, for danger of appre- hension waives and flies. Now if they are seised before that the owner comes, the property is presently altered out of the owner in the lord, although that he made fresh " sute," if that " sute " was not within the view of the felon always. But they all agreed, if the felon does not flie, but is apprehended with the goods, that then the owner shall have his goods without question. Or, if the owner comes and challenges the goods before seisure, and after the flight of the felon. Harvey said, The statute of 21 Hen. YIII. c, 13, does not remedy anything, as to the restitution of the goods stolen. But upon the evidence of the party, or by others by his procurement in the same manner. As it was in an appeal upon a fresh " sute " at the common law. (d) Thief to be Convicted on Pursuer's Appeal.^ Y. B. 30-31 Edward I. 527. Anno 1302. " It is coroner's law that he, whose goods were taken, shall not have them back unless the felon be attainted at his suit." 1 The shortcomings and hardsliips of the appeal of robbery are too apparent for comment. It never was, even iu theory, a substitute for replevin or detinue. ACTIONS BEFOltE THE STATUTE OF WESTMINSTER II. 107 Ax)^ '^if^r GOODMAN v. AYLING. In the Common Pleas. 1608. Reported 1 Brownlow and Goldesbouough, 213. Trespass and replevin distinguished. An action of trespass brought, that the defendant the 8th of Feb- ruary, 4 Jacobi, broke the plaintiff's house, and took and carried away one brass chafer of the plaintiff's, price 20s. The defendant pleads that the house is parcel of half a yard land in P., and that it was holden of H., Earl of North, as of his manor of W. by homage, fealty, escuage, nicertain suit of court, enclosure of the park pale, and rent one pound of Comyn, and for the rent behind for three years, and the homage and fealty of Th. P., tenant thereof ; the defendant, as servant of the Earl, and by his command, justified the entry, and taking, etc. The plaintiff replies, that the house was held of R Stanley, as of his manor of Lee, without that, that it was held of the Earl in manner and form ; and upon this they were at issue, and the jury found it was held of the Earl, as of his manor of P. by homage , fealty, enclosure of the pale, rent of a pound of Comyn, and no otherwise. And if it seemed to the court that it was not held in manner and form ; they found for the plain- tiff, etc. And adjudged for the defendant, for although the verdict did not agree with the plea in manner and form of the tenure, yet it agreed in substance in the point, for which the taking was, to wit, that the land was holden of the Earl, and that suffices ; for there is difference between a replevin and trespass: for in replevin, because the avowant is to have return, it behoves tlie avowant to make a good title in all things, but otherwise it is in trespass ; for there the defendant is bound only to excuse the tres- pass, and therefore if there be any tenure, it suffices: for if the lord or bailiff in his right distrains for that which is not due, yet he shall not be punished in trespass, as Littleton, 114, for the manner and form: and 9 Hen. VIL, which mark by the whole court: and Fleming, Justice, vouched the 33 Hen. VIIL ; Dyer, 48 B. where the issue was, whether a villain regardant, etc. or free : And the jury found a villain in gross, yet it was held good for the substance of the villainage, and of the issue were found. Hen. V. Jac. Totulo, 834. 108 CASES ON COMMON-LAW PLEADING. HARVIE V. BLACKLOLE. In the Comaion Pleas. 1610. Reported 1 Brownlow and Goldesbokough, 236. Trespass did not lie against the third hand. An action of trespass brought, wherefore by force and arms his mare so strictly to a gilding did fetter, that by fettering, the mare aforesaid did die. If a stranger take a horse that cometh and strayeth into a manor, the lord may have his action of trespass. If my stray doth stray out of my manor, and goeth into another manor the day before the year be ended, I cannot enter into the other manor to fetch out the stray ; if I take an horse as a stray, and another taketh him from me, the action lieth not by the owner against the second taker, because the first taker hath divested the property out of the owner. The defendant in this justified the taking of the mare as a stray, and did not allege that he came as an estray ; and the plea was held insufficient, and the court held they could not tie them together. And the defendant said, that the hay ward took the mare and delivered her to the defendant ; this was but not guilty, and judgment for the plaintiff. Reported Sel. Pl. Cor. (Sel. Soc.) 88. Anno 1203. But a bailee might maintain an appeal of robbery. Ealph Long appeals William of Winwick, for that he wickedly and in premeditated assault robbed him at Langhaw of fifteen marks of silver which he was carrying as part of his lord's rent, and in respect of which he had become answerable to his lord, and robbed him also of a cloak of vert and a tunic and a half-mark of [Kalph's] own ; and this he offers to prove against him. And he added that when he had escaped from [William's] hands he went to the township of Chipping and there raised tlie cry, and then went to the coroners and afterwards to the county [court], where his complaint was put in writing. And William defends all of it, and says that he was not at the place which [Ralph] has named, nor in the country, and offers the king one mark for an inquest [to find] whether this be spite or no. A day is given the aforesaid, a month after Michaelmas, to hear judgment. ACTIONS BEFOKE THE STATUTE OF WESTMINSTER II. 109 Reported Y. B. 30-31 Edward I. 508. Anno 1302. Stolen goods in a thief's hands when forfeited to the Crown like his own chattels.^ One Alice de Boddemen was attached with a bundle of cloth ; Walter de C. was ready to sue ; and he counted by words of felony, Alice put herself on the Inquest, and was condemned ; and Walter prayed to have his chattels delivered to him. — The Justice asked the Twelve if Alice was first attached at the suit of Walter or at the suit of any one else. — The Twelve, Sir, at the suit of Walter. — Note, that if she had been first attached at the suit of any one else than Walter, Walter would not have had back his chattels. [Note, that he who wishes to abjure the realm shall take the port assigned to him by the Coroner, and no other port.] CHARACTERISTICS OF TRESPASS TO PLAINTIFF'S GOODS. DAY V. AUSTIN. In the King's Bench. 1713. Reported Owen, 70. In a trespass, the defendant justified the taking of a furnace fixed to the earth, because the sheriff upon an intent sold it to him. And by the court it was held a good discharge : for if a stranger takes my horse, and sells him, a trespass will not lie against the vendee, but a detinue. But if one sells my horse, and a stranger takes him, he is a trespasser.^ MARLOW V. WEEKS. In the Common Pleas. 1744. Reported Barnes, Notes, 452. Trespass for assaulting, beating, and wounding plaintiff's mare. After a verdict for plaintiff, defendant moved in arrest of judg- ment, objecting, that an action of assault and battery is not appli- cable to a dead thing, or a brute beast, but to one of the human ^ See Ames, Disseisin of Chattels, 3 Harv. L. Rev. 24. * So much of the case as does not relate to Injury to Possession is omitted. 110 CASES ON COMMON-LAW TLEADING. species only. The objection was now overruled, and the order nisi causa discharged. Assault upon a ship (a dead thing) bad; but for an injury to a beast, a writ in trespass vi et armis appears in the Register ; the beating and wounding are found by the jury. Draper for defendant; Wynne for plaintiff.^ " There seems to be no such writ in the Register. Trespass for the asportation or the destruction of a chattel are the only writs for trespass affecting personal property. Other injuries to chattels were doubtless deemed of too trivial a nature to warrant a proceed- ing irr the king's court, and were redressed in the inferior courts. See also Y. B. 12 Hen. IV. fl. 8, pi. 15." Ames, Cases on Torts, 49. DANIEL COLE v. JACOB FISHER. Supreme Judicial Court, Massachusetts. 1814. Reported 11 Massachusetts, 136. Trespass lies for an injury to plaintiff's chattel, even when not amounting to an asportation or a destruction thereof. Trespass vi et armis, for firing a gun, by which the plaintiffs horse was frightened, and ran away with his chaise, and broke and spoiled it, etc. The cause came before the court upon an agreed statement of facts to the following effect, viz.: The defendant, after washing out two guns, went to the door of his shop, and, standing there, discharged one of the guns, for the purpose of drying it the said shop door being about one rod distant from the highway. At the time of said discharge, the plaintiff s horse, harnessed in his chaise, was fastened by his bridle to the fence on the opposite side of the highway. The horse, being frightened by the discharge of the gun, broke tlie bridle, and ran away with the chaise, which was thereby broken and injured. After the horse was unharnessed and put into a pasture in the defendant's neighborhood, he discharged another gun, for the like purpose of drying it. If, upon these facts, in the opinion of the court, the plaintiff could maintain this action, the defendant was to be defaulted, and the plaintiff's damages to be assessed by a jury, unless agreed by the parties; if the plaintiff could not, in the opinion of the court, maintain his action on the facts agreed, he was to become nonsuit, and the defendant recover his costs. There was no argument, and the opinion of the court was delivered 1 Such actions are now common. See Cole v. Fisher, 11 Mass; 137. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. Ill by Sewall, C. J. Upon this state of facts, our opinion is, that the ])iaintitf has sustained an injury by the act of the defendant. The plaintiff has a right of action, a just demand for damages; but whether in the form of trespass, or of trespass on the case, is a question of some difficulty in the circumstances of this case. The well-known distinction of immediate injury and consequen- tial injury is the rule upon which our doubts have arisen : in all other respects, the action is clearly maintained for the plaintiff upon the facts agreed. It is immaterial, as respects the right of action, or the form, whether the act of the defendant was by his intention and purpose injurious to the plaintiff, or the mischief which ensued was acci- dental, and beside his intention or contrary to it. The decision in the case of Underwood v. Hewson ^ has never been questioned. There the defendant was uncocking his gun, when it went off and accidentally wounded a bystander. The defendant was charged and holden liable in trespass. Other cases, before and since, might be cited, in which the same doctrine, which governed in that decision, has been recognized as the law. There is a very full and accurate collection of the decisions on this subject, both as to the right and the form of action, in Chitty on Pleading, to which I refer.^ In the case at bar, it does not appear, from the facts stated, how near the place where the horse was fastened was to the door of the shop, the place where the gun was fired. If the horse and chaise were in plain sight, and near enough to be supposed to excite any attention or caution on the part of the defendant, or if it was in evidence that he had noticed their being there, exposed to the con- sequences of his firing the gun, and the distance was such as that, by common experience, there might be a reasonable apprehension of frightening the horse by the discharge of the gun, 1 should think the defendant, although no purpose of mischief was proved, and even if it was not a case of very gross negligence, liable in an action of trespass. On the other hand, if the plaintiffs horse and chaise were out of his sight, and had not been noticed by the defendant, and the distance was such that no reasonable apprehension of frightening the horse could arise, supposing the horse and chaise to have been observed by the defendant, the injury is hardly to be considered as sufficiently immediate upon the act of the defendant to render him liable in this form of action. Upon the whole, if the parties agree in the amount of damages, a contest about the form of action will be of little avail to the 1 Strange, 596. 2 Chitty, 123, 128; Sir T. Kaym. 422, 467; Hob. 134; Str. 596. 112 CASES ON COMMON-LAW PLEADING, defendant; as, if he should defeat the plaintiff in this suit, the expenses of it might be properly urged as a ground of further damages, in an action of the case. If the parties do not agree, we shall leave the case to the jury to settle it as a question of fact, upon the principles I have stated. The court would take this occasion to observe upon the dangers to which travellers on foot and in carriages are exposed by dis- charges of guns in or near the highways, — dangers affecting not only the property, but the limbs and lives, of their fellow-citizens, and others entitled to the protection of the laws. The extreme inconsiderateness, and sometimes the purposes of wanton mischief, discoverable in acts of this description, are to be corrected and punished. The party injured, either in his person or property, by the discharge of a gun, even when the act is lawful, as at a military muster and parade, and under the orders of a commanding officer, is entitled to redress in a civil action, to the extent of his damage ; and where the act is unnecessary, a matter of idle sport and negligence, and still more when the act is accompanied with pur- poses of wanton or deliberate mischief, and any hurt or damage ensues, the guilty party is liable, not only in a civil action, but as an offender against the public peace and security ; is liable to be indicted, and, upon conviction, to be fined and imprisoned, and, indeed, to worse consequences, where loss of limb or of life is the consequence of this inhuman negligence and sport.^ DANNET V. COLLINGDELL. In the King's Bench. 1684. Reported 2 Shower, 395. Trespass for taking and carrying away averia ipsius quer., namely, unum equum, etc., nccnon umim galerum Anglice one hat. Mr. Holt, after verdict, moved in arrest of judgment, that as to the hat, there is no property laid in the plaintiff. And judgment was stayed. 1 1 Chittj, Plead. 5th ed. 146 ; Moreton v. Hardem, 4 Barn. & Cresw. 226. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 113 HOYT V. GELSTON. Supreme Court of New York. 1816. Reported 13 Johnson, 141, at 150. Trespass lies by one in possession without title against one who, as a wrong-doer, takes possession of the plaintiff's chattel. Spencer, J., delivered the opinion of the court. " The bill of ex- ceptions, taken at the trial, presents two points for the considera- tion of the court : — " 1. Was there sufficient evidence of property in the plaintiff [to maintain trespass] ? "2. [The second point is here immaterial]. " With respect to the first point, the bill of exceptions states, that the plaintiff gave in evidence, that, at the time of the seizure of the ship 'American Eagle,' by the defendants, she was in the actual, full, and peaceable possession of the plaintiff; and that, on the acquittal of the vessel in the district court, it was decreed that she should be restored to the plaintiff, the claimant of the vessel in that court ; and the plaintiff then gave in evidence the proceed- ings in the district court, by which the above facts fully appeared. In this stage of the cause, and after the plaintifif had proved the seizure of the ship by the defendants, and her value, a motion was made by the defendant's counsel, that the plaintiff should be non- suited, on the ground that there was not sufficient evidence to en- title the plaintiff to a verdict, no right or title having been shown in the plaintiff to the ship. We are of opinion that the motion for a nonsuit was correctly overruled. It is a general and undeniable principle, that possession is a sufficient title to the plaintiff in an action of trespass, vi et armis, against a wrong-doer. 1 East's Eep. 244; 3 Burr. 1563 ; Willes's Eep. 221 ; Esp. Dig. 403, Gould's edit, part 2, 289. The tinder of an article may maintain trespass against any person but the real owner ; and a person having an illegal pos- session may support this action against any other than the true owner. 1 Chitty's PI. 168 ; 2 Saund. 47 d. If these principles are applied to this case, it will appear, at once, that the evidence of the plaintiff's right to the ship was very ample. He was not only in the actual, full, and peaceable possession of the ship, but he was the claimant of her in the district court ; and she has been awarded to him by a sentence of that court. The defendants make the ob- jection without a pretence of right, on their part, as they stand before the court in the character of tort-feasors. 8 114 CASES ON COMMON-LAW PLEADING. " In the progress of the cause, the plamtiff proved himself to be the owner of the ship ; and even if it was admitted that the proof before given was insufficient, a new trial ought not to he awarded on the ground of proof of title in the plaintiff, when that very proof was before the jury, and is now spread on the record. In no point of view have the defendants entitled themselves to a new trial on this part of the bill of exceptions." ^ SMITH AND ANOTHER v. MILLES. In the Kixg's Bengh. 1786. Eeported 1 Term Reports, 475. This was an action of trespass brought by the assignees of a bankrupt against the defendant, who was sheriff of the county of Hertford. The first count in the declaration was for breaking and entering the messuages, etc., of the plaintiffs as assignees, on the 23d of Feb- ruary, 1786, and seizing and taking the deeds and writings, house- hold furniture, etc. (enumerating them particularly), of the assignees. The second count was for seizing and taking the goods, etc., of the plaintiffs on the 13th of March, 1786. The defendant pleaded, 1st, the general issue ; and 2dly, a justifi- cation under a fieri facias, sued out on the 13th of February, 1786, at the suit of one Caleb Atkinson, against the bankrupt, and de- livered to him on the 21st of February, 1786, to be executed. Replication de injuria sua propria absque tali causa. This cause came on to be tried at the last assizes for the county of Hertford, before Lord Loughborough, when the plaintiffs proved a commission of bankrupt, dated the 27th of February, 1786, against Clarke, on the petition of more than three creditors ; and that the bankrupt, at the time of issuing the commission, was indebted to one of them in the sum of £161. They then proved the trading; and an act of bankruptcy on the 1st of February, 1786. They also proved, that on the 23d of February, 1786, and not before, the de- fendant, as sheriff of Hertford, entered the dwelling-house of the bankrupt, and there seized the several goods, etc., of the bankrupt, under and by virtue of the said writ of fieri facias ; that on the 28th of the same month of February, Clarke was declared a bankrupt, on which day the commissioners executed a provisional assignment of the bankrupt's estate and effects to their messenger, whereof the officer in possession under the execution on the same day had 1 The reporter's statement of facts, tho arguments, and part of the opinion are omitted. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 115 notice; that on the 13th, 1-ith, 15th, and 16th days of March, the said goods and chattels were sold by public auction under the aforesaid execution ; that on the morning of the said 13th day of March, the said sheriff had notice from the aforesaid provisional assignee not to selj; that on the 17th of March, the plaintiffs were chosen as assignees, etc., of the bankrupt under the said commission, and that an assignment thereof was then duly made to them. To this evidence the defendant demurred. Eussell, in support of the demurrer. Shepherd, contra. Ashhurst, J. We will consider this question ; but it seems to me that it is very like the case of Cooper and Chitty. Buller, J. The second count does not in all cases avoid the necessity of a new assignment. The general use of adding the second count is this ; the first charges an injury done to the land, and taking the goods there : that is in its nature local, and must be proved where laid. Then the reason, and almost the only one, for adding the second count is, in order to avoid the locality ; it is for taking goods generally. That is of a transitory kind, and may be supported, though the taking be proved to be elsewhere. There cannot be a new assignment but where there is a special plea. And if the case be such that, on a special plea, the plaintiff may be driven to a new assignment, he may give the matter in evidence under the second count on not guilty. Cur. adv. vult. Ashhurst, J., now delivered the opinion of the court. It might perhaps have sufficed for us to say, that the point now in question has been solemnly determined in this court in the case of Cooper against Chitty, upon full and mature deliberation, by a full court. And for that reason, whatsoever our opinions might have been (as we are now only two judges sitting in court), it would not have been very decent in us to have overruled the authority of that case. But we are relieved from any difficulty on that account, as our opinion entirely coincides with that of the judges in the above case. To entitle a man to bring trespass, he must, at the time when the act was done, which constitutes the trespass, either have the actual possession (Ward v. Macauley, jyost, Vol. IV., p. 489) in him of the thing which is the object of the trespass, or else he must have a constructive possession in respect of the right being actually vested in him. Such is the case cited at the bar of an action of trespass for an estray, or wreck, taken by a stranger before seizure by the lord. For the right is in the lord, and a constructive possession, in respect of the thing being within the manor of which he is lord. 116 CASES ON COMMON-LAW PLEADING. So the executor has the right immediately on the death of the testator, and the right draws after it a constructive possession. The probate is a mere ceremony, but, when passed, the executor does not derive his title under the probate, but under the will : the probate is only evidence of his right, and is necessary to enable him to sue ; but he may release, etc., before probate. But there is no instance, that I know of, where a man who has a new right given him, which from reasons of policy is so far made to relate back as to avoid all mesne encumbrances, shall be taken to have such a possession as to bring trespass for an act done before such right was given to him. But at all events the rule will hold with respect to officers and ministers of justice. Vide 2 Eo. Ab. 561, Title Trespass, VI. In the case of Lechmere v. Thoroughgood, 1 Show. 12, which was an action of trespass brought by the assignees of bankrupts against a sheriff's officer, who took goods under an extent, the act of bank- ruptcy was on the 28th of April; afterwards the sheriff's officer took the goods under an extent, and then an assignment was made to the plaintiffs, who brought trespass : and it was held the action lay not; and the argument turned on this, that the officers shall not be made trespassers by relation. The same doctrine is recog- nized in the case of Baily and Bunning, 1 Lev. 173. Now here the execution was fully completed, and the goods sold, before the assignment to the plaintiffs. In the case of Cooper and Chitty, Lord Mansfield lays down the true ground of distinction between the action of trover and the action of trespass, as applied to this case ; " The action of trover (he says) is maintainable, because the conversion, and not the taking, is the gist of the action ; and the sale was after the act of bankruptcy was notorious. But (he says) that though the property by relation was in the assignees from the time of the act of bankruptcy, yet the taking by the sheriff, as ap- plied to this species of action, was lawful. And he says the seem- ing contrariety and confusion in the cases arise from the equivocal use of the word lawful. For (says he) to support the act, it is not lawful ; but to excuse the mistake of the sheriff, it is lawful ; or in other words the relation introduced by the statutes binds the prop- erty ; but men who act innocently at the time are not made crim- inal by relation, and therefore are excusable from being punishable by indictment or action as trespassers. But as a ground to support a wrongful conversion by a sale after a commission publicly taken out and an actual assignment made, it was not lawful." The plain- tiffs therefore are not injured, as it is competent to them to recover the value of the goods by bringing a proper action, namely, an ac- I ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 117 tion of trover. But the officer shall not be harassed by this species of action, in which the jury might give vindicative damages. Therefore on the whole the judgment must be for the defendant. Postea to be delivered to the defendant. What Must Be Proved. " Trespass to goods is an unlawful taking or interfering with the possession of goods. All other wrongful acts connected with the trespass are aggravation of the wrong. Accordingly, to prove . . . the interrupting of the plaintiff's possession, or right to take possession, of goods is necessary to make, and will make, a prima facie case." Bigelow, Torts, 206, 2d Camb. ed. (c) The Genesis of Tresjoass to Plaintiff ^s Land. Hugh of Euperes appeals John of Ashby, for that he in the king's peace and wickedly came into his meadows and depastured them with his cattle, and this he offers, etc. And John comes and de- fends all of it. And whereas it was testified by the sheriff and the coroners, that in the first instance [Hugh] had appealed John of depasturing his meadows and of beating his men, and now wishes to pursue his appeal, not as regards his men, but only as regards his meadows, and whereas an appeal for depasturing meadows does not appertain to the crown of our lord the king, it is considered that the appeal is null, and so let Hugh be in mercy and John be quit. Hugh is in custody, for he cannot find pledges.^ 1. T/ie Ancie7it Action, Coupled toith I/itentional Wronff. HUBERT OF ST. Q. v. STEPHEN OF F. et al. Anno 1195. Reported Rot. Cur. Regis, 38. [The defendants are appealed of entering the plaintiff's premises feloniously, with force and arms, and carrying off turf; and this the plaintiff offers to prove by W. N. and E. of St. M. The de- 1 Sel. PI. Cor. (Sel. Soc.) 35. Anno 1202 a. r>. " Whatever may happen at a later day, the writ of trespass is as yet no proper writ for a man who has been disseised of land. A whole scheme of actions, towering upwards from the novel disseisin to the writ of right, is provided for one who is being kept out of land that he ought to possess." 2 P. and M. 165. 118 CASES ON COMMON-LAW PLEADING. fendant W. comes and defends the felony, and says that the prem- ises from which he took the turf were his own frank tenement, and not that of the plaintiff. The defendant R. comes and defends everything charged upon him de verbo in verhum. Judgment that the sheriff cause a view of the land in question by four knights, and by them report to whom the premises belong.] "Hubertus de Sancto Quintino appellat Stephanam de Fauconberge et Willelranm de Killinge et Everardum de Whittico et Kobertum de Tudintona et illorum vim quod veiierunt in terram suam de Bortona cum vi et armis et robberia et necjuiter et in pace domini regis asportaverunt catalla sua scilicet turbas ad valenciam LX. soli- dorum et ea duxerunt in curiam illius Willelmi, et hoc offert probare per Walterum Norensem qui custos erat terrae illius versus ipsum Willelmum et per Eicardum de Sancto Michaelo versus Robertum qui enm vidit in vi ilia, et vicecomes testatnr quod Stepbanus non fuit inventus quando summonitio primo venit, quia est ultra mare. Willelmus venit et defendit feloniam et robberiam et totnm de verbo in verbum et dicit quod turbas quas asportavit, asportavit de libero tenemento sno et de feodo suo, et non in feodo ipsius Huberti ; et Hubertus dicit quod turbas illas fodere et facere fecit postquam dominus rex Ricardus applicuit de Alamannia bene et in pace et sine aliquo clamio quod Willelmus inde fecisset, et quod post transfretracionem domini regis in Normanniam illas asportavit ; et Robertus totum defendit versum ipsum Hubertnm de verbo in verbum. Consideratum est quod vicecomes faciat fieri visum de terra ilia unde turbe asportate fuerunt, et per IIII. milites ferre recordum illius visas cujns sit terra ilia ; apud Westmonasteriura." ^ 2. The Modern Action. " There is this important distinction between the law relating to possession of real property and that relating to possession of per- sonalty : to enable a plaintiff to recover for trespass to realty, he must have had a real possession [unless, indeed, he had possession * by relation '] ; while a plaintiff may recover for trespass to per- sonalty if he had a right to take possession, — in which case he is said to have constructive possession. To assimilate the two cases, it is often said that the right to take possession of personalty draws possession in law. Whoever then has a right to the possession of a chattel, whether it be towards all the world or only towards the defendant, is in a position to sue for an interruption of his enjoy- ment thereof. For example : The defendant, without permission, takes goods out of the possession of A., after A. has sold them to the plaintiff, but before they have been delivered to him. This is a breach of duty to the plaintiff." ^ 1 Rigelow, Placita Anglo Xormanica. 285. The learned writer adds, " It is worthy of notice that the right of property is here ordered to be tried in an action of trespass." 2 Bacon's Abr. Trespass, C. 2 ; Bigelow's L. C. Torts, 370. "Qiutre, whether posses- sion of personalty in itself will support an action, as, e. g. the possession of a thief who is dispossessed by another thief 1 It is urged that mere possession is enough. Pollock & Wright, Possession, 91, 93, 147, 148. It may on the other hand be urged ACTIONS BEFORE THE STATUTE OF WESTMINSTER XL 119 GRAHAM V. PEAT. In the King's Bench. 1801. Reported 1 East, 288. The possession of one not holding under legal right is good against a stranger. Trespass quare claiisum f regit. Plea, the general issue (and cer- tain special pleas not material to the question). At the trial before Graham, B., at the last assizes at Carlisle, the trespass was proved in fact ; but it also appeared that the locus in quo was part of the glebe of the rector of the parish of Workington in Cumberland, which had been demised by the rector to the plaintiff, and that the rector had not been resident within the parish for five years last past, and no sufficient excuse was shown for his action. Where- upon it was objected that the action could not be maintained, the lease being absolutely void by the act of the 13 Eliz. c. 20, which enacts that no lease " of any benefice or ecclesiastical promotion with cure or any part thereof shall endure any longer than while the lessor shall be ordinarily resident and serving the cure of such benefice without absence above fourscore days in any one year ; but that every such lease immediately upon such absence shall cease and be void." And thereupon the plaintiff was nonsuited. A rule was obtained in Michaelmas Term last to show cause why the nonsuit should not be set aside, upon the ground that the action was maintainable against a wrong-doer upon the plaintiff's posses- sion alone, without showing any title. Cockell, Serjt., Park, and Wood, now showed cause, and insisted that possession was no further sufficient to ground the action even against strangers than as it was prima facie evidence of title, and sufficient to warrant a verdict for the plaintiff, if nothing appeared to the contrary. But here it did expressly appear by the plaintiff's own case that his possession was wrongful, for it was a possession in fact against the positive provision of an act of parliament, with- out any color of title even against strangers. 1 Leon. 307. He was not even so much as tenant at sufferance ; though it is not certain that only that sort of possession which is capable of ripening into a title should be protected, as, e. g. the possession of a finder. In the Honian law a tliief could not have the actio furti. Dig. 47, 2, 1 1 ; id. 47, 2, 12, 1 ; Inst. 4, 1, 13. See also Buckley V. Gross, 3 Best & S. 566, 573, Crompton, J. As to the criminal law of such cases, see Commonwealth v. Rourke, 10 Gushing (Mass.), 397, 399; Pollock & Wright, Pos- session, 118 et seg." Bigelow, Torts, 208, 209, 2d ed. English. 120 CASES ox COMMON-LAW PLEADING. that this latter can maintain trespass.^ It is settled that the plain- tiff could not have maintained an ejectment against a stranger who had evicted hini.^ It appears from Plowd. 546, that there must not only be a possession in fact of land to maintain trespass, but the possession must be lawful at the time. And an instance is given, if the king be seised in fee, and a stranger enter upon him claiming title, and continue in possession a year and a day, yet he cannot maintain trespass against a wrong-doer. And though 5 Com. Dig. 537, says that he may, yet the authority cited for it does not war- rant the position, and is directly contrary to an adjudged case in 4 Leon. 184 (Lord Kenyon. That goes upon artificial reasoning that the king cannot be dispossessed by an intruder, and does not apply to other cases). Suppose there had been a plea of soil and freehold of the rector, and that the defendant as his servant and by Ids command entered, etc. ; it being settled that there cannot be a trav- erse to the command ; ^ the plaintiff must either have traversed its being the title of the rector, or have shown a legal possession consistent therewith, as that he had a lease from him ; and then it would have been shown in answer that the lease was void by the statute ; and either way there must have been judgment against the plaintiff. Now it was equally competent to the defendant to avail himself of this upon the general issue. Law, Christian, and Holroyd, contra, were stopped by the court. Lord Kenyon, C. J. " There is no doubt but that the plaintiff's possession in this case was sufficient to maintain trespass against a wrong-doer ; and if he could not have maintained an ejectment upon such a demise, it is because that is a fictitious remedy founded upon title. Any possession is a legal possession against a wrong- doer. Suppose a burglary committed in the dwelling-house of such an one, must it not be laid to be his dwelling-house notwithstand- ing the defect of his title under the statute ? " Per curiam, Eule absolute.'' 1 Vide 5 Com. Dig. tit. Trespass, B, 1, where it is said that he may against a stranger, and cites 2 Roll. Abr. 551, 1. 42, but this latter book lays down the position with "contra 9 Hen. VL 43, b, admit." ■^ Doe d. Crisp, v. Barber, 2 Term Rep. 749. 3 Vide 6 Co. 24, a, and Salk. 107, but if both parties claim under the same person the command is traversable, for it would be absurd to traverse a title which both admit. Cro. Car. 586. * " Whoever is in possession may maintain an action of trespass against a wrong- doer to his possession." Harker t\ Birbeck, 3 Burr. 1563. So Cary v. Holt, 2 Stra. 1238. "Trespass is a possessory action founded merely on the possession, and it is not at all necessary that the right should come in question." Lambert v. Stroother, Willes' Rep. 221. ACTIONS BEFOPvE THE STATUTE OF WESTMINSTER II. 121 GEORGE SPARHAWK AND WIFE v. PETER B. BAGG. Supreme Judicial Court of Massachusetts. November, 1860. Reported 16 Gray, 583. A reversionary interest does not entitle the owner thereof to maintain tres- pass, he not being possessed. Action of tort for entering with horses and carts upon a close bounded southerly on land formerly of Edward Tuckerman, west- erly on Treniont Street, northerly by land of the Boston and Wor- cester Eailroad Corporation, and easterly by land of Paschal P. Pope. The defendant, in his answer, put in issue the plaintiffs' title, and justified under a right of way in the Boston and Worces- ter Eailroad Corporation. At the trial in the Superior Court of Suffolk at September term, 1857, before Abbott, J., it appeared that the female plaintiff was one of the heirs of Johnson Jackson, who died in 1825 ; that be- fore his death Jackson and Tuckerman, owning respectively ad- joining tracts of land extending from Tremont Street to Washington Street, made conveyances thereof, each giving by agreement twelve feet to make a passage-way twenty-four feet wide, and reserving a right of way therein ; that this strip was afterwards called Orange Place or Orange Street, and was the place alleged to be trespassed upon ; that the female plaintiff and William Cornell had the title to lands on this place under various deeds, all describing the lands granted as bounded by Orange Place or Orange Street ; and that the acts complained of consisted in the defendant, as the servant of the Boston and Worcester Piailroad Corporation, driving carts over it. There was no evidence of any special damage done to the soil, or any injury to the female plaintiff's reversionary interest therein. The other facts necessary to the understanding of the case are stated in the opinion. The verdict was for the defendant, and the plaintiffs alleged exceptions. G. Sparhawk, for the plaintiffs. G. S. Hale, for the defendant. Chapman, J " The questions presented by this case are whether the several rulings of the judge of the Superior Court, as stated in the bill of exceptions, are correct. " The first relates to a portion of the locus, which is described in the mortgage of the plaintiff, George Sparhawk, to Lydia Noyes, made on the 14th of March, 1857. Before any of the acts com- plained of were done by the defendant, the mortgagee had entered 122 CASES ON COMMON-LAW PLEADING. to foreclose, and she has ever since remained in possession. Spar- hawk held the property in right of his wife, and mortgaged his estate. The alleged trespasses consisted of the use of the locus as a way by drawing loads of gravel over it with teams. The ruling that the plaintiff had no title to that portion of the premises, suffi- cient to maintain this action, was correct. If the acts of the de- fendant were tortious, the mortgagee was the party entitled to the action, and not these plaintiffs, there being no injury done to the reversionary interest." ^ THE KING V. WATSON. > » ^^' £Jxtract. In the King's Bench. 1804. Eeported 5 East's Term Reports, 480, at 487. Lawrence, J. " This is the case of certain persons, who, having, as I understand the case, the exclusive enjoyment of land for a year for the purpose of turning on their cattle, are to be considered as tenants in common of it. The corporation are the owners of the land ; the burgesses, it seems, are by the custom entitled to have it divided amongst certain of them every year, according to a certain stint settled by the leet jury : when it is so meted out to them, they are tenants in common. I think it would be very difficult, after the land was so meted out, to say that the corporation could maintain trespass for any injury done on the land to the rights of these persons ; because if that were so, it would show that the cor- poration were in the occupation of it. For as I said before, tres- pass can only be maintained by those who are possessed of the land. But, according to what I collect from this case, the resident burgesses are the occupiers." BROWN V. GILES. At Nisi Prius. 1823. Reported 1 Carrington and Payne, 118, This was an action against the defendant, for breaking the plain- tiffs close with dogs, etc., and trampling down his grass in a certain close, called Bryant's close, in the parish of A., on divers days. The defendant pleaded the general issue. 1 The part of the opinion as to the other exceptions is omitted. — V.D. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 123 The usual notice not to trespass was proved ; and a witness proved, that, after the notice, he saw the defendant walking down the turnpike road, and liis dog jumped into the field called Bryant's close. Park, J., was decidedly of opinion that the dog jumping into the field, without the consent of its master, not only was not a wil- ful trespass, but was no trespass at all, on which an action could be maintained; he should therefore nonsuit the plaintiff.^ r"; / ^ w/^(«^ Section V. COVENANT. " The writ of covenant lies where a party claims damages for breach of covenant, i. e. of a promise under seal." Stephen, Pleading, 76 [Andr. 1st ed.]. Covenant, at its origin, was peculiar to the realty. By the Statute of Wales, it was extended to " movables as well as immovables." As finally developed, it is a personal ac- tion, miserably narrow, because limited to specialties. The history of covenant may be thus briefly traced: 1. In early English law, the use of seals was confined to kings and great men. 2. Later, the use of seals became compar- atively general. Every petty knight had a seal. 3. Still later, in the reign of Edward I., it was held that certain unsealed acquittances or receipts were worth nothing be- cause they lacked seals. This, of course, was long before the modern notion of want of consideration made its advent into English law. A rule of procedure declared that an unsealed writing was not admissible as evidence, and the case undoubtedly turned upon that ground. 4. Centuries after. Sir John Davies, Attorney-General of Ireland, reiter- ated this rule of procedure as the general doctrine of the common law, but noted certain exceptional cases, such as promissory notes and policies of assurance, which were ad- missible in evidence though unsealed. This, it would seem, because of the custom of merchants to treat such paper as ^ So much of the case as does not relate to the above issue is omitted. — Ed. 124: CASES ON COMMON-LAW PLEADING. not requiring a seal. 5. We next come to a time when the old rule of procedure broke down altogether, and the excep- tional doctrine peculiar to promissory notes and policies of assurance became general. No writing was incompetent as evidence of a contract because it lacked a seal. 6. If an unsealed writing formerly worthless because inadmissible, had been raised to the dignity of admissible evidence, sealed and unsealed instruments would seem to have been put upon a common plane. The law of Contracts in Lord Mansfield's day knew familiarly the modern maxim that, ordinarily, a contract must be based upon a consideration. It knew also that a sealed writing required no considera- tion ; but whether an unsealed writing required a consid- eration, was not wholly clear. This very question, in the case of Pillans v. Van Mierop, Lord Mansfield was called upon to decide. He gave the logical decision — that an unsealed writing was good without consideration. From two standpoints, his decision was right, {a) Because the old dispensation of the law of evidence, which sanctified the specialty and cursed the parol, was dead letter, [h) Be- cause, even in Lord Mansfield's time, education was so rare that to write was a formidable task ; and one who laboriously traced upon a parchment the characters that formed his name would not be acting lightly. It could not, therefore, be truly said, that sealed instruments alone required no consideration because he who had set his seal to paper must be presumed to have acted with great delib- eration. For the average man of Lord Mansfield's day, signing was as serious as sealing. 7. The last stage in the evolution of covenant was reached when Pillans v. Van Mierop was overturned by the House of Lords in Rann v. Hughes, and it became English law that every contract must have a consideration or a seal. Mr. Justice Holmes has said, "■ Whenever we trace a lead- ing doctrine of substantive law far enough back, we are likely to find some forgotten circumstance of procedure at its source." ^ To what extent may be thus traced the rule 1 Holmes, Common Law, 253. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 125 of substantive law concerning covenant and consideration, is to be gathered from the following pages. THE HISTORY OF COVENANT. Breve de Convencione. Rex Vicecomiti salutem. Precipe A. quod juste et sine dilatione teneat B. convencionem inter eos factani de uno mesuagio [cum, Tot.'] decern acris terre, et quinque acris bosci cum pertin. in N. Et nisi fecerit, etc. tunc summoneas predictum A. quod sit, etc. ostensurus etc., Dat. etc.^ SCOPE OF THE ACTION OF COVENANT BEFOFtE STATUTE OF WALES, 1284. Case decided Michaelmas, Anno 1201.2 " Robert de Anmer offered himself on the fourth day against William de Anmer, of a plea of agreement made between him and the said William about one hundred and seventy-eight acres of land with appurtenances in Anmer. And [William] did not come or essoin himself. Therefore let him be attached to be [here] on the quindene of S. Martin, to answer, and to show, etc." " We must not forget that the writ of covenant is no less ' droit- ural ' in form than that of debt. . . . Almost all the recorded cases on covenants of the thirteenth and early fourteenth centuries ap- pear to relate to interests in land, although it is certainly said in the Statutum Walliae, c. 10, ' petuntur aliquando mohilia aliquando immobilia.' ^ Judgment might be given for the recovery of seisin where power of re-entry for breach of covenant was expressly given in a lease, and possibly in other cases." ^ 1 As given in Stat, of Wales, 12 Edw. I. 153. Tickering's Ed. 2 Sel. Civ. PI. (Sel. Soc.) PI. 89. 8 " De tertio articulo in quo provisum est Breve de conventione, per quod petuutur aliquando mubilia, aliquando immobilia, per vim conventionis iuite inter partes, que legi derogat, in foniui in loco preuotato conscripta." Stat. Wales, 12 Edw. I. 159, n. 4. [The Statute of Wales, supra, thus defines the scojie of the action of covenant : " YA quia infinite sunt contractus conventionum, difficile esset facere mentionem de quolibet in special!, set secundam naturam cujusliljet conventionis per aflirmationcm unius partis et negationem alterius, aut pervenietur ad Inquisitionem facieiidam super facto negotii, aut pervenietur ad cognitionem Scriptorum in judicio prolatorum, et secundum illam cognitionem erit judicandum ; aut negal)untur iscripta et tunc per- venietur ad inquirendum de confectione Scriptorum per testes in Scriptis noniinatos, si fuerint simul cum patria ; quod si testes non fuerint nominati, vel etiara mortui, tunc solummodo perpatriam."] * Sir Frederick Pollock in 6 Harv. L. Rev. 399. 126 CASES ON COMMON-LAW PLEADING. SCOPE or THE ACTION OF COVENANT AFTER THE STATUTE OF WALES. Extract. Reported Y. B. 30 and 31 Edward L 144. Anno 1302. Brumpton. " Inasmuch as this [action of covenant] is a personal action, which is given against the person who committed the tres- pass and the tort, and you have not assigned any tort in the person of Eoger, therefore the court adjudges that you take nothing by your writ, etc., but be in mercy for your false plaint, etc." Extract from the Case of ABBOT WALTER v. GILBERT DE BAILLOL. ABOUT 1154. Chron. Mon. de Bello, 106 (Aug. Chris. Soc). Reported Big. Plac. Ang. Norm. 175. [The king grants his writ at the instance of Walter, abbot of St. Martin ; to John, Earl of Eu, commanding him to do justice by the abbot against Gilbert de Baillol as to certain lands. The defendant evades the trial in various ways. Leave is finally obtained to bring the suit into the king's court, but the king's presence cannot be ob- tained. The cause, though much litigated before the justitiars, comes to no satisfactory conclusion. The king's presence is at last obtained, and the trial proceeds. The abbot's case is stated by a monk and by a knight. The charters are read before the court, whereupon Gilbert objects that some of them are without seals. Richard de Lucy replies with contempt at the modern custom for every little knight {militulus) to have a seal, and the objection is overruled.] " Quem intuens vir magnificus et prudens Ricardus de Luce ipsius abbatis frater, tunc domini regis justicia prima, quserit utrum ipse sigillum habeat. Quo asserente se sigillum habere, subridens vir illustris, ' Moris,' inquit, * antiquitus non erat quemlibet militulum sigillum habere, quod regibus et prsecipius tantum competit per- sonis, nee antiquorum temporibus homines ut nunc causidicos vel incredulos malitia reddebat.' " Reported Y. B. 30 and 31 Edward L 158. Cornish Iter. a. d. 1302. Adam le Marchand brought his writ of debt against William Collon, chaplain, and counted that tortiously he withheld from him ten pounds, etc. ; and tortiously for this, that whereas he had ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 127 bound himself to the said Adam in the said ten pound for the al- tarage of the church of C, etc. — Lanfar. He owes his debt for the altarage of the church of C, whereof we do not understand that this court can take cognizance, etc. — Berrewik. Answer over. — Lan- far. What have you to show for the debt ? — Kyngesham produced a writing which testified the debt. — Lanfar. His writing shows that he leased the altarage to us for one year ; thereupon we tell you that the parson died within the year, on which the bishop se- questrated the goods ; and we lost the altarage for two weeks, in respect of which we pray to be discharged ; and as to the remain- der, he can claim nothing, for we have fully paid his proctor. — And he produced two writings indented, made between the proctor and himself, but without seal. — Kyngesham. He has admitted the deed and the debt, and has shown no discharge ; judgment, etc. — Berrewik. If he was ejected within the year, as he says, it is not just that he should pay you the pension for the altarage for the whole year ; as to the remainder, the acquittances are worth nothing ; but if he has really paid, act in good faith, and come to terms. — Hunt said, that for the time for which Adam was ejected William could recover nothing, since, when the cause ceased the effect ought also to cease. And Mutford said, Suits ought not to arise out of suits. " In a suit at the common law no man's writing can be pleaded against him as his act and deed, unless the same be sealed and de- livered ; but in a suit between merchants, bills of lading and bills of exchange, being but tickets without seals, letters of- advice and credences, policies of assurance, assignations of debt, all which are of no force at the common law, are of good credit and force by the law merchant." ^ I^Note that a policy of assurance is a written but unsealed contract to pay a sum of money upon the happening of a specified contingent event, the consideration for such payment being the receipt from the assured of a much smaller sum. — Ed.] "Neither debt nor indebitatus assiimpsit at that time^ met the case : a promise to pay £100 could not be supported by payment of £1. Nor would deceit lie, in the form of special assumpsit, i. e. acting on promise held out — the ordinary kind of consideration. See Harriman, Contracts, ss. 631-641, 2d ed. Query whether the case rests properly on the ground of consideration. Promise for promise, etc." ^ 1 Sir John Davies, Attorney-General of Ireland, in a pamphlet concerning Imposi- tions, written between 1614 and 1618. Works of Sir John, including his essay in Boston Athenaeum (series "Fuller's Worthies"), ii. London, 1876. 2 1614-1618. 3 Extract from manuscript lecture on Insurance by M. M. Bigelow. 128 CASES ON COMMON-LAW PLEADING. PILLANS V. VAN MIEROR Ix THE King's Bench. 1765, Reported 3 Burrow, 1663. On Friday 25th of January last, Mr. Attorney-General Norton, on behalf of the plaintiffs, moved for a new trial. He moved it as upon a verdict against evidence : the substance of which evidence was as follows : One White, a merchant in Ireland, desired to draw upon the plaintiffs, who were merchants at Eotterdam in Holland, for £800, payable to one Clifford ; and proposed to give them credit upon a good house in London for their reimbursement, or any other method of reimbursement. The plaintiff's, in answer, desired a confirmed credit upon a house of their rank in London, as the condition of their accepting the bill. White names the house of the defendants, as this house of rank, and offers credit upon them. Whereupon the plaintiffs honored the draft, and paid the money ; and then wrote to the defendants Van Mierop and Hopkins, merchants in London, (to whom White also wrote, about the same time,) desiring to know " Whether they would accept such bills as they, the plaintiff's, should in about a month's time draw upon the said Van Mierop's and Hopkins's house here in London, for £800 upon the credit of Wliite : " and they, having re- ceived their assent, accordingly drew upon the defendants. In the interim White failed before their draft came to hand, or was even drawn ; and the defendants gave notice of it to the plaintiffs, and forbid their drawing upon them. Which they, nevertheless, did : and therefore the defendants refused to pay their bills. On the trial, a verdict was found for the defendants. Upon showing cause, on Monday, 11th February last, it turned upon the several letters that had respectively passed between the plaintiff's, and defendants, and White. The letters were read : 1st. Those from White & Co. in Ireland, to the plaintiff's in Hol- land ; (by which it appeared that Pillans and Eose had then ac- cepted the bills drawn upon them by White, payable to Clifford;) then those of the plaintiff's to the defendants ; and also White's to the defendants ; then those of the defendants to the plaintiff's, agreeing to honor their bill drawn on account of White ; the letter from the defendants to the plaintiff's, informing them " That White had stopped payment," and desiring them not to draw, as they could not accept their draft ; and lastly, that which the plaintiffs ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 129 wrote to the defendants, " That thev should draw on them, holding them not to be at liberty to withdraw from their engagement." Lord Mansfield. The objection is, "That the letter whereby Van Mierop and Hopkins undertake to honor the plaintifis' bills, is nuchim pactum." The other side deny it. This is the only question here. Let it be argued again the next term ; and you shall have the opinion of the whole court. JJlterius Concilium. [At the trial before the full court] Lord Mansfield asked if any case could be found, where the undertaking holden to be a nudum pactum was in writing. Sergeant Davy. It was anciently doubted " Whether a written acceptance of a bill of exchange was binding, for want of a consid- eration." It is so said somewhere in Lutwyche. Lord Mansfield. This is a matter of great consequence to trade and commerce, in every liglit. If there was any kind of fraud in this transaction, the collusion and mala fides would have vacated the contract. But from these letters, it seems to me clear that there was none. The first pro- posal from White was, to reimburse the plaintiffs by a remittance, or by credit on the house of Van Mierop ; this was the alternative he proposed. The plaintiffs chose the latter. Both the plaintiffs and White wrote to Van Mierop & Co. They answered, that they would honor the plaintiffs' drafts. So that the defendants as- sent to the proposal made by White, and ratify it. And it does not seem at all, that the plamtiffs then doubted of White's suffi- ciency, or meant to conceal anything from the defendants. If there be no fraud, it is a mere question of law. The law of merchants, and the law of the land, is the same. A witness can- not be admitted to prove the law of merchants. We must con- sider it as a point of law. A nudum pactum does not exist in the usage and law of merchants. 1 take it, that the ancient notion about the want of consideration was for the sake of evidence only ; for when it is reduced into writ- ing, as in covenants, specialties, bonds, etc., there was no objection to the want of consideration. And the Statute of Frauds proceeded upon the same principle. In commercial cases amongst merchants, the want of considera- tion is not an objection. This is just the same thing as if White had drawn on Van Mierop and Hopkins, payable to the plaintiffs ; it had been nothing to the 9 130 CASES ON COMMON-LA.W PLEADING. plaintiffs, whether Van Mierop & Co. had effects of White's in their hands, or not; if they had accepted his bill. And this amounts to the same thing : " I will give the bill due honor," is, in effect, ac- cepting it. If a man agrees, that he will do the formal part, the law looks upon it (in the case of an acceptance of a bill) as if actually done. This is an engagement " To accept the bill, if there was a necessity to accept it, and to pay it when due ; " and they could not afterwards retract. It would be very destructive to trade, and to trust in commercial dealing, if they could. There was nothing of nudum pactum mentioned to the jury ; nor was it, I dare say, at all in their idea or contemplation. I think the point of law is with the plaintiff's. Mr. Justice Wilmot. The question is, " Whether this action can be supported, upon the breach of this agreement." I can find none of those cases that go upon its being nudum jpactum, that are in writing ; they are all upon parol. I have traced this matter of the nudum pactum, and it is very curious. He then explained the principle of an agreement being looked upon as a nudum pactum ; and how the notion of a nudum pactum first came into our law. He said, it was echoed from the civil law : — "Ux nudo facto non oritur actio." Vinnius gives the reason, in lib. 3, tit. De Obligationibus, 4to edit. 596. If by stipulation (and tt fortiori, if by writing,) it was good without consideration. There was no radical defect in the contract, for want of consideration. But it was made requisite, in order to put people upon attention and reflection, and to prevent obscurity and uncertainty ; and in that view, either writing or certain formalities were required. Idem, on Justinian, 4to edit. 614. Therefore it was intended as a guard against rash inconsiderate declarations ; but if an undertaking was entered into upon delibera- tion and reflection, it had activity ; and such promises were binding. Both Grotius and Puffendorff hold them obligatory by the law of nations. Grot. lib. 2, c. 11, De Promissis. Puffend. lib. 3, c. 5. They are morally good ; and only require ascertainment. Therefore there is no reason to extend the principle, or carry it further. There would have been no doubt upon the present case, accord- ing to the Eoman law ; because here is both stipulation (in the express Roman form) and writing. Bracton (who wrote temp. Hen. III.) is the first: of our lawyers that mentions this. His writings interweave a great many things out of the Roman law. In his third book, cap. 1, De Actionibus, ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 131 he distinguishes between naked and clothed contracts. He says that " Obligatio est mater actionis ; " and that it may arise ex con- tractu, niultis niodis ; sicut ex conventione, etc. ; sicut sunt pacta, conventa, quce nuda sunt aliquando, aliquando vestita, etc., etc. Our own lawyers have adopted exactly the same idea as the Roman law. Plowden, 308 h, in the case of Sheryngton and Pledal V. Strotton and others, mentions it ; and no one contradicted it.^ He lays down the distinction between contracts or agreements in words (which are more base), and contracts or agreements in writ- ing (which are more high); and puts the distinction upon the want of deliberation in the former case, and the full exercise of it in the latter. His words are the marrow of what the Roman lawyers had said, "Words pass from men lightly;" but wliere the agreement is made by deed, there is more stay ; etc., etc. For, first, there is, etc., etc. ; and thirdly, he delivers the writing as his deed. "The delivery of the deed is a ceremony in law, signifying fully his good will that the thing in the deed should pass from him who made the deed to the other. And therefore a deed, which must necessarily be made upon great thought and deliberation, shall bind, without regard to the consideration." The voidness of the consideration is the same, in reality, in both cases ; the reason of adopting the rule was the same, in both cases ; though there is a difference in the ceremonies required by each law. But no ineflicacy arises merely from the naked promise. Therefore, if it stood only upon the naked promise, its being, in this case, reduced into writing, is a sufficient guard against surprise ; and therefore the rule of nudum pactum does not apply in the present case. I cannot find that a nudum pactum evidenced by writing has been ever holden bad ; and I should think it good ; though, where it is merely verbal, it is bad. Yet I give no opinion upon its being good, always, when in writing. . . . By the court unanimously The rule " To set aside the verdict and for a new trial," was made absolute.^ 1 " Because words are oftentimes spoken by men unadviseilly and without delibera- tion, the law has provided that a contract by words shall not bind without consideration." Stated in argument by Thomas Bromley and an apprentice of the middle temple, in Sharington v. Strotton, I'lowd. .308 a. 2 The case is long, and is here but briefly reported. Sufficient is given, however, to show something of its bearing upon the peculiar eflScacy of covenants. 132 CASES ON COMMON-LAW PLEADING. RANN V. HUGHES. In the House of Lords. 1797. Reported 7 Term Reports, 350. The Lord Chief Baron Synner delivered the opinion of the judges : " But it is said that if this promise is in writing that takes away the necessity of a consideration and obviates the objection of nudum pactum, for that cannot be where the promise is put in writing ; and that after verdict, if it were necessary to support the promise that it should be in writing, it will after verdict be presumed that it was in writing ; and this last is certainly true ; but that there cannot be nudum pactum in writing, whatever may be the rule of the civil law, there is certainly none such in the law of England. His lordship observed upon the doctrine of nudum pactum deliv- ered by Mr. J. Wilmot in the case of Pillans v. Van Mierop and Hopkins, 3 Burr. 1663, that he contradicted himself, and was also contradicted by Vinnius in his comment on Justinian. " All contracts are by the laws of England distinguished into agreements by specialty, and agreements by parol ; nor is there any such third class as some of the counsel have endeavored to maintain, as contracts in writing. If they be merely written and not specialties, they are parol, and a consideration must be proved. But it is said that the Statute of Frauds has taken away the neces- sity of any consideration in this case ; the Statute of Frauds was made for the relief of personal representatives and others, and did not intend to charge them further than by common law they were chargeable. His lordship here read those sections of that statute which relate to the present subject. He observed that the words were merely negative, and that executors and administrators should not be liable out of their own estates, unless the agreement upon which the action was brought or some memorandum thereof was in writing and signed by the party. But this does not prove that the agreement was still not liable to be tried and judged of as all other agreements merely in writing are by the common law, and does not prove the converse of the proposition that when in writing the party must be at all events liable. He here observed upon the case of Pillans v. Van Mierop in Burr., and the case of Losh V. Williamson, Mich. 16 G. 3, in B. E. ; and so far as these cases went on the doctrine of nudum pactum, he seemed to intimate that they were erroneous. He said that all his brothers concurred with him that in this case there was not a sufficient consideration ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 133 to support this demand as a personal demand against the defend- ant, and that its being now supposed to have been in writing makes no difference. The consequence of which is that the question put to us must be answered in the negative." And the judgment in the Exchequer Chamber was affirmed.^ TURNER V. BINION. In the King's Bench. 1661. Keported Hardres, 200. In a bill to discover upon what consideration a bond was given, that had been assigned to the king as a debt in aid ; the court held that a man was not bound to discover the consideration of a bond, which implies in itself a consideration ; and so Baron Atkins said it had been ruled in chancery. FALLOWES V. TAYLOR. In the King's Bench. 1798. Reported 7 Term Reports, 47.5. A bond given to an individual, conditioned to be void if the obligor (on the obligee's agreeing not to prosecute him) should remove certain public nuisances, and not erect any others of the same kind, is good in law. The defendant, in March, 1796, executed a bond to the plaintiff in the penalty of £500 with a condition, (after reciting that the defendant had erected and for two or three years kept and con- tinued three walls or cribs across the river Wye which were a nuisance to tlie navigation, that the magistrates assembled at the Quarter Sessions at Hereford had directed the plaintiff to prose- cute all persons erecting, keeping or maintaining such walls, cribs, and other nuisances in and upon the river in order to preserve the navigation, and that in pursuance of such orders he (the plaintiff) had prepared bills of indictment against the defendant, who in order to avoid the expense of the indictment had applied to the plaintiff not to prefer the same, upon condition that he (the defend- ant) should remove the said nuisances and enter into this bond, to which the plaintiff had consented,) that if the defendant did, on or before the first of September then next, entirely remove, take, and carry away, as well the said walls or cribs as all others that he had created or kept and maintained in and upon the said river, and the stones, materials, and foundations of all such walls or cribs, so 1 The statement of facts is omitted, and part of the opinion is omitted. 134 CASES ON COMMON-LAW PLEADING. that the same should not remain and obstruct the course of navi- gation of the river, and should not at any time erect or rebuild any other walls or cribs in the river to the prejudice or the navigation, then the obligation should be void. The plaintiff having declared upon the bond, the defendant craved oyer of the condition, and pleaded the general issue and performance of the condition, on which issue was joined. And at the last Hereford Assizes before Lord Kenyon, the plaintiff obtained a verdict. Abbott, in the last term, moved iii arrest of judgment, on the ground that the contract disclosed in the condition of the bond was an illegal contract and could not be enforced in a court of justice. This case was to have been argued to-day, but The court were all clearly of opinion that they could not arrest the judgment. Lord Kenyon, C. J., said, the want of a consideration to a bond affords no ground of objection ; and if there were anything illegal in this consideration, the defendant should have pleaded it. In the case of Hoy v. The Duke of Beaufort, Lord Chancellor Hardwicke did not think that the bond was void at law, but he gave relief to the defendant on the ground that the plaintiff had made an im- proper use of it. Lawrence, J. The defendant might have given a bond to the plaintiff without any consideration at all ; and why may he not give a bond for a consideration that is legal ? Eule to arrest the judgment discharged.^ Leicester, for the plaintiff. , ■:» v '•■ Miles, Lane, and Abbott, for the defendant. CHAWNER AND BOWES' CASE. In thk Common Pleas. 1613.'^ Reported Godbolt, 217. Case 312. Anciently, covenant did not lie for a sum certain due by virtue of a specialty. Bowes sold three licenses to sell wine unto Chawner, who cove- nanted to give him £10 for them ; and Bowes covenanted that the otlier should enjoy the licenses. It was moved in this case, 1 Abbott's argument is omitted. 2 Although decided later in point of time than Anon., 3 Leonard, 119, the above case enunciates the ancient rule that " Covenant wns not the normal remedy upon a covenant to pay a definite amount of money or ciiattels ; " a rule which seems to have prevailed iu the Conimou Pleas long after it had ceased to obtain in the King's ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 135 whether the one might have an action of covenant against the other in such case : And the opinion of Warburtou and Nichols, justices, was, That if a man covenant to pay £10 at a day certain. That an action of debt lieth for the money, and not an action of covenant. Barker, sergeant, said, he might have the one or the other. But in the principal case the said justices delivered no opinion. ANON.i In the Queen's Bench. 1585. Reported 3 Leonard, 119. Debt and covenant both lie to recover a sum certain due by virtue of a specialty. Debt upon an obligation ; The words of the obligation were : I am content to give to W. £10 at Michaelmas ; and £10 at our Lady day. It was holden by the court, that it was a good obliga- tion : And it did amount to as much as, I pronaise to pay, etc. It was also holden by the court, that an action of covenant lay upon it, as well as an action of debt, at the election of the plaintiff. And it was holden, that although the action is for £40 and the dec- laration is £20 and X20 at the several days; yet it is good enough, and the declaration is well pursuant to it ; and afterwards, judgment was given for the plaintiff. > DEFINITION A] DEFINITION AND CHARACTERISTICS OF COVENANT. 1 Chittt on Pleading,^ 129. "Covenant is a remedy provided by law for the recovery of damages, for the breach of a covenant or contract under seal." Bench. Precisely when the Common Bench adopted the practice of the King's Bench it is, perhaps, impossible to discover ; but the change was probaldy effected before the end of the reign of Charles I. Ames, History of Assumpsit, 2 Harv. L. Rev. 56, 57. 1 2 Harv. L. Rev. 56. " The writer [.T. B. Ames] has discovered no case in whicli a plaintiff succeeded in an action of covenant, where tlie claim was for a sum certain, antecedent to the sixteenth century ; " but in the above action of debt to wiiicii " the writer" refers, decided in the Queen's Bench, the ])hiintiff's rigiit to elect between covenant and debt is expressly declared. Pollock and Maitland pay high tribute to the accuracy of Dean Ames's research by assenting freely to his conclusion. 2 Pollock and Maitland, 216. 2 Martin, 42. 136 CASES ON COMMON-LAW PLEADING. GALE V. NIXON AND NIXON. Supreme Court of New York. 1826. TIeported 6 CowEN, 445. Covenant Defined. A sealed recognition of an unsealed contract will not make that contract a covenant. On error from the C. P. of Tioga. The action in tlie court be- low was indebitatus assumpsit by the plaintiff against the defend- ants. The declaration contained counts for lands bargained and sold ; for lands bargained, sold, and possession given ; and lands sold and conveyed ; with the money counts. Plea, the general issue. On the trial in the court below, the plaintiff relied on articles of agreement signed and sealed by the plaintiff only ; and delivered to and accepted by the defendants, dated April 14, 1821. These articles purported to be by both parties ; naming the plaintiff as of one part; and the defendants, W. and G. Nixon, as of the other. The plaintiff, for the consideration of $300, to him paid, and of $500 to be paid, as thereinafter mentioned, covenanted to convey, within two years, at his own costs and charges, two described par- cels of land, of 60 and 80 acres, to the defendants in fee ; and the defendants covenanted to pay the plaintiff, on the execution of the conveyance, $500. It was also agreed, that the defendants might take immediate possession of the premises, and continue so in pos- session, taking the profits, till the conveyance should be executed. On the articles was an indorsement, dated May 31, 1822, under the hand and seal of J. & W. Nixon, stating that they had, on the part of W. & G. Nixon, the defendants, with tlie consent of the plaintiff, entered into an agreement with T. Astley for the purchase of one of the described parcels (the 80 acre lot), and given their bond to Astley, for the balance on that lot, $391.42 ; and that they did thereby discharge the plaintiff from so much of his agreement as bound him to convey this described parcel. Afterwards, the defendant paid this balance to Astley, who owned the 80 acre lot, and took a deed of him, within two years from the date of the articles. The payment to, and conveyance by Astley, were pursuant to the agree- ment and understanding to both the parties to this suit ; who agreed that the payment of the $391.42 should apply on the articles between them. A few weeks after the date of the articles, the ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 137 defendants took possession of both parcels ; and remained in pos- session up to the time of the triaL The plaintift' had caused a deed with warranty to be tendered to the defendants, for the 60 acre lot, before suit brou[.dit in the court below ; but more than two years from the date of the articles. This deed was produced ready for them, at the trial. The defendants moved the court below for a nonsuit, on this [among other grounds] that the articles being sealed, the action should have been covenant. E. Uana, for the plaintiff in error. A. Collins, contra. Curia} per Sutherland, J. " The plaintiff was nonsuited at the trial, his right to recover being objected to on three grounds : 2. That if it was a valid contract, it being sealed, the action should have been covenant. . , . Assumpsit was the proper form of action. Covenant will lie only when the instrument is actually signed and sealed by the party, or by his authority. A recognition of the con- tract, though in writing and under seal, will not make it a covenant. If the instrument by which the original contract is admitted, con- tain, in itself, a specification of the terms, and consideration of the contract, an action perhaps might be sustained upon that ; and in such case, if it was under seal, the action must be either debt or covenant. "The plaintiff was improperly nonsuited, and the judgment must be reversed. Judgment reversed." NURSE V. FRAMPT0N.2 In thk King's Bencu. 1694.* Reported 1 Salkeld, 214. s. c. 1 Ld. Eaymoxd, 28. The bare signing and sealing of an agreement makes it a covenant. Debt for £25, and declares that, by deed between him and the defendant, it was agreed, that the gray nag of the defendant, be- tween the day of the date thereof, and the last of August, a day's notice being given to the plaintiff, should ride from Hyde Park Corner to the first house in Reading, in three hours for £50 bet on 1 So much of the opinion as docs not rehite to the definition of a covenant is omitted. The arguments of counsel are also omitted. - So much of the case as does not relate to the right to sue upon a covenant is omitted. — Ed. ^ In tlie report in Lord Ixayniond, 28, tlie case is given as of Midi. Term, 6 William and Mary, while in 1 Salkeld, 214, it is given as Pasc. 6 William III. 138 CASES ON COMMON-LAW PLEADING. each side, on the forfeiture of £25, and avers, that the defendant gave not a day's notice, and that the horse did not ride ; the de- fendant craves oyer of the deed, which was. It is agreed that a gray nag, etc. In witness whereof we have hereunto set our hands and seals. Et nota ; they were not otherwise named in the deed. Here- upon the defendant pleaded that the plaintiff absconded for felony from such a day till after the first of August, so that he could not give notice. To this there was a replication and rejoinder both im- pertinent, and a demurrer ; whereupon it was objected, that bare setting names and seals would not make them parties, so as to have this action. Vide 2 Inst. 673 ; 3 Cro. 59 ; 2 Eo. 22. But the court held, 1st. That the cases were not alike, and that an action would lie by the bare signing and sealing. . . . Judgment for the plaintiff. MOORE V. JONES. In the King's Bench. 1728. Reported 2 Strange, 814. Apt words of sealing must be used in a declaration in covenant. Error of a judgment in C. B. in an action of covenant wherein the plaintiff declared, that the defendant per quoddam scriptum suum factum ajiud Westm' concessit to the plaintiff an annuity j5ro consilio impendendo, and assigns the breach in non-payment for a certain time. Upon oyer, which was set out in hcec verba, and concluded with, In witness whereof I have hereunto set my hand and seal; the defendant pleaded, that during that time the plaintiff gave no counsel ; and on demurrer there was judgment by default for want of a joinder, and in B. R general errors assigned. Eobinson,7:)?'o quer' in errore, objected, that the plaintiff had not in his declaration entitled himself to an action of covenant it not being shown that the grant was by deed, without which covenant will not lie. 3 Leon. 192 ; Cro. Car. 180, 209. Here is no sigillo suo sigillat' ; and the word factum here must be taken to be an ad- jective, to make sense of the words apud Wcstm' ; as assumpsit indeed might lie upon such a writing. Cro. Eliz. 117, 571; 3 Lev. 234. Hussey, contra. The oyer must be taken as part of the declara- tion, and by that it appears there was a sealing. The words con- venit ft concessit imply a deed. 2 Vent. 106, 150 ; Palm. 173 ; 4 Leon. 173,175; 2 Roll. Eep. 228; 1 Lutw. 333; Godb. 125; Cro. Car. 209 ; Cro. Jac. 420 ; Cro. El. 737 ; 2 Lutw. 1667. In 5 Co. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 139 51 b, it is said, a pension cannot be without a deed, and why then shall it not be implied of an annuity ? Pasch. 8 Geo., Atkinson v. Coatsworth,2^er iiideiituram convenit was held good. The word con- ventio is a technical word, and the Eegister is only quod teneat conventionem. The oyer may be taken either as part of the decla- ration or plea. Cro. Jac.679; Carthew, 513. And the plea of non impendidit consilium admits the deed so far that in evidence it need not be proved. Cro. Jac. 682 ; 124 Cro. Car. 209. [Raymond] C. J. None of the cases come up to this, where the word factum, being joined to apud West7)i' renders it impossible to be taken as a substantive. Convenit in a declaration would never do alone ; and though it is alone in the Eegister, yet that is only a short description of the nature of the cause, to be explained more at large when the plaintiff comes to count upon it. I do not see the plea has made it good. Page, J. If scriptum does not signify a deed (as nobody will pretend it does), here is nothing else to import it ; the oyer does not prove it was actually sealed, for everybody knows the words, In witness, etc., are in the instrument before it is so much as signed by the party. And indeed oyer of a sealing was never heard of before. Reynolds, J. I think this declaration is not to be maintained. Anciently the words svjillatuni et dcliberatHm were required. But now it is held well enough to call it factum, indentura, scriptum indentatum, which imply the circumstances of sealing and delivery. A concessit solvere lies in Bristol, and yet the word concessit does not imply a deed. Nor is there anything in the plea which makes the declaration to be better than upon the face of it. Probyn, J. I do not think convenit a better word than promisit, for if the circumstances of sealing and delivery were shown, pifomisit would be well enough. The word scriptum alone will not make it to be a deed, and there is nothing else left to imply it. Et per curiam. The judgment was reversed. HOLDER V. TAYLOR. Reported Hobart, 12. Covenants may, by the use of apt words, be implied as well as express. Holder brought an action of covenant against Taylor ; and de- clared for a lease for years made by the defendant by the word demisi which imports a covenant ; and then shows that, at the time of the lease made, the lessor was not seised of the land but a 140 CASES ON COMMON-LAW PLEADING. stranger, and so the covenant in law broken ; but he did not lay any actual entry by force of his lease, nor any ejectment of the stranger, nor any claiming under him : whereupon it was objected that no action of covenant could lie, because there was no expul- sion. But the whole court was of opinion that action did lie ; for the breach of the covenant was, in that the lessor had taken upon him to demise that which he could not; for the word demist im- ports a power of letting, as dedi a power of giving. And it is not reasonable to enforce the lessee to enter upon the land and so to commit a trespass. But if it were an. express covenant for quiet enjoying, perhaps it were otherwise. M'VOY V. WHEELER et al Supreme Court of Alabama. 1837. Eepokted 6 Porter, 201. Covenant does not lie upon a contract made under seal, and later materially changed by parol. Campbell, for plaintiff in error. Thornton, contra. Collier, C. J. Several questions were raised in the Circuit Court upon the demurrers to the declaration and pleas, which were so disposed of, as to make it necessary for an issue of fact to be tried by the jury, who found a verdict for the plaintiffs on which judg- ment was rendered. At the trial, a bill of exceptions was taken by the defendant below, who prosecutes a writ of error to this court, and assigns the judgment on the demurrers and the decision of the court excepted to, as causes for reversal. We shall only consider the sufficiency of the declaration, which presents the question whether an action of covenant will lie upon an agreement under seal (to perform certain work), which has been modified, or the time of performance enlarged by parol. Covenant can only be maintained upon a writing under seal. If a contract be unattested by a seal, or is unwritten, the action by which redress can be had, for a nonperformance, is debt or assumpsit, or either, according to the subject-matter. If nev/ terms are intro- duced into a contract, other duties imposed, or another day provided for its consummation, it is clear that the original contract does not remain unimpaired, so that an action would lie for a breach of its stipulations. If, then, no action could be maintained upon the original contract, when thus modified, we think it follows that the present action is misconceived. For though the modifications are set out in the declaration, yet they are shown to be by parol, and ACTIONS BEFORE THE STATUTE OF WESTMLXSTEU II. 141 cannot, according to the premises we have assumed, be made the basis either in whole or in part of an action of covenant. The case of Littler v. Holland ^ was an action of covenant, upon an agreement under seal, to build two houses by a certain day. It appeared on the trial that the time of performance was enlarged by parol, and that the houses were built within the enlarged time. This evidence, it was held, did not support the allegation in the declaration, and the plaintiff was nonsuited. So, in Brown v. Miller,^ an action of debt was brought on a bond to submit to arbitration. The condition limited the time for the arbitrator to make his award. The declaration alleged that the time was enlarged by mutual consent, and that the award was made within that time. On demurrer, it was determined that the remedy on the bond was gone, by the failure to make the award within the time contemplated by its condition. To the same effect, also, is the case of Freeman v. Adams.^ In Phillips d al. v. Eose ^ the plaintiff agreed to build an oil mill within a prescribed time, which was enlarged by parol, and the work completed within tlie enlarged time. The court held that evi- dence of the enlargement would not support the declaration. And in Jewell et al v. Schroeppel * the court considers the law as settled, " that the plaintiffs, inasmuch as they had not performed, within the time stipulated by the original contract, could not recover upon the covenants contained in it. They could not, in such an action, Give evidence of an extension of the time." In Langworthy v. Smith,^ the Supreme Court of New York re- affirm the previous decisions of that court, on the point, and con- sider it as beyond doubt that a parol agreement to enlarge the time for the performance of covenants is good ; and that by an enlarge- ment the remedy upon the covenant itself is lost and must be sought upon the agreement enlarging the time of the performance. In the case at bar, the declaration shows that the contract was so materially varied, and the labor of the defendants so greatly in- creased, that they could not perform it until several months after the expiration of the day therefor appointed. It will, therefore, fol- low that the action cannot be maintained, and that the plaintiffs must resort to their remedy upon the parol agreement, making the covenant, so far as material, inducement to the action. The judg- ment is reversed.^ "^ 3 T. T{. 590. * 9 Johns. Rep. 115. 2 8 Johus. Rep. 392. * 4 Cowen, 565. 6 2 Wend. 587. 6 The reporter's statement of facts is omitted. 142 CASES ON COMMON-LAW TLEADING. BENNUS V. GUYLDLEY. In the King's Bench. 1618. Reported Ceo. Jac. 505. 1. Covenant, not assumpsit, lies for breach of a specialty. 2. The declaration in covenant need set foi'th only so much of the deed as is necessary for the maintenance of the action. Action upon the case. Whereas the defendant recovered against him £7 10s. for costs and damages, and upon that judgment the plamtiff paid to him £7, and the defendant made him a release of that judgment, and by his deed covenaiiteJ that he would withdraw all process of execution for that debt ; that the defendant intending unjustly to vex him, against this release, and against his promise in the said writing, the 20 June, 15 Jac. I., sued a capias ad satisfacien- dum against the plaintiff for this debt, returnable in Trinity Term following, which he delivered to the sheriff to execute ; who by force thereof, afterward, namely, the 20 July, 15 Jac. I., arrested him and detained him in prison until he paid the £7 10s. to his damage, etc. The defendant demanded oyer of the deed, which was entered in hct'c verba ; wherein was the clause of release and covenant to with- draw the process of execution ; and also another covenant which was not mentioned, namely, to acknowledge satisfaction upon the plaintiff's cost, upon request. The defendant pleaded hereto that the sheriff did not arrest him by his appointment. This plea being vitious, the plaintiff demurred ; and upon argu- ment the defendant did not maintain his plea, but took exceptions to the declaration. Secondly,^ that he ought to have had an action upon the case, upon the promise to withdraw process of execution ; and if he had extended, yet an assumpsit lies not thereupon, because it is by deed, and so he ought to have an action of covenant, and not an assumpsit. And of that opinion was the whole court as to that point.^ Fourthly, it was objected that the declaration was not good, be- cause he declares upon a deed, and recites but parcel, whereas he ought to show the whole deed. Sed oion allocatur ; for he men- tions as much as serves for his purpose in this action, and the residue shown doth not alter it. Wherefore, for the first and third exception, it was adjudged for the defendant. 1 The first exception was that he ought to have relieved himself by audita querela. * Thirdly, It was objected that it appears by the plaintiffs own showing that the sheriff arrested him long after the return of the writ. ACTIONS BEFORE THE STATUTE OF WESTMINSTER II. 143 GREENE V. HORNE. In the King's Bench. 1694. Reported 1 Salkeld, 197. The declaration in an action on a covenant must not set forth matter not contained in the deed itself, so as to alter the case. In covenant the plaintiff declared that A., being indebted to him, and arrested at his suit, the defendant, in consideration that he would order the bailiff to let A. go at large, undertook and cove- nanted with the plaintiff to bring in the body of the said A., and deliver him into the custody of the said bailiff, such a day, etc. The defendant prayed oyer of the deed, which was, I (the defend- ant) do promise and engage myself to bring in the body of A. to the custody of B. bailiff, such a day ; and thereupon it was de- murred. Ut per Cur. First, The plaintiff cannot set forth matter of fact in his declaration not contained in the deed itself, so as to alter the case ; therefore, all such matter of fact so alleged or averred is immaterial. 8 Eep. 151. Secondly. The plaintiff is no party to the deed, nor so much as named in it, and though covenant may be brought on a deed-poll, yet the party must be named in the deed. 1 Rol. Ab. 517. ANONYMOUS. Extract. Reported Y. B. 48 Edward III. 2, pl. 4. Anno 1355. " I never heard that any one should have a writ of covenant against executors, nor against other person but the very one who made the covenant, for a man cannot oblige another person to a covenant by his deed except him who was a party to the covenant." CHAPTER III. The Statute of Westminster II., 1285 a.d., 13 Edward I. ch. 24. THE PARENT OF CASE, TROVER, AND ASSUMPSIT. Section I. . CASE. Trespass on the case was summoned into being to meet the shortcomings of the actions which preceded it; and which, down to the year 1285, were all that an English suitor had at his command. We have seen that debt was unsatisfactory because it lay only for a sum certain; that covenant was miserably inefficient, because it was confined to specialties ; and that hence there was no action ex contractu to recover an unliqui- dated sum due by virtue of a simple contract. Example, to recover money for work done under an implied contract. X., a tramp strolling by a hay field, saw the laborers there vainly striving to get the hay under shelter before an ap- proaching storm arrived. X., without words, jumped over the fence, and the hay was then with his help safely housed. What could X. recover for his labor ? Nothing. So in the realm of torts, detinue could be overcome by oath helpers; the exactness of the description required made it a difficult remedy ; and trespass was worthless for him who had been damaged by a merely consequential in- jury. Example, if plaintiff fell over a log negligently left in the highway and was hurt, he could recover nothing. But if there were no remedies broad enough to guard such rights, why were not new remedies invented? We must resort to the history of case for answer. The history of case is divisible into three distinct periods. 1. Before THE PARENT OF CASE, TROVER, AND ASSUMPSIT. 145 the Provisions of Oxford. 2. After the Provisions of Ox- ford and before the Statute of Westminster II. 3. After the Statute of Westminster 11. The characteristic feature of each period is some modification of the right to issue new writs and thus to create new actions. 1. Before the Provisions of Oxford, a new form of action might easily be invented. 2. In 1258, there were promulgated the Provisions of Oxford, which commanded the chancellor to issue no more writs, except writs " of course," without command of the king and his council present wdth him. This finally ended the right to issue special writs, and at last fixed the com- mon writs in unchangeable form. Big. His. of Pro. 197, 198. Now since the suitor who desired a remedy for his wrong had to have a writ to start proceedings, unless he could find in the king's registry of writs a precedent exactly suited to his case, he was without a remedy. The writ book may be compared with a shop to which customers came with samples to buy wares ; unless the suitor could find a formed writ to match his exact set of facts, he had to abandon his search, and go his way unsatisfied. It is now a legal maxim that where there is a right, there is a remedy — it might then have been said, there is no right without a writ. Ashby V. White, 2 Lord Raymond, 938 ; s.c. 'post. 3. This led to the Statute of Westminster II., which pro- vided that where there was a wrong which, though analo- gous, was not within the scope of the writs in common use, the chancery clerks might issue a like writ in similar cases, adapted to the circumstances of the particular case. Thus, before the statute, if A. threw a stick at B. and it hit him, A. was guilty of a trespass. But if A. simply threw a stick into the road, and B. fell over it and was injured, A. was not guilty of a trespass. The statute gave a remedy in the second case as well as in the first. The new action was called, "Trespass on the case;" and lies to recover damages for an indirect and consequential injury to one's person or property or other right. 10 1-16 CASES ON COMMON-LAW PLEADING. HISTORICAL. Power to create New Writs bkfore the Provisions of Oxford. IN THE AGE OF GLANVILL. " A new form of action might be easily created. A few words said by the chancellor to his clerks — ' Such writs as this are for the future to be issued as of course ' — would be as effectual as the most solemn legislation.^ As yet there would be no jealousy be- tween the justices and the chancellor, nor would they easily be induced to quash his writs." 1 Pollock and Maitlaiid, 149. IN THE AGE OF JOHN. Early Instances of Actions in the Nature of Actions on the Case before the Provisions of Oxford. Norfolk. Trinity, a. d. 1200.''^ Matilda, who was the wife of Eoger le Passur, complains that John de Mewick has deforced her of her land in rransham [?] which she recovered against him by judgment of the court, so that no one dare till that land because of him, nor could she deal with it in any way because of him. John comes and defends the force and injury and all of it; and because the sheriff testified that he believed what she said to be true, it is considered that John do defend himself with the twelfth free hand, in five weeks after Michaelmas. Pledge of the law, Eoger de Bintree. Hertford. Michaelmas, a. d. 1201 .^ Peter de Paxton complains that Osbert Male unjustly took his oxen and sold them at Waltham Fair, wliich (oxen) were worth five marks, so he says, and besides (Osbert) had troubled him in other ways, on account of which his land was untilled, so that he was damaged through Osbert to the value of twenty marks ; and this he offers (to prove), etc., by sufficient suit, which he produced. And Osbert comes and defends the whole of it, word by word, against (Peter), and against his suit, etc. It is considered that (Osbert) do 1 [" Kot. Claus. Joh. p. 32. A writ of 120.5, which in technical terms is 'a writ of entry sur disseisin iu the per," has against it the note ' Hoc breve de cetero erit de cursu.' "] •^ Sel. Soc. (SeL Civ. PL) pL 7. 8 Ibid. pL 86. Cf. McKelvey, 59. THE PARENT OF CASE, TROVER, AND ASSUMPSIT. 147 dt'fend himself twelve-(handed, i. e. with eleven compurgators). Pledge for making the law, William Eussell. A day is given on the octave of S. Martin. An Early Action in the Nature of Deceit.^ Northamptonshire Evre, a. d. 1202. The jurors say that Andrew, Sureman's son, appealed Peter Leofwin's son, Thomas Squire and William Oildene of robbery. And he does not prosecute. So he and Stephen Despine and Bald- win Long are in mercy, and the appellees go without day. Afterwards comes Andrew and says that (the appellees) impris- oned him by the order of William Malesoures in the said William's house, so that he sent to the sheriff that the sheriff might deliver him, whereupon the sheriff sent his Serjeant and others thither, who on coming there found him imprisoned and delivered him, and he produces witnesses, to wit, Nicholas Portehors and Hugh, Thurkill's son, who testify that they found him .imprisoned, and he vouches the sheriff to warrant this. And the sheriff, on being questioned, says that in truth he sent thither four lawful men with the Serjeant on a complaint made by Nicholas Portehors on Andrew's behalf. And those who were sent thither by the sheriff testify that they found him at liberty and disporting himself in William's house. Therefore it is considered that the appeal is null, (and Andrew is in mercy) for his false complaint and Nicholas Portehors and Hugli, Thurkill's son, are in mercy for false testi- mony. Andrew and Hugh are to be in custody until they have found pledges [for their amercement]. The First Reported Case upon a Writ of Deceit.^ Reported 21 Edward 1.44, a.d. 1293. In the Common Bench. John (Lovetot) brought a writ of debt against B., and recovered the debt by judgment of the king's court. John had a judicial writ to the sheriff to cause the debt to be levied out of B.'s chat- tels. John Lovetot sent to the sheriH' his attorney named Robert to get the money ; and the sheriff could not find anything but corn growing on the land ; so he delivered to him the corn which he found growing on the land ; and the sheriff returned that he had executed the king's command. Then came John Lovetot and said 1 Sel. Soc. (Sel. PI. Cor.) pi. 4.5. ^ Big. L. C. Tort-s, 18. The last reported case on a writ of deceit is I'asley v. Freeman. Here tlie distinction l)et\vecn " deceit " and " in the nature of deceit " breaks down. I'asley v. Freeman, 3 'I'erni Reports, .51 (1789). 148 CASES ON COMMON-LAW PLEADING. the sheriff had returned falsely and in deceit of the court ; where- upon he had a writ of deceit out of the Eolls to compel the sheriff to appear. The sheriff came and said that he had made a good re- turn, and that he had executed the king's command ; and that he found only corn on the land, and that he delivered to John Love- tot's attorney, whom he had sent, the wheat barley, etc., which he found growing on the land, ready, etc. — John Lovetot. What have you to show it? — The sheriff. It is not for us to have the acquittance. Ready, etc. by a good jury. Hertford. Did you send your attorney or not ? — Lovetot admitted freely that he sent him there, but he said that the sheriff did not deliver anything to him ; and (said he). See here the attorney who will tell you the same thing. — The attorney came and said that he (John Lovetot) made him his attorney, but that the sheriff did not deliver any- thing to him ; and that he was ready to aver. — Hertford. You cannot be a party to the averment that he made you his attorney to receive the monies ; for you are not a party to this writ of deceit. — John Lovetot. Sir, it seems that he ought to be party to the averment that he did not deliver anything to him, because the sheriff says that he did deliver to him, etc. — Hertford. Lovetot, will you prosecute your plaint, or not ? — He would not accept the averment, but prayed that the attorney might make the averment. Wherefore it was adjudged that the sheriff' should go without day and that John should be in mercy. PROVISIONS OF OXFORD. [Anno 1258.] This the Chancellor of England sicorc. — That he will seal no writ, excepting writs of course, without the commandment of the king and of his council who shall be present. Xor shall he seal a gift under the great seal, nor under the great ( ),^ nor of escheats, without the assent of the great council or of the major part. And that he will seal nothing which may be contrary to the ordinance which is made and shall be made by the twenty-four, or the major part. And that he will take no fee otherwise than what is given to the others. And he shall be given a companion in the form which the council shall provide. Ann. Monast. 448.^ Of the Chancellor. — The like of the chancellor. That he at the end of the year answer concerning his time. And that he seal noth- ing out of course by the sole will of the king. But that he do it by the council which shall be around the king. Ann. Monast. 451.^ 1 A blank space in the manuscript. ^ Stubbs's " Select Charters," 393. 3 Ibid. 394. THE PARENT OF CASE, TROVER, AND ASSUMPSIT. 149 ("In the year 1258 the provisions of Oxford were promulgated; two separate clauses of which bound the chancellor to issue no more writs, except writs ' of course,' without command of the king and of his council present with him. This, with the growing inde- pendence of the judiciary on the one hand, and the settlement of legal process on the other, terminated the right to issue special writs, and at last fixed the common writs in unchangeable form ; most of which had by this time become developed into the final form in wliich for six centuries they were treated as precedents of declarations." Big. Hist. Proced. 197, 198.) STATUTE WESTMINSTER TI. 13 EDWARD I., CAR 24. [Anno 1285.] In like cases like writs be grantable. II. (3) And whensoever from henceforth it shall fortune in the chancery, that in one case a writ is found, and in like case fall- ing under like law, and requiring like remedy, is found none ; the clerks of the chancery shall agree in making the writ ; (4) or the plaintiffs may adjourn it until the next Parliament, and let the cases be written in which they cannot agree, and let them refer themselves until the next Parliament; and by consent of men learned in the law, a writ shall be made, lest it might happen after that the court should long time fail to minister justice unto complainants.^ COOKE V. GIBBS. Supreme Judicial Court of Massachusetts, 1807. Reported 3 Massachusetts, 193. The statute Westminster II. operates as part of the common law in Massachusetts, to the extent of making new writs grantable. Debt on a judgment of the court of Common Pleas, for this county. The writ directs the sheriff to attach the goods or estate of the defendant, and to summon him to appear, etc. The declara- 1 Writ of Trespass on the. Case.— If W. etc. then put I. etc. to show wherefore, whereas he the said I. undertook to make and huild three carriages for conveying vict- uals and tackle of him the said W. to parts beyond sea, for a certain sum of money, one part whereof he beforehand received, within a certain term between them agreed ; he the same I. did not care to make and build the carriages aforesaid within the term aforesaid, by which he, the said W., hath wholly lo.st divers his goods and chattels, to the value of one hundred marks, which ought to have been conveyed in the carriages afore.said, for want thereof to the great damage of him the said W., as it is said : and have, etc. — Fitz. N. B. 94 A. 150 CASES ON COMMON-LAW PLEADING. tion, after reciting the judgment, and alleging that four several execu- tions issued upon it, goes on to state the delivery of the fourth to the sheriff, who committed the defendant to prison, from whence he was afterwards, in due course of law, liberated by force of "an act for the relief of poor prisoners who are committed by execution for debt." 1787, c. 29. The defendant demurs to the declaration, and assigns the follow- ing causes of demurrer, namely : 1. For that the sheriff in and by the writ is commanded to at- tach the goods or estate of the said Solomon, without excepting his wearing apparel, etc. 2. For that it does not appear, by the declaration aforesaid, that the said Solomon was legally discharged from prison, nor that a writ of execution on said supposed judgment had not issued, after the supposed discharge of the said Solomon, and was not in force at the time of bringing this action. The plaintiff joins in demurrer. Bliss, for the defendant, contended that writs must follow the forms prescribed by the law. Our statutes furnish no such form as this, which commands the sheriff to attach the defendant's goods, and to summon him to appear. It is in fact uniting in one writ the two several writs of attachment, and original summons. But if a plaintiff may thus confound the different forms of writs, it is con- ceived that such a writ cannot, and indeed that no writ whatever can command the attachment of all the goods without exception, of a debtor who has been admitted to the poor prisoner's oath, as it is called, since the statute expressly frees from the operation of the original judgment, and of course of an action of debt, brought upon such judgment, the wearing apparel and household furniture, necessary for the debtor, his wife and children, and tools necessary for his trade or occupation. Sedgwick, 'j. There is a special demurrer to the declaration in this case, and the first cause assigned has relation to the writ only. Whether the writ is good or not, no advantage can be taken of its defects under a demurrer to the declaration. If the defendant would object to the plaintiff's writ, he must do it by pleading in abatement. If he had so pleaded in this case, it is possible that the objection might have prevailed ; for when a statute has pre- scribed the form of a writ, I am not prepared to say that a clerk or attorney has authority to vary from that form. The defendant, by appearing and answering to the declaration, has, according to the establislied and well-known rules of pleading, waived all objections to the writ. THE PARENT OF CASE, TROVER, AND ASSUMPSIT. 151 Parsons, C. J. Notwithstanding the defendant, by having taken the oath prescribed for poor prisoners, has been liberated from imprisonment on the execution issued upon the judgment disclosed in this count; yet an action of debt lies on this judgment, because the statute provides that it shall remain in force to all intents and purposes ; but the debtor's body, his wearing apparel and tools, shall not be liable to execution. In this case the writ commands the sheriPf to attach the defend- ant's estate, and to summon him to answer ; and in the declaration the plaintiff has averred that the defendant has had the benefit of the poor debtor's oath. There is a demurrer to the declaration. The defendant has assigned several causes of demurrer. One is, that the sheriff is commanded to attach the defendant's estate, without excepting his wearing apparel. This is an exception to the writ, the defects of which, when not apparent on the record, must be shown by a plea in abatement. But if the writ be bad and insufficient upon the face of it, tlie court may, ex officio, quash it. The defendant insists that the statute of 1784, c. 28, prescribing the form of original writs, has not authorized the writ in this case ; that, pursuant to the statute, an original writ in debt must be either against the estate and body of the defendant, or only a summons to appear, and that this writ pursues neither of the forms. The statutes have, in several cases, prescribed the outlines of the forms of several writs, but not of all the writs in use. Where the legal remedy sought by the plaintiff may be obtained by a writ conforming to these outlines, he must sue out such a writ ; and if the writ he shall sue materially vary from those outlines, tlie court may, ex officio, abate it. But when the remedy he is entitled to cannot be obtained by any writ conforming, in its outlines, to those prescribed by statute, it has been the ancient and constant practice of the court to grant him a writ, by -which he may obtain his remedy. Thus we have no form of writs of error, of review, or of scire facias against bail, or of execution in dower where a woman has been divorced a vinculo ; and yet, when the remedy sought required any writ of these kinds, the court have always granted it. By an ancient English statute, the masters in chancery, whence all original writs issued, were authorized to form new writs in new cases, that there might not be a failure of justice. In this State that author- ity, when necessary, has been exercised by the court issuing the writ. Thus, when an act passed, directing that an execution should not issue against the body of a sheriff when in ofhce, the court altered the form of the execution given by statute, so as to conform it to this act. By the constitution, no representative shall be arrested 152 CASES ON COMMON-LAW PLEADING. or held to bail on mesne process, while attending the General Court, or eundo et redeundo ; but his estate may be attached, and when the plaintiff would attach his estate to secure his debt, a writ of attachment may issue, by which the officer is commanded to at- tach the estate of the defendant, and to summon him. By law, executions do not lie against the bodies or estates of executors or administrators, on judgments against them for the debts of the deceased ; and executions have been made conformable to this pro- vision of law. So by statute of 1783, c. 32, s. 9, writs of attachment shall run only against the goods or estate of the party deceased, in the hands of his executors or administrators, and not against their bodies. According to this section, and a former provincial law, of which it is a revision, writs have frequently issued, commanding the officer to attach the goods or estate of a person deceased, and to summon the executor or administrator. In the case at bar, if the plaintiff had sued out a common writ of attachment against the estate and body of the defendant, the writ, on plea, might have been abated ; if he had sued an original sum- mons, by that he could not have secured the debtor's estate to satisfy his judgment. A writ, therefore, in this form is the only writ adequate to the remedy, to which by law he is entitled. In a case like the present, the plaintiff having sued an attach- ment in this special form, he has done right in showing the exemp- tion of the defendant's body, in order to entitle himself to this special writ. If he had sued a common writ of attachment against the defendant's body and estate, it could not be abated, but by the defendant's plea ; for the exemptions being in his favor, he may waive the benefit of them. If he had sued an original summons, the writ could not have been abated; but the defendant, to avail himself of these exemptions, might have pleaded them, so as to cause an execution to issue with the exemptions pleaded. But if the plaintiff has gratuitously inserted in his declaration allegations, which will entitle him to this special writ, it cannot give the de- fendant any cause of complaint. And the objection that, upon these principles, the plaintiff ought, in his writ, to have excepted from attachment the defendant's wearing apparel and his tools, does not appear to me to have much weight. It sufficiently appears that the plaintiff is entitled to a writ of attachment against the defendant's goods or estate; and the precept to the sheriff must be construed to extend to such estate only as is by law liable to attachment on this writ. Thus a fieri facias at common law is issued against the goods and chattels of the debtor without any exception ; but if the sheriff were to strip the THE PARENT OF CASE, TROVER, AND ASSUMPSIT. 153 debtor's wearing apparel from his body, he would be a trespasser, for such apparel, when worn, is not liable to the execution. Also, by the statute of 1805, c. 100, certain chattels therein described cannot be attached upon any original writ ; yet the writ of attach- ment issues in the usual form, without including an exception of these chattels. The causes of demurrer, which apply to the declaration, appear to me to be insufficient. It is enough, in a case like this, to allege the discharge in general terms ; and if an alias execution had is- sued, and was not returnable, the defendant ought to have shown it. It is the opinion of the court that the declaration is good. Allen, for the plaintiff. SCOPE AND CHARACTERISTICS OF CASE. For what injuries does an action on the case lie ? We shall deal in answering this question with three dis- tinct groups of cases. Group {a). The distinctive characteristics of case — its undisputed territory. Group (6). The border-land between case and equity. Group (er que jeo suis mis en grand infirmitie^ an action lies against him without express warranty, for it is a warranty in law." It is again stated thus, by Tanfield, C. B., and Altham, B., in Roswell v. Vaughan, Cro. Jac. 196: "If a man sells victual which is corrupt, without warranty, 1 See the cases collected, 1 Vin. Abr. 561. 2 " Brief de deceit sur le cas quare cum, etc., fuit port ])er A. a2;ainst B. & C. . . . quare cum prsedict' A. quandam buttam viui de Kuinney de praefat' B. «& C, predict' C. sciens illam esse corruptam et inhabilem, warrantiz' esse habilem et non corruptam, p' quadam pecunine summa vendidit. . . . Rolf (for defendant) prayed judi^ment of the writ, for it is not stated that we warranted it to be good, aud then it shall be adjudj^ed the plaintiff's own. folly. Martin (as it seems for plaintiff). The war- ranty is not material (n'e a purpos) ; for it is enacted (ordeine) that no one shall sell corrupt victual ([see post, p. 648]. Cottismore (apparently a judge). Ceo est actio pojjularis. Babington (apparently a judge). The warranty, as Martin has said, is not material (n'e. pas a purpos) ; car si jeo vien en un taverne a manger, et il don' et vend' a moy bier ou char corrupt', par le quel jeo suis mis en grand infirinite, j'aurai action envers luy sur mon cas cleremcnt, et nncore il ne fist garranty a moy. Godred. It was lately arljudged in the King's Bench that if a man sells a piece of woollen cloth, knowing it to be rotten and ill fulled, ' et ceo fuit adjudge bon sans garranty.' And then West said that the wool was warranted, and so it was. Rolf, riilendo et protestando, that the plaintiff was a wine drawer, and yet knew nothing of wines, said for plea for B., that at the time of selling the wine, it was sufficient and fit or sound (suffic' et able). The court held that the plaint should be traversed ; upon which he added, 'and not corrupt.' C.'s plea was, that he sold to jdaintiff as B.'s servant, and in no other manner. Martin. You have deceived the plaintiff to your own knowledge (de vre' couis' demen')." 216 CASES ON COMMON-LAW PLEADING. an action lies, because it is against the Commonwealtli ; as 9 Hen. VI. 53, 7 Hen. IV. 15,^ and 11 Edvv. IV. 6." The cases are col- lected in 1 Viner's Abridgment, 520. [Parke, B. Suppose that I, not being a seller of wine, import a pipe from Oporto, and on its arrival at the docks transfer it to you for a price, without seeing or tasting it, shall I be liable to an action if it proves bad ?] The sale alone would impose that liability. [Alderson, B. There must be a difi'erence between exposing food or wine for sale, and transferring a bargain in it. The case put in the Year Book of Hen. VI. is that of a general dealer, who, as such, may be bound at law to know the quality of the article he sells. Parke, B. You must contend that even if the seller is not a dealer in provisions, or does not warrant them, or is not guilty of any fraud, or has no knowl- edge of tlie particular article, he is liable if it be not sound, whether the buyer suffers illness in consequence or not. The case in the Year Book, 9 Hen. VI., on which that in Keilway seems to rest, is one of a taverner. Alderson, B. The Year Book, 11 Edw. IV. 6, lays down a general prohibition by law^ to sell corrupt victual.^ Whether the bad wine or food is sold by a general dealer in either, or not, the injury to the public from selling them is the same. Eolfe, B. The case in Croke James explains those in the Year Books, as turning on the scienter in the seller, or on the pecu- liar duty of a taverner,] The scienter is immaterial. On the same grounds of public danger, a servant's carrying a child afflicted with the small-pox along a public highway in which persons are pass- ing, and near inhabited houses, is indictable. Eex v. Vantandillo, 4 M. & Sel. 73 ; 1 Ptussell on Crimes, by Greaves, 108. Kitchen on Courts Leet, 21, pi. 29, shows that a selling by butchers, fish- mongers, and other victuallers, of any corrupt victual, not whole- some for men's bodies, was inquirable in the leet. Blackstone, in his Commentaries, Vol. III. p. 166, says, "In contracts for provi- sions, it is always implied that they are wholesome ; and if they be not, the same remedy (viz. by action on the case to exact damages for the deceit) lies against him." Gray v. Cox, 4 B. & C. 108, E. 1 This seems a mistaken reference to the Year Book. 2 This seems to alhide to Stat. Incert. Temp., c. 7, 1 Tomlins, Statutes at Large, Syo, 388 ; see also the Statute of Pillory and Tumbrel, .51 Hen. IIL c. G, s 3. 3 Year Book, Trin. 1 1 Edw. IV. 6 B. Brian said, " Car si jeo vende a uu homme xx berbits per tuer, s'ils sonts corrupts, uncore si jeo garrante' eux, il n'avera ace' de disceit sur le garrantie, et ne sera travers, car qnt ils sont morts jeo ne puisse conustre q'ils sont corruptes, qnt jeo done trust et confidence a vous, si jeo suis disceive, jeo aver' ace' de disceit, &c., mes si jeo vende mutton pur manger quel est corrupt, il aver' ace' de disceit, comt. jeo ne garr' cell'." Nele. — En vostre case le cause est " p c q il est prohibite per le ley q' home vende vitaile corrupted," &c. See statute 51 Hen. III. c. 6, s. 3, anno 1266-1267. THE PARENT OF CASE, TROVER, AND ASSUMPSIT. 217 C. L. E., Vol. X., shows that the seller of an article undertakes that it shall be reasonably fit for the use for which it is intended. [Parke, B. That is confined to cases where he undertakes to manu- facture it.i] Whatever a man does to the article to vary it from its natural state is sufficient, e. g. cutting up or skinning an animal. [Parke, B. The sole point for consideration is, whether an ordi- nary individual, not clothed with any character of general dealer in provisions, who ho7id fide sells meat for human consumption, is liable to an action on the case by the buyer of the article if it proves unsound. This is not the case of a butcher, or taverner, or farmer killing or exposing to sale meat in open market, who may be reasonably taken as impliedly warranting the meat to be sound. Would an indictment lie against an ordinary individual for so do- ing ?] On principle there is no distinction between such an indi- vidual and any such trader, and both ought to be alike liable ; for the sale of unsound meat is in itself illegal. Whitehurst and Miller, in support of the rule. If a contract for sale of unsound meat is expressly forbidden by law, it is void, and no warranty can be implied by law to attach to it. Nor is there any distinct authority to prove what the plaintiff contends for ; whereas it is clear law that where a man buys a specific article, no warranty arises, for the maxim of caveat emptor applies. Chanter v. Hopkins, 4 M. & W. 399. That applies to sales of food as well as of other chattels. If, on the contrary, a man orders an article to be made for a particular purpose, the party who undertakes to supply it is bound to furnish one fit for that purpose. Shepherd V. Pybus, 3 M. & Gr. 868 ; E. C. L. R. Vol. XLII. ; 4 Scott, 434.2 In Chanter v. Hopkins, Lord Abinger said, " A warranty is an express or implied statement of something which the party undertakes shall be a part of a contract, and, though part of the contract, yet collat- eral to the express object of it. But in many of the cases, the cir- cumstance of a party selling the thing by its proper description has been called a warranty, and the breach of such contract a breach of warranty ; but it would be better to distinguish such cases, as a non-compliance with a contract which a party has engaged to ful- fil." [Parke, B., referred to the note to Cutter v. Powell, 6 T. R. 323, in Smith's Leading Cases, Vol. II.] Parkinson v. Lee, 2 East, 314, settles, that where a buyer has an opportunity of seeing part of the thing sold, no warranty is implied by law. Then do the old cases establish such a difference in the instance of selling unwhole- 1 See 2 M. & Gr. 279 (40 E. C. L. R.) ; 4 M. & W. 402 ; 2 B. & Adol. 456 (22 E. C. L. R.) ; 5 Ring. 53.3 (15 E. C. L. R.). 2 See Brown v. Edgington, 2 M. & Gr. 279 (40 E. C. L. R.). 218 CASES ON COMMON-LAW PLEADING. some provisions for human food that a party is hable to an action for selling them, without knowing them to be unfit for food, or warranting them to be fit ? Is every isolated act of selling such a dealing as makes the seller liable in case of the article proving bad ? The strongest case in the affirmative is in the Year Book, 11 Edw. lY. 6 B., ante, p. 648, n.c. It was one of the judges who there said that the sale of corrupt victual was prohibited by law. It was there .said, that if I sell a man twenty sheep to kill (which must mean for food), if they are rotten no action lies, because till killed no one can tell whether they are rotten or not ; nor would the man who sells to kill have them in his possession, so as to know their state when dead. It would then be sufficient in the declaration to state a sale of food not being fit for the food of man. At the trial, the learned judge said there was a warranty in law, and left it to the jury only whether the pig was unwholesome when left at Pen- rose's stall, without asking them whether it was sold for use of man or not. [Parke, B. It was assumed throughout that it was. The simple point is, whether the bare allegation that the defendant sold not exposed to sale to the plaintiff, for the food of man, corrupt and unsound victuals, he not being a dealer in them, or proved to know them to be unsound, is sufficient to entitle the plaintiff to maintain an action for deceit.] Comyns, in his Digest, tit. Action on the Case for Deceit (E, 4), cites Kitchen, 174, to show that if a buyer of a horse has opportunity of discovering a (patent) defect in him by inspection, and does not, no action lies ; ^ adding, " so, if a man sell corrupted wine if the vendee or his servant taste and approve of it." The case of a taverner is one where the article of food furnished to the guest is not selected by him in the first instance. So, if I order meat generally of a butcher, without selection, the implied contract is that the meat shall be good. [Parke, B. That is not the case of ordering a particular piece of meat to be sent home. The question in the taverner' s case is, whether as such he was bound to supply sufficiently good meat, — resembling Shepherd v. Pybus, 3 M. & Gr. 868, E. C. L. R. Vol. XLII. ; 4 Scott, 434. Alderson, B. Fitzherbert, in his Natura Brevium, 94 B., says, that if a man sells corrupt wine, or an unsound horse, without warranty, it is at the buyer's peril, " and his eyes and taste ought to be his judges in that case." The Year Books already mentioned are there cited.] All the cases collected in 1 Vin. Abr. 560, show that the liability of the seller turns on the scienter. As to the passage cited from 3 Bla. Com. 165, that in contracts for provisions it is always implied that they are wholesome, and if they are not, an action Lies for 1 See 2 Roll. R. 5 ; Southern v. How. THE PARENT OF CASE, TROVER, AND ASSUMPSIT. 219 deceit, it admits of the same solution, viz. that if the contract be for provisions which are not seen, e. g. for shipping, a warranty of their being good and fit for that particular purpose is implied; whereas, if the contract was for a specific article of food brought before the eyes of the purchaser, it would not. All turns on the seller's knowledge, actual or presumed, of the condition of the food. It is presumed in the case of the taverner or butcher, as in the case of a jeweller who sold a pebble for a bezoar stone. The liabil- ity of such persons arises from the opportunity they have in deal- ing with the article, of knowing whether it is good or not. Here, between ordinary parties, no knowledge that the animal was cor- rupt can be presumed from their dealings. [Parke, B. It is put for the plaintiff, whether, by reason of food being the subject of sale, this is not an exception to the general rule, so as to make the seller responsible on account of the common good, though no care could have discovered the latent defect.^ If the only obligation here was to use due diligence to see that it was not corrupt, the plaintiff cannot succeed.] Without express warranty, or knowledge express or presumed of the latent unsoundness, the defendant can- not be liable. Now it was admitted that the defendant knew no more of the real condition of the carcass in question than the plain- tiff himself. Cur. adv. vult. Parke, B., now delivered the judgment of the court. This was an action on the case, alleging that the defendant had publicly offered the carcass of a pig for sale and for the food of man, and had falsely and fraudulently warranted it to be wholesome and fit for food, whereby and by reason whereof the plaintiff was induced to buy it, and pay to the defendant a certain price for it. At the trial, before my brother Patteson, at the last assizes for the city of Lincoln, it appeared that the carcass in question was exposed for sale in a public street in the city of Lincoln, on the shambles of one Penrose, a butcher, and that the defendant bought it from him, but did not take it away. The plaintiff afterwards applied to Penrose to purchase the same carcass, and, lieing referred to the defendant as the person who had already bought it, he applied to him, and ultimately bought it from him, and paid the price agreed upon between them. It turned out, however, that the carcass was measly, and, having become putrid afterwards, was unfit for food, where- upon the plaintiff applied to the defendant to repay the price to him, and brought this action on the refusal of the defendant to 1 See Jones i;. Bright, 5 Bing. 533 (15 E. C. L. R.) cited 2 Steph. Coram. 127. 220 CASES ON COMxMON-LAW PLEADING. comply with such request. It did not appear that the defendant liad any knowledge of tlie unsound condition of the pig, but it did appear that he was not a professed buyer and seller of meat ; that he had not exposed this carcass publicly for sale ; that, having bought it for his own use, he had left it with Penrose till it should be delivered to himself, and that there was a reasonable presump- tion that he knew it was intended for human food when he sold it to the plaintiff. On this state of things, the counsel for the defend- ant, Mr. Whitehurst, prayed for a nonsuit, but the learned judge permitted the case to proceed, reserving the point on the nonsuit. The verdict passed for the plaintiff, and a rule nisi for a nonsuit having been obtained, the case was fully argued during the sittings after the last term. On the part of the plaintiff the argument was, that the sale of victuals to be used for man's consumption differed from the sale of other commodities, and that the vendor of such, without fraud, would be liable to the vendee on an implied war- ranty. This position is apparently laid down in Keilvvay, 91 ; but the authorities there referred to, in the Year Books, 9 Hen. VI. 53 B., and 11 Edw. IV. 6 B., and others,^ when well considered, lead rather to the conclusion that there is no other difference between the sale of food for man and other articles than this, viz. that vict- uallers and common dealers in victuals are not merely in the situa- tion of common dealers in other commodities, nor are they liable under the same circumstances as they are, as, if an order be sent to them to be executed, they are to be presumed to undertake the supply of food and wholesome meat ; and they are likewise punish- able as a common nuisance for selling corrupt meat, by virtue of an ancient statute, and this certainly if they know the fact, and prob- ably also if they do not. Such persons are therefore civilly respon- sible to those customers to whom they sell such victuals, for any special particular injury by the breach of the law which is thereby committed. Lord Coke lays it down that all persons, as well as common dealers, are liable criminally for selling corrupt meat ; for he says,^ speaking of the court leet : " This court may inquire of corrupt victuals as a common nuisance, whereof some have doubted, both for that it is omitted in the statute of the leet, and of the weak authority of the book of the 9 Hen. VI.,^ where Martyn saith that it is ordained that none shall sell corrupt victuals ; and Cot- tismore held opinion that it is actio papillaris, whereupon it is col- lected that the conusance thereof belongeth to the leet; and Martyn and Neal, 11 Hen. IV., agreeing with him, said truly; for, 1 7 Hen. IV. 15, 16; 11 Hen. IV. 14, 15; 11 Hen. VI. 18. a 4 Inst. 261. 3 viz. 53 B. THE PARENT OF CASE, TROVEK, AND ASSUMPSIT. 221 by the statute 51 Hen. III. and by the statute made in the reign of Edw. I. it is ordained that none shall sell corrupt victuals ; and the statute 51 Hen. III. says that the pillory and tumbril, and assize of bread and ale, applies only to vintners, brewers, butchers, and victuallers ; and, among the other things, inquiry is to be made of the vintners' names, and if they sell a gallon of wine, or if any corrupted wine be in the town, or such is not wholesome for man's body ; and if any butcher sell contagious flesh, or that died of the murrain, or cooks that see the unwholesome flesh." Lord Coke then goes on to say that " Britton, who wrote after the statute 51 Hen. III. and following the same, saith, ' Puis soit enquys de ceux que achatent per un manere de mesure et vendent per meinder raesure faux, et ceux soient punis comes vendours de vines, et aussi ceux que serront attaintz de faux aunes et faux peys, et auxi de macegrieves,^ et les gents que de usage vendent a trespassants mauveyse vians corrumpus et nacrus et autrement perillous a la saunty de home.' ' Et,' fol. 33, he doth conclude the like passage with these words : ' encontre le fourme de nous statutes.' " This view of the case explains what is said in the Year Book, 9 Hen. VI. 53, that " the warranty is not to the purpose ; for it is or- dained that none shall sell corrupt victuals ; " and in Eoswell v. Vaughan, Cro. Jac. 196, where Tanfield, C. B., and Altham, B., say, " that if a man sells victuals which is corrupt without warranty, an action lies, because it is against the commonwealth." That also explains the note of Lord Hale, in 1 Fitzherbert's Natura Brevium, 94, that there is diversity between selling corrupt wines and mer- chandise ; for there an action on the case does not lie without war- ranty ; otherwise, if it be for a taverner or victualler, if it prejudice any. The defendant in this case was not dealing in the way of a common trader, and was not punishable by indictment for what he did ; he merely transferred his bargain to the plaintiff, and at his own request. He therefore falls within the reason of the former part of Lord Hale's distinction ; and there being no evidence of a warranty, or of any fraud, he is not liable. The plaintiff ought, therefore, to have been nonsuited at the trial, and this rule must be made absolute. Eule absolute. Later, actions on the case for deceit were allowed for the simple breach of a parol promise. (a) First it was held no such action lay, because the plaintiff counted on a promise and showed no specialty. 1 Macellarius, butcher or victualler. 222 CASES ON COMMON-LAW PLEADING. (h) Later, in the fifteenth century, it Wcas held the action lay when the defendant had led the plaintiff to part with money or property on the strength of the defendant's promise. (c) Later, it was held that the action might be brought when the plaintiff had incurred any detriment by acting on the defendant's promise. (5 a) WATTON v. BRINTH. Reported Y. B. 2 Henry IV. 3, pl. 9. Anno 1400. One Lawrence Watton brought a writ formed on special matter against Thomas Brinth, and the writ was of a plea, etc. Where- fore since the same T. had undertaken within a certain time to re- build well and faithfully certain houses of this same Lawrence at Grimesby, yet the aforesaid T. did not take care to rebuild the houses of this same L. within the aforesaid time, etc., to the dam- age of this Lawrence [in the sum of] ten pounds, etc. And de- clares accordingly. Tirwit. Sir, you see well how he has counted of a covenant, and shows nothing for it, judgment, etc. Gas. And for as much as you answer nothing, we demand judgment, and pray our damages. Tir. This is merely a covenant. Bryn. The truth of the matter is this ; if peradventure he had counted, etc., or if in the writ mention had been made that the thing had been begun, and [that] afterwards through negligence nothing more [was] done, it had been otherwise. Hank. He might have brought a writ on the statute of laborers, for that the carpenter is an artificer, by which you may have a good action against him on the statute ; for you know well that a man may not have an action of covenant against his servant if he breaks his covenant, if he hath not a deed of it. Eikhill. For that you have counted of a covenant, and show noth- ing for that, you shall take nothing by your writ, but be in mercy T. 2 Hen. V. fol. M. ; 11 Hen. IV. 4, fol. 33. (5 h) Per Frowyk, C. J. " And so, if I sell you ten acres of land, parcel of my manor, and then make a feoffment of my manor, you shall have an action on the case against me, because 1 received your money, and in that case you have no other remedy against me. And so, if I sell you my land, and covenant to enfeoff you and do not, you shall have a good action on the case, and this is adjudged. . . . And if I covenant with a carpenter, to build a house and pay him £20 for the house to be built by a certain day, now I shall have a THE PARENT OF CASE, TROVER, AND ASSUMPSIT. 223 good action on my case because of payment of money, and still it sounds only in covenant and without payment of money in this case no remedy, and still if he builds it and misbuilds, action on the case lies. And also for nonfeasance, if money paid, case lies." Keilway, 77, pi. 25. [Anno 1504] i (5 r) " The gist of the action being the deceit in breaking a promise on the faith of which the plaintiff had been induced to part with his money or other property, it was obviously immaterial whether tliQ promisor or a third person got the benefit of what the plaintiff gave up. It was accordingly decided, in 1520, that one who sold goods to a third person on the faitli of the defendant's promise that the price should be paid, might have an action on the case upon the promise. This decision introduced the whole law of parol guaranty. Cases in which the plaintiff gave his time or his labor were as much within the principle of the new action as those in which he parted with property. And this fact was speedily recognized. In Saint Germain's book [Doctor and Student, Dia- logue It. c. 24] published in 1531, the student of law thus defines the liability of a promisor : ' If he to whom the promise is made have a charge by reason of the promise ... he shall have an ac- tion for that thing that was promised, though he that made the promise have no worldly profit by it.' From that day to this a detriment has always been deemed a valid consideration for a promise if incurred at the promisor's request." Ames, History of Assumpsit, 2 Harv. L. Eev. 1 at 14. WIRRALL V. BRAND. In the King's Bench. 1665. Reported 1 Levinz, 165, By a natural transition, actions upon parol promises came to be regarded as actions ex contractu. Assumpsit against two executors on the promise of a testator; issue noil assumpsit, one executor dies, which is suggested on the Roll, and the trial had against the other, and verdict for the plaintiftl And it was moved by Jones in arrest of judgment that the bill was abated by che death of the one in cases of contract, but other- wise in cases of trespass, as 50 Edw. III. 7 ; 40 Edw. III. 26 h ; Fitz. Brief, 263, 344, & Plowd. Com. 186 h. In case of executors sued on a contract, the death of one abates the writ. But of this, in 1 Til is decision marks the abandonment of the distinction between misfeasance and nonfeasance, in the case of promises given for money. 224 CASES ON COxMMON-LAW PLEADING. case of executors, the court at first doubted ; but at another day having seen the case in Plowd. 186, Woodward v. Davis, which is directly in point, they resolved that the writ abated and stayed the judgment.^ 1 " The right of action for the breach of a contract upon the death of either party in general survives to and against the executor or administrator of each ; but iu tlie case of torts, wlien the action must be in form ex delicto, for the recovery of damages, and the plea not guilty, tlie rule at common law was otherwise; it being a maxim tliat actio personalis moritur cum persona. And we shall find that the statute 4 Edw. III. c. 7, [which provides for an action of trespass by executors for a wrong done to their tes- tator] has altered this rule only in its relation to personal property, and in favor of the personal representative of the party injured; but if the action can be framed in form ex contractu, this rule does not apply. We will now consider the rule as it affects actions for injuries to the person, and to personal and real property. " In the case of injuries to the person, whether by assault, battery, false imprison- ment, slander, or otherwise, if either the party who received or committed the injury die, no action can be supported either by or against the executors or otlier personal representatives; for the statute 4 Edw. III. c. 7, has made no alteration in the common law iu that respect; and the statute 3 and 4 Will. IV. c. 42, s. 3, only gives executors and administrators an action for torts to the personal or real estate of the party in- jured, and not for mere injuries to the person ; and a promise to marry is considered of so personal a nature, that although tlie action for its breach is in form ex contractu, yet the executor of the party to whom the promise was made cannot sue. " At common law, in ttie case of injuries to personal property, if either party died, in general no action could be supported, either by or against the personal representatives of the parties, where the action must have been in form ex delicto and tlie plea not guilty ; but if any contract could be implied, as if the wrong-doer converted the property into money, or if tlie g(jods remained in specie in the hands of the executor of tlie wrong- doer, assumpsit for money had and received might be supported at common law by or against the executors in the former case, and trover against the executors iu the latter. By the statute 3 Edw. III. c. 8, intituled ' Executors shall liave an action of trespass for a wrong done to the testator,' and reciting ' that iu times past executors have not had actions for a trespass done to their testators, as of the goods and chattels of the same testators carried away in their life, and so such trespasses have hitherto remained unpunished,' it is enacted, ' that the executors in such cases shall have an action against the trespassers, and recover their damages in like manner as they, whose exec- utors they be, should have had if they were in life ; ' and this remedy is further ex- tended to the executors of executors, and to administrators. It has been observed, that the taking of goods and chattels was put in the statute merely as an instance, and not as restrictive to such injuries only, and that the term 'trespass' mu.st, with refer- ence to the language of the times when the statute was passed, signify any wrong ; and accordingly the statute has been construed to extend to every description of injury to personal property, by which it has been rendered less beneficial to the executor, what- ever the form of action may he ; so that an executor may support trespass or trover, case for a false return to final process, and case or debt for an escape, etc. on final pro- cess. And although it has been doubted whether an executor could sue for an escape on mesne process in the lifetime of lus testator ; it seems that on principle he might; and he may support debt for not setting out tithes ; or against a tenant for double value for holding over ; or again.st an attorney for negligence ; or debt against an executor, suggesting a. devastavit in the lifetime of the plaintiff's testator; or case against the sheriff for removing goods taken iu execution, without paying the testator a year's rent ; or an action of ejectment or quare impedit, for the disturbance of the testator. We will presently state the extension of remedy by 3 and 4 Will. IV. c. 42, s. 2. " With respect to injuries to real property, if either party die, no action in i'orm ex THE PARENT OF CASE, TIIOVER, AND ASSUMPSIT. 225 (1) ELSEE AND ANOTHER v. GATWARD. Ix THE King's Bench. 1793. Reported 5 Term Keports, 143. A. agrees with B. without consideration to do something, and does not do it. B. suffers damage. A. agrees with B. without consideration to do some- thing, and does it badly to B.'s damage. A. is liable for the misfeasance, not for the nonfeasance. This was an action upon the case. The first count in the declaration stated that the plaintiffs on the 29th of August, 1791, delicto could be supported either by or against his personal representatives before the 3 and 4 Will. IV. c. 42, s. 2 ; and although the statute 4 Edw. III. c. 7, miglit bear a more liberal construction, the decisions confined its operation to injuries to personal j)roperty ; and therefore an executor could not support an action of trespass quare clausuvi fregit, or merely for cutting down trees or other waste in the lifetime of the testator: and though in Emerson i'. Emerson, 1 Vent. 187; 2 Keb. 874; Sir W. Jones, 174, 177; 1 B. and V. 329, it was holdeu that a declaration by an executor for mowing, cutting down, taking and carrying away corn, might be supported, the allegation of tiie cut- ting down being considered merely as a description of the manner of taking away the corn, for which an action is sustainable by virtue of the statute ; yet it was decided that if the declaration had been quare chiasumfregit, et hlada asportuvif, it would have been insufficient ; and that if the defendant had merely cut the corn and let it lie, or if the grass of the testator had been cut and carried away at the same time, no action could have been supported by the executor. We have seen, however, that an action may be supported by a devisee for the continuance of a nuisance erected in tlie lifetime of the testator. And a bill in equity, for an account of equitable waste committed by a tenant for life, may be maintained against his personal representntives. " The 3 and 4 Will. IV. c. 42, s. 2, has introduced a material alteration in the com- mon-law doctrine, actio personalis moritur cum persona, as well in favor of executors and administrators of the party injured, as against the personal representative of the party injured, but I'cspects only injuries to personal and real property, and subject to certain restrictions as regards the commencement of an action for such injury within a short time after the death, and declaring that the damages to be recovered from an execu- tor or administi-ator shall be ranked or classed with simple contract debts. The act recites, that there is no remedy provided by law for injuries to the real estate of any person deceased committed in his lifetime, nor for certain wrongs done by a per- son deceased in his lifetime to another, in respect of his property, real or personal : for remedy thereof it enacts, that an action of trespass, or trespass on the case, as the case may be, may be maintained by the executors or administrators of any person de- ceased, for an injury to the real estate of such person, committed in his lifetime, for which an action might have been maintained by such person ; so as such injury shall have been committed witiiin six calendar months before the death of such deceased person, and provided such action shall be brought witiiin one year after the death of such person, and the damages, when recovered, shall be part of the personal estate of such person ; and further, that an action of trespass, or trespass on the case, as the case may be, may be maintained against the executors or administrators of any person deceased, for any wrong committed by him in his lifetime to another, in respect of his property real or personal, so as such injury shall have been committed within six cal- endar months before such person's death, and so as such action shall be brought within six calendar months after such executors or administrators shall have takeu upon 15 226 CASES ox COMMON-LAW PLEADING. were about to build a warehouse, etc., and to rebuild and repair cer- tain parts of a dwelling-house and stables, etc., and were desirous of having the warehouse completely tiled and covered in, and the front of the dwelling-house rebuilt, on or before the 1st of November then next, and also of having the bricklayers' and carpenters' works of the warehouse completely finished on or before the 1st of Decem- ber, and the whole of the remaining repairs finished on or before the 25th of December then next, and thereupon the plaintiffs on the 29th of August, 1791, at the special instance and request of the defendant, who was a builder, and had full notice of the premises, retained and employed the defendant- to do and perform all and singular the bricklayers' and carpenters' works which should be requisite on the occasion aforesaid within the several times here- inbefore mentioned for the completion thereof respectively ; and although the defendant afterwards accepted of such retainer and employment upon the terms aforesaid, and could and ought to have completed all such bricklayers' and carpenters' works within the said respective times, yet the defendant contriving to injure the plaintiffs, etc., did not, nor would, completely tile or otherwise cover in the said warehouse, etc., on or before the said 1st of November, nor did nor would finish the bricklayers' and carpenters' works of the warehouse on or before the said 1st day of December, and the whole of the remaining repairs on or before the said 25th of Decem- ber, etc., but on the contrary permitted the said warehouse to con- tinue untiled and uncovered, etc., in consequence of which said neglect of the defendant the walls of the said premises were greatly sapped and rotted, and the ceilings damaged and spoiled, and the plaintiffs were obliged to continue tenants of another warehouse and stables, etc., and were thereby put to additional expense, etc. The second count stated that the plaintiffs on the 29th of August, 1791, being possessed of divers old materials of buildings, retained and employed the defendant at his instance and request to do and perform certain bricklayers' and carpenters' works upon divers buildings and premises of them the plaintiffs, and to use and apply in and about those works all such parts of the old materials as were fit and proper for that purpose, and that although divers parts of the said old materials were fit and proper to have been used and applied in and about the said works, yet the defendant, contriving to injure the plaintiffs in this behalf, and to enhance the expense of the bricklayers' and carpenters' works, did not nor would use and themselves the administration of the estate and effects of such person; and the dam- ages to be recovered in such action shall be payable in like order of administration as the simple contract debts of sucli persons." Chitty, Pleading, Vol. I. pp. 77-80. THE PARENT OF CASE, THOVEI?, AND ASSUMPSIT. 227 apply in and about the said works such parts of the old materials as were lit, etc., but refused so to do, and wrongfully and injuriously used and applied in and about the same works other new and ex- pensive materials in the stead of such old materials as were fit and proper for the same purposes ; whereby the plaintiffs were put to an unnecessary expense, etc., and the old materials became wholly useless, etc. There was a third count in trover for the old materials. The defendant demurred to the two first counts ; alleging for causes that, notwithstanding the whole of the supposed causes of action in those courts were in the nature of a nonfeasance, and con- sisted in the nonperformance of certain matters and things in those counts mentioned as having been omitted to be done by the defend- ant, it was not stated in either of those counts, nor did it thereby appear, that the defendant by any promise, undertaking, contract, or agreement, was bound to the performance of those several matters or things, etc. That, although the several supposed causes of action in those counts were founded upon implied contracts in law, no sufficient ground or consideration to raise or support such implied contracts was stated. That there was not stated, nor did it appear, in those counts that there was any promise or contract on the part of the defendant, upon which the breaches in those counts could operate. And that those counts did not contain any cause of action against the defendant, etc. The parties went to trial, when a verdict was given for the defendant on the count in trover, and conditional damages assessed for the plaintiffs on the two counts demurred to. Park, in support of the demurrer. Marry a tt, contra. Lord Kenyon, Ch. J. If this had been an action of assumpsit, it could not have been supported for want of a consideration : it would have been nudum pactum. And if both the counts be not good, the defendant is entitled to judgment. Now, I do not think that the first count in the declaration is good in lav^^ It states that the defendant, who is a carpenter, was retained by the plain- tiffs to build and to repair certain houses ; but it is not stated that he was to receive any consideration, or that he entered upon his work. No consideration results from his situation as a carpenter, nor from the undertaking ; nor is he bound to perform all the work that is tendered to him ; and therefore the amount of this is that the defendant has merely told a falsehood, and has not ]ier- formed his promise ; but for his nonperformance of it no action can be supported. This is warranted by Lord Holt's opinion in Coggs V. Bernard, where, recognizing the case in 11 Hen. IV. 33, 228 CASES ON COMMON-LAW PLEADING. he said, " There the action was brought against a carpenter, for that he had undertaken to buikl the j)laintiff a house within such a time, and had not done it, and it was adjudged the action would not lie." And on this opinion I think I may safely rely, especially as the justice of the case will not be altered by the form of the action ; for if assumpsit will not lie in such a case, there is no tech- nical reasoning that will support such an action as for a tort. In that case Powell, J., said, " an action will not lie for not doing the thing for want of a sufficient consideration ; but if the bailee will take the goods into his custody, he shall be answerable for them ; for the taking of the goods into his custody is his own act." Lord Holt there put several cases to establish this position, which will reconcile the cases now cited on the part of the plaintiffs. In Brown v. Dixon, the defendant had received the dog into his pos- session. This case is very distinguishable from those of common carriers and porters, from whose situations certain duties result ; they are bound by law to carry goods delivered to them, and are by law entitled to a recomyjense : but no such duty results from the situatipn of a carpenter ; he is not bound, as such, to perform all the work that is brought to him. It appears to me, therefore, that the first count cannot be supported, there being no considera- tion expressly stated, nor any consideration resulting from the defendant's employment as a carpenter; though, had the defendant performed the work, he might have recovered a satisfaction on a quantum meruit. Upon the authority of Coggs v. Bernard, and the cases there noticed, not contradicted by any other decision, I think that the first count, for nonfeasance, is bad, but that the second count may be supported. It is there stated that the de- fendant entered upon his employment, and that he did not do that which he ought to have performed according to his retainer. In that count it is stated that he undertook to use the old materials, that in fact he did not use those, but substituted new ones in their stead, thereby enhancing the expense to the plaintiffs. This comes within the case mentioned by Lord Holt in Coggs v. Bernard, speaking of the same case in the Year Books, "but there the ques- tion is put to the court what if he had built the house unskilfully; and it was agreed in that case an action would have lain." For though the defendant could not have been compelled to build this house, and to use the old materials, yet having entered upon the contract, he was bound to perform it ; and not having performed it in the manner proposed, an action lies against him. Ashhurst, J. The second count may be maintained, inasmuch as it appears that the defendant was retained by the plaintiffs, that THE PARENT OF CASE, TROVER, AND ASSUMPSIT. 229 he entered upon the work in consequence of that retainer, and that he did not perform it according to the terms of the retainer, by using new materials instead of the old, which subjected the plain- tiff's to a considerable expense. This amounts to a misfeasance on the part of the defendant, and may be the foundation of an action. But the first count cannot, I think, be supported. The distinction is this : if a party undertake to perform work, and proceed on the emjiloyment, he makes himself liable for any misfeasance in the course of that work ; but if he undertake, and do not proceed on the work, no action will lie against him for the nonfeasance. In this case, the defendant's undertaking was merely voluntary, no consideration for it being stated. There was no custom of the realm, or any legal obligation, to compel him to perform this work ; and that distinguishes this case from those of a common carrier, porter, and ferryman, who are bound from their situations in life to perform the work tendered to them ; but a carpentoi', as such, is not bound by any such obligation. This count is merely for non- feasance, and it does not state that the defendant entered upon the employment. It is indeed alleged that he did not finish the work, from whence the jjlaintiffs wish the court to infer that he had begun upon it ; but as that is the gist of the action, it should have been stated expressly. Nor is it a necessary inference to be drawn from the facts stated ; for, consistently witli everything alleged, the defendant may not have begun the work at all. But it has been contended that it was not necessary to allege that the defendant was employed to perform this work for hire and reward, it being stated that he was retained, and that indebitatus assumpsit would have lain by the defendant if he had performed it. I admit tliat the defendant might have recovered a satisfaction in such an action, if he had executed the work : but in order to compel him to perform it, it should appear that there was an express consideration for it ; the word " retain " does not necessarily show that there was a consideration. Grose, J. The jury having given damages on both the counts jointly, it becomes necessary to consider them both, because if either be bad, tlie defendant will be entitled to judgment ; and it appears to me that they fall under different considerations. The first count is for confeasance, and it alleges a promise without showing any consideration for it. It has been argued that if the defendant had performed the work, he might have maintained an action for a satisfaction for his labor: but that does not necessarily follow: it must have depended upon circumstances ; perhaps he engaged to do the work gratuitously, and if so, he could not have recovered in 230 CASES ON COMMON-LAW PLEADING. an action : however, this does not appear one way or the other on the face of the declaration. That such an action as this cannot be supported is clear from the opinions of Holt, Ch. J., and Powell, J., as delivered in Coggs v. Bernard, who founded their opinions on a case in the Year Books, which they considered as law. There the gravamen was like the present; and after Tilsby, who was counsel for the defendant, had objected to the action, Norton, the plaiutill's'' counsel, asked what would have been the consequence if the de- fendant had built the house badly ; not putting the case of not building the house; to which one of the judges answered, that in such a case an action wolild have lain for the wrong. But when a person agrees to do a thing without any consideration, and fails in his promise, no action will lie against him for the nonperformance. And llolle, in mentioning this case in 11 Hen. lY., considers it to have been determined on account of the want of consideration. Therefore that case is directly in point ; for this is an action for nonfeasance, without any consideration ; it is not stated that the defendant entered upon the work, or undertook it for any reward ; which is one of the instances mentioned by Powell, J., in Coggs v. Bernard, in which he thought no action would lie. The first count, therefore, cannot be supported. But the second may, on the reason- ing in Coggs v. Bernard ; for it is for misfeasance. The defendant is bound in consequence of having entered upon the work ; and vv'liether the work were or were not to be performed for hire, the defendant was not to injure the plaintiffs ; and here considerable expenses were incurred in consequence of his using the new, instead of the old materials. This is a misfeasance, and on that ground I think that the second count may be supported. Fer curiam. Judgment for the defendant.^ COGGS V. BERNARD. In the Queen's Bench. 1703. Reported 1 Salkeld, 26; s. c. 2 Lord Raymond, 909; s. c. Comyns, ISS. A. agrees with B., without consideration, to do something for B. and does it badly, to B.'s damage. Case for misfeasance will lie. Case: whereas the defendant assumpsit to take up a hogshead of brandy in a cellar in D. and safely to lay it down in another cellar, that he tani necjligenter laid and put it down in another cellar, that for want of care the cask was staved, and so much brandy was lost. Objected, in arrest of judgment. That there is no considera- 1 The arguments of counsel are omitted. THE PARENT OF CASE, TKOVER, AND ASSUMPSIT. 231 tion ; for the defendant is not to have a reward, and it does not appear he is a common carrier, or porter, so as to be entitled to a reward ; he is only to have his labor for his pains, so that this is nudu7n ]} actum without consideration. But by Holt, C. J. If the agreement had been only executory, as that he assumed to carry it, and did not, no action would have lain. Like the case of 11 Hen. IV. 33. Action, for that he promised to build him a house by such a day, and did not ; adjudged it lay not in that case ; but here he was actually entered upon the thing according to his promise, and therefore having miscarried, he is liable to an action ; for it is a de- ceit upon the plaintiff who trusted him, and that is the cause of action ; for though he was not bound to enter upon the trust, yet if he does enter upon it, he must take care not to miscarry, at least by mismanagement of his own. Aliter, perhaps, if a drunken man had run upon him in the street, and thrown down the cask, or one had privately pierced it, because he had no reward. It is indeed held in Yelv. 128 that if H. deliver goods to A. and in consideration thereof he promise to redeliver them, that yet no action will lie for not redelivering them ; but that resolution is not law, and was always grumbled at. And 2 Cro. 667, where money was delivered to pay over sine mora, is contrary ; for though the party has no benefit, yet if he takes the trust upon him, he is bound to perform it. Vide 3 Hen. VI. 26 ; Dr. & Stud. 129 ; Owen, 141 ; Keb. 160. Judgment pro quer per totam cur} INDEBITATUS ASSUxMPSIT. " The defendant, having become indebted, has under- taken." OEIGIN OF THE ACTION. " The origin of indebitatus assumpsit may be explained in a few words: Slade's Case [4 Rep. 92 a; Yelv. 21 ; Moore, 433, 667], de- cided in 1603, is commonly supposed to be the source of this action. But this is a misapprehension. Indebitatus assumpsit upon an ex- press promise is at least sixty years older than Slade's Case. The evidence of its existence throughout the last half of the sixteenth century is conclusive. There is a note by Brooke, who died in 1558, as follows: 'Where one is indebted to me, and he promises to pay 1 111 the report in Lord Raymond, aln^iost the whole of the fundamental law of hail- meut is laid down. Vide 1 H. Bl. Kep. 158 ; Jones's Law of Bailment, /jer totiim ; Elsee V. Gat ward, 5 T. R. 151. 232 CASES ON COMMON-LAW PLEADING. before ]\Iicliaelmas, I may have an action of debt on the contract, or an action on the case on the promise.' In Manwood v. Burston [2 Leon. 203, 204] (1588), Manwood, C. B., speaks of three manners of considerations upon which an assumpsit maybe grounded: (1) A debt precedent; (2) where he to whom such a promise is made is damnified by doing anything, or spends his labor at the instance of the promisor, although no benefit comes to the promisor ; . . . (3) or there is a present consideration." Ames, History of Assump- sit, 2 Harv. L. Eev. 1 at 16. SLADE'S CASE.i In the King's Bench. 1603. Reported 4 Reports, 92 h. Every contract executory imports in itself an assumpsit. John Slade brought an action on the case in the King's Bench against Humphrey Morely (which plea began Hil. 38 Eliz. Eot. 305) and declared, that whereas the plaintiff, 10th of November, 36 Eliz., was possessed of a close of laud in Halberton, in the county of Devon, called Back Park, containing by estimation eight acres for the term of divers years then and yet to come, and being so possessed, the plaintiff, the said tenth day of November, the said close had sowed with wheat and rye, which wheat and rye, 8 Maii, 37 Eliz., were grown into blades, the defendant, in consideration that the plaintiff, at the special instance and request of the said Humphrey, had bar- gained and sold to him the said blades of wheat and rye growing upon the said close (the tithes due to the rector, etc., excepted) assumed and promised the plaintiff to pay him £16 at the feast of St. John the Baptist then to come ; and for nonpayment thereof at the said feast of St. John Baptist, the plaintiff brought the said action ; the defendant pleaded non assunijjsif modo et forma ; and on the trial of this issue the jurors gave a special verdict, sc. that the defendant bought of tlie plaintiffs the wheat and rye in blades growing upon the said close as aforesaid, 2^fout in the said declara- tion is alleged, and further found that between the plaintiff and the defendant there was no other promise or assumption but only the said bargain ; and against the maintenance of this action divers objections were made by John Dodderidge of counsel with the defendant. 1 The case is not reported in full ; the arguments of Dodderidge and so much of the opinion of the court as does not bear upon the matter in hand are omitted. THE PARENT OF CASE, TKOVER, AND ASSUMPSIT. 233 And for the honor of the law, and for the quiet of the subject in the appeasing of such diversity of opinions {quia nil in lege iu- tolerahilius est eanclem rem diverso jure censeri) the case was openly argued before all the Justices of England and Barons of the Ex- chequer ; s. C. Sir John Popham, Knt, C. J. of England, Sir Ediu. Anderson, Knt., C. J. of tlie Common Pleas, Sir W. Periam, Chief Baron of the Exchequer, Clark, Gawdy, Walmesly, Tenner, Kings- mill, Savil, Warburton, and Yelverton, in the Exchequer Chamber, by the Queen's Attorney-General for the plaintiff, and by John Dodderidge for the defendant, and at another time the case was argued at Sergeant's Inn, before all the said Justices and Barons, by the Attorney-General for the plaintiff, and by Francis Bacon for the defendant, and after many conferences between the Jus- tices and Barons, it was resolved, that the action was maintainable, and that the plaintiff should have judgment. And in this case these points [among others] were resolved. 3. It was resolved, that every contract executory imports in it- self an assumpsit, for where one agrees to pay money, or to deliver anything, thereby he assumes or promises to pay, or deliver it, and therefore when one sells any goods to another, and agrees to deliver them at a day to come, and the other in consideration thereof agrees to pay so much money at such a day, in that case both parties may have an action of debt, or an action on the case on assumpsit, for the mutual executory agreement of both parties imports in itself reciprocal actions upon the case, as well as actions of debt, and therewith agrees the judgment in Eead and Norwood's Case, PI. Com. 128. 4. It was resolved that the plaintiff in this action on the case on assumpsit should not recover only damages for the special loss (if any be) which he had, but also for the whole debt, so that a re- covery or bar in this action would be a good bar in an action of debt brought upon the same contract ; so vice versa, a recovery or bar in an action of debt is a good bar in an action on the case on assumpsit. Vide 12 Edw. IV. 13 a; 2 Pt. 3, 14 ; (32) 33 Hen. VIII. Action sur le Case, Br. 105. 5. In some cases it would be mischievous if an action of debt should be only brought, and not an action on the case, as in the case inter Eedman and Peck, 2 and 3 Ph. and Mar. Dyer, 113, they bargained together, that for a certain consideration Redman should deliver to Peck twenty quarters of barley yearly, during his life, and for nondelivery in one year, it is adjudged that an action well lies, for otherwise it would be mischievous to Peck, for if he should be driven to his action of debt, then he himself could never have it, 234 CASES ON COMMON-LAW PLEADING. but his executors or administrators, for debt doth not lie in such case till all the days are incurred, and that would be contrary to the bargain and intent of the parties, for Peck provides it yearly for his necessary use ; so 5 Mar. Br. Action sur le Case, 108, that if a sum is given in marriage to be paid at several days, an action upon the case lies for nonpayment at the first day, but no action of debt lies in such case till all the days are past. Also it is good in these days in as many cases as may be done by the law, to oust the defend- ant of his law, and to try it by the country, for otherwise it would be the occasipn of much perjury. . PECKE V. REDMAN.i • In the King's Bench. 1555. Reported Dyer, 113 a. Mutual promises are the support of each other. In B. E,. a verdict given at the last assize by nisi prius for the plaintiff' in an action upon the case upon an assumpsit was traversed. And the case was, That one Pecke and one Redman bargained to- 1 " The rule that mutual promises are the cousideratiou for eacli other has been recognized since 1.55.5." Harriinau ou Contracts, § 94, citing Ames, Parol Contracts Prior to Assumpsit, 8 Harv. L. Kev. 259; Pecke v. Iledraau, Dyer, 11.3 a, decided iu 1555. The case does not support the proposition. Three possible explanations of the decision in Pecke v. Redman, Dyer, 11.3 a, sug- gest themselves. An action ou the case was in the nature of a bill in equity. As- sumpsit was an offspring of case, inheriting its characteristics. Ashbyy. White, 2 Ld. Raym. 938 ; Bird c. Randall, 3 Burr. 1253 ; both reported supra. Debt would not lie for the plaintiff, since the cause of action necessaiy to su.stain debt could accrue only to his executors. Slade's Case, 4 l?ep 92 b, reported supra. Nor would covenant lie. There was no specialty. Hence, unless a remedy were given the plaintiff outside of these, he could not recover. But the law will not allow a right to be without a remedy. Ashby V. White, 2 Ld. Raym. 938, reported supra. Hence assumpsit (or better, an action on the case on the defendant's undertaking) was giveu to the ])laintiff. Again, consideration involves the parting with a legal right. This is lacking in the case of mutual promises. Where is there a gain to the promisor, or a loss to the promisee ? Shall we not say, therefore, that the case of mutual promises fur- nishes an anomaly in the law of contracts and consideration, parallel to the case of a specialty ? We often hear it said th.nt the presence of a seal on an agreement raises a presump- tion of consideration. Nothing could be more erroneous. We have already seen cases decided before the modern doctrine of consideration was ever conceived of, holding that unsealed acquittances were worthless. Y. B. 30 Edw. I. 159, reported supra ; Fleta IL c. 60, § 25. " By parol the party is not obliged," Y. B. 29 Kdw. IIL 25, 26. This because of a rule of procedure. See remarks of Sir John Davies, At- torney-General of Ireland, quoted supra. The fact is, that a specialty requires no con- sideration ; and that is an end of the matter. There is no " presumption " about it. So in the case of mutual promises, it would seem a more correct statement of the law THE PARENT OF CASE, TROVER, AND ASSUMPSIT. 235 "•ether in the second year of Edw. VI. that Fiedman shouk] deliver or cause to be delivered to the plaintiff (who was Pecke) twenty quarters of barley every year during their two lives between certain days, and showed them in certain, and that the plaintiff should pay four shillings for each quarter ; and showed in the count that the defendant broke his promise, s. that he failed in payment of the forty quarters for three years, whereby the plaintiff was damnified in his credit and profit to the amount of £30. And the defendant pleaded in bar a condition in the said bargain, without this, that he undertook in manner and form, etc., and the plaintiff e contra. And it was found for the plaintiff, and damages assessed at £4, besides costs, etc. The question is. Whether the plaintiff shall recover the damages in recompense for the wliole bargain as well for the time to come, as for the past, or not ? because it seemed to divers judges, s. Brooke, Saunders, and Brown, that this contract, which has a continuance, cannot be intended to be recompensed in the damages assessed above, s. for the time to come, for they cannot have knowledge of what that will be. And Portman, Whyddon, and Stamford, e contra. Ideo qucere hcne. "Although the right to trial by jury was the principal reason for a creditor's preference for indebitatus assumpsit, the new action very soon gave plaintiffs a privilege which must have contributed greatly to its popularity. In declaring in debt, except possibly upon an account stated, the plaintiff was required to set forth his cause of action with great particularity. Thus, the count in debt must state the quantity and description of goods sold, with the de- tails of the price, all the particulars of a loan, the names of the per- to say that mutual promises require no cousideration, thau to affirm tliat they are tlie cousideration for each other. Another explanation may occur to the learned reader. In Bracton we find some- thing akin to nmtual promises. " An obligation is contracted verbally by a stipulation, for a stipulation is a form of words, which consists of a question and an answer, as if it should l)e said, Do you promise ? I promise. Will you give ? I will give. Will you do it ? I will do it. Do you pledge yourself ? I do pledge myself." [Observe that these are not cases of mutual promises.] Is it not more probable that when Pecke v. Redman was decided, the judges and attorneys were thinking of a modification of the consensual obligation of tlie Homan law that Bracton knew, thau of any theory of consideration, which word is not men- tioned or indicated or implied in the case, and which they would have to inject into it without precedent ? Is it not the form of words tliat binds ? and is not the bind- ing form of words of 1.55.5 only a survival of the binding form of words of Bracton's day ? Granted, the form of words is modified, but it is still a form of words. And if that be true, can it be safely .said to-day that mutual promises are the consideration for eiicli other ? No. Consideration is only another name for form, and the form of words (i. e. mutual promi.ses) supplies it. Bracton, f. 9'.t h. Cf. Pillans v. Van Mierop, 3 Burr. 1663 ; Holmes, C. L. 259 ; Sharington v. Strotton, Plowdeu, 298. 236 CASES ON COMMON-LAW PLEADING. sons to whom money was paid, with the amounts of each payment, the names of the persons from whom money was received to the use of the plaintiff, with the amounts of each receipt, the precise nature and amount of services rendered. In indebitatus assumpsit, on the other hand, the debt being laid as an inducement or convey- ance to the assumpsit, it was not necessary to set forth all the de- tails of the transaction from which it arose. It was enoujjh to allege the general nature of the indebtedness, as for goods sold,^ money lent,^ money paid at the defendant's request,^ money had and received to the plaintiff's use,* work and labor at the defendant's request,^ or upon an account stated,^ and that the defendant being so indebted promised to pay. This was the origin of the common counts." Ames, History of Assumpsit, 2 Harv. L. Kev. 57. RUDDER V. PRICE. Extract. Eeported 1 Henry Blacksto\e at 551. Per Loughborough. " The history of the action of assumpsit given by Lord Coke in the second resolution in Slade's Case is incorrect ; the cases which he there cites show that the manner in which the action was brought prior to Slade's Case was by stating not a gen- eral indebitatus assumpsit, for it was not brought merely on a prom- ise, but special damage for a nonfeasance, by which a special action on the case arose to the plaintiff." ^ HARD'S CASE. In the Ki.xg's Bench. 1697. Reported 1 Salkeld, 23. Indebitatus assumpsit will lie in no case but where debt lies, therefore it lies not upon a wager, nor upon a mutual assumpsit, nor against the acceptor of a bill of exchange ; for his acceptance is 1 Hughes V. Rowbotham (1592), Poph. 31; Woodford r. Deacou (1608); Cro. Jac. 206; Gardiner v. Belliugham (1612), Hob. 5; 1 Roll K. 24, s. c. 2 Hooke V. Hooke (1610), Cro. Jac. 245; Yelv. 175, s. c. 3 Moore v. Moore (1611), 1 Bulst. 169. * Babingtoii v. Lambert (1616), Moore, 854. 5 Russell V. Collins (1669), 1 Sid 425; 1 Mod. 8; 1 Vent. 44; 2 Keb. 552, s. c. 6 Brinsley ;;. Partridge ( 1 61 1 ), Hob. 88 ; Vale v. Egles (1605), Yelv. 70; Cro. Jac. 69. " Accordingly, in the case of 20 Hen. VII. 9, as cited by Fitz-James, Dyer, 22 h, the action was brought for the special damage on account of the nonperformance of the contract to deliver corn to the plaintiff, by whicli he was obliged to buy other corn at a higher price. See 27 Heu. VIIL 24-25; 20 Hen. VIL 8; 12 Edw. IV. 13. THE PARENT OF CASE, TROVER, AND ASSUMPSIT. 237 but a collateral engagement. But it lies against the drawer himself, for he was really a debtor by the receipt of money, and debt would lie asjainst him. BOVEY V. CASTLEMAN. In the King's Bench. 1696. Reported Lord Raymond, 69. Indebitatus assumjisit. The plaintiff declares that there was an agreement between the defendant and him, that if the Duke of Savoy made an incursion into Dauphine within such a time, that then the plaintiff should give the defendant £100. And if the Dake did not make the incursion into Dauphine within the time limited, that then the defendant should give to the plaintiff' £100, which agree- ment was reduced into writing and signed by both the parties : and the plaintiff avers that the Duke of Savoy did not make any incur- sion into Dauphine within the time limited ; by which the defend- ant became indebted to the plaintiff in XI 00, and being indebted assumed to pay, etc. Upon non assumpsit pleaded, verdict for the plaintiff. And now Mr. Northey moved in arrest of judgment, that there was not any consideration to raise a debt, for no debt can arise between the plaintiff and defendant upon the incursion of the duke. For it is but a wager, for which indebitatus assumpsit will not lie, because there wants a real consideration. But for mutual promises assumpsit may lie, but not indebitatus assumpsit. For indebitatus assumpsit will lie only in cases where debt will lie, but in this case debt cannot lie. Quod fuit consessum per tof.am euriam. And therefore judgment was given quod querens nil capiat per billam. WALKER V. WALKER. In the King's Bench. 169i. Reported Holt, 328. Action for money won on a wager, by a general indebitatus as- sumpsit ; after verdict, counsel moved in arrest of judgment, for that it is not a good promise in law, and there is no debt. Holt, C. J. This is merely a wager, and no indebitatus assumpsit lies for it ; for to make that lie, there must be work done, or some meritorious action for which debt lieth ; and here this wager is due in a collateral respect. It is true, the cast of a die alters the prop- erty, if the money be staked down, because it is then a gift on con- 238 CASES ON COMMON-LAW PLEADING. dition precedent, and an indebitatus assicmpsit lies against him that holds the wager, for it is a promise in law to deliver it if won. After this verdict, if it could be any ways made good, we Avould do it ; but a verdict cannot make good that which is bad in law. Let it stay ; we will consult the judges in the Exchequer Chamber.^ If on the loss of the wager, the defendant had promised the next day to pay it, yet an assumpsit would not lie thereon, because it wants consideration, it being but executory. THE EARL OF FALMOUTH v. PENROSE. In the King's Bench. 1827. Reported 6 Barnewall and Cresswell, 385. Indebitatus assumpsit will lie for goods and chattels. This was an action of assumpsit brought by the plaintiff, to try his right to have the second-best fish out of the cargoes of all fish- ing boats landing in a certain cove, called Senn Cove, in the county of Cornwall, in respect of his liability to keep up a capstan and rope there for the purpose of hauling the boats out of the sea. The dec- laration contained several special counts in which it was alleged that the plaintiff was entitled to the second-best fish of all sorts of fish. There were also several indebitatus counts, in which it was stated that the defendants were indebted to the plaintiff in divers, to wit, 100 fish of the value of £10, for divers tolls, or dues, due and of right payable from the defendants to the plaintiff, on and in respect of the defendants having before then used and enjoyed, and hav- ing had the liberty and privilege of using and enjoying divers capstans, machines, windlasses, and ropes of the plaintiff, to haul and assist in the hauling of divers boats of the defendants, and of divers other boats which the defendants had used on the beach, to wit: at, etc., in tlie county aforesaid ; and being so indebted, etc. Plea, general issue. At the trial before Gaselee, J., at the summer assizes for the county of Cornwall, 1826, it appeared that the prac- tice had been for the owner of every fishing boat landing its cargo in Senn Cove, to select a fish for himself, and for the plaintiff's agent to select another, which fish so selected was rendered to the plaintiff. But it was doubtful on the evidence, whether the prac- tice had been to render the second-best fish of all sorts of fish, or only the second-best fish of all sorts, pilchards excepted ; and that 1 The greater number of the judges in the Exchequer Chamber disagreed with Lord Holt, but he continued to hold that the remedy for tlie recovery of money lost at play was by special actiou on the case. Eggleton v. Lewin, Holt, 330. THE PATIENT OF CASE, TROVER, AND ASSUMPSIT. 239 question was finally submitted to the jury, who found the custom to have been to render the second-best fish of all sorts of fish, pilchards excepted. A verdict was found f(jr the plaintiff on the indehitatus counts, but leave was given to the defendants to move to enter a non- suit, if the court should be of opinion that these counts were not supported by the evidence. A rule nisi having been obtamed for that purpose, E. Bayley and Carter now showed cause.^ C. F. Williams and Halcomb, contra. Dayley, J. The only question is, whether the plaintiff can in this case recover upon a general indebitatus count. There are authori- ties to show that debt will lie for a chattel. If so, we see no reason why assumpsit will not also lie, but then the promise as well as the consideration must be proved. Upon the evidence, it appears that it was the custom for the plaintiff or his agent to select his fish, and that the selection being made, the same was rendered to him. If, therefore, the defendant had refused to render the fish so selected, or had refused to let the plaintiff select one, he might have main- tained a special action on the case for damages ; but there was no legal liability on the part of the defendant to pay any given fish to the plaintiff before selection, and consequently nopromise is implied by law on his part to do so. The plaintiff, therefore, has failed to prove any assumpsit or promise on the part of the defendant to ren- der fish. The rule for a nonsuit must therefore be made absolute. Holroyd and Littledale, Js., concurred. Eule absolute. HORATIO N. HOLBROOK v. DAVID DOW.^ Supreme Judicial Court, IVIassacuusetts. 1861. Reported 1 Allex, 397. Inflehitatus asmmpdt lies upon a special contract, so far executed that naught remains but the payment of money. N. Morse, for the defendant. - B. Dean, for the plaintiff. Hoar, J. It is a familiar principle of pleading that when a special contract has been executed so far that nothing remains but the pay- ment of money, it is not necessary to declare upon the contract, but a count in indehitatus assumpsit will be sufficient. 2 Greenl. Ev. § 104; Felton v. Dickinson, 10 Mass. 287. . . , The defendant was the plaintiff's assignee in insolvency ; and the ^ The arguirseuts of counsel are omitted. 2 The reporter's statement of facts aocl part of the opinion are omitted. — Ed. 240 CASES ON COMMON-LAW PLEADING. plaintiff testified that, in consideration that he would procure the settlement of a suit which had been brought against him by one Coleman, the defendant promised to obtain the assent of the plain- tiffs creditors to his discharge, give up certain account books, pay Coleman $100, and pay the plaintiff the sum of $54, the same being the amount of an allowance which the plaintiff claimed the commis- sioner had decreed to him. He further testified that he did procure the settlement of the suit, and that the defendant performed the contract on his part, except the payment of the $54. If, then, the jury were satisfied that the promise to pay the $54 was absolute — to pay that sum of money in consideration of the settlement of the suit, and not merely to pay the allowance to which the plaintiff was entitled from his estate — the form of declaring was sufficient, and there was no variance between the declaration and the proof. . . . Exceptions overruled. JONES V. HOAR.' Supreme Judicial Court of Massachusetts. October, 1827 Reported 5 Pickering, 285. One cannot waive a tort and sue in contract unless there is a contract, express or implied, between the parties. Assumpsit upon a promissory note, for goods sold and delivered, and for money had and received. The case came before the court upon an agreed statement of facts. 1 The right of a plaintiff to " waive the tort and sue in contract " is, in certain cases, a matter of dispute. In Centre Turn Pike Co. v. Smith, 12 Vt. 212, at 217, Red- field, J., says, " We know there are many cases in which a person is virtually made liable in assumpsit for a tort. But those cases may be resolved into four classes, none of which include the present [which was to recover toll of the defendant for passing the gate on the plaintiff's turnpike, in Hancock]. 1. Where the defendant has taken personal property and converted it into money. Gllmore v. Wilbur, 12 Pick. 120. By Jackson, J., in Cummiugs v. Noyes, 10 Mass. 433. By Lord JNIansfield, in Hambly v. Trott, Cowpor, 373. But in these cases the chattels must have been actually converted into money. Such is the language of the books. I find but one case where chattels have been taken by force, and not converted into money, that assumpsit has been sus- tained, and that case rests upon no very satisfactory basis. Hill v. Davis, 3 N. H. 386. [In Hill )\ Davis the facts were these : " the plaintiff, in the summer of 1816, contracted to underpin the defendant's house with liewn stone, and the stones, mentioned in the plaintiff's declaration, were furnished for that purpose. But it being found that the same stones would not answer for that purpose, they were not used, but were left near the house of the defendant by the plaintiff, until the fall of that year, when the defend- ant built a dairy, and put into it the same stones. In the fall of 1817 there was a final settlement between the parties for the underpinning of the house. There never was any contract for the sale of these stones, but at said settlement, Hill said, that they THE PAKENT OF CASE, TROVER, AND ASSUMPSIT. 241 Tlie defendant brought a sum of money into court generally, " on account and in satisfaction of the plaintiff's damages in the suit." were taken without leave, and Davis, that they were worth nothing." Hill brought assuinjjsit against Davis. The issue was, Had Hill misconceived his action ? The court said. No. Per Richardson, C. J. "It has been contended, that the case states that there was no contract, and that, therefore, we are not at liberty to say tliere was a contract. But it seems to us that we are bound to understand by that admission that there was no express contract, and not that there was no contract whatever. For the question submitted to us is, whether assumpsit lies on the facts agreed ; in other words, whether there was any contract, express or implied, on which assumpsit might be maintained ; and an admission that there was no contract, express or implied, amounts to an admission tiiat the action cannot be maintained."] " 2. When the defendant obtains the goods surreptitiously, under color of sale. Chitty on Contracts, 19 ; Hill v. Prescott, 3 Taunt. 274 ; Edmeads ?;. Newman, 8 E. C. L. 116. In the- latter case, the defendant came fairly by the bills, I)ut fraudulently obtained the money upon them. The case of Clark v. Shee, Cowper, 197, is of the same character. "3. Where one employs tlie apprentice of another, even when he did not know of the apprenticeship, he is liable in assumpsit for work and labor. Lightly v. Clouston, 1 Taunt. 112; Bowes v. Tibljets, 7 Greenleaf's R. 457. See, also, Eades v. Vandeput, 5 Ea.st, 39, which involves the same principle. "4. Where tlie defendant, under false color, has recovered the rent of plaintiff's estate. 2 S'arkie's Ev. (6th ed.) 64, and cases cited. So, also, when the defendant has intruded into plaintiff's office and, under color of right, has received the fees. lb. " But I find no case where, as in the present, tiie defendant is guilty of no tort, and of no fraud, and claims to act by virtue of a legal right, and that claim is recognized, at least pro hue vice, that the party has subsequently been made liable, in assumpsit, as on an implied contract." Per Dixon, C. J., in Norden v. Jones, 33 Wis. 600, at 605 : "Judge Redfield, in Centre Turn Pike Co. v. Smith, 12 Vt. 217, resolves the cases coming within the narrower rule into four classes, to which the case of Jones v. Hoar, 5 Pick. 290, adds a fifth class not named by .Judge Redfield." The riglit to waive the tort and sue in contract is well summarized by former Chief Justice Jonathan Ross of the Supreme Court of Vermont, in his article on " Assump- sit," 4 Cyc. of Law and Proc. 331. 1. " Plaintiff's right to elect between an action of tort and assnm])sit cannot be used wiieu it will deprive defendant of a substantial right or defence. Isaacs v. Hermann, 49 .Miss. 449 ; Finlay v. Bryson, 84 Mo. 664 ; Sedgebeer v. Moore, Brightly (Pa.), 197. 2. " Wlicre a contractual relation exists between the parties, such as that of agent and principal, attorney and client, or bailee and bailor, a tort arising out of the duty imposed by tlie relation niay be waived, and special assumpsit maintained. 3. "An infant tortiously converting property cannot plead his infancy in bar when sued in assum])sit. 4. " All tlie authorities agree that, where personal property is tortiously taken and converted into money or money's worth, the owner may waive the tort and sue the wrong-doer iu assumpsit for its value. The authorities differ, however, as to the right of the owner to sue in assumpsit where the wrong-doer has not sold or otherwise dis- j)osed of the property, but retains it for his own use. One line of decisions denies the right to bring an action of assumpsit in such case." Jones v. Hoar, 5 Pick. 285 ; Berk- shire Gla.ss Co. V. Wolcott, 2 Allen, 227 ; Brown v. Holbrook, 4 Gray, 102; Cooper (,-. Cooper, 147 Mass. 370; as well as repeatedly affirmed decisions in Alabama, Arkansas, Georgia, Illinois, Kentucky, Maine, Michigan, New Hampshire, New York, North Carolina, Pennsylvania, and Vermont. See Ross, Assum])sit, 4 Cyc. Law and Proc. 334. Jones V. Hoar has beeu repeatedly reatlirnied iu Massachusetts. Thus iu Cooper v, 16 242 CASES ON COMMON-LAW PLEADING. The cause of action upon which the count for goods sold was founded was, that the defendant had entered upon the plaintiff's land and cut and carried away a quantity of white oak timber. Cooper, 147 Mass. 370 [1S88], A. went throuffh a form of marriage with X. and lived with him as his wife for many years, performing all the duties of that relation, and after his death learned for tlie first time that he had a wife living and not divorced from him. A. sought to recover for her services as housekeeper under an implied con- tract with the intestate. Per W. Allen, J. " The same act or transaction may consti- tute a cause of action both in contract and in tort, and a party may have an election to pursue either remedy. In that case he may be said to waive the tort and sue in contract. But a right of action in contract cannot be created by waiving a tort, and the duty to pay damages for a tort does not impjy a promise to pay them, upon which assumpsit can be maintained. Jones v. Hoar, 5 Pick. 285 ; Brown v. Holbrook, 4 Gray, 102; Fergu.son v. Carrington, 9 B. and C. 59. See, also, Met. Con. 9, 10 ; 1 Chit. Con. (11 Am. ed.) 87; Earle v. Coburne, 139 Mass. 596; Milford v. Commonwealth, 144 Mason, 64." Willett v. Willett, 3 Watts, 277 ; Morrison i;. Rogers, 3 111. 317 ; McKniglit V. Dunlop, 4 Barb. 36, 42, accord. But in every case where a plaintiff fails because he has misconceived his action, substantive rights are defeated by procedural technicalities, and injustice is wrought. Hence we may well question whetlier law productive of habitual injustice is founded on sound theory. That the rule of Jones v. Hoar illustrates a case of substantive right defeated by procedural technicality, none will venture to deny. In Norden v. Jones, 33 Wis. 600, the court considered and overturned the doctrine of Jones p. Hoar, upon the very ground suggested. Per Dixon, C. J. " The question presented on the rejection of the $6.00 item is an interesting one, upon which there e.xi.sts considerable contrariety of opinion and decision, both in England and this coun- try. It was a charge of that sum made by the defendant [in the nature of set-off] against the plaintiff for pasturing the plaintiff's cattle, which the defendant testified the plaintiff had let into his, the defendant's field, by laying down defendant's fence for that purpose. The objection sustained by the justice was, that the laying down of the fence and turning in of the cattle was a trespass on the part of the plaintiff, which could not be brought in or proved as a set-off or cross demand in this form of action [contract] but that the defendant must resort to his action of trespass against the plaintiff to recover the damages which he has sustained. . . . '' The underlying question in all the cases obviously is, When and under what cir- cumstances will the law imply a promise on the part of the defendant to pay ? ' It is a principle well settled,' say the court, in Webster v. Drinkwater, 5 Greenl. 322, 'that a promise is not implied against or without the consent of the person attempted to be charged by it. And where one is implied, it is because the party intended it should be, or because natural justice plainly requires it, in consideration of some benefit re- ceived.' Tested by the latter as the governing principle, upon which the law raises a promise to pay, it is very obvious that the more liberal rule is the correct one, and that which should prevail. . . . Apart from all reasoning of a technical or artificial character, and looking to the substantial ends of justice, it is quite difficult to see why this principle should not be applied in cases like Jones v. Hoar, and Willett v Willett, supra. In neither could the defendant have been prejudiced by allowing the plaintiff to sue in assumpsit ; on the contrary, the practice generally operates to favor the defendant, as the plaintiff thereby foregoes his right to damages for the tort as such, and restricts himself to the simple value of the property." Judgment reversed. California, Kansas, Mississippi, Missouri, Montana, North Dakota, Oregon, and Ten- nessee accord with Wisconsin in overturning the doctrine of Jones v. Hoar. See Koss, Assumpsit, 4 Cyc. Law and Proc. 334. Perhaps we can do no better than to close with the words of Tindal, C. J., in Young ?•. Marshall, 8 Bing. 43 : " No party is bound to sue in tort, where, b\' converting the action into an action of contract, he does not prejudice the defendant." This, we believe, is the better rule. THE PARENT OF CASE, TROVER, AND ASSUMPSIT, 243 And the question was argued (in writing) whether the plaintiff could waive the tort and sue in assumpsit, it not appearing that the timber had been sold by the defendant. Nothing was said in the argument, nor at the trial in the court below, of the effect of bring- ing money into court in the manner above mentioned. At October Term, 1826, the court observed, that by the statement of facts they were to decide upon the legal effect of bringing money into court under the rule in this case ; and they suggested whether it was not an admission of all the contracts set forth in the declaration. The counsel for the defendant then said, that it was not so con- sidered in this county ; that the money in the present case was intended to be applied to the promissory note ; that the whole controversy respected the timber; but if it was necessary to specify the counts on which the money was brought in, he would move for leave to amend the rule. Stoveld v. Brewin, 2 B. & A. 116; Mellish V. Allnutt, 2 M. & S. 106 ; Muller v. Hartshorne, 3 B. & P. 556. The opposite counsel referred to 3 Stark. Ev. 1397, cites 3 Taunt. 95, and Peake's Cas. 15. Per curiam. It is clear, both from authority and upon principle, that the defendant should have specified on what count he brought in the money. But under the circumstances of this case he may be entitled to relief. The opinion of the court was delivered, at this term, by Parker, C. J. The plaintiff declares in assumpsit, and one count is for goods sold and delivered. By the agreement it appears, that the only ground for supporting this count is, that the defendant cut and took away certain trees from land claimed by the plaintiff, and for the purpose of the argument, actually owned by him. Tbe proper action would undoubtedly be trespass for the injury to the land, or trover for the trees. But the plaintiff contends that he has a right to waive the tort, and charge the defendant with the trees as sold to him. Upon examination of the authorities cited, which are well summed up and commented upon by Strong, J., in the opinion of the Court of Common Pleas, we are satisfied that the plaintiff cannot maintain this position. There is no contract ex- press or implied between the parties, and therefore an action ex contractu will not lie. The whole extent of the doctrine, as gathered from the books, seems to be, that one whose goods have been taken from him or detained unlawfully, whereby he has a right to an action of trespass or trover, may, if the wrong-doer sell the goods and receive the money, waive the tort, affirm the sale, and 244 CASES ON COMMON-LAW PLEADING. have an action for money had and received for the proceeds. No case can be shown where assumpsit as for goods sold lay in such case, except it be against the executor of the wrong-doer, the tort being extinguished by the death, and no other remedy but assump- sit against the executor remaining. Such was the case of Hambly V. Trott, referred to in Judge Strong's opinion. But the defendant paid money into court, under a rule, and did not distinguish as to which of the counts the payment was appli- cable. And this, by the authorities, is an admission of the con- tract as set forth in the declaration, Bennett v. Francis, 2 B. & P. 550. It is, however, considered as'within the discretion of the court to apply this rule or not, as equity shall require ; for it may happen that by mere inadvertency, where there are several counts, a general tender is made, when it is intended only to be made to one or more, but not to all the counts. In the case before us there is a count upon a promissory note, and we have been satisfied that it was meant that the money paid shouLi be applied to that count only, a litigation in regard to the price claimed for trees, and the right of action in relation to them, being always intended. So it was considered by the Court of Common Pleas, who gave judg- ment without any reference whatever to the tender, their attention not having been called to it by the counsel. We think therefore the defendant ought to be relieved from the effect of an admission which is the technical result of bringing money into court in the form used in this case. Leave is granted to amend the rule. j\Iills, Ashmun, and Miles, for the plaintiff. Bigelow, for the defendant. In these few chapters, we have traced the origin and evo- lution of the several personal actions. We have observed, by inference rather than by direct statement, that the sub- stantive law of England was remorselessly fettered by iron strong rules of procedure. In the beginning, when the Statute of Westminster II. became law, a liberal interpre- tation would have resulted in an approximately just system for the protection of rights, without any separate tribunal of equity. The Chancery clerks framed liberal writs, in the broad spirit of the Roman law, but the common-law judges crushed them. A man might have a right, but it was useless to him unless he had a remedy to vindicate it. For a time it seemed that the intolerable situation was THE PARENT OF CASE, TROVER, AND ASSUMPSIT. 245 growing hopeful. Lord Holt's famous sentiment in Asliby V. White, " Where there is a right there is a remedy to en- force that right;" Lord Mansfield's words in Bird v. Ran- dall, " An action on the case is in the nature of a bill in equity, and in effect is so," — certainly gave promise of a burstino; of the fetters. But the liberal view did not, as we have seen, prevail. Lord Holt was a narrow man, but a great lawyer ; Lord Mansfield was a broad man and a great lawyer; both were sufficiently developed jurists to realize the injustice of the unyielding forms which were the characteristic feature of the law they expounded ; both sought to right the wrong ; both failed. The reason for this failure is not hard to find. It was the imyielding system of procedure. Equity courts and common-law courts each had their Respective jurisdictions, though the boundary line between them was thrust now this way, now that, in a battle of intellects for the acquisi- tion of the neutral ground. Each had its peculiar processes for defeating the other. Where a plaintiff had a complete, adequate remedy at law, he must keep out of equity. But where a defendant, successfully proceeded against in a court of law, could searcli out for himself requisite equitable relief, the equity court would enjoin the victorious plaintiff from the fruits of his victory. It followed, then, that an action on the case was not, " in effect, a bill in equity." Had the words of Lord Mansfield become settled law, the jurisdiction of courts of equity and courts of law would have become concurrent, and many anomalies have been averted. As it was, the distinction between law and equity was preserved ; and this through the procedure by which the substantive wrong in each was redressed. CHAPTEK IV. TRIALS. Nowhere, so much as in the more ancient modes of trial, do we find the re^^/ reason for the inadequacy of common- law relief. What the ancient forms of trials were ; what specific forms of trials prevailed in and were peculiar to the several actions ; and what injustice these forms wrought, — may be seen in the following pages. A study of these an- cient modes of trial can hardly fail to impress the student with the extent to which ancient procedure has dwarfed our modern law, and warped not only the modern legal, but the modern social and financial, world as well. OLDER MODES OF TRIALS AT THE COMMON LAW. Trial by Ordeals and Oaths. 1. Ordeals. First, of ordeals. "The old modes of proof might be reduced to two, ordeals and oaths ; both were appeals to the supernatural. The history of ordeals is a long chapter in the history of mankind ; we must not attempt to tell it. Men of many, if not all races, have carried the red-hot iron or performed some similar feat in proof of their innocence. In Western Europe, after the barbarian invasions, the Church had adopted and consecrated certain of the ordeals and had composed rituals for them. Among our own forefathers the two most fashionable methods of obtaining a iudicium Dei were that which adjured a pool of water to receive the innocent and tliat which regarded a burnt hand as proof of guilt. Such evidence as we have seems to show that the ordeal of hot iron was so arranged as to give the accused a considerable chance of escape. In the England of the twelfth century both of the tests that we have mentioned were being freely used ; but men were beginning to mistrust tliem. Rufus had gibed at them. Henry II. had declared [and in the note appended the writer quotes his words] that TRIALS. 247 when an indicted man came clean from the water, he was none the less to abjure the realm, if his repute among his neighbors was of the worst.i "Then came a sudden change. The Lateran Council of 1215 forbade the clergy to take part in the ceremony. Some wise church- men had long protested against it, but perhaps the conflict with flagrant heresy and the consequent exacerbation of ecclesiastical law had something to do with its suppression. In England this decree found a prompt obedience such as it hardly found elsewhere ; the ordeal was abolished at once and forever. Floui'ishing in the last records of John's reign, we cannot find it in any later rolls. Our criminal procedure was deprived of its handiest weapon ; but to this catastrophe we must return hereafter." 2 Pollock and Maitland, 596. 2. Oaths. Second, of oaths. " It is called wager of law, because of ancient time he put in surety to make his law at such a day ; and it is called making of his law, because the law doth give such a special benefit to the defendant, to bar the plaintiff forever in that case." Co. Litt. 294 h, 295 a ; 3 Blackstone's Commentaries, 341 ; confer Stephen on Pleading, Andrew's first edition, 481. " The substance of the plaintiff's claim as set forth in the writ of debt is that the defendant owes him so much and wrongfully with- holds it. It does not matter, for a claim framed like that, how the duty arises. It is not confined to contract. It is satisfied if there is a duty to pay on any ground. It states a mere conclusion of law, not the facts upon which that conclusion is based, and from which the liability arises. The old German complaint was, in like manner, ' A. owes me so much.' " It was characteristic of the German procedure that the defendant could meet the complaint by answering, in an equally general form, that he did not owe the plaintiff. The plaintiff had to do more than simply allege a debt, if he would prevent the defendant from escap- ing in that way. In England, if the plaintiff had not something to show for his debt, the defendant's denial turned him out of court ; and even if he had, he was liable to be defeated by the de- fendant's swearing with some of his friends to back him that he ^ " Et qui invenietur per sacramentum proedictorum rettatus vel pnhlicatus quod fuerit robator vel murdrator vol latro vel rece[)tor eorum, pcstquam doniinus rex fuit rex, capiatur et est, ad jirisam aquoe, et jure quod ipse non fuit robator vel murdra- tor vel latro vel receptor eorum postquam dominu8 rex fuit rex, de valeutia v. soli- dorum quod sciat." Assize of Clareudon, 2 ; Stubbs, Select Charters, 143. 248 CASES ON COMMON-LAW PLEADING. owed nothing. The chief reason why debt was supplanted for centuries by a later remedy, assumpsit, was the survival of this relic of early days." Holmes, Common Law, 252. KING V. WILLIAMS. In the King's Bench. 1824. Reported 2 Barxewall and Cresswell, 538. In 1824, trial by wager of law still existed in England. Debt on a simple contract. Defendant pleaded nil debet per legem ; and the master having appointed a day for the defendant to come into court with his compurgators, Langslow applied to the court to assign the number of compur- gators, with whom the defendant should come to perfect his law. The books leave it doubtful whether six or eleven are necessary. In Les Terms de la Ley, p. 442 (which book is ascribed to Rastall,by the preface to 10 Co., and is there mentioned as a work of high estima- tion), is this passage : "Mes quant un gagera son ley,il amesnera ovesque lui, 6, 8, or 12 de ses vicines come le court lui assignera de jurer ovesque lui." [Bayley, J. Is it not said in Blackstone's Com. that eleven are necessary ? ^J It is, but his opinion is founded on Co. Lit. 295, and 2 Inst. 45, and the authorities there cited, viz. Fleta, b. 2, c. 63, and 33 Hen. VI. 8, do not support the position. In Fleta it is stated, that the number of compurgators shall depend upon the number of the seda, produced by the plaintiff ; that is to say, if the secta consist of two, the compurgators shall be four, and so on, the compurgators being double the number of the secta, until the secta shall amount to six, when it will not be necessary for the com- purgators to double their num^ber, but eleven will be sufficient ; and the assertion in the Year Book before mentioned, that the tenant shall make his law de duodecimo manu, that is to say, eleven by him- self, is merely by counsel in argument. In an anonymous case in 2 Yentr. [171] it is stated that less than eleven compurgators will do. In Styles' Practical Register, p. 572, it is said of wager of law, " He that is to do it, must do it duodeno manu, viz. he must bring six compurgators with him, the defendant then swears de fidelitate, the compurgators de credulitate." This species of defence is not often heard of now, but in Barry v. Robinson [1 Xew Reports, 191] the court denied that a wager of law would now be disallowed. Abbott, C. J. The court will not give the defendant any assistance 1 Vol. III. 343. TRIALS. 249 in this matter. He must bring such number of compurgators as he shall be advised are sufficient. If the plaintiff is not satisfied with the number brought, the objection will be open to him, and then the court will hear both sides. Eule refused. Tbe defendant prepared to bring eleven compurgators, but the plaintiff abandoned the action,^ 3 and 4 gulielmi iv. Cap. XLII. An act for the further amendment of the law, and the better advancement of justice. [14 August, 1833.] XIII. And be it further enacted, that no wager of law shall be hereafter allowed. Trial by Battle. ASHFORD V. THORNTON. In the King's Bknch. 1818. Reported 1 Barxewall axd Alderson, 405. [The case as here reported is greatly abridged. Tbe full report may be examined by the reader with profit. But the importance of the case, as illustrating a limitation which procedure was imposing upon substantive law well into the nineteenth century, will plainly appear here.] Trial by battle might, by the late common law, be was:ed by the appellee in an appeal of death, iu the absence of undeniable proof of his guilt. In the King's Bencli Michaelmas Term, 58 G. 3, ilbraham Thornton was attached to answer W. Ashford, who was the eldest brother and is the heir of Mary Ashford deceased, of the death of the said Mary Ashford, and thereupon the said W. Ashford in his own proper person appealeth Abraham Thornton, etc. For that he the said Abraham Thornton not having the fear of God be- fore his eyes, but being moved and seduced by the instigation of the Devil, on the 27th day of May, in the 57th year of the reign of our sovereign lord George the Third, by the grace of God, etc., with force and arms at the parish of Sutton Coldfield in the county of War- 1 The above case is au example of the injustice wrought by commou-law procedure upon substantive rights. 250 CASES ON COMMON-LAW PLEADING. wick, in and upon the said Mary Asliford, spinster, in the peace of God and our said lord the king, then and there, feloniously, wil- fully, and of his malice aforethought, did make an assault, and that the said Abraham Thornton then and there feloniously and wil- fully, and of his malice aforethought, did take the said Mary Ash- ford into both his hands, and did then and there feloniously, wilfully, violently, and of his malice aforethought, cast, throw, and push the said Mary Ashford into a certain pit of water, wherein there was then a great quantity of water, situated in the parish of Sutton Coldfield aforesaid in the county aforesaid, by means of which said casting, throwing, and pushing of the said Mary Ashford into the pit of water aforesaid by the said A. Thornton in form aforesaid, she, the said ]M. Ashford, in the pit of water aforesaid with the water aforesaid, was then and there choked, suffocated, and drowned, of which said choking, suffocating, and drowning she, the said M. Ashford, then and there instantly died. And so the said A. Thorn- ton her the said Mary Ashford in form aforesaid feloniously and wilfully, and of his malice aforethought, did kill and murder against the peace of our said lord the king his crown and dignity. And if the said A. Thornton will deny the felony and murder aforesaid, as aforesaid charged upon him, then the said W. Ashford, who was the eldest brother and is the heir of the said Mary Ashford deceased, is ready to prove the said felony and murder against him the said A. Thornton according as the court here shall consider thereof, and hath found pledges to prosecute his appeal. Witness WILLIAM ASHFOED, his X mark. Clarke then moved that the appellee be required to plead. Reader, who with Eeynolds and Tindal appeared for the appellee, applied for time. The court by consent granted time till Monday, Nov. 16. Eeader then applied for copies of the original writ, the return thereto, and the count, which the court refused, but desired Mr. Barlow to read over the two former, and Mr. Leblanc to read over the latter, slowly in court, which was done. Nov. 16. The appellee being brought into court and placed at the bar, and the appellant being also in court, the count was again read over to him, and he was called upon to plead. He pleaded as follows : " Not guilty ; and I am ready to defend the same by my body." And thereupon taking his glove off, he threw it upon the floor of the court. Clarke then applied to the court for time. TRIALS. 251 Lord Ellenborough. Do you apply for time generally, or for time to counterplead? Clarke stated that he applied for time to counterplead. The court then gave time till Saturday, Nov. 21, to counterplead ; Eeader for the appellee consenting to it. Nov. 21. The parties appearing, the defendant delivered in his counterplea, which he verified by his affidavit, and the same was read by Mr. Leblanc. [The counterplea set forth strong circumstantial evidence point- ing to the guilt of the appellee. To this there was a general demurrer and joinder therein.] Abbott, J. I am of the same opinion, that this counterplea is not sufficient to oust the appellee of his wager of battel. The appeal seems to have been in its origin a challenge, and the party accused was allowed to wage his battel, unless in certain excepted cases : as, for instance, where the appellant was an infant, or maimed, or above sixty years of age, or a woman ; and perhaps it was for this amongst other reasons that a woman was allowed to appeal only in one case, namely, that of the death of her husband. So in the case of an approver, if the person claiming to be so was a woman, an infant, maimed, or above sixty, he was not allowed to be an approver, and for this reason, that in such cases the defendant would lose his wager of battel. 2 Hales P. C. 233. This shows the nature of this proceeding, as being in its origin a challenge, and that the battel was the right of the appellee at his election, unless certain exceptions existed. Then has this appellant brought himself within any of those ejcceptions which entitle him to decline the wager of battel ? It is said that he has done so by pleading a vio- lent presumption of guilt against the appellee. Now, as to this the rule is to be found in Bracton. The presumption must be strong and vehement, so as not to admit of denial, or proof to the con- trary. It must be strong, vehement, and incapable of contradiction that the court might be warranted in ordering execution thereon. It is not necessary to consider whether the instances of the rule put by Bracton are or are not of this description. I think they are not. But at the time when Bracton wrote they were so considered, and it was on that ground that they were put as instances of the rule. If, therefore, there were no insufficiency in the mode of aver- ring the facts stated in the counterplea, and if all the circumstances there stated were well pleaded, still I should be of opinion that they did not amount to a presumption pf the kind mentioned by Bracton, namely, one so strong and vehement as to be incapable of contradiction. The defendant is therefore entitled to this his law- 252 CASES ON COMMON-LAW PLEADING, fill mode of trial. What the consequeuces of deciding that this coLinterplea is insufficient may be, the court will, if necessary, take further time to consider. Lord Ellenborough, C. J. The general law of the land is in favor of wager of battel, and it is our duty to pronounce the law as it is, and not as we may wish it to be. Whatever prejudices may there- fore exist against this mode of trial, still, as it is the law of the land, the court must pronounce judgment for it. Giirney then, on the part of the appellant, prayed time for a day or two to consider whether the appellant would wish to have any further argument on the point about which the court entertained doubts ; which was granted. Lord Ellenborough, C. J. Let there be entered on the record curia advisare vult. And now [Monday, April 20th] Gurney appeared for the appel- lant, and stated that he prayed no further judgment. Whereupon, by consent of both parties, the court ordered that judgment be stayed on the appeal and that the appellee be discharged. The pro- ceedings were then handed over to the crown side of the court, and Thornton was immediately arraigned by Mr. Barlow on the appeal, at the suit of the king, to which he pleaded instanter, autre fois acquit. The Attorney-General then, being present in court, confessed the plea to be true. Whereupon the court gave judgment that the appellee should go thereof without day. The appellee was imme- diately discharged.^ Statute 59 George III. Chapter 46. Anno 1819. Cap. XLVI. An act to abolish appea.s of raarder, treason, felony, or other offences, and wager of battel, or joining issue and trial by battel, in writs of right. [22d June, 1819.] "'Whereas appeals of murder, treason, felony, and other offences, and the manner of proceeding therein, have been found to be op- pressive, and the trial by battel in any suit, i« a mode of trial unfit to be used ; and it is expedient that the same should be wholly abolished;' be it therefore enacted by the king's most excellent 1 Well might Lord Hale have had in mind such a case as this when he spoke out against the procedure of his day, " More offenders escape by the over-easy ear given to exceptions in indictments than by their own innocence, and many heinons and cry- ing offences escape by these unseemly niceties, to the reproach of the law, to the shame of the government, and to the encouragement of villainy and tlie dishonor of God." 2 Pleas of the Crown, 193. TRIALS. 253 majesty, by and with the advice and consent of the lords spiritual and temporal, and commons in this present parliament assembled, and by the authority of the same, that from and after the passing of this act, all appeals of treason, murder, felony, or other offences, shall cease, determine, and become void ; and that it shall not be lawful for any person or persons, at any time after the passing of this act, to commence, take, or sue appeal of treason, murder, felony, or other offence, against any other person or persons whomsoever, but that all such appeals shall, from henceforth, be utterly abol- ished ; any law, statute, or usage to the contrary in any wise notwithstanding. "II. And be it further enacted, that from and after the passing of this act, in any writ of right now depending, or which may here- after be brought, instituted, or commenced, the tenant shall not be received to wage battel, nor sliall issue be joined nor trial be had by battel in any writ of right, any law, custom, or usage to the contrary notwithstanding." " Before the accession of Edward I. the judicial combat was already confined to that sphere over which its ghost reigned until 1819. The prosecutor in the appeal of felony, the demandant in the writ of right, offered battle, the one by his own, the other by his cham- pion's body, and the defendant might accept the offer, though by this time he could, if he pleased, have recourse to a verdict of his neighbors, instead of staking his cause on a combat. Even in the Norman days ' battle did not lie ' if there was no charge of crime and less than ten shillings' worth of property was in dispute. As a means of proving debts and ' levying ' would-be swearers from the oath, it disappeared soon after Glanvill's day. That the oath of the demandant's witness and champion was almost always false, was notorious, though we liave met with a man who at the last moment refused to take it. Does this induce our legislators to abolish the battle ? No, it induces them to abolish the material words in the oath that made the champion a witness. We see one hireling los- ing his foot for entering into warranty in an actio furti ; but for civil causes professional pugilists were shamelessly employed. Ap- parently there were men who let out champions for hire. Eichard of Newnham, whose services were highly valued about the year 1220, might be retained through his ' master,' William of Cookham. We doubt whether in Bracton's day the annual average of battles exceeded twenty. There was much talk of fighting, but it generally came to nothing. The commonest cause for fighting was tlie appeal of an 'approver' (probator), that is, of a convicted criminal who 254 CASES ON COMMON-LAW PLEADING. had obtained a pardon conditional on his ridding the world of some half-dozen of his associates by his appeals. Decent people, how- ever, who were in frankpledge and would put themselves upon a jury, were not compelled to answer his accusations. " The rules of the duel have been so well described by others that we shall say little of them. The combatants' arms of offence are described as baculi cornuti, hastouns cornuz. It has been commonly assumed that this means staffs 'tipped with horn ;' but Dr. Brun- ner has lately argued that the weapon thus described was really the old national weapon of the Franks, the war-axe {francisca, hipennis), which in its day had conquered Gaul. The burden of proof was on the combatant who fought for an affirmative propo- sition ; his adversary won if the stars appeared before the fight was over." 2 Pollock and Maitland, 630. Reported Y. B. 31-32 Edw. I. 317. Anno 1304.1 In trespass de bonis asportatis, no trial by battle. Eobert le Conestable and Lucy, his wife, and others named in the writ, some of whom came and some of whom did not come, were attached to answer William le Latimer, the younger, why with force and arms on a certain day in a certain year in such a vill they ravished and took away Margery, the wife of the said William, together with his goods and his chattels found there, viz. rings and buckles of gold and caps of silver to the value of, etc., against the enactments of our lord the king and his statute, to his damage, etc. And then said Sir Robert le Conestable that if the court would allow, he was ready to affirm by his body as became a knight that he was not guilty ; and he threw down his glove to the court. And William le Latimer offered in like manner to prove the affirmative. And the justices refused that issue, because they had no warrant to receive such an issue. And then said Herle, as to Robert and the others named who are here, except Lucy, the wife of Robert, not guilty, ready, etc. : and as to Lucy, judgment of the writ ; for a woman cannot ravish another woman; judgment if this writ lie against her. Howard. Although she could not ravish her, she could assent to it ; therefore answer over. Herle. She answers you that she is not guilty ; ready, etc. And the other side said the contrary. Trial by Record. "Trial by record was used to determine the existence of facts alleged to have happened in court. The records of the superior 1 A part of the case is omitted. TRIALS. 255 courts, whether proved orally or by inspection, were indisputable ; those of the inferior courts could be impeached." Harriinan, Con- tracts, 373. Trial by Charter. " In the case of trial by charter, the charter was produced at the trial. If it appeared to be genuine, the party who executed it was held to be bound by his solemn act or deed, and all statements and promises therein contained were binding on him in favor of the other party to the deed. The Saxon method of executing a deed was for the party to subscribe his name if he could, and in any case to affix the sign of the cross. Seals were sometimes used, but were not essential to the validity of the deed. The Normans were more accustomed to the use of seals, and after the Norman Conquest the seal came to be essential to the validity of the deed ; but so late as the reign of Henry II. we have strong evidence that the use of seals was common only among great men. Centuries later, in Pillans V. Van Mierop, one of the greatest of English judges held a promise in writing to be binding without a seal ; but his decision proved of little consequence, as it was soon overruled by the House of Lords. " Wlien the charter was produced in court, the judge determined its genuineness by comparison of the seal with other seals of the same party, if possible ; otherwise, the party producing the charter might prove the seal by means of the duel. When it was once established that the seal was the defendant's, he was held bound by the deed, althongli the seal had been affixed without his consent ; but if he had lost his seal he was not responsible for its use ; provided he had given public notice of its loss. The evidence afforded by the deed could only be contradicted or overcome by other evidence of an equally satisfactory character. Oral testimony was inadmis- sible to impeach or to modify the effect of a deed when the genuine- ness of that deed was once established, — a rule which still prevails in common-law courts." Harriman, Contracts [2d ed.], 373. Trial by Jury. " That in old times the ' jurors were the witnesses ' — this doctrine has in our own days become a commonplace. For the purposes of a popular expo-sition it is true enough. Nevertheless it does not quite hit the truth. If once the jurors had been called testes, if once their veredictum had been brought under the rubric testimonium, the whole subsequent history of the jury would have been changed, and 256 CASES ON COMMON-LAW PLEADING. never by imperceptible degrees would tlie jurors have ceased to be ' witnesses ' and become judges of fact. In all probability a time would have come when the justices would have begun to treat these testes in the manner in which witnesses ought to be treated ac- cording to our ideas ; each witness would have been separated from his fellows and questioned as to his belief and its grounds. The court, instead of receiving the single verdict of a jury, would have set itself to discuss the divergent testimony of twelve jurors. Where there was a flat contradiction it might have been puzzled ; still the simple device of counting heads was open to it, and in all events it might liave insisted that each juror -whose testimony was received should possess a first-hand knowledge of the facts about which he spoke, for^ already the elementary truth that ' hearsay ' is untrust- worthy had been apprehended.^ Therefore we have to explain why the history of the jury took a turn which made our jurors, not wit- nesses, but judges of fact, and the requisite explanation we may find in three ancient elements which are present in trial by jury so soon as that trial becomes a well-established institution. For want of better names, we may call them (1) the arbitral, (2) the communal, and (3) the quasi-judicial elements. " (1) Jurors are not arbitrators. We have seen, however, that the verdict of jurors becomes a common mode of proof only because litigants ' put themselves' upon it, and that the summons of a jury (in the narrow sense of that term which opposes iurata to assisct) is always in theory the outcome of consent and submission. Both litigants have agreed to be bound by a verdict of the country. They might perhaps have chosen some other test. We may, for example, see a plaintiff and a defendant ' putting themselves ' upon the two witnesses named in a charter, or upon the word of some one man. Now in such a case neither of the litigants can quarrel with tlie declaration that he has invoked. He has called for it and must accept it. So with the verdict of the country ; he has asked for it, and by it he must stand or fall. It is, says Bracton, ' his own proof,' and therefore he cannot reprobate it. If he pro- duced as compurgators men who at the last moment refused to help him in his oath, he could not demand from them an explanation of their conduct. So with the jurors ; it is not for him to ask them questions or expose their ignorance, for he has put himself upon their oath. Wliat he cannot do for himself the court will not do for him. The justices are not tempted to analyze the process of 1 See, e. g. Select Pleas of the Crown, pi. 29 [a. d. 1202] ; "Et hoc offert probare . . . sicut ille qui non vidit hoc sed per alios habet eum suspectum. Nullum est appellum." TRIALS. 257 which an unanimous verdict is the outcome ; that verdict has been accepted in advance by the only persons whom it will affect. " (2) The verdict of the jurors is not just the verdict of twelve men ; it is the verdict of a pays, a 'country,' a neighborhood, a com- munity. There is here a volatile element which we cannot easily precipitate, for the thoughts of this age about the nature of com- munities are vague thoughts, and we cannot say ' the country ' is definitely persona ficta. Still we may perceive what we cannot handle, and, especially in criminal procedure, the voice of the twelve men is deemed to be the voice of the country-side, often the voice of some hundred or other district which is more than a district, which is a community. The justices seem to feel that if they analyzed the verdict they would miss the very thing for which they are looking, the opinion of the country. " (3) Lastly, we may already detect in the verdict of the jurors an element which we cannot but call ^wasi-judicial. Whatever theory may have prevailed, the parties to an action are very soon submitting to 'the country' questions which the twelve represen- tatives of the country will certainly not be able to answer if they speak only of what they have seen with their own eyes. Some of the verdicts that are given must be founded upon hearsay and floating tradition. Indeed, it is the duty of the jurors, so soon as they have been summoned, to make inquiries about the facts of which they will have to speak when they come before the court. They must collect testimony ; they must weigh it and state the net result in a verdict. Bracton sees that this is so ; he even, though in a loose, untechnical sense, speaks of the jurors as deliberating and ' judg- ing,' and he speaks of the result of their deliberations, when it takes the form of a general verdict, as a ' judgment.' " It is to the presence of these three elements that we may ascribe the ultimate victory of that principle of our law which requires an unanimous verdict. . . . " The victory is not complete until the fourteenth century is no longer young ; but, from the moment when our records begin, we seem to see a strong desire for unanimity. In a thousand cases the jury is put before us as speaking with a single voice, while any traces of dissent or of a nescience confessed by some only of the jurors are very rare. 'You shall tell us,' says a judge in 1293, ' in other fashion how is next heir, or you shall remain shut up without meat or drink until the morrow. '" i 2 Pollock and Maitland, 620. 1 Y. B. 21-22 Edw. I. p. 273. 17 CHAPTEE V. CODES AND PRACTICE ACTS, (a) Codes — Their Relation to the Common Law. The Code of Civil Procedure of the State of New York may be referred to as typical. 1. Actions. " The Code of New York, as originally adopted, declared, ' the distinctions between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished ; and there shall be in this State hereafter but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action.' With slight verbal changes the above provision has been enacted in most of the States and Territories which have adopted the reformed procedure." Bryant, Code PI. 106. "The different forms of actions at law are no longer known. There is no inquiry whether the action is covenant or assumpsit, trespass, trover, or case. Disencumbered of all arbitrary forms of classification, the action is instituted by the service of the sum- mons. The complaint or petition states the cause of action." Bryant, Code PL 107. The summons, then, is roughly analogous to the original writ of the common law ; the complaint or petition, to the declaration. GOULET V. ASSELER et al. Court of Appeals, New York. 1860. Reported 22 New York, 225. The fundamental elennents of the several actions at the common law are not abolished by the codes. Appeal from the Superior Court of the City of New York. Action for taking, selling, and converting to the defendant's use a quantity of wines, liquors, cigars, and bar furniture, the stock and CODES AND PRACTICE ACTS. 259 utensils of a restaurant The plaintiff made title under a chattel mortgage executed to him by M. Caussidiere and E. Bonnier ; and the defendant justified under a judgment and execution against the mortgagors, in which judgment they were the plaintiffs, the exe- cution being levied on the property by their direction. The mort- gage was dated March 19, 1855, and purported to be for the security of $1200, payable in one year from that date. It contained the following clause : " And until default be made in the payment of the said sum of money, we [the mortgagors] are to remain and continue in the quiet and peaceable possession of said goods and chattels, and in the full and free enjoyment of the same." The principal part of the property, in value, was wines, liquors, and cigars. The defendants were prosecuting their action when the mortgage was executed, and obtained judgment shortly afterward. The officer sold the goods on the execution on the 27th April, 1855. The sale was in different parcels, and the goods were de- livered by the officer to the respective purchasers, and the proceeds were paid to the defendants. No mention was made of the mort- gage at the sale, though the defendants had been informed of it after the levy and before the sale took place. It did not appear that the defendants purchased any of the goods at the sale. The action was commenced after the debt mentioned in the mortgaffe became payable ; and the plaintiff had, after that time and before bringing the suit, demanded the goods of the defendants. The character of the complaint and of the evidence sufficiently appears from the following opinion. The defendants, on the trial, insisted that the goods were subject to levy on execution against the mortgagors, and that the action could not be sustained. The jury were instructed to assess the value of the goods and to give their verdict for the plaintiff to that value, subject to the opinion of the court, with power to dismiss the complaint. The value was fixed by the jury at $850, and the court at general term gave judgment for the plaintiff for that amount. The defendants appealed. The case was submitted with- out oral argument, on printed briefs. John Sessions, for the appellants. John Cook, for the respondent. Selden, J. If the plaintiff has any legal remedy for the injury of which he complains, it is clear that that remedy has not been properly pursued in the present case, and that the judgment therein cannot be sustained consistently with the well-established principles of the common law, and the repeated decisions of this court. The difficulty in the case, and the error of the court below, will be most 260 CASES ox COMMON-LAW PLEADING. readily seen and appreciated bj referring to some of the distinc- tions between those forms of action which the Code has abolished. It can hardly be claimed that, prior to the Code, an action of tres- pass or trover could have been maintained, either against the officer or the plaintiff in the execution, under the circumstances here dis- closed. The case would have fallen directly within the principles of the case of Gordon v. Harper, 7 Term Eeports, 9, and the sub- sequent cases of that class which have never been departed from either in England or in this country. If any action would have lain before the Code, it could only have been an action founded upon the special circumstances of the case, setting forth the injury to the contingent interest of the plaintiff in the property, and claiming damages for such injury. While, however, in such an action, the plaintiff would have avoided the effect of the technical rule that, in order to recover in trespass or trover, he must show that he had either the actual pos- session or the right of the possession at the time of the alleged taking or conversion, he also, supposing that the action could have been maintained, would have imposed upon himself the necessity of proving, specifically, the damages which he had sustained. In trespass and trover, before the Code, the plaintiff recovered, if at all, upon the ground that he was the owner of the property in con- troversy. The measure of damages, therefore, in all such cases, was the value of the property taken or converted. Although it appeared that the plaintiff held the title as mere security for a debt, and that his debtor was abundantly able to pay, so that his actual loss was nothing, his recovery, in cases where he recovered at all, was nevertheless for the full value of the property, provided that did not exceed the amount of his lien. In a special action on the case, on the contrary, the plaintiff could, under no circum- stances, recover more than the damages shown to have been actually sustained. He must prove to what extent his security was impaired, by showing whether the debtor was or was not re- sponsible, and whether or not it was still in his power to follow and enforce his lien against the property. Although the Code has abolished all distinction between the mere forms of action, and every action is now in form a special action on the case, yet actions vary in their nature, and there are intrinsic differences between them which no law can abolish. It is impossible to make an action for a direct aggression upon the plaintiff's rights by taking and disposing of his property the same thing, in substance or in principle, as an action to recover for the consequential injury resulting from an improper interference with CODES AND PRACTICE ACTS. 261 the property of another, in which he has a contingent or prospec- tive interest. The mere formal differences between such actions are abolished. Tlie substantial differences remain as before. The same proof, therefore, is required iu each of these two kinds of actions as before the Code, and the same rule of damages applies. Hence, in an action in which the plaintiff establishes a right to re- cover, upon the ground that the defendant has wrongfully con- verted property to the possession of which the plaintiff was entitled at the time of the conversion, the proper measure of damages still is, the value of the property ; while in an action in which the plaintiff recovers, if at all, upon the ground that the defendant has so conducted himself in the exercise of a legal right in respect to another's property, as unnecessarily and improperly to reduce the value of a lien, which the plaintiff could only enforce at some subsequent day, the damages must, of course, depend upon the ex- tent to which that lien has been impaired. If we apply these principles to the present case, the error in the judgment under review becomes apparent. The complaint is, iu substance, the same as a declaration in trover, under the former system of pleading. . . . The proof could, at most, only authorize the plaintiff' to recover the consequential damnges resulting to the contingent interest under the mortgage ; while the damages were assessed and the judgment rendered upon the assumption that he was the owner of the property and entitled to the immediate possession. . . , The judgment must be reversed, and there must be a new trial, with costs to abide the event. All the judges were for reversal upon the preceding opinion * except Comstock, Ch. J., and Denio, J. [the latter of whom gave a dissenting opinion]. 2. The Summons. "A civil action is commenced by the service of a summons." Code Proc. s. 127. " The summons must contain the title of the action, specifying the court in which the action is brought, the names of the parties to the action, and, if it is brouglit in the Supreme Court, the name of the county in which the plaintiff desires the trial ; and it must be subscribed by the plaintiff's attorney, who must add to his sig- nature his post-ofhce address, specifying a place in the State where there is a post-ofhce. If in a city, he must add the street, and 1 Eldridge v. Adams, 54 Barb. 417 (1866); Miller v. Van Tassell, 24 Cal. 459 (1864); Murphy v. Estes, 6 Hush (1869); Hill u. Barrett, 14 B. Mouroe (1833), ace. Cf. Trustees of School Section Sixteen v. Odlin, 8 Ohio St. 293 (1858). 262 CASES 0^^ COMMON-LAW PLEADING. street number, if any, or other suitable designation of the particular locality." Code Proc. s. 128 ; Am. L. 1877, c. 416 ; L. 1879, c. 542. 3. The Form of the Summons. " The summons, exclusive of the title of the action and the sub- scription, must be substantially in the following form, the blanks being properly filled : " ' To the above named defendant : You are hereby summoned to answer the complaint in this action, and to serve a copy of your answer on the plaintiff's attorney within twenty days after the ser- vice of this summons, exclusive of the day of service ; and in case of your failue ^ to appear or answer, judgment will be taken against you by default, for the relief demanded in the complaint. Dated The summons is deemed the mandate of the court. See Code Proc. s. 129, Am. L. 1877, c. 416. 4. The Service of the Summons. " The summons may be served by any person, other than a party to the action, except where it is otherwise specially prescribed by law. The plaintiffs attorney may, by an indorsement on the sum- mons, fix a time within which the service thereof must be made ; in that case, the service cannot be made afterwards. Where a sum- mons is delivered for service to the sheriff of the county, wherein the defendant is found, the sheriff must serve it, and return it, with proof of service, to the plaintiff's attorney, with reasonable diligence." Code Proc. s. 133. See rule 18. (b) Practice Acts — Their Relation to the Common Law. The Practice Act of Massachusetts, drawn in its final form by Hon. Benjamin R. Curtis, later one of the justices of the Supreme Court of the United States, may be referred to as typical. 1. Actions. " There shall be only three divisions of personal actions : — " First, Contract, which shall include actions formerly known as assumpsit, covenant, and debt, except actions for penalties. ^ So in the original. CODES AND PRACTICE ACTS. 263 " Second, Tort, which shall include actions formerly known as trespass, trespass on the case, trover, and actions for penalties. " Third, Keplevin." Kevised Laws, Massachusetts, c. 173, s. 1. 2. The Original Writ. "Actions at law, unless founded on scire facias or other special writs, or unless otherwise authorized by statute or by established practice, shall be commenced by original writs. Such writs shall be signed, sealed, and bear teste as required by the constitution, and shall be framed either to summon the defendant, with or without an order to attach his goods or estate, or to attach his goods or es- tate and, for want thereof, to take his body ; or, in an action com- menced by the trustee process, to attach his goods or estate in his own hands, and also in the hands of the trustee. Original writs shall be in the form heretofore established by law and by the usage and practice of the courts. If changes in their form are necessary to adapt them to clianges in the law, or for any other sufficient reason, the courts may make such changes, subject to the final control of the supreme judicial court, which may, by general rule, regulate such changes in all the courts. Original writs issued by trial justices shall be signed by the justice before whom the action is brought, and shall be dated and filled up like other original writs." lievised Laws, Massachusetts, c. 167, s. 15. 3. Form of the Original Writ. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss. To A. B., of Boston, in said county, Greeting : We command you that 3'ou appear at our Superior Court next to be holden at Boston, within and for our County of Suffolk aforesaid, on the first Monday of April next; then and there to answer to C. D., of said Boston, in an action of contract, which action the said plaintiff has commenced against you, to be lieard and tried at our said Court; and your goods or estate are attached to the vahie of three hundred dollars, for security to satisf^y the judgment which the said plaintiff may recover upon the aforesaid trial. Fail not of appearance at your peril 264 CASES ox COMMON-LAW PLEADING. Witness, A. M. , Esquire, at Boston, the first da}' of March, in the year of our Lord one thousand nine hundred and two. J. A. W Clerk. From the office of G. ife H. 4. By Whom Process may he Served. " It is the dut}' of sheriffs and their deputies, acting within their re- spective counties, to serve and execute all writs and precepts lawfully issued to them." R. L. c. 23, s. 12. ''Constables who have given a bond in the sum of $1,000 may in their own towns serve writs and processes in personal actiofts in which the damages are not laid at a sum lai'ger than $200, and anj' process in replevin in which the subject-matter does not exceed in value $200, and anv writ or other process under the law relating to summary pro- cess for the recovery of land. Or these officers ma}' give bonds in a sum not less than $3,000, and become authorized to serve the processes described above whenever the ad dam-num., or the value of the goods replevied, does not exceed S300. No constable is qualified to serve civil process until he has given a bond." R. L. c. 25, ss. 83, 84. [The connection between the common law and statutory sys- tems of pleading will be dealt with at length m the following chapter. — Ed.] PART II. — PLEADINGS IN PERSONAL ACTIONS. CHAPTEPt VL DECLARATIONS. Problem. Draw a declaration, say in trover, upon a given state of facts. Procedure. (1) Ascertain from the follow- ing pages the requisites of the declaration, both substantive and formal. (2) Note how those requisites are dealt with in the form of declaration in trover hereinafter presented. (3) From the quoted text, determine how the form of the allegrations should be varied to suit the given facts on which the declaration required is to be drawn. (4) Draw it. The same method in developing a declaration in any other form of personal action may be employed. ESSENTIALS OF A VALID DECLAEATION. Presented Tidd's Practice, Vol. I. page 361. THE TITLE. " On the return of the writ, when the defendant has appeared, and filed common bail, when necessary, or put in and perfected special bail, tlie plaintiff in due time should declare against him. " The declaration is a legal specification of the cause of action ; and in actions by original, is an exposition of the writ, with the addition of time, place, and other circumstances. " The parts of a declaration are, first, tlie title ; secondly, the venue ; thirdly, the commencement ; fourthly, the statement of tlie cause of action ; and lastly, the conclusion.^ The declaration by ^ In Heath's Maxims, it is said that a count or declaration, being terms equivocal, ought principally to contain three things: first, the plaintiff's and defendant's names, which iii actions real are called demandant and tenant, and the nature of the action ; and this by some is termed the demonstration, or demonstrative part of the count : secondly, the time, the place, and the act; iu which ought to be comprehended how, 266 CASES ON COMMON-LAW PLEADING. bill should regularly be entitled of the day on which the writ is returnable ; for the bill, of which it is a copy, cannot be filed till the bail is put in, which cannot be till the return of the writ. And where there are several defendants, who put in bail of different terms, the declaration should be entitled of the term when the last bail was put in. In practice it is usual, when the cause of action will admit of it, to entitle the declaration, whether by bill or orig- inal, oenerallv, of the term in which the writ is returnable ; and though filed or delivered, it cannot regularly be entitled of a sub- sequent term. But it should always be entitled after the time when the cause of action is stated to have accrued ; therefore, where the cause of action is stated to have accrued after the first day of the term in which the writ is returnable, the declaration should be entitled of a subsequent day in that term, and not of the term generally ; for a general title refers to the first day of the term ; and upon such a title, it would appear that the action was commenced before the cause of it accrued. Yet, where the cause of action was stated to have accrued on the first day of term, the court, on demurrer, held that the declaration might be entitled of the term generally ; for the delivery of the declaration is the act of the party, and in ancient times it could not have been delivered till the sitting of the court ; so that the cause of action might well have accrued before the actual delivery of the declaration. Where a declaration is improperly entitled, the plaintiff may have it cor- rected on an affidavit of the fact. And leave has been given to amend the declaration, by entitling it of the day on which it was actually delivered, instead of the term generally, in order to accord with an averment therein, that other defendants named in the writ were then outlawed. Or it may be set right, at the instance of the defendant, if necessary for his defence. Thus, where the declaration is entitled of the term generally, and the defendant pleads plene administravit, or a tender made before the exhibiting of the bill, upon which he would give in evidence an administration of assets, or tender made, between the first day of the term to which the bill relates and the day of suing out the writ ; he has a right to call upon the plaintiff, to entitle his declaration properly." and in what manner, the action did accrue, or first arise between the parties ; when, what (lay, what year, and wliat place, and to whom the action shall be given ; whicli is called tiie declarative part of the count : and lastly, the perclose or conclusion, which is unde deterioratus est, etc. ; in which the plaintiff ought to aver, and proffer to prove his suit, and show the damage he hath sustained, by the wrong and injury done by the defendant. And the declaration, according to this definition, consisting of a tria, somewhat resembling the logical major, minor, and conclusion, some of the ancients (among whom none was more fond of it than Mr. Fleetwood, the famous recorder of London) conceived it to be a perfect syllogism. Heath's Max. 2. DECLARATIONS. 267 THE VENUE. Presented Tidd's Practice, Vol. I. page 368. " The venue in personal actions, or county where the action is laid, and intended to be tried, is local or transitory. When the action could only have arisen in a particular county, it is local, and the venue must be laid in that county; for if it be laid elsewhere, the defendant may demur to the declaration, or the plaintiff, on the gen- eral issue, will be nonsuited at the trial. Such are all real and mixed actions, and actions of ejectment, and trespass quare clausum frecjit, etc. But where the action might have arisen in any county, as upon contracts, it is transitory, and the plaintiff may in general lay the venue wherever he pleases ; subject, however, to its being changed by the court, if not laid in the very county where the action arose. " To use the words of Lord Mansfield, in the case of Fabrigas v. Mostyn : ^ ' There is a formal and a substantial distinction as to the locality of trials. I state them, says he, as different things. AVith regard to matters arising within the realm, the substantial distinc- tion is where the proceeding is in rem, and where the effect of the judgment could not be had, if it were laid in a wrong place. That is the case of all ejectments, where possession is to be delivered by the sheriff of the county ; and as trials in England are in particular counties, and the officers are county officers, the judgment could not have effect, if the action were not laid in the proper county. "'With regard to matters that arise out of the realm, there is a substantial distinction of locality too : for there are some cases that arise out of the realm which ought not to be tried anywhere but in the country where they arise ; as if two persons fight in France, and both happening casually to be here, one should bring an action of assault against tlie other, it might be a doubt whether such an action could be maintained here ; because, though it is not a crim- inal prosecution, it must be laid to be against the peace of the king ; but the breach of tlie peace is merely local, though the tres- pass against the person is transitory. So if an action were brought relative to an estate in a foreign country, where the question was a matter of title only, and not of damages, there might be a solid distinction of locality. " ' But there is likewise a formal distinction, which arises from the mode of trial : for trials in England being by jury, and the kingdom 1 Cowper, 76, 77. 268 CASES ON COMMON-LAW PLEADING. being divided into counties, and each county considered as a separate district or principality, it is absolutely necessary that there should be some county where the action is brought in particular, that there may be a process to the sheriff of that county to bring a jury from thence to try it. This matter of form goes to all cases that arise abroad; but the law makes a distinction between transitory and local actions. If the matter, which is the cause of a transitory action, arise within the realm, it may be laid in any county, the place not being material ; as if an imprisonment be in Middlesex, it may be laid in Surrey, and though proved to be done in Middle- sex, it does not at all prevent the plaintiff from recovering dam- ages. The place of transitory actions is never material, except where by particular acts of parliament it is made so; as in tlie case of church-wardens and constables, and other cases which re- quire the action to be brought in the county. The parties, upon sufficient ground, have an opportunity of applying to the court in time to change tlie venue ; but if they go to trial without it, that is no objection. " ' So all actions of a transitory nature that arise abroad may be laid as happening in an English county. But there are occasions which make it absolutely necessary to state in the declaration that the cause of action really happened abroad ; as in the case of spe- cialties, where the date must be set forth. If the declaration state a specialty to have been made at Westminster in Middlesex, and upon producing the deed it bear date at Bengal, the action is gone ; because it is such a variance between the deed and the declaration as makes it appear to be a different instrument. But the law has in that case invented a fiction ; and has said, the party shall first set out the description truly, and then give a venue only for form, and for the sake of trial, by a videlicet, in the county of Middlesex, or any other county.' " " In an action upon a lease for rent, etc., where the action is founded upon the privity of contract, it is transitory, and the venue may be laid in any county, at the option of the plaintiff; but where the action is founded upon the privity of estate, it is local, and the venue must be laid in the county where the estate lies. Thus in an action of debt or covenant, by the lessor against the lessee, the action, being founded on the privity of contract, is transitory. So if an action of debt be brought by the lessor against the executor of the lessee, in the detinet only, it is transitory. But if the action be brought, as it may, against the executor of the lessee as assignee, upon the privity of estate, in the debet and detinet, it is local. In covenant by the grantee of the reversion against the lessee, the action being founded DECLARATIONS. 269 on the privity of contract, which is transferred from the lessor to the o-rantee, by the operation of the statute 32 Hen. VIII. c. 34, the action is transitory. But in debt by the assignee, or devisee of the lessor, against the lessee, which is founded on the privity of estate, the action is local. So if an action of debt or covenant be brought by the lessor, or his personal representatives, or by the grantee of the reversion, against the assignee of the lessee, it is local, and the venue must be laid in the county where the land lies. " There are, however, some actions of a transitory nature, wherein the venue by act of parliament must be laid in a particular county. Such are all actions upon penal statutes, and actions upon the case or trespass against justices of peace, mayors, or bailiffs of cities or towns corporate, headboroughs, port-reves, constables, tithing-men, church-wardens, etc , or other persons acting in their aid and assist- ance, or by their command, for anything done in their official capa- city ; and also actions against any person or persons, for anything done by an officer or officers of the excise or customs, or others act- ing in his or their aid, in execution or by reason of his or their office. In these actions, the venue, by various acts of parliament, must be laid in the county where the facts were committed, and not elsewhere. " On the other hand, the venue, in a transitory action, is in some cases altogether optional in the plaintiff; as where the action arises in Wales, or beyond the sea, or is brought upon a bond or other specialty, promissory note, or bill of exchange, for scandahun mag- 7iatiun, or a libel dispersed throughout the kingdom, against a carrier or lighterman, or for an escape or false return, and in sliort, wherever the cause of action is not wholly and necessarily con- fined to a single county. In these cases, the venue cannot be changed by the court, but upon a special ground. " In actions by original, the venue in tlie declaration should be laid in the county where the writ was brought ; for otherwise, we have seen, the plaintiff will lose his bail. And it is a general rule, that the county in the margin will help, but not liurt.^ Hence, if there be no venue laid in the body of the declaration, reference must be had to the margin ; but where a proper venue is laid in the body, the county in the margin will not vitiate it. " In actions by bill, against common persons, the declaration begins by stating the defendant to be in custody of the marshal ; or if he be in custody of the sheriff, or bailiff, or steward of a 1 Lord Hardwicke was of opinion, that the word ss. in the margin of the declara- tion was not originally meant to signify the county, but was only a denotation of each section or paragraph in the record. Cas. temp. Hardw. 344. 270 CASES ON COMMON-LAW PLEADING. franchise, having the return and execution of writs, it should al- lege in wliose custody lie is, at the time of the declaration, by virtue of the process of the court, at the suit of the plaintiffs. If the action be brought by or against particular persons, as assignees, executors, etc., the special character in which they sue, or are sued, should be set forth in the beginning of the declaration. And in actions against attorneys, instead of stating that they are in the custody of the marshal or sheriff, it should be stated that they are present in court ; or in actions against peers or members of the House of Commons, that they have privilege of parliament." WALTON V. KERSOP AND ANOTHER. In the Common Pleas. 1767. Reported 2 Wilson, 354. Replevin, and declares for taking his cattle at M. Defendant pleads non cepil modo et forma ; plaintiff proved the cattle were in the defendant's cus- tody at ]\I. Defendant proved they were originally taken at H. Judgment for the plaintiff. Eeplevin. The plaintiff declares for taking his cattle in Market- street ward ; the defendant pleads the general issue non cepit modo & forma ; this cause was tried before Mr. Justice Gould at the last assizes for Northumberland ; when the plaintiff proved that the cattle were in the custody and possession of the defendant at Market-street, where he was driving them to the pound ; the de- fendant proved that he first and originally took them at Hardball, in the parish of Warden, and was driving them through Market- street unto the pound ; it was insisted at the trial, that the plain- tiff had not proved his declaration, that the cattle were taken at Market-street, as it was alleged therein, for that the defendant had proved they were first taken at another place, viz. at Hardball, in the parish of Warden. There was a verdict for the plaintiff sub- ject to the opinion of the court. Sergeant Glynn, for the plaintiff, insisted that the plaintiff had well proved the taking at Market-street, as laid in the declaration, for he proved the cattle were there in the defendant's custody, and although it may be true that the defendant originally took them at Hardball, yet, as he the plaintiff was unable to prove the taking there, it would be very unreasonable and inconvenient if he was obliged to lay the taking there. That the defendant ought to have pleaded in abatement, and alleged that they were taken at Hardball, ohiquc lioc that they were taken at Market-street, upon DECLARATIONS. 271 which the plaintiff might have taken issue, or confessed the plea, and justified the taking at Hardhall, and driving them to Market- street towards the pound ; and he insisted that wherever the defendant has the cattle wrongfully in his custody that is a wrong- ful taking at that particular place ; as in the case of larceny com- mitted in one county, and the felon flies with the goods into another county, it is a felony in both counties, and he may be tried in either county. Sergeant Burland, for the defendant, insisted that upon the plea of non cepit modo et forma, the defendant may prove the taking was at a different place from that laid in the declaration ; and for that purpose cited Johnson v. Wollyer, 1 Stra. 508 ; 2 Mod. 199. Anonym., by Lord North, C. J., if the plaintiff alleges the taking at A., and they were taken at B., the defendant may plead non cepit modo et forma, but then he can have no return, for if he would have a retorn' habendo, he must deny the taking where the plaintiff hath laid it, and allege another place in his avowry. He also said that in replevin the first place of taking is the only material place, and must be laid in the declaration, and it is not like the case of larceny above mentioned. Wilmot, Chief Justice. At this day it is very clear that the vill and place where the cattle are taken must be laid in the declara- tion, if there is no place defendant may demur, but here is a place laid ; and it was proved the cattle were in defendant's possession there; and though originally defendant took them at another place, yet if he took them wrongfully at first, the wrong is continued to any place where the defendant has them. 1 Stran. 508, is only a case at nisi prius, and 2 Mod. 199, a dictum of Lord North; and neither of those cases are like this, for here is a sufficient proof (in my opinion) of the plaintiff's declaration, to wit, that the cattle were taken at Market-street; this case is very clear, and like the case mentioned of larceny, the wrong continues wherever the de- fendant has the cattle ; and I am quite satisfied the defendant's evi- dence was irrelevant and immaterial on this issue, and ought not to have been admitted, unless the defendant had pleaded in abate- ment. And of this opinion was the whole court, and the Postea was ordered to be delivered to the plaintiff. See Cro. Eliz. 896 ; Hob. 16 ; Moor, 678. See the case of Riley v. Parkhurst, ante, Trin. 21-22 Geo. 11. [reported 1 Wilson, 219] cited by Bathurst, Justice. 272 CASES ON COMMON-LAW PLEADING. [^Extract from] HALL V. WINCKFEILD. Ix THE King's Bench. Reported Hobart, 195 a. " Again the books are, and I agree, that if a man recover damage or debt in the common pleas, upon trespass or obligation laid in another county, if the plaintiff will bring an action of debt for the sum recovered, he must lay it in the county of Mid. and not in the county where the first action arose ; and the reason is apparent ; for he must count upon the record, by which it appears to the court that the cause of this action ariseth in Mid. where the judgment was given, and the record for that trespass that was done, and that obligation that was made, in another county, is not the cause of this action, but the judgment, which hath made novationem con- tractus, which begins there, and regularly it is true that every ac- tion must be brought in that county where by the record it appears that the cause of action began, which sometimes may admit of an election ; as where the admiral court sits in Mid. and summons a party in Essex, the action upon the statute may be in either of both counties." THE COMMENCEMENT. Presented Tidd's Practice, Vol. I. page 375. " In account, covenant, debt, annuity, detinue, and replevin, where the original is a summons, the declaration by original writ begins by stating that the defendant was summoned to answer ; in actions on the case, trespass, ejectment, etc., where the original is an at- tachment, it states that he was attached to answer. But where by the declaration it appears, that the defendant was summoned instead of attached, or vice versa, the defendant cannot demur, without craving oyer of the original, and setting it forth, in order to show that it does not warrant the declaration. "It was formerly usual for the declaration by original to repeat the whole of the original writ. But this practice being productive of great and unnecessary prolixity, a rule of court was made, that ' declarations in actions upon the case and general statutes, other than debt, repeat not the original writ, but only the nature of the action ; as that the defendant was attached to answer the plaintiff, in a plea of trespass upon the case, or in a plea of trespass and con- DECLARATIONS. 273 tempt, against the form of the statute.' And even in trespass vi et armis, commenced by original, it has been deemed sufficient, on a general demurrer, to state in the declaration that the defendant was attached to answer the plaintiff in a plea of trespass, without setting forth the circumstances." THE CAUSE OF ACTION. I. COXTRACTS. Forms and Requisites of Declarations IjJx Contractu. The student who seeks to arrive at a clear knowledo-e of the requisites of the several declarations at common law by examining the precedents in the books will be confused hope- lessly by the mass of surplusage in the pleadings. Although the rule against surplusage " appears to have prevailed at the earliest periods, it seems to have been nearly forgotten during a subsequent period of our legal history." ^ It is believed that in separating surplusage in the prece- dents from required allegations, the student will be materially aided by comparing the brief declarations in use under the Massachusetts Practice Act with those of the common law, in the light of the following case. ABBA READ AND ANOTHER v. WILLIAM SMITH. Supreme Judicial Court, Massachusetts. 1861. Reported I Allen, 519. The substantive averments required in declarations at common law and under the Massachusetts Practice Act are identical. Contract. The first count was for goods sold, as by account an- nexed. The second count was as follows : "And the plaintiffs say they made a contract with the defendant, wherein and whereby they agreed with the defendant to send him certain barrels and half-barrels containing beer, at his request, and did do so ; and the defendant, in consideration thereof, agreed to return the same or pay therefor ; and the plaintiffs say the defendant did not return the said barrels, but that they delivered to him one hundred and thu-ty-nine barrels and forty-two half-barrels, which the said de- 1 Perry, Pleading, 412. 18 274 CASES ON COMMON-LAW PLEADING. fendant has not returned, and that the defendant owes the plaintiffs therefor two dollars for each barrel, and one dollar and fifty cents for each half-barrel." The defendant demurred to the second count, assio-ning for cause that it did not allege any time within which the barrels and half-barrels were to be returned, or any request for their return ; but Brigham, J. overruled the demurrer. The defendant then, " reserving the right to be further heard on his demurrer," filed an answer to this count, denying the contract therein set forth. At the trial in the superior court, it appeared that the plaintiffs were brewers, living in Troy, in the State of New York, and that they sold ale to the defendant, who lived in Boston, and sent it to him in barrels and half-barrels, in large quantities. The only evi- dence of the agreement as to the barrels and half-barrels was con- tained in the depositions of the two plaintiffs, one of whom stated it as follows : " He (the defendant) agreed to return all the casks that we should send him ; or, if for any reason he should not return all, then he agreed to pay for them at the rate of two dollars for each barrel and one dollar and fifty cents for each half -barrel ; " and the other plaintiff stated it substantially in the same way. The defendant moved for a nonsuit on the ground of a variance between the declaration and the proof, but the court ruled that there was no variance. The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions. E. M. Bigelow, for the defendant. T. H. Eussell, for the plaintiffs. Chapman, J. If the verdict had been upon the general count it must have been sustained, for the evidence tended to prove an exe- cuted contract of sale and delivery. Whenever by the terms of the agreement the casks became the property of the defendant, they were his by sale and delivery ; and nothing remained to be done but to pay the price. In such case a general count is sufficient, the claim being merely for money, and founded in a past or exe- cuted consideration. 1 Chit. PI. 316,372; Felton v. Dickinson, 10 Mass. 287; Baker v. Corey, 19 Pick. 496; Holbrook v. Dow, 1 Allen, 397. But the verdict is upon the special count, which declares upon the contract as executory. In such case the rule of pleading was, before the Practice Act, that the declaration must allege all the cir- cumstances necessary for the support of the action, and contain a full, regular, and methodical statement of the injury which the plaintiff has sustained, with such precision, certainty, and clearness that the defendant, knowing what he is called upon to answer, may DECLARATIONS. 275 be able to plead a direct and unequivocal plea; and that the jury may be able to give a complete verdict upon the issue, and the court, consistently with the rules of law, may give a certain and distinct judguient upon the premises. 1 Chit. PI. 285. The Practice Act [of Massachusetts] has made no change in this respect ; for althougli by this act the facts may be briefly stated, yet all the facts must be stated which are necessary to constitute the cause of action. Hollis v. Richardson, 13 Gray, 392. The principal changes made by that act in respect to declarations were, (1) It adopted a suggestion which was recently made by Mr. Long to the British commissioners, that the number of personal actions should be reduced to two. (2) That no averment need be made wliich the law does not require to be proved. As incident to these changes some other formal changes were made. But the act distinctly re- quires that the substantive facts necessary to constitute the cause of action shall be set forth with substantial certainty. And though it changes the forms of pleading and dispenses with technicalities, it is still important in framing declarations and answers, so as to present causes properly for trial, that the principles of special plead- ing should be carefully regarded. By the contract appearing in the bill of exceptions as executory, the casks were to be returned in a reasonable time or upon request. If in a reasonable time, as the evidence seems to show, the plaintiff must prove that a reasonable time had elapsed; and this is a sub- stantive fact necessary to constitute his cause of action. He ouer recorclum, but the court shall give judgment according to the very right of the cause, as aforesaid, without regarding any such imperfections, omissions, and defects, or any other matter of like nature, except the same shall be specially and particularly set down and shown for cause of demurrer. THE MASTER AND WARDENS OF THE SOCIETY OF INNHOLDERS IN LONDON v. GLEDHILL.^ In the King's Bench. 1756. Repokted Saver's Reports, 274. Errors in form cannot be availed of on a general demurrer. In the declaration in an action of debt, for the penalty of five pounds inflicted by a by-law, it was alleged : that the Society of Inn holders was incorporated by a charter from King Charles the Second ; that by the charter a power was given of making by-laws, and of in- flicting penalties for the breach thereof ; that a by-law was made, by which it was ordained, that every person, being a freeman of the company, who shall be elected upon the livery, shall accept the livery and clothing, and upon so doing pay a fine of ten pounds ; or upon a refusal to accept the livery and clothing, shall forfeit the sum of five pounds to the master and wardens, to the use of the master, wardens, and society, the penalty to be sued for by the master, wardens, and society, in the name of the master, wardens, and society, in any of the king's courts ; that the defendant being a freeman of the company, was elected upon the livery ; that due notice was given him of his being elected ; that he refused to accept the livery and clothmg ; and that he has not paid the penalty of five pounds. 1 A part of Rvder, Ch. J.'s opinion, and the opiuions of Foster and Wilmot, J., are omitted. Dpnison, J., gave no opinion. DEMURRERS. 351 Upon a general demurrer to this declaration, the question was, whether it be good ? It was holden that it was not. And by Eyder, C. J., . . . We are of opinion that this declaration is not good ; because it is not therein alleged, that the Company of Inn holders has a livery. . . . It has been said : that the want of its being alleged in the declaration, that the company have a livery, is a matter of form, which cannot be taken advantage of upon a general demurrer ; but we are of opinion, that this is traversable, and might have been put in issue ; and, consequently, that it is a matter of substance. Foster, Denison, and Wilmot, J., concurred.^ HEARD V. BASKERVILE. In the Common Pleas. 1614. Reported in Hobart, 232. Form and substance distinguished. William Heard brought a replevin against Richard Baskervile ; the defendant, as bailiff to John Dinham, Esq., cognovit captionem, for he saith, that long before, etc., one Thorne was seised of the place, etc., in fee, and, 12 Edw. II., granted a rent of two shilKngs, with a clause of distress, unto one Millington : and that he died seised, after whose deatli the rent descended unto another Milhng- ton, as his cousin and heir, without showing how his cousin ; and then shows, that the latter Millington, 21 Hen. VIII., did grant unto one Dinham, and his heirs, the said rent in exchange, which was executed on both sides; and then conveys the rent down by descent unto Dinham, in whose right, etc. ; upon which conusans the plaintiff demurred generally. And the only question whereupon the court stood was, whether the not setting down of the manner of cousmage were matter of substance, or only of form, such as by the Statute of Demurrers, 27 Eliz. c. 5, ought to be particularly set down, or else no advantage to be taken of it. This case, as being of great consequence in the rule, was argued by the judges publicly, and adjudged for the defendant, Warburton only dissenting. 1 Foster, J., and Wilmot, J., aj^reed that the declaration was also bad for that there was no allegatiou that the defeudaut was a freeman of tlie City of London. 352 CASES ON COMMON-LAW PLEADING. In this case all the parts of the statute were considered: the title is for the furtherance of justice ; that is, justice final and definitive, which ends the controversy by deciding it, according to the very rio-ht. For every several action or suit hath a kind of justice which may be called interlocutory, in which a man may fail, though his rio-ht be good, as for want of form before this statute, which bred much charge and multiplicity of suits, and was also a hinderance of that definitive justice, which this statute intends to further. Now the moderation of this statute is such, that it doth not utterly reject form, for that were a dishonor to the law, and to make it in effect no art, but requires only that it be discovered, and not used as a secret snare to entrap. And that discovery must not be confused and obscure, but special ; therefore it is not suffi- cient to say, that the demurrer is for form, but he must express what is the point and specialty of form that he requires. And so is the word and meaning of the statute. Now, then, the main question is, what is matter and what is form, within the meaning of the law ? The statute best expresseth itself in this, for it divideth itself into two main members, which are membra dividentia. First, Want or imperfection of form. Second, The matter in law or very right, sell, the true, mere, or very right ; to which must be added that which the statute adds, that this right, according to which judgment is to be given, must appear to the court within the body of the record. So now, whatsoever it is without which the right doth sufficiently appear to the court, it is form within this law ; and so, e converso, whatsoever is wanting or imperfect, by reason whereof the right ap- pears not, is not remedied as form within this law. And therefore if an executor or administrator bring an action of debt, and do not produce his probate or administration, it is not holpen. So if a man plead a conveyance of a rent, or the like, that cannot pass without deed, without producing the deed in plea, it is not holpen ; for it is not enough for the party to say that he is executor, or that rent was granted to him; but the court must see and adjudge of it, or else the right appears not, and the adverse party may cause the deed to be enrolled, which makes it a part of the plea, whereupon the court shall judge whether it maintain the plea or not. So if the means be wanting whereby the right should be made to appear, it is uncurable ; as if a man bring an action of debt upon an obligation, and produce it, but say it may be made beyond sea, or DEMUKKERS. 353 in no place, a general demurrer serves. And for the same reason two affirmatives without a traverse is not holpeu, because it admits no trial, without which the court cannot see the right. If a man bring an action upon an obligation to perform an award, the defeudant pleads no award made, the plaintiff replies and shows the award ; now here is a full issue, a negative and an affirmative. Yet if the plaintiff doth not also assign the breach, the defendant may demur generally, yet that breach was not traversable, but the plea as between the parties hath an issue before. And this is but an excrescence or surplusage. But yet because it doth appear to the court that he had right or cause of action without it, it is matter, and not form, to set it forth for information of the court. And this is a case of some singularity upon this statute. But now to the case in question, the descent to Millington, as cousin and heir, is the substance and body of the plea. And the rest which is required under, viz. is bnt a specification and ex- plication of tlie same thing by manner how it is, which is not the point issuable, but the general descent as it is ruled in the case of challenge for cousinage. 14 Eliz. Dyer, 319 ; 9 Edw. IV. 3 ; 19 Hen. VIII. 7. And note that this is matter of fact to be tried by jury, whether it were pleaded generally or specially. So it is not like the cases of not showing deeds, or the like, whereof we speak before, whereupon tlie court is to judge. Note Wimbish and Talbois' Case, Plo. 38. Wimbish and his wife plead, that she was the person to whom the interest of the land did belong, after Elizabeth Talboys ; and the opinion of the court was equal, whether that were well or not ; yet that was at the common law before this statute, but indeed the plea followed the words of the statute, 11 Hen. VII., which were in the general; wdiereupon they replied, that maintained the plea, and that was less certain than this, for she might be next either by descent or purchase, or by reversion or rem. Now where it was objected by Warburton, that if the pedigree had been set down, the plaintiff might have pleaded a release of any of those ancestors, or pleaded bastardy in any of them, it was answered, that the traverse of the descent of the rent to Millington must have been the issue in both cases, and would have served, and so will, though the pedigree be not set down. Note, that as a demurrer at the common law did confess all mat- ters formally pleaded, so now, by the statute, a general demurrer doth confess all matters pleaded, though unformally, according to the forms meant by this law ; for such forms are now not material, not being expressed in the demurrer. 23 354 ^ CASES ON COMMON-LAW PLEADING. ' ^'^^- BOWDELL V. PARSONS. ' In the King's Bench. 1808. Reported 10 East's Term Reports, 359. Errors in form defined. [The first count in the declaration is here omitted.] The second count stated, that whereas on the said 10th day of May, in the year aforesaid [in the first count, 1808], at Ware aforesaid [in the first count] in consideration that the plaintiff, at the reqiiest of the de- fendant, had purchased of him a certain other stack of hay, at the rate of £5 10s. per load, to be therefore paid to the defendant, the defendant undertook and promised the plaintiff to deliver to and suMer him to take the same, when the defendant shall be thereunto afterwards requested. And the plaintiff avowed, that although the defendant did afterwards deliver to him a part, to wit, one load of the hay, which was then and there paid for by the plaintiff at the rate aforesaid, and did request of the defendant to deliver to and suH'er him to take the same ; yet the defendant, not regarding his said promise and undertaking, did not nor would, although duly requested, deliver to or permit the plaintiff to take the residue, etc., but so to do wholly refused and still refuses ; and by means of such refusal, etc., the plaintiff was put to great inconvenience and expense, to wit, at Ware aforesaid. The request by the plaintiff to the defendant to deliver the residue of the hay was laid in the same manner in other similar counts. And after judgment by default, and a writ of inquiry executed, it was moved, on a former day, to arrest the judgment, because the request was not specifically alleged witli a venue, as it ought to be where a request in fact is necessary to give the plaintiff his cause of action ; as it was contended to be in this case. For which were cited Peck V. Methold [3 Bulst. 297], and Back v. Owen [5 Term Reports, 409]. Espinasse now showed cause. Cowley, in support of the rule, relied on the cases before men- tioned [and others]. Lord Ellenborough, Chief Justice. It appears to me that the second count is sufficient to sustain judgment for the plaintiff, as well as the first. The question comes now to be considered by us after the statute 4 Ann. c. 16, for the amendment of the law ; the first section of which enacts " that in all cases where any demurrer shall be joined, etc., the judges shall proceed and give judgment ac- DEMURRERS. 355 cording as the very right of the cause and matter in law shall ap|iear unto them, without regarding any imperfection, omission, or defect in any writ, etc., declaration, or other pleading, etc., except those only which the party demurring shall specially and particularly set down and express as cause of demurrer ; notwithstanding that such imperfection, omission, or defect, might theretofore have been taken for matter of substance, and not aided by the statute 27 Eliz. c. 5 ; so as sufficient matter appear in the said pleadings upon which the court may give judgment according to the very right of the cause." Now it is admitted, according to what was said by Lord Mansfield in Collins v. Gibbs, that this being a motion in arrest of judgment is to be considered exactly the same as if the question had arisen on general demurrer. Then what does the statute say upon the sub- ject ? after specifying- the want of several matters of form, of which no advantage or exception shall be taken, it proceeds to say that " the court shall give judgment according to the very right of the cause as aforesaid, without regarding any such imperfections, omis- sions, or defects, or any other matter of like nature, except the same shall be specifically and particularly set down and shown for cause of demurrer." Now is not the omission to repeat a venue (for it must always be remembered that there is one venue well laid in the declaration) a less material omission than the want of alleg- ing prout patet per recordum, where a record is pleaded; which is one of the instances specified where the omission shall not be taken advantage of without being specially shown as cause of demurrer; for that is an omission to refer to that by which alone the allega- tion is to be proved ; but here the omission is of that which is mere form. It is said that a request must be alleged, and so it is ; but then it is said that it is not duly alleged ; the imperfection consists only in the want of a time and place, where a venue was before laid ; an omission by no means of equal importance with several of those instanced in the statute. The case of Back v. Owen is relied on, as having been decided on this objection since the statute ; where Mr. Justice Buller said, "that the want of a request was a substantial defect in the declaration, and that where it was necessary to allege a special request, the general words, though often requested, would not answer the purpose." There was no judgment, however, in that case ; but leave was given to amend, and the cases referred to in the margin of the report, if cited by him as supporting that position, are all before the statute of Anne. Another case was cited of Wallis V. Scott, which came on upon general demurrer subsequent to that statute ; but there judgment was ultimately given for the plaintiff when the court was full. And though one of the judges in the first 356 CASES ON COMMON-LAW PLEADING. instance threw out an opinion, that where a request was by law necessary (which he thought it was not in that instance), the gen- eral averment would not be sufficient, but it must be particularly set forth, that the court might judge whether it was sufficient ; yet it is to be observed, that the healing operation of the statute of Anne was not presented to the consideration of the court. Nor was it so in the case of Back v. Owen ; for if it had, I think the objection there must have been overruled ; because it was not only an objec- tion of like nature, but of less force than several of those stated in the statute. In this case there is an allegation of a request, which it is admitted would be sufficient if time and place were laid with it ; and I am of opinion that the want of those since the statute is not a sufficient objection in arrest of judgment. Grose, J., declared himself of the same opinion. LeBlanc, J. . . . Clearly . . . the want of alleging a time and place to the request is only matter of form, and is not sufficient to arrest the judgment. Bayley, J., of the same opinion. Eule discharged. STATE V. COVENHOVEN. Supreme Court of New Jersey, September Term. 1797. 1 Halstead's Reports, 396, at 401. [Extract from the opinion of Kinsey, Chief Justice.] "Another observation may here be made, in answer to what was dropped by one of the counsel, on the argument. It was said, that on a special demurrer no objection can be taken which is not particularly speci- fied in the demurrer, and therefore that the prosecution is pre- cluded from urging some of the objections which have been made. The observation, so far as it relates to foi-mal defects, is correct, and warranted by the statute, but defects of substance may be taken advantage of at any time " [tho' unspecified]. DEMURRERS. ^ 357 STATE OF MAINE v. PECK AND OTHERS. Supreme Judicial Court, Maine. 1872. Reported ix 60 Maine Reports, 498. Every special demurrer includes a general demurrer. On exceptions. Debt on the official bond of Benjamin D. Peck, Treasurer of the State of Maine, dated Jan. 28, 1858. Writ dated March 23, 1861. At the April Term, 1868, the defendants pleaded full performance of the covenants and condition of the bond. To vvliich the plaintiff replied, that the principal defendant was Treasurer of the State from Jan. 13, 1858, to Feb. 4, 1859, and that on Jan. 14, 1858, and divers other days and times between that day and Feb. 4, 1859, the said Peck, as said treasurer, received divers sums, amounting to $39,231.19, belonging to the State of Maine, and hath not accounted for any part of it. To this replication the defendants filed a special demurrer, which was joined. (The pleadings may be found 58 Maine, 123.) May 30, 1871, the certificate of the decision of the law court was received by the clerk overruling the demurrer and adjudging the replication good. On the 13th day of the succeeding October Term, 1871, the defendants moved for leave to withdraw the demurrer without the consent of the plaintiff and plead' to the issue, tender- ing therewith a rejoinder alleging, substantially, that Peck did ac- count for and pay to the plaintiff the said sums of money by the replication alleged not to have been paid, and tendered an issue to the country. But the presiding judge overruled the motion and declined to receive the rejoinder, and ordered judgment to be en- tered for the plaintiff for $150,000, the penalty of the bond. T. B. Keed, Attorney -General, for the State. J. & E. M. Ptand, for the defendants. The defendants had a right to rejoin. Not proper to enter a final judgment* for the plaintiff, upon over- ruling a special demurrer to a replication. A special demurrer does not admit the truth of all facts well pleaded, as is the case with general demurrer. Even general demurrer does not admit damages, — an averment that defendant owes plaintiff a stated sum as damages. Millard v. Baldwin. Nothing in Pt. S. c. 82, s. 19, deprives defendants of right to rejoin. 358 . CASES ON COMMON-LAW PLEADING. but only declares that a demurrer once filed shall be ruled upon, unless withdrawn by consent before ruling. Danforth, J. This case has once been before the law court upon a special demurrer to the plaintiff's replication. 58 Maine, 123. The demurrer was overruled, the replication held good, and the case sent back for final judgment, unless the defendants were per- mitted to withdraw their demurrer and plead anew under the pro- visions of the R. S. c. 82, s. 19. At the term subsequent to the announcement of the decision, the defendants' counsel moved for leave to withdraw said demurrer, without the consent of the plaintiff and without complying with the provisions of the statute, and to plead to the issue. This motion was denied and judgment ordered for the plaintiff. To this the defendants except, and now claim the allowance of the motion as of right. If the judgment upon the issue, as made up, should have been respondeat ouster, the defend- ants are right in their claim, otherwise not. Previous to the several acts embodied in the revision abov^e cited, on a general demurrer, final judgment would have been ordered by the law court, and entered as of the preceding, instead of at the fol- lowing term. The demurrer was not to a plea in abatement, but to a replication, which presented the full merits of the case. The party had his option to plead or demur. By electing the latter, " he shall be taken to admit that he has no ground for denial or traverse." Stephen on PI. 143. The result of this principle is the well-established rule, " that a de- murrer admits all such matters of fact as are sufficiently pleaded." It must be conceded that the replication contains all the facts neces- sary to maintain the plaintiff's case, and the court have decided that it is sufficient in form. Hence a final judgment must necessarily follow. The authorities are to the same effect. Stephen, in his work on pleading, treating of judgments for the plaintiff, says, on pages 104, 105 : " If it be an issue in law, arising on a dilatory plea, the judgment is only that the defendant answer over. . . . Upon all other issues in law, and in general all issues of fact, the judgment is, that the plain- tiff' recover." Also in note on page 144 : " On demurrer to any plead- ings which go to the action, the judgment for either party is the same as it would have been on an issue of fact, joined upon the same plead- ing and found in favor of the same party." Clearwater v. Meredith, 1 Wallace, 25,43; McKeen v. Parker, ^51 Maine, 389; McAllister V. Clark, 33 Conn. 258 ; and in Parlin v. Macomber, 5 Maine, 413; Washington v. Eames, 6 Allen, 417, final judgment was ordered by the law court. But without denying the correctness of these prin- ciples when applied to a general demurrer, it is contended that they DEMUREERS. 359 are not applicable to a special one, and it is said that none of the authorities so lay down the law. While this may be true, it is also true that in Parlin v. Macomber, above cited, the court applied the law to a special demurrer, and also in Washington v. Eames, though in Massachusetts, under their Practice Act, all demurrers must be special. No authority has been cited, or fallen under notice, in which any distinction between the two kinds of demurrer, in re- spect to the judgment, has been alluded to, which, to say the least, is a little singular, if any such difference exists. Nor are we able to perceive any such distinction from the prin- ciples involved. Every special demurrer includes a general one, for under the for- mer " the party may, on the argument, not only take advantage of the faults which his demurrer specifies, but, also, of all such objec- tions in substance, as regarding the very right of the cause, as the law does not require to be particularly set down." Stephen on PI. 141, 142; Bouvier's Law Diet., "Demurrer." In the one just as much as in the other the party has his option to plead or denmr, and must be equally bound by his election. But one answer, unless by leave of court, can be made to the plea, and if that is overruled, it must stand as true. A special demurrer raises a question of law just as much as a general one, and there is no exception to the rule as laid down, that where there is an issue of law upon a plea " which goes to the action " the judgment will be final. To these principles of law the statute adds its mandate. R S. c. 82, s. 19. The statute gives the parties some rights which did not previously exist, and, for the purpose of enabling them to secure those rights, the action is to stand upon the docket until the term following the certificate of decision. But these rights must be as- serted within the time and in the manner specified, otherwise they are waived, and the case ended. No distinction is made between a special and general demurrer, but the word used comprehends both. In this case the new pleadings were not filed on the second day of the term, nor do the costs appear to have been paid. Hence, in ac- cordance with the statute, judgment must be entered. Appleton, C. J. ; Cutting, Walton, and Dickerson, J. J., concurred. Tapley did not concur. 360 CASES ON COMMON-LAW PLEADING. y 3. The Effect of Demurrers in Opening vp the Record. MATHEWSOX v. WELLER AND OTHERS.^ Cases ix the Supreme Court, New York. May, 1846. Reported 3 Dexio, 52. A demurrer opens up the entire record. Demurrer to a surrejoinder. The declaration was in trespass for taking a pair of horses. Plea, a justification of the seizure under an execution issued by a justice of the peace on a judgment against the plaintiff in favor of Weller, Haynes, and Johnson, three of the de- fendants, the other defendant being a constable. It states the recovery of the judgment on the 29th day of August, 1842, without stating any facts to show, or making any averment that the justice had jurisdiction. Eeplication, that the plaintiff was a householder, and that the horses were his necessary team, and were of less value than 8150 (to show that the property was exempt from execution under the Act of 1842, p. 193, s. 1). Rejoinder, that the judgment on which the execution issued, by virtue of which the horses were taken, was rendered for the purchase money of a stove sold by the three defendants who recovered the judgment to the present plaintiff, and by him kept for use. Surrejoinder, that the plaintiff purchased the stove mentioned in the rejoinder of the three defendants, Weller, Haynes, and Johnson, before the passage of the exemption act of 1842, to wit, on the 10th day of October, 1840, and not afterwards. Verification. Demurrer and joinder. By the coui't, Jewett, J. It is not denied that the plea is bad in substance ; and it is well settled that the judgment must be against the party who has committed the first substantial fault in pleading (Mercein v. Smith, 2 Hill, 210). If this were otherwise, the defend- ant would prevail, because the surrejoinder shows that the debt for which the judgment was rendered was contracted prior to the pas- sage of the Act of 1842, and therefore, according to the case of Quackenbush v. Danks (1 Denio, 128), that act has no application to tlie case. * N. Hill, Jr., for the defendants. D. Wright, for the plaintiff. Judgment for the plaintiff. 1 The arguments of counsel and part of the opinion are omitted. DEMUEEERS. / 3G1 ANONYMOUS. In the Commox Pleas. 1763. Reported 2 Wilson, 150. And judgment is given against him who made the first error in pleading. Debt on a bond with condition for the payment of a certain sum of money on a certain day ; defendant pleads payment before the day ; plaintiff replies that the defendant did not pay before the day ; et de hoc ponit se super p)atriam ; defendant demurs, and plaintiff' joins in demurrer. Nares, Serjeant, for the defendant admitted that the plea at first was bad, but insisted the plaintiff had made it good by replying and tendering issue upon it, or that if the issue was immaterial there ought to be a repleader. Hewitt, Serjeant, contra. This is a case where defendant has not joined issue to the country, but has put himself upon the judgment of the court ; and though the replication be bad, yet whenever the case is upon a demurrer, the court looks for the first fault, which is in the plea here ; and therefore judgment ought to be for the plain- tiff ; and of that opinion was the court, and gave judgment for the plaintiff. ANONYMOUS. In the King's Bench. 1701. Reported 2 Salkeld, 519. Unless, indeed, that error has been cured by pleading over. If a man pleads over, he shall never take advantage of any slip committed in the pleading on the other side, which he could not take advantage of upon a general demurrer. Per Holt, C. J., see 6 Mod. 136. COLE, EXECUTOR OF ANN HILL, v. ANDREW SMALLEY.^ New Jer'oey Supreme Couut, February Term. 1856. 1 Butcher's Reports, 374. Action by an executor. Plea in abatement for the nonjoinder of another executor. The plea avers that the testatrix appointed the 1 So much of the case as does not relate to the effect of demurrers iu opening up the record is omitted. 362 CASES ON COMMON-LAW PLEADING. plaintiff and one I. V. executors of her will ; that the said I. Y., as executor, administered upon the estate, and that he is still living. The plaintiff replies, that the said I. V. did not administer upon the estate. To this replication the defendant demurs. The cause was argued before the Chief Justice, and Elmer, Potts, and Haines, justices. J. W. Miller, for the defendant, in support of the demurrer. G. H. Brown, for plaintiff, contra [contended among other things, that], if the replication is defective, the plaintiff is nevertheless en- titled to judgment, because the defendant's plea is bad for uncer- tainty. Gould's PI. 83, ch. 3, s. 54. The Chief Justice. If, moreover, the plea be erroneous . . . for uncertainty, it is a defect in form, which could only be taken advantage of on special demurrer, and is aided by pleading over. A demurrer reaches back, and attaches only to substantial defects in the previous pleadings. Gould's PI. 474 The demurrant is entitled to judgment. HASTROP V. HASTINGS. In the King's Bench. 1692. Reported in 1 Salkeld, 212. Or unless the plea be one in abatement, behind which the demurrer cannot go- In an action upon the case for beer and wages, the defendant pleaded in abatement, et pet. judicium de hilla, etquodhillaprcedict. cassetur ; for incertainty in the declaration [:] upon demurrer, the defendant's counsel insisted upon many faults in the declaration. Et per cur. The defendant shall not take advantage of mistakes in the declaration upon a plea in abatement ; but if he would do that, he must demur to the declaration, per quod a respondeas ouster was awarded. ^ POWYS, EXECUTOR OF LLOYD, v. JOHN WILLIAMS. In the Common Pleas. 1698. Reported Lutwyche, 1601. [Extract from the opinion ofTreby, C. J., at 1604.] Concerning the judgment in the principal case, see the case of Bellasis & Hesper before in this book, where in assumpsit on a bill DEMURRERS. 363 of exchange the defendant pleaded in abatement that the action was brought before the bill was payable ; and in the debate of that case an exception was taken to the declaration ; but the opinion of the court was, that no advantage could be taken of a fault in the decla- ration on a demurrer to a plea in abatement. RICH (SIR PETER) v. PILKINGTON, LORD MAYOR OF LONDON. In the King's Bench. 1692. Reported Carthew, 171. Action on the case for a false return to a mandamus, in which action the plaintiff" declared, that he was lawfully elected into tlie office of Chamberlain of London, and that the defendant refused to admit him into that office ; whereupon he brought a mandamus directed to the defendant and the aldermen, etc., and the defendant returned, that the ^lointi^ nu7iquam f nit electus to the said office, uhi revera he was lawfully elected by the majority, etc. The defendant pleaded in abatement, that the mayor and alder- men of London are a corporation, and that all of them in their judicial capacity in a court of aldermen jointly made the said re- turn ; and thereupon prayed judgment of the bill brought against the mayor alone. And upon a demurrer, to this plea it was adjudged ill, for this ac- tion is founded on a tort, and therefore it may be either joint or several at the election of the party, as in trespass, etc. . . . Then the counsel for the defendant would have taken exceptions > to the declaration, but the court would not allow it ; because here was a plea in abatement, to which the plaintiff might have de- murred ; and for that reason he [the defendant] shall never take exceptions to the declaration ; to which the counsel replied, that it appeared by the plain tiff''s own showing that he had no cause of action at the time when this action was brought. For the return of the phcries mandamus is laid to be after tlie beginning of Michaelmas Term, and the memorandum of the bill is entered generally of that term ; and that this was such a fault that they might show as Amicus Curice ; and thereupon the plaintiff" prayed to amend, which was granted, and judgment was given ; quod respondeat ouster. 364 CASES ON COMMON-LAW PLEADING. DEAN V. BOYD FOR BERRY. Court of Appeals of Kentucky, Fall Term. 1839. Reported 9 Dana, 169. For a plea in abatement is to the writ, and the demurrer cannot go back of the declaration to attack a plea to the writ. From the Circuit Court for Fleming County. The Chief Justice dehvered the opinion of the court.^ In an action of debt, brought in the name of John Boyd, for the use of Ptobert Berry, against Joseph Dean — in which the declara- tion averred that the bond sued on had been executed by Joseph Dean to the " said Joseph Dean," and had afterwards been sold by Boyd to Berry — Dean filed a plea in abatement, averring that Boyd was a non-resident of Kentucky, and had failed to file, accord- ins to the statute, a bond securing the costs. The circuit judge, having sustained a demurrer to the plea, ren- dered judgment against Dean, for the debt, on his refusing to plead over. . . . We are of the opinion that the plea, as filed, is not suffi- cient for abating the writ. . . . The plaintiff in error insists, however, that the declaration is radically defective, and that, therefore, even if the plea be insuffi- cient, the circuit judge erred in sustaining the demurrer to it. The declaration is, in our opinion, insufficient for maintaining the action ; for though it may not be improbable that there is a mis- take in the averment that the bond was executed by Joseph Dean to " the said Joseph Dean ; " yet, nevertheless, we cannot, without any clue whatever, decide judicially, either that the bond is not so written, or that John Boyd is or was intended to be the obligee. The averment, that John Boyd sold the bond to Robert Berry, can- not help the declaration ; for that fact does not show that Boyd was the obligee, or had legal authority to transfer the obligation. Nor can the exhibition, in the record, of a bond of the same date for the same amount, payable on its face to John Boyd, be entitled to any influence ; because, as no oyer was either granted or craved, that bond is not legally before us, and cannot, therefore, be judicially noticed. But, though the declaration thus appears to be insufficient, still the demurrer to the plea did not bring up the count, or authorize 1 A part of the opinion not here relevant is omitted. DEMURRERS. 365 the circuit court to consider it ; because a plea in abatement applies to the writ only. Wherefore the circuit judge did not err in sustaining the demurrer to the plea in abatement. But, as the declaration is insufficient, the court erred in rendering judgment for the debt sought to be recovered. And, therefore, the judgment must be reversed, and the cause remanded with instructions to give leave to amend the declaration, if the plaintiff shall ask such leave ; otherwise to dismiss the suit. DAVIES V. PENTON. In the King's Bench. 1827. Reported in 6 Barnewall & Cresswell, 216. Nor can a demurrer to a defective pleading in one record attack a defect in another record. Declaration stated articles of agreement of the 23d December, 1823, made between plaintiff and defendant, which recited that de- fendant for many years then past carried on the practice and profes- sion of a surgeon, apothecary, and accoucheur, and had established a considerable connection in such business ; and that, having deter- mined to withdraw from the same, he had agreed with the plaintiff for the sale to him of all his then stock, and of the goodwill of his said business ; and also to demise to him his house in Great Surrey Street, in which the business was then carried on, upon the terms following; that is to say, the sum of .£800 to be paid for the good- will of the business of a surgeon, apothecary, and accoucheur, and the influence and recommendation thereinafter agreed to be (Tiven by defendant unto and in favor of plaintiff, and the lease of the house in Great Surrey Street, for the term of nineteen years and oua-quarter, subject to the yearly rent of £80 ; and the stock in trade to be taken and purchased by plaintiff at a fair valuation ; and that in part pursuance of the agreement defendant had accord- ingly demised to plaintiff the said messuage or tenement, with all and singular the appurtenances, for the term of nineteen years and one-quarter of a year, wanting two days, from the 25th of December, 1823, at the yearly rent of £80. The articles of agreement then stated that defendant, in further pursuance of the said agreement, and for and in consideration of £400 to the defendant in hand paid by the plaintiff at or before the signing of the articles of agreement, and for and in consideration of the further sum of £400 (being the remainder of the said sum of £800 consideration money therein- 366 CASES ON COMMON-LAW PLEADING. before mentioned), secured to be paid to defendant by a bill of ex- change, bearing even date with the agreement, drawn by defendant upon and accepted by plaintitl' for the said sum of £400, and pay- able twelve months after date ; and of the further sum of ^170 4s, (being the ascertained value of the stock in trade, goods, fixtures, and effects used in and about the said business or profession, as, agreed upon between plaintiff and defendant), also secured to be paid to defendant by a certain other bill of exchange, bearing even date with the said agreement, drawn by defendant upon and ac- ,cepted by plaintiff for the said sum of £170 4s., and payable at two months after the date thereof, agreed to and with plaintiff in man- ner following ; that is to say, that he, defendant, should permit •plaintiff to have, use, and exercise the said business, practice, and profession of a surgeon, apothecary, and accoucheur, from 24th December, 1823, and to carry on the same in and upon the same house and premises, and in the same way and manner as defendant had been used and accustomed to do; and to have, receive, and take the whole of the profits and produce of such practice and profes- sion, to and for his own use and benefit ; and that defendant should use his best endeavors and influence with all his patients and friends to prevail upon them to employ plaintiff in the way of his said practice and business. And plaintiff did thereby agree to and with defendant that he, plaintiff, would well and truly pay and discharge the said two several bills so drawn upon and accepted by him, plaintiff, for the sums of £400 and £170 4s. as aforesaid unto de- fendant, as and when the said bills of exchange respectively became due and payable ; and the defendant did by the said articles of agreement, lastly, promise and agree to and with plaintiff, that he, defendant, should not, nor would at any time thereafter, use, exer- cise, and carry on the art, business, or profession of a surgeon, apothecary, or accoucheur, within the distance of five miles from the said messuage, being No. 12 in Great Surrey Street aforesaid, for his own private benefit or emolument, in any manner howsoever; and for the true performance of all and singular the agreements aforesaid, each of them, defendant and plaintiff, did thereby bind and oblige himself unto the other of them, in the penal sum of £500, to be recoverable for breach of the said agreement, in any court or courts of law, as and by way of liquidated damages. The declaration then stated mutual promises. Breach, that the defend- ant did use, exercise, and carry on the business or profession of a surgeon, apothecary, and accoucheur, within the distance of five miles from the said messuage. Plea, that plaintiff did not well and truly pay and discharge the said two several bills of exchange, DEMURRERS. 367 according to the form and effect of the articles of agreement in that behalf, but wholly neglected and refused so to do, and therein failed and made default; and thereupon and according to the tenor and effect, true intent, and meaning of the articles of agreement, the plaintiff forfeited and became liable to pay to defendant the said sum of £500 in the articles of agreement mentioned, as and by way of liquidated damages. The plea then alleged further, that the plaintiff at the commencement of the suit was indebted to the de- fendant in the further sum of £500 for work and labor, etc. Repli- cation (except as to so much of the plea as related to the penal sum of £500 first mentioned), that plaintiff before and on the 23d December, 1823, was a trader, etc. ; and that in October, 1824, he became bankrupt, and on the 27th May, 1825, obtained his certifi- cate. Demurrer to so much of the plea as related to the sum of £500 first mentioned. The Solicitor-General in support of the demurrer.^ Chitty, contra. But it appears that the plaintiff has no right to sue ; for the replication shows that after the agreement he became bankrupt, and consequently the right of action vested in his assignees. [Bayley, J. The plea of set-off goes to the whole declaration, the replication of the plaintiff's bankruptcy only to part of the plea. The demurrer is to the residue ; and upon this demurrer the defend- ant cannot avail himself of the replication.] Abbott, C. J. Then as to the other point it is said that the plaintiff' upon certain parts of the record has set forth his bank- ruptcy, and that as it appears upon the whole record that his assignees are entitled to the benefit of the contract stated in the declaration, the plaintiff cannot have judgment upon this demurrer. But in considering what judgment we are to pronounce upon this demurrer, we are bound to look only to that part of the record upon which the demurrer arises, and not at the other collateral parts of the record not connected with it ; and, looking to that part of the record upon which the demurrer arises, we are of opinion that the plaintiff is entitled to the judgment of the court. Bayley, J. As to the other point, in arguing the question whether the defendant or the plaintiff is entitled to judgment upon this demurrer, neither of them has a right to have recourse to any parts of the record not connected with that upon which the de- murrer arises. If the defendant had intended to rely on the bank- ruptcy as a bar to the plaintiff's right to recover, he should have pleaded it ; and the plaintiff in that case might have replied that the assignees had repudiated the contract. ^ Ouly so much of the case is given as relates to the effect of the demurrer. — Ed. 368 CASES ON COMMON-LAW PLEADING. Holroyd, J. I entirely agree with my brother Bayley that the defendant cannot claim in aid the other parts of the record, to show that the plaintiff is not entitled to judgment upon the de- murrer. Littledale, J. Then it is said that the plaintiff has no right of action, because it appears upon the record that he had become bankrupt. As to one sum, the plaintiff says, " that he has obtained his certificate." Then he demurs to the other parts of the plea. But supposing anything turned on the question of bankruptcy, we should be bound to decide on the plea and demurrer following one another. We must treat the count, plea, and replication, and the count, plea, and demurrer, as distinct records, and give judgment upon each without reference to the other. Judgment for the plaintiff. THE AUBURN AND OWASCO CANAL CO. v. LEITCH. Supreme Court, New York. January, 1847. Reported in 4 Denio, 65. Demurrer to a replication. The declaration was in assumpsit for the recovery of certain instalments due upon shares of the capital stock of the plaintiff's corporation, subscribed for by the defendant. Pleas, 1. Non-assumpsit. 2. J^ul tiel corporation. Eeplication to the second plea, setting out the act incorporating the plaintiff, to- gether with certain acts amending and continuing that act. The defendant demurred to the replication, and the plaintiff joined in demurrer. W. H. Seward, for the defendant. B. D. Noxon, for- the plaintiff. By the court, Bronson, C. J. The defendant insists that the declaration is bad on general demurrer. [The Chief Justice then ex- amined the pleadings, and came to the conclusion that the declara- tion was substantially defective ; and then proceeded as follows :] But it is said, that as the defendant pleaded non-assumpsit as well as nul tiel corporation, he cannot upon this demurrer go back and attack the declaration ; and several cases have been cited to sustain that position. But it will be found on examination that the point has never been directly and necessarily adjudged. The doctrine was first started in Wheeler v. Curtis, 11 Wend. 653, and was there supposed to result from the well-established rule that the defendant cannot both plead and demur to the same count. It was said that the defendant should not be allowed to do indirectly what he would DEMURRERS. 369 have no right to do directly. But the question whether the declara- tion was good or bad was not decided. The cause went off upon other grounds ; and the point in question was not necessarily settled. In Dearborn v. Kent, 14 Wend. 183, the dictum in the first case was repeated ; but it was expressly held that the declaration was suffi- cient ; so that it was wholly unnecessary to inquire whether the de- fendant was at liberty to make the question or not. Russell v. Kogers, 15 Wend. 351, is the next case ; and there it was not decided whether the declaration was good or bad. It was apparently good ; so that the point in question did not necessarily arise. In Miller v. Maxwell, 16 Wend. 9, this doctrine was mentioned for the last time ; and the same learned judge who first started it went a great way towards knocking it on the head. In that case the defendant pleaded the general issue, and two special pleas. The plaintiff de- murred to the special pleas, and they were adjudged bad ; but the defendant was allowed to go back and attack the declaration ; and judgment was given against the plaintiff for the insufficiency of that pleading. Now, although the learned judge who delivered the opin- ion of the court took a distinction between a defect in the declara- tion which would not be cured by a verdict, and one which could only be reached by a demurrer, the principle of that case is directly opposed to the dicta which had preceded it. It is quite clear that the defendant cannot both plead and demur to the same count. And it is equally clear that, at the common law, he could not have two pleas to the same count. Indeed, the two things, though stated in different words, are only parts of one common-law rule ; to wit, that the defendant cannot make two answers to the same pleading. The statute of 4 and 5 Anne, c. 16, was made to remedy this inconvenience ; and it allowed the defend- ant, with the leave of the court, to plead as many several matters as he should think necessary for his defence. With us, leave of the court is no longer necessary. 2 E. S. 352, s. 9. The statute does not say that the defendant may both plead and demur ; and conse- quently he cannot make two such answers. But he may plead two or more pleas ; some of which may terminate in issues of fact, to be tried by a jury; while others may result in issues of law, to be determined by the court. And whenever we come to a demurrer, whether it be to the plea, replication, rejoinder, or still further onward, the rule is to give judgment against the party who com- mitted the first fault in pleading, if the fault be such as would make the pleading bad on general demurrer. This rule has always prevailed. It was the rule prior to the statute of Anne ; and to say that the defendant, because he pleads two pleas, one of which re- 24 370 CASES ON COMMOx\-LAW PLEADING. suits in a demurrer, cannot go back and attack the declaration, would be to deprive him of a portion of the privilege which the legislature intended to confer. He cannot plead and demur at the same time, because the common law forbids it ; and the statute does not allow it. But he may plead two pleas ; and he takes the right w^h all its legitimate consequences, one of which is, that whenever there comes a demurrer upon either of the two lines of pleading, he may run back upon that line to see which party committed the first fault; and against that party judgment will be rendered. Aside from the dicta in question, there is not a shadow of authority, either here or in England, for a different doctrine. Althouoh it seems that no case upon this point has found its way into the books, I well remember that since the decision in Miller v. Maxwell, 16 Wend. 9, it has been several times announced from the bench that in a case like this the defendant was at liberty to go back and attack the declaration ; and I think the point has been more than once directly decided. I know that the late Mr. Justice Cowen entertained and expressed that opinion, as I did myself ; and it is also the opinion of my present associates. I would not lightly overrule so much as a mere dictum, if it was of the nature of a rule of property, and had stood long enough to become one. But this is not a question of that kind. Judgment for the defendant.^ CAMPBELL V. ST. JOHN. In the King's Bench. 1694, Reported 1 Salkeld, 219. In trover for a box and 290 pieces argenti, the defendant de- murred to the declaration, and the plaintiff demurred to the defend- ant's demurrer, and concluded ^ hoc paratus est verificare ; the defendant maintained his demurrer, and put the matter upon the court. And first, the court held that trover would lie for plate generally. Vide Style, 224, 264.^ Secondly, That all is discontin- 1 " Ordinarily a demurrer to a pleading which is held good cannot be carried back to a previous defective pleading. Dearborn v. Kent, 14 Wend. 183. But if the decla- ration is materially and fatally defective, the demurrer will be carried back. People r. City of Spring Valley, 129 111. 169; Fort Dearborn Lodge v. Klein, 11.5 111. 177. It is generally said that a demurrer will not be carried back of the general issue. Dearborn v. Kent, 14 Wend. 183; Compton v. People, 86 111. 176. But this position would not seem tenable when the declaration is substantially defective so as not to be good after verdict. Auburn & O. Canal Co. v. Leitch, 4 Den. 65; Shaw v. Tobias, 3 N. Y. 188." Stephen, Pleading, Andrew's 1st ed. 224. 2 "In the infancy of this action, it was held necessary, in a declaration in trover, to ascertain the goods which were the subjects of dispute, witii as much certainty and DEMUREERS. 371 ued by the plaintiffs not joining in demurrer, but demurring upon the defendant's demurrer ; for there is no difference between plead- ing over when issue is offered, and not joining in demurrer, but pleading over ; both are alike, and make a discontinuance. / W HAITON AND OTHERS, ASSIGNEES, v. JEFFREYS. Ix THE King's Bench. 1715. 10 Modern Reports, *280. The court was moved for leave to plead a plea, and demur to the declaration at the same time, upon the 4 Anne, c. 16, s. 1, the words of which are, " That it shall be lawful for any defendant, or tenant in any action or suit, or for any plaintiff in replevin, in any court of record, with the leave of the same court, to plead as many sev- eral matters thereto, as he shall think necessary for his defence : provided nevertheless, that if any such matter shall, upon a de- murrer joined, be judged insufficient, costs, etc." The court. The words of the Act of Parliament are, " that it shall be lawful to plead as many several matters, etc." Now, a de- murrer is so far from being a plea that it is an excuse for not pleading. Here you plead, and at the same time pray that you may not plead. The word " matter " imports a possibility that the other party may demur to it ; but there can be no demurrer upon a demurrer. This was never attempted before. accuracy, as was required in an action of detinue or replevin. Therefore where the declaration was for a parcelof lings, without specifying the quantity it contained, though there was a verdict and judgment in favor of the jjlaintiff, it was reversed upon error. Gramvel v. Rhobotham, Cro. Eliz. 865. So trover for 200 weights of lead, and 200 weigiits of brass, without sliovving the quantity, was held too uncertain after verdict. Powell v. Hopkins, Sty. 247. Walter r. Farrier, S. P. Latch. 216. . . . But the law does not now require so much precision and certainty in the description of the goods, as formerly; for if they are described according to common acceptation, it is sufficient. Tlius trover for 400 'ends' of deal boards was adjudged to be sufficient, because workmen call all sucli pieces of boards, as are not fit for wainscoting, floor- ing, and the like, 'ends'; and being a particular term well understood, is a proper denomination for all sbort pieces of boards. Knight v. Barker, 2 Ld. Haym. 1219; 11 M(id. 06, s. c. Greater certainty, however, and accuracy in the description of the things demanded, is still recjuircd in detinue, because tlie plaintiff may desire to re- cover the specific things themselves, which can only be done in this action. Kettle v. Bromsall, Willes Rep. 120. But with respect to replevin, ... it seems to be now settled that a declaration being certain to a general intent, is sufficient after verdict. Rast. 570 b; Dalt. Sher. 274." 2 Williams Saunders, 74, note. 372 CASES ON COMilON-LAW PLEADIN"G. What are Demurrers to Eindence and what are Special Verdicts. (a) Demurrers to Evidence. WRIGHT V. PAUL PINDAR. In the King's Bench. 1647. Reported Aletn, 18. In a trover and conversion brought by an administrator; upon not CTuilty pleaded, the defendant upon the evidence confesses, that he did convert them to his own use ; but further saith, that the intestate was indebted to the king, and that 18 May, 14 Car., it was found by Inquisition, that he died possessed of the goods in question ; which being returned, a venditioni exponas was awarded to the sheriff, who by virtue thereof sold them to the defendant. And to prove this the defendant showed the warrant of the treasurer, and the office book in the Exchequer, and the entry of the Inquisi- tion, and the venditioni exponas in the clerk's book ; to which the plaintiff saith, that the matter alleged is not sufficient to prove- the defendant not guilty ; and that there was no such writ of venditioni exponas. And the defendant saith, that the matter is sufficient, and that there was such a writ. And it was resolved, that he that demurs upon the evidence ought to confess the whole matter of fact to be true, and not refer that to the judgment of the court. And if the matter of fact be uncertainly alleged, or that it be doubtful whether it be true or no, because offered to be proved only by presumptions and probabilities, and the other party will demur thereupon, he that alleges this matter cannot join in demurrer with him, but ought to pray the judgment of the court, that he may not be admitted to his demurrer, unless he will confess the matter of fact to be true. And for that the defendant did not so in this case, both parties have misbehaved themselves, and the court cannot pro- ceed to judgment. But it was clearly agreed, that upon evidence the court for reasonable cause, at their discretion, may permit any matter to be shown to prove a record. Com. 411b. And the opinion of the court was, that an alias venire facias should be awarded, and not a venire de novo, because no verdict was given. DEMURRERS. (b) Special Verdict. " A more common, because more convenient, course than [de- murrer to the evidence] to determine the legal effect of the evi- dence, is to obtain from the jury a special verdict in lieu of that general one, of which the form has already been described. For the jury have an option, instead of finding the negative or affirma- tive of the issue, as in a general verdict, to find all the facts of the case as disclosed upon the evidence before them, and after so set- ting them forth to say, in effect, ' that they are ignorant, in point of law, upon which side they ought, upon these facts, to find the issue ; that if, upon the whole matter, the court shall be of opinion that the issue is proved for the plaintiff, they find for the plaintiff accordingly, and assess the damages at such a sum, etc. ; but if the court are of an opposite opinion, then vice versa.' This form of finding is called a special verdict." Stephen, Pleading, Andrews' 1st ed., 180. GENERAL DEMURRER. C. D, ) And the said C D. by E. F. his attorney, comes and ats, > defends the wrong and injury, when, &c., and says that the A. B. ) said declaration (or " the said first count of the said declara- tion ") and the matters therein contained in manner and form, as the same are above stated and set forth, are not sufficient in law for the said A. B. to liave or maintain his aforesaid action thereof against him, the said C. D. and that lie the said C. D. is not bound by the law of the land to answer the same, and this he is ready to verify ; wherefore, for want of a sufficient declaration or (" first count of the said declara- tion ") in this behalf, the said C. D. prays judgment, and that the said A. B. may be barred fi'om having or maintaining his aforesaid action thereof against him, &c. 2 Chit. PL 678. SPECIAL DEMURRER. When the causes of demurrer are stated, as is in general advisable, proceed as in the above precedent to the end, and then as follows : And the said C. D , according to the form of the statute in such case made and provided, states, and shows to the court here, the following causes of demurrer to the said declaration, or " to the said first count of the said declaration," that is to say, that, &c. (here state the par- ticular causes, and conclude thus : and also that the said declaration, or " first count of the said declaration ") is in other respects uncertain, informal, and insufficient, «&c. 2 Chit. PI. 678. CHAPTER VIIL DILATORY PLEAS. " The more general division of pleas is, . . . first, pleas dilatory ; secondly, pleas peremptory. Of the former description are pleas to the jurisdiction ; to the disability of the person ; to the count, or declaration [obsolete] and to the writ ; of the latter, or peremp- tory kind, and which lead to an issue which finally settles the dispute, are leas in bar of the action." Chitty's Pleading, Vol. I. p. *457. "The law has prescribed and settled the order of pleading which the defendant is to pursue, and although it has been objected that as regards pleas in abatement the division is more subtle than useful, yet as regulating in some respects the forms and con- clusions of the pleas, and the right to plead another plea in abate- ment in some cases after judgment against the defendant of respondeas ouster, it is deemed here expedient to adhere to the ancient order, especially as no preferable arrangement has been suggested, viz.: 1st. To the jurisdiction of the court. 2dly. To the disability, etc., of the person. J 1st. Of the plaintiff. I 2dly. Of the defendant. 3dly. To the count or declaration [obsolete]. 4thly. To the writ. 1st. To the form of the writ. 1st. Matter apparent on the face of it. 2dly. Matter dehors. 2dly. To the action of the writ. 5thly. To the action itself in bar thereof." Chitty's Pleading, Vol. I. p. *456. DILATORY PLEAS. 375 / (a) To the Jurisdiction. DOULSON V. MATTHEWS AND ANOTHER. ^ In the King's Bench. 1792. Reported 4 Term Reports, 503. This was an action of trespass for entering the plaintiffs dwellinfr- hoLise in Canada, and expelling him ; there was another count for taking his goods ; but as there was no proof to support the second count, the only question was, whether an action of trespass could be brought in this country for the injury stated in the first count. Lord Kenyon, at the trial, was clearly of opinion that the cause of action stated in that count was local. And as the plaintiff could not support the second count, he was nonsuited. Erskine now moved to set aside that nonsuit ; observing, that this was not an action to recover the land, but merely a personal action to recover a satisfaction in damages, which was transitory and might be tried here. BuUer, J. It is now too late for us to inquire whether it were wise and politic to make a distinction between transitory and local actions ; it is sufficient for the courts that the law has settled the distinction, and that an action quare clausum fregit is local. We may try actions here which are in their nature transitory, though arising out of a transaction abroad, but not such as are' in their nature local. Eule refused. / JEREMIAH LAWRENCE v. DANIEL SMITH AND ABRAHAM RUSSELL, JUN. Supreme Judicial Court op Massachusetts. September Term, 1809. Reported 5 Massachusetts, 362. This action was assumpsit, in which the defendants are described as of the city, county, and State of New York. The service en- dorsed is an attachment of nominal property [a chip] of the defend- ants, and the leaving of a summons with their attorney, William P. Walker. 1 A part of Erskine's argument, and also Ch. J. Kenvou's opiuion, are omitted. — Ed. 376 CASES ON COMMON-LAW TLEADING. The defendants, by their said attorney, plead to the jurisdiction of the court, because they are inhabitants of the state of Xew York, and at no time have been resident within this state, and that no estate of theirs has been attached on this writ. To this plea the plaintiff demurs, and the defendants, by the same attorney, join in demurrer. By the court. As a plea in abatement to the jurisdiction, the plea is unquestionably bad, as it gives jurisdiction to no other court of this state. But the Court will not proceed in the suit, as it does not appear that either of the defendants, or any estate of theirs, is within the jurisdiction of the commonwealth. Let an entry be made that the plea is adjudged bad ; and let a further entry be made that, for the reasons aforesaid, all further proceedings stay. Hurbert, for the plaintiffs. Dewey, for the defendants. [Confer Statutes of 1797, c. 50, s. 1, Massachusetts.] (b) To the Disability of the Person. PLUMPTON V. HEADLAM. The Transactions of the High Court of Chancery. Reported Tothill's Chancery Reports, 74. Plumpton contra Headlam, demurrer because excommunicated, overruled, about 4 Car. MORRIS V. OWEN. The Transactions of the High Court of Chancery. Reported Tothill's Chancery Reports, 76. Morris contra Owen, a demurrer, because the plaintiff was out- lawed, the defendant ordered to answer, 10 Jac. C. B. (fo. 457). DOCKMINIQUE v. DAVENANT. In the Queen's Bench. 1704. Reported 1 Salkeld, 220. Per curiam. If a defendant demur in abatement, the court will notwithstanding give a final judgment, because there cannot be a demurrer in abatement ; for if the matter of abatement be extrin- DILATORY PLEAS. 377 sic, the defendant must plead it; if intrinsic, the ceurt will take notice of it themselves. ANONYMOUS. In the King's Bench. 1751. Reported 1 Wilson, 302. The defendant pleads in abatement that there is no such person as the plaintiff^ in reriim natura, the plaintiff replies that there is, viz. at Westminster; defendant demurs, plaintiff" joins in demurrer and prays judgment and his damages, which being in chief is wrong, for it ought to be that he may answer over. Per curiam. Let it stand over with leave to the plaintiff' to move to amend on payment of costs. LADY FAULKLAND v. STANION. In the King's Bench. 1700. Reported 12 Modern, 400. In debt upon a bond, it was pleaded in bar, that in a former ac- tion upon that bond the defendant had pleaded the late statute of the king laying taxes upon bonds for security of money, and that none should recover such debts if they had not taxed the same ; and that upon that plea the plaintiff" was barred. It was objected, that the statute was only a temporary law, and now expired ; and therefore the impediments being removed, the plaintiff' should recover, and compared it to the case of excom- mengement pleaded, where the judgment is remaneat loqiiela sine die quousque, etc., which is but a temporary plea, by wliich the parties are put out of court, but may be brought in by a re-sum- mons or re-attachment; but where outlawry is pleaded in abate- ment after pardon or reversal thereof, the party must begin de novo. But by Holt, Chief Justice, Here the defendant had a good plea when the first action commenced, and time shall not wear it out ; and he said, that Co. Lit. 128 b and 135 b is to be understood upon this diversity, when the cause of action accrues to the plaintiff" at a time at which he is under the disability of an outlawry ; there the plea of outlawry in abatement shall quite overthrow the writ, and after removal thereof he must begin de novo ; but where the dis- ability of outlawry comes after the cause of action accrued, there 1 That is, a man without a name. 378 CASES ON COMMON-LAW PLEADING. the plea of outlawry is only a temporary disability which does not abate the writ, but is only quousque : and after removal thereof he may re-continue the action by re-summons, etc. (c) To the Count or Declaration. JOSEPH HOLE V. JOHN FINCH. In the King's Bench. 1769. Reported 2 Wilson, 393.1 Curia : Formerly, when the whole original writ was spread in the same roll with the count thereupon, if a variance appeared be- tween the writ and count, the defendant might have taken advan- tage thereof, either by motion in arrest of judgment, writ of error, plea in abatement, or demurrer. Cro. Eliz. 185, 198, 330, 829 ; 2 Lutw. 1181, s. P. But afterwards it was determined that if the de- fendant will take advantage of a variance between the writ and count, he must demand oyer of the writ, and show it to the court. 4 Mod. 246 ; Ellery v. Hicks and Ux' ; 2 Salk. 658, 701 ; 6 Mod. 303. And a case in manuscript of Gross v. Lee, which was re- plevin by writ for taking his cattle, the count was for taking a gray horse, there was a demurrer for the variance, but judgment was for the plaintiff. Parker, C. J., cited Salk. 701, and the court held that defendant cannot take advantage of a variance between the writ and count without showing 01/ er of the writ. (d) To the Writ. 1. Misnovier. MESTAER AND ANOTHER QUI TAM, ETC., v. HERTZ. In the King's Bench. 1815. Reported 3 Maule and Selwtn, 450. Lord Ellenborough, C. J. [in the above case, said], " In what sit- uation do these plaintiffs stand ? They have described the defend- ant by a wrong name, having perhaps heard him called by that name once or twice. But that would not be sufficient to maintain an issue upon the misnomer ; because whether his name be so or not, depends not upon one or tv/o occasions, but on a plurality of times that he may have been so called. Perhaps they might have 1 Extract from the opinion of the court. The statement of facts is omitted. DILATORY PLEAS. 379 doubts upon a matter not lying within their own cognizance, but they venture to call him into cuurt by a particular name. The de- fendant appears and being in court pleads a misnomer, and then the plaintiffs, having something given them to amend by, apply for leave to amend, instead of encountering the peril of an issue which probably would have turned out against them, and would have been conclusive. . . . Now here the cause of action is precisely the same, whether the name of the defendant be Moses Isaac, or Maurice Jacob. The court, in allowing the plaintiffs to amend, makes com- pensation to the defendant by giving him the costs of his plea, and to the plaintiffs they afford an opportunity of not being totally ex- cluded from the merits. Considering the extent to which amend- ments of this sort have been allowed, the present seems to me to come within the practice, and the principle laid down by Lord Hardwicke." HAWORTH V. SPRAGGS. In the King's Bench. 1800. Reported 8 Term Reports, 515. The defendant was sued in an action of assumpsit by the name of John Spraggs ; to which he pleaded in abatement as follows : "And he against whom the plaintiff hath exhibited his bill by the name of John Spraggs in his proper person comes and pleads that he was baptized by the name of James, to wit, at, etc., and by the Christian name of James hath always since his baptism hitherto been called and known, etc. ; " traversing in the usual form that he was ever known by the Christian name of John. The plaintiff de- murred, and assigned for special causes that by the manner of plead- ing the said James had by his said plea admitted himself to be the person named the defendant in and by the aforesaid bill of the plaintiff, and also that the said James had not begun his said plea in the words following, viz. "and James Spraggs against whom," etc., in the usual and known mode of pleading a plea a misnomer in abatement, etc. Manley, in support of the demurrer. Reader, contra. The court said at any rate the plea was defective, in not setting out the surname as well as the christian name of the defendant. That such a plea must inform the plaintiff what is the true name of the defendant : whereas, here the defendant corrected the plain- tiff's mistake as to his christian name, but neither admitted that he 380 CASES ON COMMON-LAW PLEADING. was rightly designated by his surname, nor called himself by any other surname. Judgment respondeat ouster. REX V. THOMAS FOSTER. Reported Rdssell and Ryan, 412. The prisoner was tried before Mr. Baron Garrow at the Maid- stone Lent assizes in the year 1820, for committing an unnatural crime on one John Whyneard. The person on whom this crime was convicted said that his name was spelt Winyard, but it was pronounced Winnyard. The prisoner was convicted, and received sentence of death ; but execution was respited, in order that the opinion of The Judges might be taken on the objection that the name of the witness was misspelt. In Easter Term, 1820, The Judges took this case into considera- tion, and held the conviction right. REGINA V. JAMES. Central Criminal Court. 1847. Reported 2 Cox Criminal Cases, 227. The indictment charged the prisoner with assaulting and stealing from a female " two rings, etc., the property of Jules Henry Steiner." The female was the wife of the owner of the property, and stated that, to the best of her knowledge, her husband's name was Henry Jules Steiner, and not Jules Henry Steiner. Pollock, C. B., held the misnomer fatal, and the prisoner was acquitted. REGINA V. DAVIS. Crown Cases Reserved. 1851. Reported 5 Cox Criminal Cases, 237. The case was reserved by the Dorsetshire Sessions. The prisoner was indicted for stealing the goods of Darius Chris- topher. The evidence proved the prosecutor's name to be Tryus Christopher. The chairman ruled that, in Dorsetshire, Darius and Tryus were idem sonantia, but requested the opinion of the judges upon the correctness of that ruling. When this case came on to DILATORY PLEAS. 381 be heard, on the 8th February, before Jervis, C. J., Alderson, B., Williams, J., Piatt, B., and Martin, B., the court intimated that it was a question for the jury, and directed the case to be sent back, ill order that it might be stated whether the question had been left to the jury. The case was now returned, with a statement that the question of variance was not left to the jury. Lord Campbell, C. J. — This conviction must be reversed. If it is put as a matter of law, it is quite impossible for this court to say that the two words are idem sona7itia. The objection is said to have been taken in arrest of judgment ; but I have never heard of such a ground for arresting the judgment since the great case of Stradley v. Styles. Coleridge, J. No doubt a Dorsetshire jury would have thought the words idem sonantia. Conviction reversed. . [Extract /rami REGINA V. WILSON. Crown Case Reserved. 1848. Reported 2 Cox Criminal Cases, 426. Per W. B. Brett, for the prisoner. " LTpon the point of vari- ance the law is clear ; and the only question is, whether the Court can say that the two names are so identical in sound that no person could be misled." JONES V. MACQUILLIN. In the King's Bench. 1793. Reported 5 Term Reports, 195. / The declaration was against the defendant by the christian name of James Kichard ; to which there was a plea in abatement that he was baptized by the name of Richard James, and not James Richard, and had always since been known by the christian name of Richard James, etc. To which there was a general demurrer, and joinder. Shepherd, in support of the demurrer, said, that the plea was in- sufficient, because it did not deny that the defendant had been christened by the names of James and of Richard, though not in the order in which the plaintiff had stated them. If it were to be taken all as one name, there might be some color for the objection ; but the Court would take notice that there were two distinct names, by 382 CASES ON COMMON-LAW PLEADING. both of which it appeared that the defendant had been baptized. And this would have appeared still more strongly if the plea had been drawn in the usual form ; for it should have stated that the defendant had not been baptized by the names of James and Rich- ard, which would clearly not have availed. But Per curiam. The objection cannot be got over : the misplacing of the names makes them as different from the real names as the substitution of any other instead of these. Judgment for the defendant. AHITBOL V. BENIDITTO. In the King's Bench. 1810. Reported 2 Taunton, 40L But in this case, where Aaron Beniditto had been sued and ar- rested by the name of Aaron Benedetto, . . . the court said it was idem sonans, and refused the rule [nisi, because of no misnomer]. 2. Autre Action Pendant. BILLER V. ELLIOT. The Transactions of the High Court of Chancery. Reported Tothill's Chancery Reports, 73. Biller contra Elliot, demurrer, because the matter was depending in the Exchequer, before the bill [,] overruled, Jan. 35 Eliz. / SPARRY'S CASE.i V In the Exchequer. 1590. Reported 5 Coke, 61 a. A man shall not%)e twice vexed for one and the same cause. Israel Owen brought an action on the case against James Sparry, of trover of a certain quantity of cotton yarn, and selling it to per- sons unknown, and conversion to his own use ; the defendant pleaded, that the plaintiff had another action on the case depending in the King's Bench for the same trover and conversion of the same goods ; and this suit is prosecuted pending the other ; and demanded 1 Part of the opinion is omitted. DILATORY PLEAS. 383 judgment of the bill : and thereupon the plaintiff did demur in law. And it was resolved by Sir Roger Manwood, Chief Baron, and the whole Court of Exchequer, that the bill should abate for two reasons. 1. Because by the rule of law a man shall not be twice vexed for one and the same cause, nemo debet bis vexari, si constet curice quod sit pro una & eadem causa. But the old difference in our old books is between writs which comprehend certainty, as in debt, detinue, etc., and writs which comprehend no certainty, as assize, trespass, etc. For it is true that in writs (be they real, personal, or mixt), which are certain, it is a good plea to say, that the writ is brought pending anotlier, but in writs real or personal, where no certainty is contained, there it is no plea. . . . Also it was resolved, that although the first action was in another court, sell, in the King's Bench, or vice versa, that the plea is good, vide 43 Edw. III. 27 a, ace. and that the book in 34 Edw. III. Brief 789, is good law ; for it doth not appear by the plea, that the plaintiff or defendant was privileged in the Exchequer, and then by the statute of Articuli super chartas, cap. 4, it is enacted, that no common plea shall be held in the Exchequer ; but in 43 Edw. III. 27 a, it appears that the defendant was privileged in the Exchequer, and therefore the plea to the writ there was good. But if a man brings an action of debt by bill in London or Norwich, or in any other in- ferior court, and afterwards brings an action of debt in the Common Pleas, this suit in the higher court, which is brought pending the suit by bill in an inferior court, shall not abate, as appears in 7 Hen. IV. 8 a, and 3 Hen. VI. 15 a, b ; vide 43 Edw. III. 22, 27, and 7 Hen. IV. 44 a, b, Bringingham's Case. But it is said in 9 Edw. IV. 53 a, that all the king's courts at Westminster have been time out of mind, etc., and so a man cannot tell which of them is the most ancient court. And afterwards it was adjudged that the plea was good, and the plaintiff took nothing by his bill. And so note, reader ; all the books which prima facie seem to disagree are on |ull and solid reason unanimously agreed and reconciled. JONATHAN WILBUR, EXECUTOR, v. JOHN GILMORE. Supreme Judicial Coukt, Massachusetts. 1838. Reported 21 Pickering, 251. But the mischoice of an action does not extinguish the riglit to have the proper action. Trespass quare clausum. The action was submitted to referees, under a rule of court. They awarded to the plaintiff the sum of 384 CASES ON COMMON-LAW PLEADING. $5, as the actual value of wood and timber cut and carried away by the defendant, and submitted to the determination of the Court the legal questions arising in the case. The trespass was committed in the lifetime of the plaintiffs tes- tator. In the year 1835, the plaintiff commenced a suit against the defendant for the same cause of action. To that suit there was a general demurrer and rejoinder in the Court of Common Pleas, and judgment was there rendered that the declaration was bad and that the defendant recover his costs. The defendant insisted that those proceedings were a bar to the present action. The present action was commenced by the executor after the revised Statutes went into operation, and another question sub- mitted to the Court by the referees was, whether it could be le- gally commenced by the executor. If the Court should be of opinion that the former proceedings were not a bar to this suit, and that the plaintiff had a right to maintain this action, judgment was to be entered that the award in favor of the plaintiff be accepted ; and if otherwise, the defend- ant was to recover his costs according to the award. Colby, for the plaintiff. Coffin and Pratt, for the defendant. Morton, J., said, in part, as follows : 2. The former judgment was rendered on a general demurrer to the declaration, and is no bar to this action. The general rule undoubtedly is, that the judgment in one action shall bar all other suits between the same parties and for the same cause of action. Interest reipuUicae ut sit finis litium. But this rule is limited to judgments rendered on the merits. If the plain- tiff be nonsuit for want of proof, or because his allegata and pro- bata do not agree, or for any other cause, he may commence another action. 1 .i:^hitty on PL (5th ed.) 227 ; Gould on PI. 478. Even a judgment of nonsuit on the merits, or on an agreed state- ment of facts, has been holden to be no bar to another action. Knox V. AValdoborough, 5 Greenl. 185 ; Bridge et al. v. Sumner, 1 Pick. 371. So if .the plaintiff mistake the form of his action, as if he bring trespass instead of trover, and his writ be adjudged bad on demurrer, the judgment will not bar an action of trover. 1 Chit. PI. (5th ed.) 227 ; Gould on PI. 478, s. 46. So if the plaintiff mistake his cause of action and the defendant demur and have judgment, this will not preclude the plaintiff from commencing a fresh action, correctly setting forth the right cause. So also if the declaration be demurred to, or a bad plea be pleaded and demurred to, and a judgment be rendered against the plaintiff for the insuffi- DILATORY PLEAS. 385 ciency of his declaration, it will not estop the plaintiff from bring- ing another action to enforce the same right ; because the case as stated in the last declaration was not tried in the first. In all these cases, if the defendant plead the former judgment in bar, the plaintiff may reply that it was not obtained on the merits. 1 Chit. PI. (5th ed.) 227 ; Gould on PI. 478, s. 45 ; Vin. Abr. Judg- ment (Q. 4) ; Lampen r. Kedgewin, 1 Mod. 207. In this last case, North, C. J., says, " there is no question but that if a man mistakes his declaration and the defendant demurs, the plaintiff may set it right in a second action." It is apparent from the record, that the former judgment between these parties was rendered upon the insufficiency of the declaration and not upon the merits of the case, and therefore can be no bar to the present action. Award of referees accepted. ABEL PARKER, JUDGE OF PROBATE, v. DANIEL COLCORD. Supreme Court of New Hampshire, Cheshire, May Term. 1819. Reported 2 New Hampshire, 36. [Extract from the opinion of Woodbury, J.] " There is some apparent contrariety in the books as to the meaning of the words lis pendens, or ' the pendency of a suit.' But whether a suit be pending by the purchase of a writ, (1) or the service of it; (2) or the filing of bail; (8) or the entry of the action ; (4), — all these events had happened in the first suit, prior to the commencement of the present one." ^ FOWLER V. BYRD. Superior Court, Territory of Arkansas. February, 1833. Reported Federal Cases, No. 4999 a, by Samuel H. Hempstead, Esq. A suit is pending by the purchase of a writ. Clayton, J. This was an action of debt, brought by Eichard C. Byrd against Absalom Fowler, in the Circuit Court of Pulaski County, in which the defence set up was a plea of the pending of a former suit for the same cause of action. The circuit court per- mitted the clerk to prove by parol that the writ in the former suit had been dismissed, overruled the plea, and gave judgment for the plaintiff J from which judgment an appeal was taken to this court. 2o 386 CASES ox COMMON-LAW FLEADINO, In chancery it is settled, that a lis pendens is created by filing a bill and actual service of the subpoena. 2 Madd. 256 ; 1 Johns. Ch. 566. At law, suing out a writ constitutes the pendency of a suit, with- out any further step, and neither service of process, nor any other proceeding, is required to form the ground of a plea of another action pending for the same cause. 1 Bac. Abr. 23 ; 5 Coke 48, 51. The plea of another action pending is an affirmative plea, and casts the onus probandi upon the defendant pleading it, and the proof to sustain it must be record evidence. 1 Saund. PI. & Ev. 19. A record is a memorial of a proceeding or act of a court of record, entered in a roll for the preservation of it. 7" Com. Dig. tit. " Eecord " A. When, in this case, the defendant in the court below showed the issuing of a writ for the same cause of action, he proved, primd facie, at least, the pendency of a suit ; and it then devolved on the plaintiff to prove, by competent testimony, that the suit had been disposed of, and was no longer pending. The parol evidence intro- duced for the purpose was not, in our opinion, legal. Brush v. Taggart, 7 Johns. 20; Hasbrouck v. Baker, 10 Johns. 248; Jenner V. Joliffe, 6 Johns. 9. Had he moved for leave to enter at that time a dismission of the first writ, or an order directing the clerk to make out upon the record a statement of the facts and dismis- sion, as they had actually occurred, nunc pro tunc, we think upon that state of the case the plaintiff would have been entitled to suc- ceed. But failure to do so, and the attempt to supply the omis- sion by parol testimony, constitutes such an error as to warrant the reversal of the judgment. It is probable that even now, the plaintiff, by entering of record a dismissal of the first suit in the circuit court, will be entitled to have judgment in that court. Judgment reversed. BROWN V. VAN DUZEN.^ Supreme Court of the State of New York. October, 1814. Reported 1 1 Johnson, 472. A suit is pending by the service of a writ. In error, from the Court of Common Pleas of Orange County. This was an action of debt on a recognizance for fifty dollars, taken before a justice of the peace, upon a plea of title, pursuant to the tenth section of the twenty -five-dollar act, brought by Brown against Van Duzen, who was impleaded with Eeynolds. In the action 1 The arguments of counsel are omitted. DILATORY PLEAS. 387 before the justice, Brown was plaintiff, and Reynolds defendant, and Van Duzen entered into the recognizance as surety for Keynolds. The breach assigned by the plaintitf in his declaration was that Reynolds did not appear and put in bail, at the next Court of Com- mon Pleas, to a suit commenced against him by the plaintitf, accord- ing to the condition of the recognizance. The defendant pleaded nil debet, and gave notice of evidence that the plaintiff had dis- charged the recognizance. The plaintiff produced and proved the recognizance, and that he issued a writ in trespass, in the Orange County Common Pleas, returnable at the next term after the recognizance was taken, which, in consequence of the death of the deputy sheriff" shortly after it was delivered to him, was lost, and the defendant therein had never been arrested. The plaintiff attempted to prove that the de[>uty sheriff endeavored to serve the writ, and that Reynolds eluded him, and kept himself armed to prevent an arrest. The defendant. Van Duzen, went into evidence to show that the issuing the writ against Reynolds was a feigned proceeding ; and declarations and acknowledgments by the plaintiff were proved, to this effect : " that it was in his power to have taken Reynolds, if he wished, but that it was not his intention to do so, and that he had some other person in view to charge." To this evidence the plaintiff objected, and on his objection being overruled, the bill of exceptions was taken. The jury below gave a verdict for the defendant. risk, for the plaintiff in error. C. Ruggles, contra. Piatt, J., delivered the opinion of the court. It was incumbent on the plaintiff to prove : 1, The recognizance ; and 2, That he com- menced a suit for the trespass, before the next term of the common pleas. \ Whether merely issuing the writ and delivering it to the sheriflr\ to be served, without actual service, and without an alias and pht- ries capias, can be deemed a commencement of the suit, in the sense of this recognizance; and whether the recognizance ought not to be taken to the people, are questions which need not be decided in this case. It was indispensably necessary for the plaintiff to prove at least the delivery of the writ to the proper officer, with a bona fide inten- tion of having it served ; and if the defendant could show that it was a feigned proceeding, without intention on the part of the plaintiff to have it served, or could show ground to presume that the plaintiff had instructed the officer not to serve the writ, it was 388 CASES ON COMMON-LAW PLEADING. pertinent evidence ; because it went to disprove " the corarnence- luent of the suit," in the largest sense of the phrase. If the plaintiff could have succeeded in proving the suit com- menced, lie w^ould have recovered fifty dollars of the surety, with- out encountering the plea of title set up by Eeynolds. Hence the materiality of that evidence. The counsel have argued the case as though the evidence offered by the defendant was intended to operate as a direct release or dis- charo-e of the recognizance, whereas it goes to contradict an essen- tial averment in the declaration ; to wit, the commencement of the suit against Reynolds. In the latter view it was proper evidence ; and the judgment below ought to be affirmed. Judgment affirmed. TATLOW OR CASTLE v. BATEMENT. In the Kixg's Bench. 1671. Eeported 2 Levinz, 13. A suit is pending upon the filing of bail. Trover ; and upon non cuV , verdict for the plaintiff ; and it was moved in arrest of judgment, that the action is brought before the cause of action accrued ; for the conversion is laid at a day in Easter Term, and the declaration is generally as of Easter Term, and not at a day certain (as by memorana quod tali, etc., it may be), and then this must relate to the first day of the term. But per cur\ 't is well enough if the bail was filed after the cause of action accrued, for here no action can be depending, nor declaration delivered, xmtil the defendant be in custodia Maresca.Ui, and that is never till bail filed, whi^h filing is at a day certain. Upon which it was referred to Lively, the Secondary, to examine when the bail was filed. Saun4/6rs, for the defendant. JAMES H. BULLOCK v. EDWIN A. BOLLES. Supreme Court of Rhode Island, October Term. 1870. Heported 9 Rhode Island, 501. A suit is pending upon the entry of the action. Assumpsit upon a promissory note, Brayton, C. J. This action is brought to recover of the defend- ant the amount of a promissory note made by him, and payable to DILATORY PLEAS. 389 the plaintiff, for the sum of $300, and the declaration also contain^ the common money counts for the sum of $300. The action was commenced at the March Term, 1870, of the Supreme Court for this county, by the service of the writ upon the defendant on the 24th day of January, 1870. And the defendant has pleaded in abatement that, on the 20th day of December preceding, the plaintiff sued out a writ from the Court of Common Pleas, to be holden at l*rovidence, within and for the county of Providence, on the first Monday of June, 1870, in which writ the defendant was impleaded in an action of the case for the same cause as in the writ and declaration in this action, and that the parties were the same (the said Bullock and the said Bolles), and that tlie writ sued out of the Court of Com- mon Pleas was duly served upon defendant, and remains in full force and undetermined. ' To this plea the plaintiff has filed a general demurrer, and, the plea being one in abatement, the demurrer is, in effect, as to this plea, special. And the question is, if there be any defect in the plea which can . be reached by a special demurrer. The defect of this plea, it is objected, is, that it does not appear by the pleading that the prior action in which the defendant is al- leged to have been interpleaded was ever matter of record, arid that it is necessary that it should be of record to be matter of abatement, and be referred to by saying, "as by the record remain- ing thereof in -said court appears," giving the plaintiff' the opportu- nity to reply, " mil tiel record." In support of this the plaintiff has cited the case of Clifford tf. Coney, 1 Mass. 494, which holds that the plea must state matter oil record, and refer to it as by the record thereof, etc. Another case cited is Commonwealth v. Churchill, 5 Mass. 174, affirming the first, and holding that the writ in the suit pleaded in abatement, before it can be pleaded, must be returned and entered, and that until then it cannot be said to be pending in court. We have been furnislied with no authority to the contrary by the defendant's counsel, and he replies only by urging that he has alleged " the suing out the writ from the Court of Common Pleas wherein he is impleaded, its service upon the defendant, and that it is still undetermined." This does not seem to us a sufficient reply; it does not impugn the cases or distinguish between them and the case at bar. A writ not returned, say the books, is not matter of record. If not returned, the writ itself must be produced, and can no other- wise be proved. If it has been returned, then it is a record, it may 390 CASES ON COMMON-LAW PLEADING. be proved as every other record may, by an examined copy. 2 Starkie, 285. Buller (N. P. 234) says, if a writ be matter of inducement only, it may be proved by the production of the writ itself, without a copy of the record ; but when the writ is the gist of the action, you must have a copy of the record ; inasmuch as you must have the utmost evidence the nature of the thing is capable of, and it cannot become the gist of the action till its return. Bacon's Abridgment, treating of pleas of this kind, lays down the rule that when it appears of record that another action is pending for the same matter, it may be pleaded in abatement. All the cases are consistent with the rule as thus laid down in Sparry's Case, 5 Co. 61. The old difference in the books was between writs which compre- hend certainty, a debt determined, and writs which comprehend no certainty, as in writs of trespass for goods, assize, etc. If certain, it is a good plea to say the writ is brought pending another ; but in writs personal or mixed, where no certainty is contained, then it is no plea. But after declaration it is made certain, and then the plea is good ; the generahty is reduced to certainty. No question seems to have been made as to writs never returned. All the cases are of writs returneclTwhettldie plaintiff had not de- clared, as by the English .jttadtlce he was not required to do, till after the return of the writ, and sometimes long after. In the case referred to in Coke as example (22 Hen. VI. 52) it was part of the plea that the plaintiff had declared in a wTit of trespass, and as this had made it certain, the plea was held good ; but in 20 Hen, VI. 445, the plea was held bad in that it did not aver that the plaintiff had declared in trespass. In an assize of Novel disseisin, 14 Edw. III. 270, the plea w^as another writ de- pending, of the same tenements, between the same parties. The writ of assize was held good, the plea bad, because the plaint was not made in the first writ, so that non potest constare of what tene- ment it was. In Queen v. Harris, Cro. Eliz. 261, prior reforme was pleaded ; objection, no writ alleged to have issued ; answer, on the filing of the information it became matter of record without any process, so it is not like other writs. It is immediately depending, though no writ. In Armitage v. Eow, 12 Mod. 91, there was a motion by the de- fendant that the plaintiff might tile his original writ and enter up the issue on the record, for he had been arrested three times for the same cause, and he doubted if he might plead another action pend- DILATORY PLEAS. 391 ing with a joint petit per recordum before it. The issue was en- tered up. Per curiam : He may ; and if he do not enter it you may, without any motion in court, give a rule to enter it. The marginal note is that it may be pleaded, another action pending before the issue is entered up. But the whole matter was in court, and the court were dealing with it, so that they could make an order in it upon the parties. The motion itself shows the under- standing of the counsel and the court, that it was necessary, to the validity of the plea, that the case should be so pending in court that the party could of the allegation say, " as by the record remaining in said court appears." With the rule as stated in Bacon, all the precedents of this plea agree. They all state that the party was impleaded, not in the writ, but in the court, naming the court and the term thereof. They all assume that the action is in that court, pending in it, became a matter of record there ; so that it may be properly said of the mat- ter pleaded, that it appears of record. It is necessary to allege in what court the action is depending ; for if it be not in some of the superior courts, but in a court of in- ferior jurisdiction, it is not pleadable in abatement. And so are all the precedents. ^ yi ^*^l/'*^ ' Demurrer sustained. JOSEPH CLIFFORD v. JASON D. CONY. SuPKEME Judicial Court, Massachusetts, June Term. 1805. R^:poRTED 1 Massachusetts, 495. When is the prior action to be pending ? At the time of the plea filed. This was an action which was brought into this court by appeal from a judgment of the Court of Common Pleas in this county, holden on the 3d Tuesday of May last. The declaration was as follows, viz. : " Jason D. Cony, a deputy sheriff in and for said county, was attached to answer to Joseph Clifford in a plea of debt, for that whereas one Theophilus Hamblin, by the consideration of the justices of the Supreme Judicial Court, holden at Augusta, within and for the said county of Kennebeck, on the first Tuesday of June, in tlie year of our Lord one thousand eight hundred and four, re- covered judgment agamst the plaintiff for the sum of sixteen dollars and twelve cents debt and costs of suit, taxed at fourteen dollars and eighty-three cents, being thirty dollars and ninety-five cents in the whole ; and the said Hamblin, afterwards, on the twenty-fifth day of June, in the same year, sued out a writ of execution in due 392 CASES ON COMMON-LAW PLEADING. form of law against the plaintiff for the recovery of the aforesaid sum ; and afterwards, on the twenty -eighth day of the same month of June, the plaintiff paid the said Hamblin fourteen dollars and seventy cents, part of the sum due on said execution, which sum was then and there indorsed on said execution ; and the said Ham- blin, afterwards on the twenty-fifth day of October, in the same year, delivered the said writ of execution to the said Cony, then and there being a deputy sheriff in and for said county as aforesaid, with the sum of fifteen dollars, and no more due, thereon ; and the said Cony afterwards, on the tenth day of October, in the same year, at , aforesaid, he then and there being a deputy sheriff as afore- said, did then and there wilfully and corruptly demand and receive of the plaintiff the sum of four dollars for and as his fee on and for the collection of said execution or the sum then due thereon as aforesaid ; which sum exceeds the fees established by a law of this commonwealth; whereby the said Cony hath forfeited the sum of thirty dollars to the use of the plaintiff, who brings the action for the recovery of the same. Yet the said Cony, though often re- quested, the same sum has not paid, but detains it ; to the damage of the said Clifford, as he saith, the sum of fifty dollars." The writ in this action was tested the 27th day of April, 1805, was served on the defendant, Cony, the 6th of May following, and returnable to the Court of Common Pleas on the third Tuesday of the same month. The defendant appeared and pleaded in the Court of Common Pleas as follows, viz. : " And the said Cony, by Bridge and Williams, his attornies, comes and defends the force and injury when, etc., and prays judgment of the plaintiff's writ and declaration aforesaid, and that the same may be quashed, because he says, that after committing of the said supposed offence in the same declaration mentioned, and long before the day of the com- mencement of the plaintiff's action thereof against the said Cony, to wit, on the eighth day of April, in the year of our Lord one thou- sand eight hundred and five, at said , the right of action for the same supposed offence was attached in one John Brooks, and that the said Brooks, there afterwards on the same day, sued forth out of .the clerk's office of said Court of Common Pleas, a certam writ against him, the said Cony, directed to the coroners of the county of Kennebeck aforesaid, by which said writ the said coroners were commanded to attach the goods and estate of the said Cony, and to have him, the said Cony, before the said Court of Common Pleas, then next to be holden at Augusta, within and for the said county on the third Tuesday of May, to answer to the said Brooks in a plea of debt, and that the said coroners then and there should have that DILATORY PLEAS. 393 writ ; and that afterwards, and before the return of the said writ, and before the said Clifford's writ was served upon him, the said Cony, and before he, the said Cony, had any notice of that writ's be- ing sued out, or intended to be sued out, to wit, on the 8th day of April aforesaid, he, the said Cony, was served with said writ so sued out by the said Brooks, and in obedience to the said writ, he, the said Cony, according to the course and practice of the said court, at the return of the said writ so sued out by the said Brooks, appeared in the said court here to answer to the said writ so sued out by the said Brooks ; and that thereupon the said Brooks, at this term of this court, to wit, on the third Tuesday of May instant, exhibited his writ aforesaid against the said Cony in due form for the recovery of the supposed debt by him demanded as aforesaid. And the said Cony says, that the said Brooks' action aforesaid, against him, the said Cony, is for the same cause of action, and for the same identi- cal supposed offence as that complained of in the plaintiff's declara- tion aforesaid ; and this the said Cony is ready to verify ; wherefore he, as before, prays judgment of the said writ and declaration of the said Clifford, and that the same may be quashed, and for his costs." To this plea the plaintiff' demurred generally, and the defendant -joined in demurrer. The demurrer concluded thus: "Wherefore, for want of a sufficient answer in this behalf, the said Clifford prays judgment, and his debt aforesaid with his damages by reason of the detention of that debt to be adjudged to him." i The judgment in the Court of Common Pleas, which was rendered by consent of the parties, without argument and merely for the pur- pose of bringing the action immediately to this court by appeal, was that the plea in abatement was good and sufficient in law to abate the plaintiff"s writ and declaration ; and that the same should be quashed, and that the defendant should recover his costs. From which judgment the plaintiff appealed, and entered the same in this court. P. Mellen, for the plaintiff'.2 Wilde, for the defendant, referred to the case of Coombe v. Pitt, 3 Bur. 1423, to show that the plea in abatement was sufficient. It is sufficient to show by the plea that at the time of the purchase of the writ, the plaintiff' had no right ; this is done ; and no subse- quent event shall place him in a better situation than he was when he commenced his action. In Bac. Abr. Pleas and Pleadings, F. 11, 1 Qnoire if this was not a discontinuance. See Com. Di ney,") comes and defends the wrong and injury, when, &c., A. B. j and prays judgment of the said bill (or " writ") of the said A. ; because he says that the said A., before and at the time of the com- mencement of this suit, was and still is married to one E. F., tlien and yet her husband, who is stiH living, to wit, at, &c., aforesaid ; and this lie the said C. D. is ready to verify; wherefore, because he the said E. F. is not named in the said bill (or " writ") of the said A., the said C. D. prays judgment of the bill (or "writ") aforesaid, and the same may be quashed, &c. (Add the affidavit of the truth in substance.) 2 Chit. Pi. 414. CHAPTER IX. PLEAS IN BAPw. I. The General Issue. II. Pleas in Confession and Avoidance. III. Replication de Injuria and Special Traverse. " Barre is a word common as well to the English as to the French, of which commeth the nowne, a bar, harra. It signifieth legally a destruction forever, or taking away for a time of the action of him that right hath. And harra is an Italian word, and signifieth barre, as we use it ; and it is called a plea in barre, when such a barre is pleaded." Co. Litt. 372 a. I. THEORY OF THE GENERAL ISSUE. The contrast between the cumbersome declarations of the common law and the sharp, clear declarations of modern practice has already appeared. Similar, almost identical, in material averments, the chief difference between them is in the manner of statement, rather than in the matter stated. Little wonder, then, that even ancient lawyers grow impatient at the length of their pleadings. Thus : MILWARD V. WELDEN. The Transactioxs of the High Court of Chancery. 1566. Reported Tothill's Chancery Keports, 101. Milward contra Welden, the plaintiff for putting in a long repli- cation was fined ten pounds, and imprisoned, and a hole to be made through the replication, and hanged about his neck, and he to go from bar to bar, in 8 Eliz. li. B. fo. 678. [B has slandered A. A, suing at the common law, brings his cumbersome action on the case for words. His declaration is necessarily long, abounding in innuendoes and colloquia. To defend PLEAS IN BAR. 409 word by word, to say, " Nay " to the very words of that declaration, will be a long, hard task, and parchment, eyesight, and time are valuable to the pleader. The pleader will not defend word by word. He will use the short, simple formula which is designated as the general issue, and denominated, " Not guilty." Under the plea of " Not guilty " he may introduce defences appropriate to the meaning of the words. He may show that he did not speak them. But if he wishes to say, " I confess that I spoke the words, but I spoke them forty years ago, and the statute of limitations bars any action against me for their speaking," he is not saying in substance, " Not guilty ; " he is saying, " Guilty, but I have a defence;" and so for him the general issue will be a useless plea, and it will go hard with him if he pleads it. We shall see that each action (covenant possibly excepted) has its general issue ; that if we ask these general issues what evidence may be introduced under them, and then look at their form for answer, sometimes the answer will be true ; and sometimes, because the scope of the plea has been distorted, the answer will be false. What the several general issues are, and what evidence maybe intro- duced under them, is to be gathered from the following pages. — Ed.] " Et sHls sont a issue" Issue, exitus, a single, certaine, and ma- terial! point issuing out of the allegations or pleas of the plaintife and defendant, consisting regularly upon an afhrmitive and nega- tive to be tried by twelve men. And it is twofold, a special issue, as here in the case of Littleton ; or generall, as in trespasse, not guilty, in assise, mil tort nvl disseisin, &c. And as an issue natural! commeth of two several persons, so an issue legal issueth out of two several allegations of advers parties. "And to make our bookes more easie to be understood concerning this pomt, it IS good to set down some necessary rules (among many other) concerning joyning of issues. An issue being taken gen- erally referreth to the count, and not to the writ. As in an account the writ chargeth him generally to be his receiver, the count chargeth him specially to be his receiver by the hands of T. : the defendant pleadeth, that he was never his receiver in manner and forme, &c., this shall referre to the count, so as he cannot be charged but by the receipt by the hands of T. " A special issue must be taken in one certain material! point, which may be best understood, and best tryed. . . . " An issue joyned upon an absque hoc, &c., ought to have an affirm- itive after it. Two affirmitives shall not make an issue, unlesse it be !eft the issue should not be tried. ... 410 CASES ON COMMON-LAW PLEADING. " Where the issue is joyned on the part of the defendant, the en- try is, et de hoc ponit se super patriam ; but if it be of the part of the plaintife, the entry is, et hoc petit quod inquiratur per patriam." Co. Litt. 126 a. " One original exception to the above general rule, as to the for- mation of issues, occurs in the instance of a writ of riuht. The ijen- eral issue to the count upon that writ is, and ever has been, formed by two affirmatives : The averment on one side being, that the de- mandant has greater right than the tenant; and on the other, that the tenant has greater right than the demandant — or, more pre- cisely, the demandant 'demands' the tenements as his right and inheritance ; and the tenant, by way of denial, prays recognition to be made, whether he himself, or the demandant, has greater right, etc. But by reason of the irregular and imperfect form of this plea, it is technically called, ' the mise,' as distinguished from gen- eral ' issues,' strictly so called." Gould, Pleading, 304. " The other anomalous issue, . . . before referred to, occurs in the general plea of denial, to a count in dower ; which, to the extent of the interest demanded, is strictly analogous to a count upon a writ of right. The count in dower merely ' demands the third part of acres of land, etc., as the dower ' of thg, demandant, etc. ; and the general issue is, that J. S. was not seised of such estate, etc. : a mode of negation that is merely argumentative." Gould, Pleading, 305. " These two anomalies appear to form the only original exceptions to the general rule, that every issue must consist of a direct affirma- tive and a direct negative. And the only reason for these excep- tions would seem to be, that they are conformable to the ancient precedents." Gould, Pleading, 305. " Thus, if a defendant pleads that his co-tenant is dead ; a replica- tion that he is * alive,' does not form a proper issue. . . . The rep- lication should be, that the co-defendant ' is not dead ; ' or that he is alive, without this, that he is dead." Gould, Pleading, 303. " Pleadings which amount to the general issue are not to be al- lowed ; but the general issue is to be entered." Co. Litt. 303 b. " The general issue is the extreme limit reached by modern courts in abbreviating and simplifying the ancient practice in pleading. " The general issues now in use are the following : " In personal actions ex delicto in general, whether sounding in trespass or case, and whether founded on misfeasance or nonfeas- ance, and including ejectment, the general issue is, ' not guilty.' PLEAS IN BAR. • 411 " In replevin the general issue is non cepit, which puts in issue the taking, and does not authorize a judgment of retorno hahenclo ,- or 7ion detinet, as the wrongful detention is by statute in some States the wrongful act. " In disseisin, nul tort nul disseisin. "In detinue, non detinet. " In debt on a specialty, non est factum, which puts in issue only the execution of the deed. " In debt on judgment or recognizance, md tiel record. " In debt on a penal statute the more appropriate general issue is nil debet, because it corresponds to the form of the action. But as the object of the action is to enforce a penalty for an alleged offence, it seems that not guilty may be substituted for nil debet. " In covenant broken, the general issue is the same as in debt on a specialty, — non est factum ; or at least this is the only general plea which goes in bar of tlie action. "... In assumpsit the general issue is ' non assumpsit,' or when the action is against an executor or administrator that the said E. E., deceased, ' (the testator or intestate) " did not undertake or promise," etc. " Not guilty " formerly was also held to be a proper general issue in assumpsit, because the action, being entitled tres- pass on the case,' was deemed to partake of the nature of an action ex delicto. But as the action is in substance founded exclusively on contract, the last-mentioned plea is not now considered as a proper answer to it, but is still held to be aided by verdict as being only an informal issue. " In actions of assumpsit, whatever shows that a complete satis- faction has been received by the plaintiff may be given in evidence under the general issue. " In debt for rent on a demise, rien en arrere (nothing in arrear) as well as nil debet, is a good general issue ; for the former plea, as well as the latter, directly denies that any rent is due, and is there- fore a direct denial of the alleged debt. "... But in covenant broken for rent, in which the covenant itself is set out and the action founded upon it, rien en arrere is not a good plea, because it impliedly confesses both the covenant stated and the breach, and alleges nothing in avoidance of either ; whereas in the preceding case of debt for rent, though reserved by deed, it is neither necessary nor usual to allege the deed, and if alleged it is but inducement, and therefore need not be directly answered in pleading. And the gist of the action of debt being the mere fact of rent in arrear, the plea of nil debet or rien en arrere, as it is a direct denial of that fact, is a proper general issue. 412 CASES ON COMMON-LAW PLP:ADING. " On a similar jjrincijjle to that wliicli governs in covenant broken, nil debet is not a good plea to debt on bond, and the plea is ill on general demurrer ; it being the nature of the plea, and not the man- ner of pleading it, that is defective." Gould, Pleading, 300 [Hamil- ton's ed. 1899J. Section I. DEBT. " rnrler the plea of nil debet, the defendant may prove at the trial, coverture when the promise was made, lunacy, duress, in- fancy, release, arbitrament, accord with satisfaction, payment, a want of consideration for the promise, failure or fraud in the con- sideration, and in short, anything which shows that there is no existing debt due. The statute of limitations, bankruptcy, and tender are believed to be the only defences which may not be proved under this plea, and they are excepted because they do not confess that the debt is owing, but insist only that no action can be maintained for it." ^ 4 Minor's Institutes, 641. WARNER V. WAINS FORD. Is- THE King's Bench. Between 1G0.3 and 1625. Repoeted Hob art, 127. The purpose of the general issue. " Sir Henry Warner brought an action of debt against Wainsford, administrator of Kirby, who pleaded that the intestate was indebted unto him by divers obligations (and recites them), to the sum of £80, and that goods to that value, and not above, came to his hands, which he detains for his debt, and tbat he had nothing tdtra. The xdaintiff demurred in law, because it amounted unto the general issue oi pleinement administer. But the better opinion of the court was, that this is no cause of demurrer, for the plea is sufficient ; and besides it is some matter in law, which hath been allowed always to be pleaded especially, and not left to a jurj^ ; and the reason for pressing a general issue is not for insufficiency of the plea, but not to make long records when there is no cause, which 1 Qy. Shoald not set-off have been included 1 True, this partakes of the nature of sv declaration rather than of a plea, but it is certainly a defence. — Ed. TLEAS IX BAR. 413 is matter of discretion, and therefore it is to be moved to the court, and not to be demurred ujjou." MILLS ASSIGN' VIC v. BOND. In the King's Bench. 1720. Kepokted Fortescue, 30.3. The general issue to a writ of debt on a bond is not nil debet. A condition of a bond was (in an action upon a bail-bond) to appear Die Sahhati 'prox' post Octah' pur\ and the term ended on Friday, which was the day before ; and this appeared in the decla- ration brought by the assignee of the bail bond ; and the defendant pleaded nil debet to the bond, and the plaintifl demurs. Per cur' : Nil debet is no plea to a bond, but writ to appear out of term is a void writ, and so is the condition of the bond ; and so plaintiti' has no cause of action on his own showing. ANONYMOUS. In the Common Pleas. 1753. Reported 2 Wilson, 10. Debt upon a bond, nil debet, and a general demurrer ; and it was insisted by Sergeant Draper for the defendant, that nil debet to a bond was good upon a general demurrer, and was only a jeoffail and matter of form, that after a verdict it will make a final end between the parties, let the verdict be which way it will. Scd per curiam. It is naught upon a general demurrer, though perhaps it might have been helped after a verdict. Judgment for the plaintiff. ANONYMOUS. Coram Holt, C. J. At Nisi Puius at Heutfoud. IGOO. Reported 1 Saliceld, 278. Tlieory of the plea of nil debet. " It was adjudged, per Holt, C. J. That in debt for rent, upon nil debet pleaded, the statute of limitations may be given in evidence, for the statute has made it no debt at the time of the plea pleaded, the words of which are in the present tense ; but in case of non 414 CASES ON COMMON-LAW PLEADING. assumpsit, the statute of limitations cannot be given in evidence, for it speaks of a time past, and relates to the time of making the promise." CHAPPLE V. DURSTON. Exchequer of Pleas. 1830. Reported 1 Crompton and Jervis, 1. To plead the statute of limitations is not to deny an existing debt. This was an action of debt upon a -money bond, a promissory note, and the usual money counts. The defendant pleaded, amongst other things, to the count upon the bond, a set-oft', and a similar plea to the other counts ; to which the plaintiff replied that he was not indebted to the defendant modo et forma as in those pleas was alleged. At the trial, before Tindal, C. J., at the Summer Assizes for the county of Somerset, 1829, it appeared that there was due to the plaintiff upon the bond, for principal and interest, the sum of £77 10s., and that the plaintiff owed the defendant £20 for rent due at Lady-day, 1822. The latter sum the defendant claimed to set off against the demand of the plaintiff ; but the plaintiff con- tended that this debt was barred by the statute of limitations, and that he was entitled to take advantage of the statute, although he had not specially replied it. The Lord Chief Justice directed the jury to find a verdict for the plaintiff' for £57 10s., and gave the plaintiff leave to move to increase that verdict, should this court be of opinion that he could take advantage of the statute under his general replication. In pursuance of this leave, Erie, in Michaelmas Term last, ob- tained a rule, calling upon the defendant to show cause why the verdict should not be increased by the sum of £20 ; against which Erskine showed cause. The statute of limitations does not de- stroy the debt, but merely bars the remedy; Quantock v. England, 5 Bur. 2628, S. C. Bl. 702 ; for if it did operate as an extinguish- ment of the debt, in no form of action need the statute be spe- cially pleaded, and no promise without a fresh consideration would be sufficient to revive a debt of longer standing than six years. It is therefore a matter of law which does not go to the gist of the action, but to the discharge of it, and as such must be pleaded. B. N. P. 152. Indeed, it is admitted, that, in assumpsit, the stat- ute of limitations must be pleaded; Lee v. Ptogers, 1 Lev. 110; PLEAS IN BAR. 415 see 1 Wms. Saund. 283, n. (2); Duppa v. Mayo; but a distinc- tion, unfounded in principle, has been drawn between assumpsit and debt. Thus, in Draper v. Glassop, 1 Lord Raym. 153, it was said, per Holt, C. J : " If the defendant plead non assumpsit, he cannot give in evidence the statute of limitations, because the a.s- sumpsit goes to the prseter tense ; but upon nil debet pleaded the statute is good evidence, because the issue is joined per verba de pra^senti, and without doubt 7ul debet by virtue of the statute ; and it is no debt at this time, though it was a debt." The same rule was adjudged in an anonymous case reported in 1 Salkeld, 278, but these cases obviously proceed upon the notion, now exploded, that the statute of limitations destroys the debt ; for, if the distinction between the preeter and present tense w^ere well founded, nothing could be given in evidence, under the plea of no7i assumpsit, which occurred subsequently to the promise ; whereas, not only facts to show that no such promise as that stated in the declaration was made, or that the promise was void at the time, by reason of duress, infancy, or coverture, but also facts to show that no cause of action subsisted at the commencement of the suit, as accord and satisfaction, a release, and the like occurring after the promise, may be given in evidence under that plea. Expediency re([uires that the statute of limitations should be pleaded in debt equally as in assumpsit. The exceptions in the statute are alike applicable to both actions, and the plaintiff is equally liable to be surprised. In either case the statute does not extinguish the debt, but only takes away the remedy ; and as in either case the defendant may insist upon the statute or waive it, if he intend to insist upon the statute he should plead it, to prevent surprise. 1 Wms. Saund. 283, n. (2). Against the general application of this rule, the case of Duppa v. Mayo, 1 Saund. 282, does not militate. That case decided, that a plea of nil debet infra sex annos should conclude to the country ; but that plea amounted to the general issue merely, the words infra sex annos being surplusage ; because if the defendant owed nothing at the commencement of the suit, it was immaterial whether he had owed anything at any other period within six years, and, if he was tlien indebted, it mattered not how long tlie debt had been due. By equitable construction, the statute of limi- tations has been applied to a set-off, and a debt barred by the stat- ute cannot be set off ; but as the defendant waives the statute by not pleading it, so does the plaintiff if the statute be not replied. The rule of expediency is equally applicable to a replication as to a plea, and the mere change of character between the parties can afford no solid distinction. A defendant is not bound to avail him- 416 CASES ON COMMON-LAW PLEADING. self of liis set-off, but may bring a cross action, in which case the statute must be pleaded : why, then, if, to avoid circuity of action, the set-off be pleaded, should the defendant be placed in a worse situation than if he had sued for the amount ? In a book of author- ity, B. N. P. 180, it is said: "A debt barred by the statute of limita- tions cannot be set off. If it be pleaded in bar to the action, the plaintiff may reply the statute of limitations. If it be given in evidence on a notice of set-off, it may be objected to at the trial." So, in Remington v. Stevens, 2 Str. 1271, it was held, that the statute of limitations may be replied to a plea of set-off. In legal construction the word "may" is here to.be understood as "must ;" for, if the statute be available at all against a set-off, it can only be subject to the same rules as if the set-off constituted the subject of a distinct action. This view is confirmed by the statute 9 Geo. IV. c. 14, s. 4, which places original demands and contracts alleged by way of set-off upon the same footing with respect to the statute of limitations. Erie, contra. The defendant is liable to be surprised by many defences that may be given in evidence under the general issue ; and, even in criminal pleading, no notice is given to the defendant, by allegations which are held to be immaterial. Expediency is not, therefore, a safe ground of decision in this case. Eeferring to the words of the statute, and the earlier authorities, it would seem that in no case need the statute be pleaded, the ■ debt being destroyed when more than six years old. Brown v. Hancock, Cro. Car. 115. However, in the action of assumpsit it has been decided that the statute must be pleaded ; but in debt there is no decision to that effect. On the contrary, although the modern practice may have been otherwise, the case of Draper v. Glassop, 1 Lord Eaym. 153, and the anonymous case in 1 Salkeld, 278, expressly show that the statute of limitations may be given in evidence under the plea of nil debet. Upon this subject the opinion of Lord Holt is entitled to great consideration, sanctioned as it is by the authority of Lord Chief Baron Comyns, Com. Dig. " Plead." (2 W. 17), and the case of Duppa V. Mayo, 1 Saund. 282. But there is no case to show that the statute must be replied to a plea of set-off; for the authorities referred to merely show that it may be replied ; which will be true, although it may also be given in evidence under a general replica- tion of nil debet. Were it otherwise, the plaintiff would be in a worse situation than if he were defendant to an action for the recovery of the subject of the set-off; for a defendant may plead several pleas, whereas one matter only can be replied. Cur. adv. vult. PLEAS IN" BAR. 417 Vaughan, B., now delivered the judgment of the court as fol- lows : — This was an action of debt tried before the Lord Chief Justice of the Court of Common Pleas at the last Summer Assizes for the county of Somerset. The first count of the declaration was upon a bond, dated 4th March, 1800, and conditioned for the payment of £150, with inter- est ; the second count was upon a promissory note, and there were also added the common money counts. The defendant pleaded to the first count on the bond, non est factum, solvit post diem, solvit post diem by the executors of the co- obligor, and a set-off; and, to the other counts, nil debet, the statute of limitations, and a set-off. Issues were joined on these several pleas ; and to the pleas of set-off, the common replication was filed, that the plaintiff was not indebted modo et forma as in those pleas was alleged, concluding to the country. Upon the trial of the cause, it was admitted by the defendant, that £50 remained due upon the bond, together with interest thereon, from the year 1800, amounting to £77 10s. The defend- ant proved that the plaintiff was indebted to him in the sum of £20, for rent, which became due at Lady-day, 1822, for certain premises occupied by the plaintiff under the defendant, and which he insisted ought to be deducted from the £77 10s. admitted to be due from him to the plaintiff upon the bond. The plaintiff, on the other hand, contended that, more than six years having elapsed since that debt accrued, the defendant's remedy for the recovery of it was barred by the statute of limitations, and that he was entitled to the benefit of that statute, under the common form of replication to the plea of set-off, without replying the statute of limitations specially. The Lord Chief Justice of the Common Pleas seems to have been of opinion, that, as the plaintiff had not replied the statute of limita- tions to the plea of set-off, the defendant was entitled to set off this sum of £20, although it was a debt which had accrued more than six years before the plea pleaded, and therefore directed the jury to find their verdict for the plaintiff for £57 10s. only, reserving to tlie plaintiff the liberty to move to increase the verdict to the sum of £77 108., if this court should be of opinion that he was entitled to the larger sum. The question, therefore, reserved for the opinion of the court upon this state of facts is, whether, to a plea of set-olf, pleaded in an action of debt, the plaintiff is bound to reply the statute of limitations, or whether he may avail himself of the benefit of that statute, upon the 27 418 CASES ON COMMON-LAW PLEADING. common replication that he was not indebted modo et forma, con- cluding to the country. The case was ably argued by Mr. Erie for the plaintiff, and Mr. Evskine for the defendant, and many authorities were cited, which we have thought it our duty to examine ; and which, after due con- sideration, have induced us to conclude, that the view taken of the question by the Lord Chief Justice of the Common Pleas, upon the trial of the cause, was the correct oue: viz. that the plaintiff, having omitted to reply the statute of limitations to the plea of set-off, was precluded from availing himself of that statute as a bar to the de- fendant's cross-demand. There are few acts of parliament which have generated more controversy, and been productive of more litigation, than the statvite 21 Jac. 1, c. 16, which was passed (as the preamble of it declares) for the purpose of quieting men's estates, and for the avoiding of suits. The multiplicity of cases and the many contradictory decisions to be found in our Common Law Reports upon the construction of this statute afford the strongest evidence of the inconvenience and mischief occasioned by a departure from the plain and literal sense of the act, and from too much refinement in construing its provis- ions. The third section enacts, that the different personal actions therein enumerated, shall be brought within the respective periods of time limited by that section, and not after. And in Brown v. Hancock, one of the earliest cases which occurred after the passing of the act, in the fourth year of the reign of Charles the 1st, and which is reported in Cro. Car. 115, the Court of Common Pleas held, that, if it appeared by the plaintiffs own showing that the action was not brought within the limited time, or if the contract, whether in assumpsit or debt, were alleged to be within the time, and, upon nil debet or non assumpsit pleaded, it appeared in evidence that the assumpsit or contract was beyond the time, the action lies not, and the defendant shall take advantage thereof, if it be specially found by the jury ; for the statute is in the negative, that he shall not maintain such action after the period limited by the statute had expired. But this decision was not long acted upon, for, in the fol- lowing vear, the Judges of the Court of King's Bench determined, upon error from the Common Pleas, in Thursley v. Warren, Cro. Car. 160, that the statute of limitations must be pleaded, although the declaration alleged both the promise and the breach of it to have been made more than six years before the commencement of the suit. The same point was determined in Still v. Finch, Cro. Car. 281 ; Hopkins v. Bitthead, Cro. Car, 404; Lee v. Ptogers, 1 Lev. PLEAS IN BAR. 419 110, and in Gould v. Johnson, Lord Rayra. 83S, which latter case came also by writ of error from the Court of Common Pleas. One of the errors assigned in that case was, that it appeared upon the declaration that the cause of action accrued more than six years before, and therefore it was not necessary to plead the statute. But the court determined that the statute must be pleaded, that the plaintiff might have the opportunity of replying to such matter, for it may be that the original was sued within six years after the cause of action accrued. A distinction seems to have been taken as to the form of plead- ing in assumpsit and debt, the authorities agreeing that, in assump- sit, the defendant must plead the statute, and conclude his plea with a verification, to give the plaintiff an opportunity of answering it, whereas in debt the defendant may give the statute in evidence under nil debet generally. The reason assigned by Lord Holt for this distinction is, that in debt upon nil debet pleaded the statute of limitations may be given in evidence, because it has made it no debt at the time of the plea pleaded, the words of which are in the present tense : but, in assumpsit, the statute of limitations cannot be given in evidence, for it speaks of a time past, and relates to the time of making the promise. Draper v. Glassop. 1 Lord Raym. 153, Anon. cor. Holt, C. J., at Hertford, 1690. 1 Salk. 278. This rule, originating, as it should seem, in this decision of Lord Holt, has been incorporated into the admirable Digest of Lord Chief Baron Comyns, "Pleader" (2 W. 17), where, in enumerating the cases in which the defendant may plead the general issue nil debet, to debt upon contract, not upon bond, he says, " so, though the debt is barred by the statute of limitations, for he could not plead nil debet infra sex annos, but nil debet generally," and cites the case of Draper v. Glassop. It appears to us that this distinc- tion savors more of ingenious refinement than of plain and practi- cal good sense, and we conceive that the same rule would now be extended as well to actions of debt as of assumpsit, the same rea- sons for pleading the statute applying equally to both. If the statute is not pleaded, the plaintiff is liable to be surprised, and therefore equally unprepared to answer in the one action as in the other. In neither case does the statute extinguish the debt, but bars only the remedy, and it is optional whether the defendant will insist upon the statute or waive it. If he intends to insist upon it, he should plead it, to prevent surprise, and if he does not, it should be presumed he intends to waive it. This is the view taken by the late Mr. Serjt. Williams, than whom a sounder lawyer, or more accurate special pleader, has rarely done honor to his profession; 420 CASES ON COMMON-LAW PLEADING. and he states it to be very usual, and the modern practice, to plead to debt on simple contract, that the cause of action did not accrue within six years, that the plaintiff may reply, either that he was within any of the exceptions in the statute or that he has sued out a writ within time, as is the common case in assumpsit. Assuming, therefore, that there is no solid foundation for any distinction in the mode of pleading the statute of limitations, whether in debt or in assumpsit, the simple point to be considered is, whether, where a set-off is pleaded, the plaintiff, in order to avail himself of the statute, must reply it specially. It may be said, that this would impose a great hardship on the plaintiff, for as he cannot reply more than one matter, he would be placed in a worse situation than the defendant, who can plead the statute, and also under the statute of Ann., insist upon any other defence. Indeed, it has been suggested by Mr. Starkie, in his valuable practical treatise on the law of evidence, that it would be unreasonable that, in one and the same action, the defendant should be indulged in making several distinct answers to the plaintiff's claim, and yet that the plaintiff, in his answer to a counter claim, on the part of the defendant, should be confined to one only. 3 Starkie, 1318. We have not been able to find any authority directly upon this point. In Buller's Nisi Prius, 180, it is said, that if a debt, barred by the statute of limitations, be pleaded, the plaintiff may reply the statute. If it be given in evidence on notice, it may be ob- jected to at the trial. This dictum of Mr. Justice Buller seems to have been founded upon the authority of a very short and loose note of the case of Eemington v. Stevens, 2 Stra. 1271, where it is reported to have been ruled, that the statute of limitations may be replied to a plea of set-off; but, in legal construction, we interpret the expression " may " imperatively, to mean " must." A plea of set-off has ever been considered as in the nature of a cross-declaration ; and, as it is clear, that if the defendant had sought to enforce his demand by assuming the character of plaintiff, the adverse party could have protected himself solely by pleading the statute ; so, we conceive, that the mere difference of the posi- tion of the names and characters of the parties upon the record, will not dispense with the necessity of introducing, by way of replication, the same substantive matter of defence to the counter demand. Nor can the hardship of this course of proceeding be with justice complained of, when it is remembered, that the plaintiff is at liberty to reply nil debet as to part of the defendant's cross- demand, and the statute of limitations to the residue. Upon the whole, it seems to us more consonant to the acknowledged rules of PLEAS IN BAR. 421 pleading to determine that the statute of limitations ought, in this instance, to have been rephed, and that, the plaintiff having omitted to do so, the verdict must stand, and the rule be dis- charged.i Eule discharged.^ ACTIONS OX SPECIALTIES. " In covenant there is, properly speaking, no general issue ; for though the defendant may plead non est factum, as in debt on specialty, yet that only puts the deed in issue, and not the breach of covenant : and non infrcjit convcntionem is a bad plea. In this action, therefore, the defendant must specially controvert the deed, or show that he has performed the covenant, or is legally excused from the performance of it; or admitting the breach, that he is dis- charged by matter ex 2^0 st facto, as a release, etc." Tidd's Practice, 593. EDWARDS V. BROWN, HARRIES, AND STEPHENS. ExcHKQUEii OF Plp:as. 1831. Reported 1 Ckompton and Jervis, 307. A denial of one's ignorance of the legal effect of a bond is not a denial of the naaking of the bond. Debt upon a bond dated 12th October, 1826. The defendant, Brown, suffered judgment by default. The bond, as set out on oj/er, appeared to be a bond given upon a mortgage for £1800 to the plaintiff. It recited that Brown was seised in tail of the mortgaged premises ; that, by lease and release, of even date, the premises had been conveyed to make a tenant to the prcer.ipe, that a recovery might be suffered ; and the condition was, that if the recovery should be suffered in manner and form mentioned in the release, and so and in such manner as that under and by virtue of the recovery and of the release, the premises should be vested in the plaintiff in fee, according to the true intent and meaning of the release, the bond should be void. The defendant. Harries, then pleaded, first, non est factum ; secondly, that the recovery was 1 Garrovv, B., who was absent on account of indisposition, concurred in the judg- ment of the court. The Lord Chief Baron was sitting in equity. 2 6 Bac. Abr., Lim. Ac 405; 3 Dane's Abr., Ev., 464; Viner, Abr., Lim. 121; Com. Dig. PI. 2 W. 16; Gilh. H. C. P. 66; Lee v. Clark, 2 East. 333 [1S02]; Draper V. Glassop, 1 Ld. Ray. 1.53; Anon. 1 Salk. 278 [both 1690]; Brown v. Hancock, Iletley, HI, s. c. Cro. Car. 11.5 [1628] ; Petrie v. White, 3 T. R. 5 at 1.1 [1789] rontvn : Woodhouse v. Williams, York Sum. Ass. 1829 ; Pearsall v. Dwight, 2 Mass. 87 [1805] ; 1 Wms. Saunders, 283 a, note, ace. — Ed. 422 CASES ON COMMON-LAW PLEADING. suffered modo et forma, etc. ; and that, under and by virtue of the recovery, and of the lease and release, the premises became vested in the plaintiff iu fee, according to the true intent and meaning of the release ; thirdly, that a recovery was suffered, and that if Brown had been seised in tail, the premises would have vested in the plaintiff in fee;^ and fourthly, that the recovery mentioned in the release was suffered. Stephens also pleaded no7i est factum, and a plea similar to the second plea of Harries. The plaintiff replied to the second pleas of Harries and Stephens, that the re- covery was not suffered so and in such manner as that, under and by virtue thereof, and of the lease and- relea.se, the premises be- came vested in the plaintiff in fee, according to the true intent and meaning of the release ; and to the fourth plea, pleaded by Harries, that the recovery was not suffered so and in such manner as that, under and by virtue thereof, and of the lease and release, the prem- ises became vested in the plaintiff in fee according to the true intent and meaning of the release. Issues were joined on the pleas of non est factum ; on the replications to the second and fourth pleas of Harries, on the replication to the second plea of Stephens, and on the replication to the third plea of Harries, upon which no question arose.^ At the trial, before Park, J., at the last Summer Assizes for the county of Hereford, it appeared, that Brown was seised of the premises in question for life only ,^ and not iu tail: so that, although the recovery was duly sufiered, it could not vest in the plaintifi' a fee. Eussell, Serjt., tendered evidence to prove that Stephens had been induced by fraud to execute the bond, but the learned judge was of opinion, that such evidence was not admissible under the plea of non est factum. The jury found a verdict for the plaintiff. In Michaelmas Term last, Eussell, Serjt., for Stephens, obtained a rule to show cause why a new trial should not be had, upon the ground of the rejection of the evidence of fraud; and E.V.Williams obtained a rule nisi to enter a verdict for the defendant Harries, upon the second and fourth pleas, upon the ground that the recov- ery was suffered according to the true intent and meaning of the condition and release. 1 See this plea, 3 Y. & J. 424. 2 The validity of the third plea was before discussed and determined. See 3 Y. & J. 424. 3 Williams obtained a rule nhi for a new trial, upon the ground that the evidence did not show that Rrown was only seised for life of the premises; but as this question turned upon the effect of the evidence merely, the arguments and the judgment upon this point are omitted. PLEAS IN BAR. 423 John Evans and Godson showed cause. Fraud is not admissi- ble under the general issue. It is laid down in Chitty on Plead- iniT, Vol. I. pp. 424, 425, and in Tidd's Practice, Vol. I. p. 650, that fraud is admissible under the plea of non ed factum, upon the authority of the case of Lambert v. Atkins, 2 Camp. 272 ; but that, which was a case of coverture, does not bear out that position. It may be admitted that fraud avoids all contracts ; but it does not, therefore, follow, that fraud may be given in evidence under this plea. In Harmer v. Wright, 2 Stark. 35, it was decided, that the defendant could not, on the plea of non est factum, prove that the bond was void at common law, as being an illegal contract to forego prosecutions for felonies. The correct rule appears to be, that nothing that affects the consideration or inducement to execute the bond can be given in evidence under the plea of non est fartum} Whelpdale's Case, 5 Ptep. 119 a, is no autliority for the defendant ; and the second and third resolutions show that where a deed is voidable, as by duress, or is void by reason of an act of Parliament, the matter must be pleaded specially. In the note to this case by Eraser, the rule is stated to be, that whatever tends to show an in- vahd or defective execution of a deed at the time of plea pleaded, may be given in evidence under the plea of non est factum ; but whatever impeaches the deed by reason of the matter or consid- eration thereof, whether such matter or consideration renders the deed void by the policy of the common law, or by the express pro- visions of the statute law, must be specially pleaded, and such plea ought to conclude with " and so the said deed is void," and not with " et Hie non ed fadam" Here the evidence was not tendered to affect the execution of the bond, but to impeach the consideration or inducement to execute it; and therefore this defence should have been pleaded specially, and could not be admitted under the plea of non est factum. The point, as to the effect of the recovery, was decided by the court upon the former argument, and the authorities are collected in the report of that argument. 3 Y. & J. 423. Ptussell, Serjt., for the defendant Stephens. This defence of Stephens was receivable under the plea of non est factum. He was induced to execute by the misrepresentation of the plaintiff. The contract was concocted in fraud, and, being fraudulent, it never could have been his deed. The rule is, that where originally, or at the time of plea pleaded, it is not the deed of the party, it may be given in evidence under non est factum ; and in no case, except in 1 See the cases collected by Roscoe, on Evidence, 244. 424 CASES ON COMMON-LAW PLEADING. that of forgery, can it be less the deed of the party than when it is obtained by fraud, for fraud vitiates all transactions. Fermer's Case, 3 Eep. 77 a. In the modern publications on pleading, though a form is given of a plea of fraud, concluding " and therefore the bond is void," yet it is said, that fraud may be given in evidence under the general issue. [liayley, B. Can you distinguish this from a case of duress ?] In the second resolution in Whelpdale's Case, duress is classed amongst those cases in which the deed is voidable merely. The note by Mr. Eraser to that case is in favour of the defendant ; he states, that what tends to show an invalid or defective execution, mav be given in evidence under non est factum. The present case falls within that rule. He then adds, that what impeaches the deed by the matter or consideration thereof must be specially pleaded. Here it is not attempted to impeach the matter or consideration of the bond, but the evidence was offered to show that the party was induced to execute by fraud. If unlettered and misread is evidence under non est factum, as to which there can be no doubt (see Com. Dig. Fait (B. 2), Eeading), mis- representation of the effect of the instrument must likewise be admissible under that plea. In Thompson v. Eock, 4 M. & S. 338, it was held, that, upon a plea of non est factum to a sheriffs bond, the defendant might show, at the trial, that the bond was dated and executed on a day subsequent to the return of the writ.^ E. V. Williams, for Harries. Looking at the bond and the release, the intention of the parties was merely that a recovery should be suffered. The bond was executed upon an assumption that the circumstances recited were true ; and if the recitals had been true, the recovery would have vested a fee in the plaintiff. The ob- ject of the recitals is to prevent a discussion as to the existing state of things, and to show upon what terms the obligation was entered into. In the argument upon the former occasion, an authority was cited, to show that recitals cannot operate as an estoppel, Br. Faits, p. 4 ; 18 Ves. 181, and so it is laid down in Co. Litt. 352 ; but all the subsequent authorities are clearly the other way. The cases upon this subject were brought under consideration in Kelly v. Wright, Willes, 12, and there the older authorities were overruled. The doctrine now is, that the intention of the parties is to be collected from the recitals as well as from the other parts of the deed. This 1 The authority of this case is questioned by Mr. Fraser in his learned note to Whelpdale's Case," 5 Rep. 244. PLEAS IN BAK. 425 was established in Lord Arlington v. Merricke, 2 Saund. 414, and has been uniformly acted upon in a long series of decisions.^ Cu7'. adv. vult. Bayley, B., now delivered the judgment of the court, and, after statinff the pleadings as above, proceeded thus : At the time of the trial, the defendant, Stephens, offered to prove that he was drawn in by fraud to execute the bond ; but the learned judge being of opinion that fraud could not be given in evidence upon non est factum, that evidence was rejected ; and it is upon the ground that such rejection was improper that my brother Kussell obtained his rule nisi for a new trial. I agree with my brother Eussell, that, whatever shows that the bond never was the deed of the defendant may be given in evi- dence upon non est factum. But if the party actually executes it, and was competent at the time to execute it, and was not deceived as to the actual contents of the bond, though he might be misled as to the legal effect, and though he might have been entitled to avoid the bond by stating that he was so misled, it nevertheless became, by the execution, the deed of the defendant, and he is not at liberty, upon the plea of 7ion est factum, to say it was not. The rule, as laid down in Gilbert's Evidence, 162, is this: "The only point in issue, and the controversy, on non est factum, is, whether the deed declared on be the act of the party, so that when the act is proved to be done, the whole matter denied by the de- fendant is proved to the jury ; but if there be any other circum- stances to destroy that act, and avoid its binding force, that must be shown to the court, that the court may judge, and not the jury, whether they are sufficient to avoid that deed." And we accordingly meet with many instances in which what would avoid the deed and destroy its binding force, both at common law and by statute, has been held inadmissible in evidence upon non est factum, and other instances in which it has been specially pleaded. In Whelpdale's Case, 5 Rep. 119, the third resolution is — "Where a bond or other writing is by act of Parliament enacted to be void, the party who is bound cannot plead non- est factum ; but, in con- struction of law, the deed is to be avoided by the party who is bound by it, by pleading the special matter, taking advantage of the special matter ; for although the act makes the bond or other writing void, yet thereto the law doth tacitly require order and manner, which the obligor ought to follow." 1 See the cases collected 2 Sauud. last ed. 414, n. (5), n. b, c; and sec Tarker v. Wise, 6 M. & S. 239. 426 CASES ON COMMON-LAW PLEADING. In Colton V. Goodridge, Bl. 1108, the defendant was not allowed, upon 7ion est factum, to refer to the condition of the bond, to show that it was in restraint of marriage, and therefore void at common law. So, in Harmer v. Eowse, 6 M. & S. 146, the defendant was not allowed to prove, on non est factum to a bond, that it was given to stitle a prosecution for felony, and therefore void at common law. In Thompson v. Harvey, 1 Show. 2, where the objection to a bond was, that it was in restraint of trade, which is a common-law objection, it was pleaded specially ; and in Collins v. Blantern, 2 Wils. 341, where the defence to an action on a bond was, that it was given to suppress a prosecution for perjury, it was pleaded specially ; and in this, and the case of Thompson v. Harvey, the conclusion of the plea was not et sic non est factum, but, and so the bond was void in law. But the authorities which come closest to this case, and press most strongly on my mind, are the cases of duress and threats. Every argument which can apply to a case where fraud is the de- fence, apply equally where threats or duress are the defence. The party is equally deprived of his free agency and uncontrolled judg- ment in either case. And yet, where duress or threats are the de- fence, there is authority upon authority that they cannot be given in evidence upon non est factum, but must be pleaded specially. The rule I have mentioned from Gilbert's Evidence, 162, is given as the reason why a man cannot give duress in evidence under non est factum. In 1 Hen. VII. 15 b, Keble lays it down, if a man confess an obli- gation to be his deed, he shall not conclude non est factum, as if he pleaded infancy ; the same law is where he pleads that he made the obligation of duress by imprisonment. So, 14 Hen. VIII. 28 a, if a deed be made by duress of imprison- ment, the defendant ought to conclude to the action, for it would be a false conclusion to say, et sic non est factum, for it was his deed. Again, Plowden, 66, if an infant or a man by duress make an obligation, they shall demand judgment si actio, because the deliv- ery of the deed was not void. So, Doctrina Placitandi, 259, if a feme covert make an obligation, she may plead non est factum ; but otherwise it is in case of an infant or of duress, for then it is only voidable ; and, therefore, the parties cannot plead non est factum, but they shall say judgment si actio. The second resolution in Whelpdale's Case is to the same effect; PLEAS IN BAR. 427 and upon these authorities our opinion is, that the plea of non est factum in this case did not entitle the defendant to give the evi- dence he offered ; and, consequently, that such evidence was rightly- rejected. This brings us to Mr. Williams's objection, which is, that, by the recovery which was suffered, the fee did vest in the plaintiff accord- ing to the true intent and meaning of the release. This objection rests wholly upon the expression, according to the true intent and meaning of the release; and it is founded upon this, that, according to the true intent and meaning of the release, and the right con- struction to be put upon it, it was sufficient if a recovery was suf- fered ; but that it was not essential it should give the plaintiff a fee. The first answer to this objection is, that it makes the construc- tion of the release parcel of the issue to be tried by the jury, put- ting to them to decide, not a question of fact, but a matter of law ; and the next, that it gives these words in the issue a meaning they could not have been intended to bear. If, according to the true construction of the issue, they are inserted to qualify the issue, and to make it mean not that the recovery vested a fee in the plaintiff simpliciter, but that it vested a fee in him as far as a recovery by Brown could vest one, Mr. Williams's objection would be valid; but if these words meant no more than to signify that it was the in- tention of the release that the plaintiff should have a perfect and effectual fee, the objection fails, and the plaintiff is entitled to have this rule discharged. And I have nu doubt but that the latter is the meaning. The defendants all represent, by the recital in the condition of the bond, that Brown is seised in tail. The plaintiff takes the estate, not for enjoyment, but as a security for money, and not for money of his own, but for trust money. When, therefore, he takes a covenant for a recovery (which, if the recital were true, would give him a fee), he does wisely to take a covenant, not merely that a recovery shall be suffered, but that it shall be suffered so as to have the effect of giving him the fee, it being clearly and unequivo- cally the intention of that security that he should have the fee. Wliat is the species of contract for title that a mortgagee is natu- rally to be expected to take ? Not one that is qualified according to the title of the mortgagor, but one that is absolute ; and, as the condition of this bond shows that the money wliich tlie bond se- cures was lent to Brown by way of mortgage, this was the species of contract the defendants were naturally to expect. We are therefore of opinion that both the rules in this case ought to be discharged. Kules discharjied. 428 CASES ox COMMON-LAW PLEADING. WHELPDALE'S CASE. In the King's Bench. 1604. Reported 5 Coke, 241. For the words non est factum indicate a denial that the deed is the defend- ant's. In debt by "VVhelpdale against Whelpdale, which began Hil. 45 Eliz. Eot. 1303. The plaintiff declared on a bill obligatory made by the defendant to the plaintiff ; the defendant pleaded non est factum, and the jury found that the bill was a joint bill made by the defendant and another to the plaintiff ; and if on the matter the bill mentioned in the declaration be the deed of the defendant, the jurors prayed the advice of the court. And it was adjudged that the plaintiff should recover. And in this case four points were resolved : 1. When two men are jointly bound in a bond, although neither of them is bound by himself, yet neither of them can say, that the bond is not his deed, for he has sealed and delivered it, and each of them is bound in the vvhole. And therefore if they are both sued and one appears, and the other makes default, and by process of law is outlawed, he who appears shall be charged with the whole, as ap- pears in 40 Edw. III. 36., 41 Edw. III. 3. But in the case at bar, he might have pleaded in abatement of the writ, but cannot plead non est factum. 2. It was resolved, that in all cases when the deed is voidable, and so remains at the time of the pleading (as if an infant seals and delivers a deed, or a man of full age by duress), in these and the like cases, the obligor cannot plead non est factum, for it is his deed at the time of the action brought, and ought to be avoided by spe- cial pleading, with conclusion of judgment, si actio, 1 Hen. VII. 15. a, b. 3. When a bond or other writing is by an act of Parliament enacted to be void, the party to be bound cannot plead non est factum, but in construction of law the deed is to be avoided by the party who is bound by it, by pleading the special matter, taking advantage of the act of Parliament ; for although the act makes the bond or other writing void, yet thereto the law doth tacitly require order and manner, which the obligor ought to follow : as if a bond be made to a sheriff against the statute of 23 Hen. VI. cap. 10, or to any one against thestat. 13 Eliz. cap. 8, of usury, in these and other Hke cases the obligor ought to plead the special matter, with conclusion PLEAS IN BAR, 429 of judgment, if action ; and not to plead non est factum ; and there- with agrees 7 Edw. IV. 5, 6, 7 Edw. YT. Br. non est factuni 14, against the opinion of Montague, Plow. Comm. in Dive and Man- ningham's Case. In all cases where the bond was once his deed, and afterward before the action brought becomes no deed, either by rasure, or ad- dition, or alteration of the deed, or breaking off the seal ; in this case, although it was once a deed, yet the defendant may safely plead non est factum, for without question at the time of the plea, which is in the present tense, it was not his deed, 36 Hen. VIII. Dyer, 59. In an action of debt on a bond against Haywood, the defendant pleaded wow est factum, and before the day of appearance of the inquest, rats did eat the label by which the seal was fixed, ^ by the negligence of the clerk in whose custody it was, the justices charged the jury, that if they should find that it was the deed of the defendant at the time of the plea pleaded, that they should give a special verdict, and so they did. YATES V. BOEK In the King's Bexch. 1738. Reported 2 Strange, 1104. In debt upon articles, the defendant pleaded non est factum, and upon the trial offered to give lunacy in evidence. The Chief Justice at first thought it ought not to be admitted, upon the rule in Bev- erly's tJase, 4 Co. 123 b, that a man shall not stultify himself ; but on the authority of Smith v. Carr, 5 July, 1728, where Chief Baron Pengelly in the like case admitted it, and on considering the case of Thompson v. Leecli, in 2 Vent. 198, the Chief Justice suffered it to be given in evidence. And the plaintiff upon the evidence be- came nonsuit. ABNER KELLOG v. DEODAT INGERSOLL. Supreme Judicial Court, Massachusetts. 1806. Reported 1 Massachusetts, 5. And the verdict is in accord with the literal meaning of the plea. The declaration stated that the defendant, by his deed, bearing date April 7, 1787, in consideration of £100 paid him by the plain- 1 Such an accident would not now be held to vacate a deed. Pieott's Case 1 1 Co. 26 b. & ' 430 CASES ox COMMON-LAW PLEADING. tiff, conveyed to him in fee simple a certain tract of land lying in A., and in the same deed covenanted that the premises were free and clear of all encumbrances, etc. Breach alleged, that the prem- ises were not free, etc., of encumbrance, because, at the time of making and executing the deed, there was, ever since has been, and yet is, a public road, or town-way, six rods wide, running through the same, containing two acres and one-quarter of an acre. To this declaration, the defendant pleaded noii ed factum, reserv- ing a riglit to give any special matter in evidence. The plaintiff, consenting to the reservation, joined the issue. The court (Strong, Sedgwick, Sewall, and Thatcher, Justices) inquired of the defendant's counsel what special matter was in- tended to be given in evidence under this issue ; and on being informed that the existence of the way was not denied, but that the reservation in the plea was for the purpose of proving to the jury that the road was a privilege — a benefit — and not an encum- brance ; they directed the pleadings to be set aside — saying it would be absurd to try, under this issue, whether the road be an encum- brance or not — that being a mere question of law, and would come properly before the court upon a demurrer to the declaration. Suppose the trial were to proceed under this issue, and the court should be of opinion that the road is not an encumbrance, then they must direct the jury to find for the defendant. What ? That the deed declared on is or is not the defendant's deed. Ives and Dewey, for the plaintiff. Bidwell, for the defendant. ANONYMOUS. In the King's Bench. 1701. Reported Holt, 560. This was a case relating to pleading a deed, and giving it in evidence, at common law and by statute, wherein a difference was made. Holt, C. J. If a statute makes writing necessary to a common-law matter, where it was not required by the common law, the party need not plead the thing to be in writing, but give it in evidence ; though if a thing is originally made by act of Parliament, which requires it to be in writing, you must plead it with all the circum- stances required by the act. And therefore upon the statute Hen. VIII. of wills, a will must be pleaded to be in writing; but a col- lateral promise, required to be put in writing, by the statute Car. 11. is well enough, if you prove it to be so in evidence, without plead- in tj it to be in writing. PLEAS IN BAK. 431 [If] A man pleads over, he shall never after take advantage of any slip or mistake in tlie pleading of the other side, which he could not do on a general demurrer. Section II. ASSUMPSIT. " In assumpsit, the general issue is proper where there was either no contract between the parties, or not such a contract as the plaintiff' has declared on. And the defendant may give in evidence under it, that the contract was void in law, by coverture, gaming, usury, etc., or voidable by infancy, duress, etc. ; or if good in point of law, tliat it was performed by payment or otherwise, or if unper- formed, that there was some legal excuse for the nonperformance of it, as a release or discharge before breach, or nonperformance by the plaintiff of a condition precedent, etc. This sort of evidence will show that the plaintiff' had no cause of action. But if he had, the defendant may give in evidence, under the general issue, that it was discharged, by an accord and satisfaction, arbitrament, account stated, release, foreign attachment, or former recovery for the same cause, etc. In short, the question in assumpsit, upon the general issue, is, whether there was a subsisting debt, or cause of action, at the time of commencing the suit. But matters of law, in avoidance of the contract, or discharge of the action, are usually pleaded. And it is necessary to plead a tender, or the statute of limitations, etc., and to plead or give a notice of set-off." Tidd, Practice, 593. PARAMOUR V. JOHNSON. In the King's Bench. 1701. / In the King's Bench. 1701. jj Reported 12 Modern, 376 [a. c. 1 Ld. Raym. 566]. Theory of non assumpsit. Assumpsit upon several promises ; plea, that the defendant paid such a sum, in satisfaction of all promises, till such a time, which the plaintiff received in satisfaction ; absque hoc, that he made any promise since. The plaintiff" demurred, for that the plea amounted to the general issue. Holt, Chief Justice. It is no true rule, that where defendant may 432 CASES ox COMMON-LAW PLEADING. plead the general issue and give the special matter in evidence, he shall not plead specially. Wherever you may plead matter of law which avoids the cause of action, you may plead generally, and give that matter in evidence ; or you may plead it specially, and upon all general issues you may give special matter in evidence. If you give color, you may plead it specially ; as in debt for rent, you may plead nil debet, and give release in evidence. Vide Lyfield's Case, 10 Co. 38, wliere in trespass for goods the defendant confesses the taking, but says he bought them in market overt. But it is indulgence to give accord with satisfaction in evidence upon 71071 assumpsit pleaded ; but that has crept in, and now is settled. But here it appearing that the sums paid were less than those declared upon, the plaintiff had judgment ; the court holding, if it had been a collateral satisfaction, the plea had been good. BROWN V. CORNISH. In the King's Bench. 1697. Reported 1 Lord Raymond, 217. Indebitatus assumpsit. The defendant pleads payment according to the promises, etc. The plaintiff demurs specially; 1, because the plea as he conceived, amounted to the general issue. Sed non allocatur. Fox per Holt, Chief Justice, it is generally true, that no plea which admits that there was once a cause of action, amounts to the general i^ue. HACKSHAW V. CLERKE. In the King's Bench. 1696. Reported 5 Modern, 314. An action on the case was brought upon a bill of exchange, to which the defendant pleaded, that, after the acceptance of the bill, he gave a bond in discharge thereof. Upon demurrer to this plea, it was objected, that it amounted to the general issue ; for the debt upon the bill being extinguished by the bond, the defendant ought to have pleaded non assumpsit, and to have given the bond in evidence. And the court seemed of that opinion. But by consent, the defendant pleaded the general issue. PLEAS IN BAR. 433 FITS AND ANOTHER v. FREESTONE. In the Common Pleas. 1676. Eeforted 1 Modern, 210. In an action grounded upon a promise in law, payment before the action brouglit is allowed to be given in evidence upon no)i assumpsit. But where the action is grounded upon a special promise, there payment, or any other legal discharge, must be pleaded. BUCKNALL v. SWINNOCK. In the King's Bench. 1669. Reported 1 Modern, 7. Indebitatus assumpsit for money received to the plaintiffs use. The defendant pleads specially, that ^;os^ assumjJtionem pra^dict. there was an agreement between the plaintiff and defendant, that the defendant should pay the money to J. S., and he did pay it accordingly. The plaintiff demurs. Jones. This plea doth not only amount to the general issue, but is repugnant in itself. It was put off to be argued. Note. Judgment was given for the plaintiff. DRAPER V. GLASSOP. In the King's Bench. 1690. Reported I Lord Raymond, 153. Per Holt, Chief Justice, if the defendant pleads non assumpsit, he cannot give in evidence the statute of limitations, because the assumpsit goes to the pra:ter-tense ; but upon nil debet pleaded, the statute is good evidence, because the issue is joined per verba de prmsenti, and without doubt nil debet by virtue of the statute ; and it is no debt at this time, though it was a debt.^ 1 " The precise day on which a material fact alleged in the pleadings took pla:e is in most cases immaterial, except when the date of a record, or other writing, or some otlier fact, the time of whicli mnst be proved by a written docnment, is alleged." (Jould, I'l. 88. The plaintiff need not in the first instance show iiimself not barred by the st.atnte of limitations, though the rule is otherwise in real actions; but when the statute is pleaded, he mnst in his re]>lication aver a diite within the statute. It is a rule of pleading that some time should be declared upon ; but since the averment is in the first instance immaterial, the allegation of the later date is no departure. 1 Lev. ilO; 1 Salk. 222; I Stra. 21 ; Jackson, R. Ac. 241. 28 43-4 CASES ox COMMON-LAW PLEADING. JOHN PRICE V. HENRY P. WEAVER. Supreme Judicial Court, Massachusetts. 1859. ^ Reported 13 Gkat, 273. . ^ The statute of frauds must be pleaded. Action of contract. "And the plaintiff says that one William Field owed him the sum of sixteen dollars for services rendered and labor performed by the plaintiff for said Field, and that the plaintiff was about to sue said Field therefor, and that the defendant, in con- sideration that the plaintiff would forbear to sue the said Field, promised and agreed to pay the same to the plaintiff, and the defendant did forbear to sue the said Field, and the defendant owes him the said sum." The defendant demurred to the declaration, and assigned this cause for demurrer: "That the defendant's promise was void, as within the statute of frauds, it being to answer for the debt or default of another, and no agreement in writing or memorandum thereof was ever made or signed by the defendant, nor is any copy of any agreement set out by the plaintiff in his declaration." A. Potter, for the defendant. ... It appearing on the face of the papers that the promise is within the statute, it may be taken advantage of by demurrer. Walker v. Locke, 5 Cush. 90 ; Tomhn- son V. Gell, 6 Ad. & El. 564 ; Jones v. Ashburnham, 4 East, 455 ; Read v. Nash, 1 Wils. 305. No counsel aj)peared for the plaintiff. Metcalf, J. As this demurrer contains a traverse, or denial of facts, it is wrong in form. But we do not overrule it for that reason. We treat it, as the counsel for the defendant treated it, namely, as a demurrer, because the declaration, though it sets forth an agreement which is within the statute of frauds, does not allege that the agreement was in writing. This, however, is not a leo-al cause for demurrer. The statute of frauds has not altered the rules of pleading in law or equity. A declaration on a promise which, though oral only, was valid by the common law, may be declared on in the same manner, since the statute, as it might have been before. The writing is matter of proof, and not of allegation. 1 Saund. 276, note (2) ; Steph. PI. 1st Amer. ed. 376 ; Browne on St. of Frauds, s. 505. And this rule of pleading is not changed by the Practice Act of 1852. We must, therefore, overrule the demurrer. If the defendant shall hereafter rightly answer and go PLEAS IN BAR. 435 to trial, he will prevail, unless the plaintiff shall prove that the agreement declared on was in writing, and was signed as the statute of frauds (Rev. Sts. c. 74, s. 1) requires. Demurrer overruled. MULRY V. MOHAWK VALLEY INSURANCE COMPANY. Supreme Judicial Court, Massachusetts. 1856. y Reported 5 Gray, 541. For whenever a defendant rests his defence upon matter not included in the plaintiff's declaration, he must set the matter out in clear and precise terms. Bigelow, J. The defendants in this case relied at the trial upon two grounds of defence to the claim of the plaintiff under liis policy. One was, that the premises, after the policy was made, and at the time of the lire, were used for the sale of spirituous liquors, con- trary to an express stipulation on the part of the plaintiff; and that the policy was thereby rendered void. This ground of defence was fully stated in the answer of the defendants, and the question of fact arising thereon was submitted to the jury, who returned their verdict on this point in favor of the plaintiff. The other ground of defence was, that spirituous liquors were kept and sold on the premises by the plaintiff at the time the policy was made and issued, and that this use of the premises was not stated by the plaintiff in his application for insurance, as required by the conditiuns annexed to the policy, and that for this reason, the plaintiff could not recover. This ground of defence was not set out by the defendants in their answer. It appeared, however, in the course of the trial, on the cross-examination of the plaintiff's witnesses, that the premises were so used by the plaintiff at tlie time of making his application and at the date of the policy. Upon this state of facts, which was not controverted by the plaintiff at the trial, the defendants contended, and asked the court to rule that the plaintiff upon a just construction of the policy, and of the terras and conditions annexed to it, could not recover. The judge who presided at the trial refused so to rule, and it is upon this refusal, that the case now comes before the whole court. We have not found it necessary to determine whether the facts disclosed by the plaintiff's witnesses, as to the use of the premises at the time the policy was issued, would render it void ; because we are of opinion that this defence is not open to the defendants, inas- much as it was not set forth in their answer. Formerly, by plead- ing the general issue, everything was open to proof which went to show that the plaintiff's claim was invalid through fraud or illegality, •136 CASES ON COMMON-LAW PLEADING. or was in its inception void in law. Hulet v. Stratton, 5 Cush. 539; Dixie V. Abbott, 7 Cush. 610. But the Practice Act, St. 1852, c. 312, by abolishing the general issue, and substituting therefor an answer which is required to contain precise, certain, and substantial aver- ments and denials, and providing that every matter averred in the declaration, and not denied by the answer, shall be deemed to be admitted, effected a material change, not only in the forms of plead- ing, but also in the mode of making up issues of fact between the parties. There being no general form of denying the plaintiff's right to recover, the defendant is compelled by ss. 14, 26, to deny every substantive fact alleged by the plaintiff in his declaration, or declare his ignorance thereof, and leave the plaintiff to his proof. These provisions enable the defendant, by an answer denying the plaintiff's allegations, to put in issue only such matters as are properly averred in the plaintiff's declaration. The plaintiff, by s. 2, is required to make no allegations except those which he is bound by law to prove. Therefore the defendant, by merely answer- ing the allegations in the plaintiff's declaration, can try only such questions of fact as are necessary to sustain the plaintiff's case. He cannot thus put in issue matters which go to defeat or avoid it ; and it is accordingly provided by s. 18, that the answer shall set forth in clear and precise terms each substantive fact intended to be relied on in avoidance of the action ; by which are intended to be embraced all matters which cannot be proved under the denial of the allegations in the plaintiff's declaration. It follows, as a neces- sary consequence, that whenever a defendant intends to rest his defence upon any fact which is not included in the allegations necessary to the support of the plaintiff's case, he must set it out in clear and precise terms in his answer ; and as the plaintiff is not bound to aver anything which tends to defeat his action, or which shows that his claim is illegal or void in its inception or otherwise, all such matters must be set out and averred in the answer under the eighteenth section of the practice act. This constitutes the main difference between the system of pleading established by the practice act and that which was previously in force. Thus under- stood and administered, it is plain that the practice act is intended to bring the parties to a cause by their pleadings to clear and precise issues of fact, and all immaterial and unnecessary averments are wholly excluded. This decision is but an extension and application, to other forms of declaration, of the principle of construction already laid down by this court in actions on the common counts, or on an account annexed. Granger v. Ilsley, 2 Gray, 521. PLEAS IN BAR. 437 Applying this construction of the statute to the answer of the defendants in the case at bar, it is manifest that the defence relied upon was not open to the defendants. Proof that the policy was void in its inception, by reason of misrepresentation or concealment on the part of the plaintiff of material facts, was clearly in avoid- ance of the action. It did not come within any of the allegations contained in the plaintiff's declaration. He was not bound to aver or prove any such fact. It was for the defendants to allege and prove it as a distinct substantive ground of defence. Exceptions overruled. J. H. Wakefield for the defendants. W. Gaston & J. W. May, for the plaintiff.^ Section III. TEOVER. DEVOE V. DR. CORIDON. In the King's Bench. 1638. Reported 1 Keble, 305. In trover for jewels, it was said by Twisden, there is no plea in trover, but a release or not guilty, every special plea in justification being but tantamount; but the defendant being in the king's ser- vice command, after the declaration delivered, the court gave an imparlance nisi, but upon motion the next day of the king's solici- tor, ordered the trial, " The rale of pleading in trover seems to be more correctly stated in 1 Tidd's Practice, 598, thus : ' the defendant may plead specially anything which, admitting the plaintiff had once a cause of action, goes to discharge it.' Thus a release may be pleaded, as was al- ways held ; Lofit, 323, Anon., accord with satisfaction ; arbitrament and award ; former recovery for the same conversion, either in trover or some other concurrent action. Yelv. 67 ; Broome v. Wooton, 1 Shower, 146 ; Lechmore v. Toplady, Skinner, 48, 57 ; Foot V. Rastall, Pcllexf 634 ; T. Raymond, 472 ; s.c. 2 Ld. Raymond, 1217 ; La mine v. Dorrell. " So the statute of limitations may be specially pleaded in trover. 1 Lutw. 99 ; Cowper v. Towers, Sty. 178 ; Coles v. Sibsye, 7 Mod. 99 ; Montague v. Sandwich, 3 Johns. Rep. 523 ; Read v. Markle, 1 Part of the opiuion, not here material, is omitted. — Ed. 438 CASES ox COMMON-LAW PLEADING. Overton's Rep. 19 ; White v. Edgman. In Markham v. Pitts' Case, 3 Leon. 295, outlawry of the plaintiff was pleaded after an imparl- ance, and was held to be a good bar. These two last instances, in which a special plea in bar has been allowed, come fairly perhaps within the spirit of the rule as stated by Mr. Tidd, though not within the letter of it." Yelverton, 174 a, note by Mr. Justice Metcalf. LYNNER V. WOOD. In the King's Bench. 1629. Reported Choke's Charles, 157. Trover for divers loads of corn. The defendant pleads, and en- titles himself to them as tithes severed; and because the plea amounts but to " not guilty," the plaintiff demurred, and showed for cause, that the plea was therefore not good. Henden, Serjeant, would have maintained this plea, because it concerns matter in the realty, viz. tithes, and title is pleaded, as it were a confession of the passession in the plaintiff, and as a gen- eral bar in action of trespass, and color given. Sed non allocatur ; for this action comprehends title in it ; and a plea which amounts but to a general issue is not allowable, it being specially shown for cause of demurrer. Whereupon without argu- ment it was adjudged for the plaintiff. ROCKWOOD V. FEASAR. In the Queen's Bench. 1585. *' Reported Choke's Elizabeth, 262. Action of trover in London. The defendant pleaded, that long before the conversion supposed to be, J. S. was possessed of these goods, as of his own goods, at B. in Norfolk ; and that he before the conversion supposed did casually lose them, and they came to the hand of J. Palmer by trover, who gave them to the plaintiff, who lost them in London ; and the defendant found them, and afterward did convert them to his own use, by the command of the said J. S. as it was lawful for him to do. Tt was moved, that this' is no plea, for it amounts to the general issue. But all the justices held it a good plea ; for it confesseth the possession and property in the plaintiff, against all but the lawful owner. — Nota. This plea was devised by Coke to alter the triaL PLEAS IN BAR. JOHNES V. WILLIAMS. In the King's Bench. 1606. Reported Choke's James, 165. 439 Trover of goods, and converting them. The defendant pleads " sale in market," whereby he justifies the conversion. And it was held to be no plea, because it amounts but to the general issue. And ruled accordingly, that if he did not plead, a nihil dicit should be entered. Section IV. TEESPASS. (a) To Plaintiff's Goods. " In trespass de bonis asportatis the plea of not guilty operates as a denial of the defendant having committed the trespass alleged, by taking or damaging the goods mentioned, but not of the plaintifi"s property therein." Chitty, Pleading, *535. ANONYMOUS. In the Queen's Bench. 1709. Reported 2 Salkeld, 643. Trespass for taking his cattle. The defendant pleaded that he was possessed of a close for a term of years, and the cattle tres- passed therein, etc. The plaintiff demurred, and judgment was given for the defendant, though he showed no title, but justified upon a bare possession. And this difference was taken by Holt, C. J. Where the action is transitory, as trespass for taking goods, the plaintiff is foreclosed to pretend a right to the place ; nor can it be contested upon the evidence who had the right; therefore possession is justification enough. But in trespass quare clamum fregii it is otherwise, because there the plaintiff claims the close, and the right may be contested. 44:0 CASES ON COMMON-LAW PLEADING. / KNAPP V. SALSBURY. At Nisi Prius, coram Lord Ellexborough, C. J. Xov. 17, ISIO. Reported in 2 Campbell, 500. Trespass for running against the plaintiff's post-chaise, in which ]ui was travelling along the highway, with a cart, and killing one of the horses drawing the post-chaise, by the shafts of the cart. Plea, not guilty. The defence relied upon was, that the chaise and the cart were travelling on the road in opposite directions, and that the collision between them took place through the negligence of the plaintiff, or by mere accident, and without any default on the part of the defendant. Lord Ellenborough. These facts ought to have been pleaded specially. The only thing to be tried under the plea of not guilty is, whether the defendant's cart struck the plaintiff's chaise and killed his horse. That it did is now admitted; and the intention of the defendant is immaterial. This is an action of trespass. If what happened arose from inevitable accident, or from the negli- gence of the plaintiff, to be sure, the defendant is not liable ; but as he in fact did run against the chaise, and killed the horse, he com- mitted the acts stated in the declaration, and he ought to have put upon the record any justification he may have had for doing so. The plea denying these acts must clearly be found against him. Verdict for the plaintiff. Park and Knapp, for the plaintiff. Jervis, for the defendant. PP:ARCY v. WALTER. At Nisi Prius, coram Gaselee, J. 1834. Reported 6 Carrington & Payne, 232. Under " Not guilty " in trespass, matter may be given in evidence which shows that tlie defendant did not do the act complained of. Trespass for driving a gig against a horse of the plaintiff's and wounding it, in consequence of which it died. Plea, not guilty. Coleridge, Serjt., for the plaintiff. The inquiry to-day is limited to the ascertaining whether the defendant did or did not drive against the plaintiff's horse. Any inquiry as to whether the injury arose from the plamtiff's negligence, or from the negligence PLEAS IN BAE. 441 of both plaintiff and defendant, or from inevitable accident, cannot be gone into here, as the general issue only is pleaded. It appeared that the defendant's gig and a van of the plaintiff's were both in motion, going in opposite directions at the time when the injury was done, which consisted of the shaft of the defendant's gig entering the shoulder of one of the plaintiff's horses, in con- sequence of which it died. On the part of the plaintiff a witness swore that the defendant, being intoxicated, drove against the plaintiff's horse. Bompas, Serjt., for the defendant. The question is, whether the witness is to be beUeved, who swears to the defendant's driving against the plaintiff's horse ? In point of law, if it was inevit- able accident, it may be proved under the general issue. Goodman V. Taylor.^ Gaselee, J. It may be shown under the general issue, that, instead of the defendant driving against the plaintiff, the plaintiff drove against the defendant. Coleridge, Serjt., assented. 4 Witnesses were called on the part of the defendant.* Gaselee, J., told the jury that the question was, how the shaft got into the horse's shoulder ? Whether the defendant drove the shaft against the van horse, or the van horse was driven against the shaft ? Verdict for the plainj^^||_Daj|iages, £20. Coleridge, Serjt., and Butt, for the plaintiff. Bompas, Serjt., and Hoggins, for the defendanl [Attorneys, Horsley and Taylor.] ij^BDaniai ^ I lane! 1 MILMAN V. DOLWELL. At Nisi Prius, cokam Lord Ellenborough, C J. 1810. Reported 2 Campbell, 378. Or which denies the plaintiff's title to the subject of the trespass. This was an action of trespass for cutting the plaintiffs barges from their moorings in the river Thames ; whereby they had been set adrift and been injured. It appeared that at a time when there was a great quantity of ice in the Thames, the defendant took two barges of the plaintiff from the middle of the river, where they were moored, to the opposite shore, and that one of them was immediately after dis- 1 See the cases of Boss i-. Litton, 5 C. and P. 407, and Goodman v. Taylor, 5 C. and P. 410. 442 CASES ON COMMON-LAW PLEADING. covered to have a hole in its bottom ; but there was no evidence to show how this had been occasioned. Garrow, for the defendant, offered to prove, that, at the time of the supposed trespass, these barges were in the greatest danger of being carried away by the ice ; that if he had not interfered, they most probably would have been destroyed ; that he did what was prudent and most for the plaintiff's advantage to be done under the circumstances ; and that he had been employed by the plaintiff generally to take charge of the barges, and must be presumed to have had his authority to remove them from a place of danger to a place of safety. Lord Ellenborough. These facts should have been specially pleaded. I cannot admit evidence of them under the plea of not guilty ; the issue joined upon which is, whether the defendant removed barges belonging to the plaintiff from their moorings, not whether he was justified in doing so. Garrow argued that the plea of not guilty merely denied the committing of any trespass ; and it was impossible to say that any trespass was committed, if the barges were removed by the plaintiff^s own orders, either express or implied. The case was the same as if the plaintiff had stood by and directed how the thing was to be done ; and the unmooring of the barges must be considered the act of the plaintiff ratter than of the defendant. Lord EllenborjMjgk The defendant allows that he intermeddled with goods whicA'<-.were the property and in the possession of the plaintiff. By so doing he is presumed to be a trespasser ; and if he has any matter of justification, he must put it upon the record. The plea of not guilty only denies the act done, and the plaintiff's title to the subject of the trespass. If the defendant has any authority, general or particular, express or implied, from the plaintiff, this must be specially pleaded, by way of excuse. Garrow then offered to prove that these barges were frozen to some others belonging to J. S., by whom the defendant was employed to get the latter ashore, and that it was utterly impos- sible to do this without bringing the former along with them. Lord Ellenborough. If the necessity was inevitable, and the barges of the third person by whose express orders the defendant acted must otherwise have been destroyed, this might have amounted to a justification ; but, like the first set up, it must have been put upon the record. The jury found a verdict for the plaintiff, with one farthing damages. Garrow afterwards moved for a new trial, on the ground that the PLEAS IN BAR. 443 evidence had been improperly rejected; and further contended, that the action should have been case and not trespass ; but the court were against him on both points, and refused a rule to show cause.-^ Park, Jekyll, and Lawes, for the plaintiff. Garrow and Topping, for the defendant. [Attorneys, Evans and Hill.] FURNEAUX V. FOTHERBY AND CLARKE. At Nisi Pkius, cokam Lord Ellenbokough, C. J. 1815, Reported 4 Campbell, *136. Hence, if the defence is that the goods were taken under license by law, it should be pleaded. Trespass for breaking and entering the plaintiff's house and dis- training his goods. Plea, the general issue. It was proved, that the defendant, Fotherby, on the 1st of October last, did enter the plaintiff's house, and make the distress, but there was no evidence against Clarke. The defence was, that the plaintiff had held another house as tenant to the defendant Clarke ; that the goods distrained were clandestinely and fraudulently conveyed away from this house on this 28th of September, to prevent the landlord from distraining them for the arrears of rent to become due the following day, and that they were within 30 days afterwards taken and seized as a distress for the said arrears of rent. Holt, for the plaintiff, first contended, that there was no right to follow these goods, as they were removed before the rent became due, Watson v. Main, 3 Esp. 15 ; and, 2dly, that at all the events this was no defence under the general issue, as the goods were not taken upon the premises for which the rent became due, Vaughan V. Davis, 1 Esp. 257. Lord Ellenborough. Upon the first point T entertain consider- able doubts, and if the cause had turned upon that, I should have reserved it for the opinion of the court. Where goods are fraudu- lently removed from the premises in the night, to prevent the landlord from distraining upon them for arrears of rent to become due next morning, the case certainly comes within the mischief intended to be remedied by 11 Geo. II. c. 19, and there is some ground to contend that it comes within the provisions of that 1 Vide Com. Dig. Pleader, 3 M. 20-39 ; Bull. N. P. 90. 444 CASES ON COMMON-LAW PLEADING. statute. But, upon the 2(1 point, lam clearly of opinion, that the defendant was bound to justify specially .^ The plaintiff had a verdict against Fotherby ; and Lord Ellen- borough granted a certificate under 8 & 9 W. III. c. 11, that there was reasonable ground to join Clarke as a defendant, for the pur- pose of depriving him of a right to costs.^ Holt and E. Lawes, for the plaintiff. Parkj for the defendant. (b) To Plaintiff'' s Servant. TORRENCE v. GIBBONS. In the Queen's Bench. 1843. Reported in 5 Queen's Be>xh Reports, 297. Declaration for that defendant, to wit, on, etc., and on divers other days, etc., debauched Josephine Amelia Torrence, the daughter of plaintiff, " who during all the time aforesaid was, and still is, the servant of the plaintiff';" whereby she became pregnant, till she was deHvered, etc. ; special damage for loss of service, expenses, etc. Plea, " that the said J. A. Torrence was not the servant of the plaintiff, in manner and form," etc. Demurrer, assigning for causes that the plea is argumentative and insufficient in this, to wit, that defendant, instead of simply pleading that he is not guilty of the grievances set forth in the declaration, hath denied the same in a circuitous and argumentative manner, by alleging that the said J. A. T. was not the servant of plaintiff ; for, if J. A. T. was not the servant of plaintiff, defendant could not be guilty of the grievance set forth in the declaration ; and for that the plea amounts to not guilty, and ought to have been pleaded in that form. Joinder in demurrer. Atherton, for the plaintiff. The fact of the service would be put in issue by a plea of not guilty. Such a plea puts the " wrongful act " in issue. R. Hil. 4 Will. IV. ; Pleadings in Particular Actions, IV. 1 ; that is, either the act or that which constitutes its wrongful- ness. In trover, not guilty denies the conversion only, not the title ; in an action for obstructing a right of way, the obstruction only, not the right ; but in an action for a nuisance, it denies " that the defendant carried on the alleged trade in such a way as to be 1 Vide 11 Geo. II. c. 19, § 1, 2 ; 2 "Wms. S. 284 (n. 2). 2 Vide Aaron v. Alexander, 3 Campb. 36. PLEAS IN BAR. 445 a nuisance to the occupation." [Lord Denman, C. J. There is no illegality if there be no annoyance.] Then to which class does this action belong ? If there be no illegality independently of some par- ticular fact, that fact is put in issue. The mere seduction of the daughter is, legally speaking, no injury. It is not like a trespass to the person of the plaintiff, which primd facie is an injury. It may be that, if the relation could have been formally alleged by way of inducement, the plea of not guilty would have admitted it ; that is so in trover. But here the form of the declaration makes the relation the gist of the complaint. The whole action depends upon the resulting damage, to which the relation is essential. The case resembles Sutherland v. Pratt, 11 M. & W. 296. [Lord Denman, C. J. There, unless the contract was made with the plaintiff, the alleged contract was not proved.] Byles, Serjeant, contra. The relation is, in effect, mere induce- ment. The case is the same as if the declaration commenced by reciting that the plaintiff's daughter was his servant. The analogy of an action for obstructing a right of way applies. In Taverner v. Little, a declaration in trespass alleged that defendant w^as possessed of a cart and horse, and complained of injury done by negligent driving of them : and it was held that not guilty admitted that the cart and horse were in defendant's possession. That decision was acted on in Hart v. Crowley, 12 A. & E. 378. It is not true that the wrongfulness of the act is put in issue by not guilty ; Frankum V. The Earl of Falmouth decides the contrary. Hollo way v. Abell, 7 C. & P. 528, is the only authority to be found in favor of the plaintiff: that was merely a decision at nisi prius ; and the verdict there prevented the question from being raised iii banc, as the jury affirmed the service. In an action for criminal conversation, not guilty would not put the marriage in issue. Atherton, in reply. No attempt has been made to get rid of the distinction suggested between cases where the act is a ^9?-i/?i« facie cause of action, and those where the damage arising from a particu- lar relation is the very gist of the action. That distinction explains all the authorities cited on the other side. Thus the obstruction of a way is primiX facie an injury. But there is no legal injury in seduction, unless the relation of servant exist. [Coleridge, J. In an action for words injurious only in respect of the plain titi"s trade, not guilty does not put the trade in issue.] The example stated in the general rule as to an action for nuisance applies. Lord Denman, C. J. It seems to me that the example is rather against you. No one can complain of an act that is not offensive at all. But, besides, the owner is the only person who j can com- 446 CASES ON COMMON-LAW PLEADING. plain ; his ownership is essential to the right of action ; yet that is not traversed by not guilty. So here the seduction injures the plaintiff, because he is the master of the party seduced ; and the same rule must be applied. Williams, J., concurred. Coleridge, J. I am of the same opinion. I may mention that Mr. Justice Littledale, before the new rules, considered the service to be a necessary result of the residence of the daughter with the father. He once, in an undefended cause. Maunder v. Venn, Moo. & M. 323, in which I was counsel, where the residence was proved, held it unnecessary to give evidence of acts of service. Wightman, J., concurred. Judgment for defendant. (c) To Plaintiff's Land. JONES V. CHAPMAN AND OTHERS. In the Exchequer Chamber. 1849. Reported in 18 Law Journal Reports, Exchequer, 456. Before the Hilary Rules, the defendant under not guilty to trespass qu. cl. fr. might give in evidence title in himself or in another by whose command he entei'ed. Trespass for breaking and entering the plaintiff's dwelling-house. Plea, that the dwelling-house in the declaration mentioned was not at the time when, etc., the dwelling-house of the plaintiff, moclo et forma ; upon which issue was joined. At the trial, whicli took place before Parke, B., at the summer assizes for the county of Denbigh, in 1845, that learned judge told the jury that they ought to find the issue for the defendant, if they were satisfied by the evidence on the part of the defendant that at the said time when, etc., one Harriet Middleton was entitled to the possession of the dwelling-house, and the defendant had committed the alleged trespass under her authority. To this direction the coun- sel for the plaintiff tendered a bill of exceptions to the effect that the learned judge should have directed the jury to find for the plaintiff, if they were satisfied by the evidence that at the time when, etc., he was in the actual possession of the dwelling-house. Upon the argument before this court,^ on the 1st of December, 1847, Welsby appeared on behalf of the plaintiff ; and Peacock, on behalf of the defendant. Cur. adv. vult. 1 Wilde, C. J., Coleridge, J., Coltman, J., Maule, J., Wightman, J., Erie, J., and V. Williams, J. PLEAS IN BAR. 447 The court differing in opinion, their lordships now delivered their judgments seriatim. Williams, J., after stating the facts of the case, proceeded as fol- lows : In this case the general question is raised for our decision, as a court of error, whether under a traverse of the allegation in the declaration of trespass quare dausum fregit, that the close was the close of the plaintiff, the defendant is, or is not, at liberty to show title in himself or some other person, under whose authority he claims to have acted. I am of opinion that he is. I have not formed this opinion without hesitation, because it is in direct opposition to the judgment of the court of Queen's Bench, in Whittington v. Boxall, 5 Q. B. Eep. 139 ; s. c. 12 Law J. Hep. (n. s.) Q. B. 318 ; but on consideration of that judgment, and of the authority and reason- ing on which it is founded, it appears to me to have been wrongfully given. The question turns on the construction of the new rules of pleading of Hilary Term, 4 Will. IV. Before those rules it had long been settled law that under the general issue of not guilty, in trespass quare dausum fregit the defendant might give evidence of title in himself or in another by whose command he entered. The case of Argent v. Durrant, 8 Term Eep. 403, shows conclu- sively the establishment of this doctrine, and also discloses the principle on which it was grounded, namely, that the evidence falsi- fied the declaration of the plaintiff, inasmuch as it proved that the defendant did not break the plaintiff's close, as the declaration set forth. Thus it appears at the time the New Rules were made the general issue in trespass quare dausum fregit, by reason of its traversing the allegation in the declaration, that the close in which, etc., was the close of the plaintiff, operated as a denial, not only of his possession, but also of his right of possession as against a defendant lawfully entitled thereto. But by the rule of Hilary Term, 4 Will. IV. in trespass it is ordered, '-that in actions of trespass quare clavsum fregit, the plea of 'not guilty ' shall operate as a denial that the defend- ant committed the trespass alleged in the place mentioned, but not as a denial of the plaintiff's possession or right of possession of that place, which, if intended to be denied, must be traversed specially." The alteration which this rule introduces appears to be this, that the defendant, if he intends to deny the plaintiff's possession, or right of possession, must, instead of denying it as heretofore by the general issue, deny it by traversing it specially. It must be confessed that the language employed in this rule is not very happily chosen, for the'expression, " a special traverse," usually bears a particular technical sense, namely, that of a traverse containing an inducement and absque Jioc, in which sense it is scarcely pQssible it could have 448 CASES ON COMMOX-LAW PLEADING. been intended to have been used ; and I understand that the rule in this respect is merely in order to enable the defendant to dispute, if he is the wrong-doer, the possession, or, if he claims title, the ri"ht of possession, — the allegation in the declaration, that the close in which, etc., is the close of the plaintiff, must be denied spe- cially by a particular traverse, in contradistinction to being denied generally as heretofore, by the plea of " not guilty." It is true, that by the terms of the rule, taken literally, it is not this allegation of the plaintiff's possession, or right to possession, which is to be traversed ; but it is a principle of pleading that the defendant can- not traverse any matter which is not alleged or necessarily implied in the declaration, and the possession, or right of possession, is only alleged or necessarily implied in a declaration in trespass quare clanmm f regit, •A.'s, being included in the allegation that the close in which, etc., is the close of the plaintiff. If this be so, then the de- fendant in the present case, inasmuch as by the plea in question he has denied the plaintiff's allegation that the dwelling-house in which, etc., was his dwelling-house, must be considered as specially traversing the plaintiff's right to possession thereof, and is therefore within the meaning of the New Rules. He has put himself in the same situation as that in which he would have been before the Kew Piules, if he had traversed it generally by pleading not guilty, and he is consequently at liberty to show title in himself or in an- other, under whose authority he acted. For these reasons, I am of opinion that the judge's direction at the trial was correct, and that our judgment on this writ of error ought to be for the defendant.' 1 Wilde, C. J., Erie, J., and Coltman, J., delivered opinions substantially coincid- ing with that of Williams, J. Maule, J., concurred with the majority in their conclu- sion, though not in their reasoning. " I agree with the exception of the plaintiff in error that the question raised by the issue of not possessed is, whether the plaintiff waa in actual possession or not; but it seems tometliat as soon as aper.son is entitled to possession and enters in the assertion of that possession, or, which is exactly the same thing, any other person enters by the command of that lawful owner so entitled to pos- session, the law immediately vests the actual possession in the person who so entered." Coleridge, J., and Wightman, J., delivered dissenting opinions, on the ground that the plea of not possessed put in issue only the actual possession of the plaintiff ; Coleridge, J., taking the view that a defendant who wished to put in issue the plaintiff's right of possession, must resort to adi.stinct specific traverse to that effect ; while Wightman, J., thought that a defendant who relied on right of possession either in himself or some third person under whom he acted, should plead such right of possession by way of confession and avoidance. The full opinions have been omitted on account of their length. — Note bv James Barr Ames, Cases on Pleading, 105. PLEAS IN BAR. 449 COWLTSHAW V. CHESLYN. EXCHKQUER OF PlEAS. 1830. Reported 1 Ceompton and Jervis, 48. A traverse by the defendant of one only of two or more material allega- tions is so far an implied admission of the matter not denied, that the pleader is estopped at the trial to introduce evidence in denial of the allegation untraversed. Trespass quare dausum /regit. Pleas, first, a right of way by prescription. Secondly, that, in 1762, one Anne Cowlishaw was seised in fee, and being so seised, by a deed, lost by time and acci- dent, granted a right of way ; and, thirdly, a common highway. The plaintit!" replied to the first plea, traversing the prescription ; to the second plea, that Anne Cowlishaw did not grant modo et forma; and to the third plea, denying the common highway. At the trial before Garrow, B., at the last Lent Assizes for the county of Leicester, the first plea was disproved, it appearing that all the ancient roads over the locus in quo had been extinguished by an enclosure act ; and the jury negatived the common highway pleaded in the third plea. The case, therefore, depended on the second plea, and upon that plea there was conflicting evidence as to the exercise of the alleged right of way. The plaintiff offered evidence of old deeds, and of a will, to show that Anne Cowlishaw had only an estate as a co-trustee with one Farnell, in trust for Anne Cowlishaw's son, who, at the time of the supposed grant, was a minor ; and he contended that this evidence was admissible on the issue in question,, for the purpose of showing that Anne Cow- lishaw was not likely to have made the grant, not having had any legal right so to do. The defendant's counsel objected to the evi- dence, on the ground that Anne Cowlishaw's seisin in fee was admitted on the record, and that the plaintiff was estopped, by the state of the pleadings, from giving any evidence to negative that fact. The learned judge received the evidence, reserving the ques- tion of its admissibility for the opinion of the court. The defend- ant then offered evidence of an award of the locus in quo, made under an enclosure act, to Anne Cowlishaw, which alone, they contended, vested the soil in her ; but which, the plaintiff contended, vested it in the persons in whom the legal estate in the land, to which this allotment was made, had been before vested under the will.^ The learned judge left the whole of the evidence to the 1 As to thi? point, which it became unnecessary to decide in the principal case, see Doe dem. Sweeting v. Hellard, 9 B. & C. 789 (E. C. L. K. vol. 17). 29 450 CASES ON COMMON-LAW PLEADING. jury, and directed them to consider whether there was such evi- dence of the use of the right of way, as to lead them to suppose that Anne Cowlishaw had made the grant in question ; and he told them, that they might assume, for the purposes of their verdict, that she had a legal right to make such grant. The jury found a verdict for the defendant upon the second plea. Balguy had obtained a rule to enter a verdict for the plaintiff on the second plea, or for a new trial, against which cause was now shown by — Denman, K. N. Clarke, and Humfrey.^ — On these pleadings, the only question was on the grant, as no issue was taken on the seisin of Anne Cowlishaw, as alleged in the second plea. If the plaintiff on this issue could be allowed to give in evidence documents to disprove the seisin of Anne Cowlishaw, which documents are in his exclusive possession, and the contents of which were unknown to the defendant, the latter would have been entirely misled, as he would only come prepared to prove the grant. The plaintiff could only traverse one of the facts alleged in the plea. If he attempted to put more than one in issue, the replication would have amounted to the general replication of de injurid, which is clearly bad in such a case. Crogate's Case, 8 Eep. 66 ; Cockerell v. Armstrong, Willes, 99. It was not competent for the plaintiff to give any evidence to negative any part of the plea, which was admitted by the traverse being taken on another allegation. This would give him the advantage of the general replication of de injurid. The plaintiff had his choice which allegation to traverse ; and if he is allowed, on a traverse of one allegation, to dispute another, there is no reason why he may not dispute the whole plea, which he clearly cannot do, as de injurid cannot be replied, when an easement or other interest in the land is claimed. The present is a strong case to show the good policy and utility of the rule of law contended for by the defendant, for the real merits arise on the allegation of the seisin in Anne Cowlishaw, equally as if it had been laid in any other person ; and if the allegation of seisin in Anne Cowlishaw had been traversed, the only effect would have been to have caused the defendant to amend, by adding pleas, laying the seisin in differ- ent persons ; and the same evidence which was produced at the trial to prove the grant by Anne Cowlishaw would equally have proved a grant alleged to have been made by any other person who might appear to have been the owner of the fee. There is no such 1 The arguments, as to the right of A. Cowlishaw to grant, are omitted, as the judgment of the court proceeded entirely on the question of the admissibility of the evidence, on the issue taken upon the grant. PLEAS IN BAR. 451 principle as that which was contended for by the other side, that a party may be estopped by an admission on the record for one pur- pose, and not for another, in the same cause. In the present case, the seisin of Anne Cowlishaw was admitted on the record, and the plaintiff was estopped from giving any evidence in contravention of that admission. The evidence, therefore, was clearly inadmis- sible, and the defendant is entitled to retain his verdict. Balguy and Clinton, contra. — The evidence in question was admissible, not to contradict the allegation on the record, but to negative the fact of Anne Cowlishaw having made the grant. The user is only presumptive evidence- of the grant ; and it was compe- tent for the plaintiff to show that Anne Cowlishaw was not seised in fee, and could not, therefore, in point of law, have made such a grant. She ought not to be presumed to have done an act contrary to law. The question for the jury was purely one of fact, whether the deed was or was not made. There is a distinction between presumptions of law and of fact. The latter may always be rebutted by contrary evidence. The question, whether a particular deed ever had existence, in cases like the present, is of the latter class. The principles on this branch of the law are thus stated by a learned author : ^ " The presumption of right in such cases is not conclu- sive ; in other words, it is not an inference of mere law, to be made by the courts ; yet it is an inference which the courts advise juries to make whenever the presumption stands unrebutted by contrary evidence. Such evidence in theory is mere presumptive evidence." The same learned writer,^ citing Barker v. Eichardson, 4 B. & A. 579,'^ lays down in another passage the law on this subject in the following terms : " The technical presumption necessarily assumes that it was practicable to transfer the right by means of a grant or other conveyance ; hence the presumption does not operate where such a grant could not, from the nature of the case, have been made." In the present case Anne Cowlishaw could not legally have made the grant in question ; and even if the evidence had been all one way, as to the user of the right of road, the presumption of the grant would have been rebutted by the evidence which was offered of the state of the title at the time when the alleged grant was supposed to have been made. The learned judge, therefore, ought to have directed the jury to find a verdict for the plaintiff on the second plea ; and, at all events, he ought not to have told the jury that they might assume, for the purposes of their verdict, that Anne Cowlishaw had the legal right to make the grant. That direction 1 Starkie's Evid. 1214. 2 ibid. 1218. 8 E. C. L, R. Vol. VI. 452 CASES ON COMMON-LAW TLEADING. was calculated to lessen the effect of the evidence on the minds of the jury, and entitles the plaintiff at least to a new trial. Cur. adv. vult. Vaughan, B. This was an action of trespass quare clausum f regit, in which the defendant pleaded no general issue, but three special pleas : first, a prescriptive right of way ; secondly, that Anne Cowlishaw, being seised in fee, granted a right of way by lost deed ; and, thirdly, a common highway. The first and third pleas were properly negatived on the evidence which was given at the trial, and the only question therefore 'Was upon the second plea, upon which the jury found a verdict for the defendant. The present is an application, on the part of the plaintiff, to enter a verdict upon the issue on the second plea, or for a new trial : in the consideration of which question, it becomes material to refer to the second plea, and the issue upon that plea. The second plea states, that Anne Cow- lishaw was seised in fee, and, being so seised, granted the way in question by lost grant; and the replication to that plea is, simply, that she did not grant modo et forma. It was competent for the plaintiff to traverse either the seisin of Anne Cowlishaw or the grant l3y her. The former is [not ?] traversed, and therefore it seems to me and to the court, that it must be taken against the plaintiff conclu- sively that she was seised in fee. But it was contended for the plain- tiff, that the evidence was admissible, not to disprove the seisin of Anne Cowlishaw, but, as an ingredient, to rebut the existence of the grant, which was a mere presumption of fact ; because, if she had no authority to grant, it was unlikely, under such circumstances, that she should have made the grant. It is a satisfactory answer to this argument, that the plaintiff is estopped by the state of the pleadings, and therefore cannot be received to contradict that which is admitted upon the record. Under these circumstances, evidence to negative the seisin of Anne Cowlishaw was not properly receivable, and therefore the learned judge was perfectly correct in directing the jury to presume, for the purposes of their verdict, that Anne Cow- lishaw was seised in fee. We therefore think, that the rule to enter a verdict for the plaintiff should be discharged ; but, as there seems to have been conflicting evidence in this case, and as the verdict might affect the inheritance, the plaintiff may have a new trial, upon payment of costs, the defendant being at liberty to amend his pleadings as he shall be advised. Eule accordingly. PLEAS IN BAE. y 453 J. DODD V. KYFFIN. In the King's Bench. 1797. Reportkd 7 Tkrm Reports, 354. lu trespass the defendant may, under the general issue, give evidence of title. Trespass for breaking and entering the plaintiff's close called the. Chapeltield, on the 30th March, 1793. Plea, the general issue. At the trial before the Chief Justice of Chester the plaintiff gave evi- dence of his being in possession of the close at the time of the tres- pass alleged, by proof of different acts of husbandry exercised by him therein down to that period and afterwards. It appeared that the close belonged to a chapel, of which Mr. Evans had been minister for some years, till his death in December, 1792, during which time it was held under him by one G. Dodd. Before the day of the alleged trespass, Mr. Price had succeeded as minister of the chapel; and the defendant offered to call a witness Ho prove that previous to that day Price had verbally demised the close to him the defendant. The Chief Justice said he would receive any evidence to show the actual possession out of the plaintiff at the time of the supposed trespass, but he thought that under the plea of not guilty he could not receive any evidence of title or of the right of possession being in the defendant; nothing being in issue but the fact of the trespass on the actual possession of the plaintiff. Some evidence was afterwards given to show a possession in Price at the time ; and the Chief Justice left the whole to the jury to find their verdict according as they believed that the possession was in or out of the plaintiff at the time ; and they found a verdict for the plaintiff. Manley in the last term obtained a rule to show cause why tlie verdict should not be set aside, because the evidence offered had been rejected : and also because, admitting the possession to be dubious, trespass would not lie. Leycester and Hinchliffe now showed cause against the rule, and contended that title could not be given in evidence on the general issue in trespass, but if meant to be insisted on it ought to have been pleaded. They admitted that a lease from a third person might be given in evidence, to disprove the fact of the plaintiff's possession ; but the evidence in question was not offered on that ground. Tliey mentioned Dove v. Smith, 6 Mod. 153, where Holt, 1 The same witness had before proved facts which rendered the question of posses- sion doubtful. 454 CASES ON COMMON-LAW PLEADING. Ch. J., said, "upon not guilty the defendant could not give any matter of right in evidence." Bull. Ni. Pri. 90. {vide Tri. per Pais, 526), and Bartholomew v. Ireland, Andr. 108, in which latter they observed there was a plea of liberum tenementum, and consequently what was said as to giving such evidence on the general issue was extrajudicial. But The court were clearly of opinion that the defendant ought to have been permitted to give evidence of title and of right to posses- sion under the general issue ; and therefore they made the Eule absolute. PICKERING V. RUDD. ^/ At Nisi Prius, Lord Ellenborough, C. J. 1815. Reported 4 Campbell, 219. Or contend that the plaintiff has misconceived his action. Trespass for breaking and entering the plaintiff's close, and placing a board over it, and cutting a tree, etc. Plea, not guilty as to the clausum /regit ; and as to cutting the tree, a justification that it was wrongfully growing against the wall of the defendant, and that he therefore removed it, as he lawfully might. New assignment of excess, and issue thereupon. The defendant's house adjoins to the plaintiff's garden, the locus in quo ; and to prove the breaking and entering of this, the evidence was, that the defendant had nailed upon his house a board, which projected several inches from the wall, and so far overhung the garden. Garrow, A, G., and Pdchardson, for the plaintiff, contended that this was a trespass for which he had a right to maintain the present action. Cujus est solum, ejus est usque ad ccelum. The space over the soil of the garden is the plaintiff's, like the minerals below, and an invasion of eithei is, in contemplation of law, a breaking of his close. A mere temporary projection of a body through the air across the garden may not be actionable ; but where a board is caused permanently to overhang the garden, this is a clear invasion of the plaintiff's possession. If this be not a trespass, it is easy to conceive that the whole garden may be overshadowed and excluded from the sun and air without a trespass being committed. - Lord Ellenborough. I do not think it is a trespass to interfere with the column of air superincumbent on the close. I once had occasion to rule upon the circuit, tliat a man who, from the outside of a field, discharged a gun into it, so as that the shot must have PLEAS IN BAR. 455 struck the soil, was guilty of breaking and entering it. A very- learned judge who went the circuit with me at first doubted the decision, but I believe he afterwards approved of it, and that it met with the general concurrence of those to whom it was mentioned. But I am by no means prepared to say, that firing across a field in vacuo, no part of the contents touching it, amounts to a elausum f regit. Nay, if this board overhanging the plaintiff's garden be a trespass, it would follow that an aeronaut is liable to an action of trespass quare elausum f regit at the suit of the occupier of every field over which his balloon passes in the course of his voyage. Whether the action may be maintained cannot depend upon the length of time for which the superincumbent air is invaded. If any damage arises from the object which overhangs the close, the remedy is by an action on the case. Here the verdict depends upon the new assicrnment of excess in cuttincr down the tree. The jury found for the defendant. Garrow, A. G., and Eichardson, for the plaintiff. Jervis and Abbott, for the defendant. [Attorneys, Caley and Presland.] (d) To Plaintiff's Person. RIGG'S CASE. At Nisi Prius, before Crawley, J. August, 1633. Rhpokted Clayton, 24, j^Iacitum 41. The extent stated to which justification of a battery is admissible under "not guilty." Eigg brought an action of battery, and the case was, the plaintiff was a boy and did press to come into a cockpit to see the game, and the master of the pit, endeavoring to put him forth, he resisted him ; the master thereupon pulled him by the ear so that it bled, and the boy by his guardian sues this action, and the master pleaded not guilty ; for this it was against him, but by Davenport, Judge, some opinion was that by good pleading in this case the master of the pit might have justified the act well enough, but could not plead not guilty. 456 CASES ON COMMON-LAW PLEADING. / GIBBONS V. PEPPER. y/ In the King's Bench. 1695. Reported 1 Lord Raymond, 38. Trespass, assault and battery. The defendant pleads, that he rode upgin a horse in the king's highway, and that his horse being affrighted ran away with him, so that he could not stop the horse ; that there were several persons standing in the way, among whom the plaintiff stood ; and that he called to them to take care, but that, notwithstanding, the plaintiff did not go out of the way, but continued there ; so that the defendant's horse rode over the plain- tiff against the will of the defendant ; quce est eadem transgressio, etc. The plaintiff' demurred. And Serjeant Darnall for the defend- ant argued, that if the defendant in his justification shows that the accident was inevitable, and that the negligence of the defend- ant did not cause it, judgment shall be given for him. To prove which he cited Hobart, 344; Weaver v. Ward, Mo. 864, pi. 1192; 2 Roll. Abr. 548 ; 1 Brownl. prec. 188. Northey for the plaintiff said, that in all these cases the defendant confessed a battery which he afterwards justified ; but in this case he justified a battery, which is no battery. Of this opinion was the whole coart ; for if I ride upon a horse, and J. S. whips the horse, so that he runs away with me, and runs over any other person, he who whipped the horse is guilty of the battery, and not me. But if I by spurring was the cause of such accident, then I am guilty. In the same manner, if A. takes the hand of B. and with it strikes C, A. is the trespasser, and not B. And, per curiam, the defendant might have given this justification in evi- dence, upon the general issue pleaded. And therefore judgment was given for the plaintiff. CASE. " In actions upon the case, the defendant, upon the general issue of not guilty, may not only put the plaintiff upon proof of the whole charge contained in the declaration, but may offer any mat- ter in excuse or justification of it; or he may set up a former re- covery, release, or satisfaction : For an action on the case is founded upon the mere justice and conscience of the plaintiffs case, and is in the nature of a bill in equity, and in effect is so ; and therefore such a former recovery, release, or satisfaction need not be pleaded, PLEAS IN BAK. 457 but may be given in evidence : since, whatever will, in equity and conscience, according to the circumstances of the case, bar the plaintiff's recovery, may in this action be given in evidence by the defendant ; because the plaintiff must recover upon the justice and conscience of his case, and upon that only." Tidd, Practice, 650. UNDERWOOD v. PARKS. In the Kixg's Bench. 1743. Reported 2 Strange, 1200. y In an action for words, the defendant pleaded not guilty, and offered to prove the w^ords to be true, in mitigation of damages : which the Chief Justice refused to permit, saying that at a meet- ing of all the Judges upon a case that arose in the Common Pleas, a large majority of them had determined, not to allow it for the future, but that it should be pleaded, whereby the plaintiff might be prepared to defend himself, as well as to prove the speaking of the words. That this was now a general rule amongst them all, which no judge would think himself at liberty to depart from, and that it extended to all sorts of words, and not barely to such as imported a charge of felony. BROOK V. SIR HENRY MONTAGUE, RECORDER OF LONDON. In the King's Bench. 1605. Reported Croke's James, 90. Action for words; for that the defendant at such a place in Surrey spake these words of the plaintiff: " He was arraigned and con- victed of felony, etc." The defendant pleads, that the plaintiff at another time brought false imprisonment against J. S., one of the Serjeants of London, who justified by warrant from Sir Nicholas Mosely, Mayor of London, for arresting him to find sureties for the good behavior ; and they were thereupon at issue ; and found against the plaintiff, who brought an attaint : and the defendant being consiliarius et peritus in lege, was retained to be of counsel with the petty jury ; and in evidence at the trial in London spake those words in the declaration ; and so justifies. Yelverton and Coke, Attorney-General, were of counsel for the defendant. The court resolved that the justification was good ; for a counsel- lor in law retained hath a privilege to enforce anything which is 458 CASES ON COMxMOX-LAW PLEADING. informed him by his client, and to give it in evidence, it being pertinent to the matter in question, and not to examine whether it be true or false ; but it is at the peril of him who informs it : for a counsellor is at his peril to give in evidence that which his client informs him, being pertinent to the matter in question ; otherwise action on the case lies against him by his client, as Popham said. But matter not pertinent to the issue, or the matter in question, he need not to deliver ; for he is to discern in his discretion what he is to deliver, and what not ; and although it be false, he is excusable, being pertinent to the matter : but if he give in evidence anything not material to the issue which is scandalous, he ought to aver it to be true, otherwise he is punishable ; for it shall be intended as spoken maliciously and without cause ; which is good ground for an action. So if a counsellor object matter against a witness which is slanderous, if there be cause to discredit his testimony, and it be pertinent to the matter in question, it is justifiable what he delivers by information, although it be false. So here it is material evidence to prove him a person fit to be bound to his good behavior, and in maintenance of t1ie first verdict ; therefore his justification good. " Coke cited a case, where Parson Prick in a sermon recited a story out of Fox's Martyrology, that one Greenwood, being a perjured person, and a great persecutor had great plagues inflicted upon him, and was killed by the hand of God ; whereas in truth he was never so plagued, and was himself present at that sermon ; and he thereupon brought his action upon the case, for calling him a perjured person; and the defendant pleaded not g^iilty. And this matter being disclosed upon the evidence, Wray, Chief Justice, delivered the law to the jury, that it being delivered but as a story, and not with any malice or intention to slander any, he was not guilty of the words maliciously, and so was found not guilty." Y. B. 14 Hen. VI. pi. 14 ; Y. B. 20 Hen. VI. pi. 34. And Popham affirmed it to be good law, v/hen he delivers mat- ter after his occasion as matter of story, and not with any intent to slander any. — Wherefore, for these reasons, it was adjudged for the defendant. " [In actions on the case ] it was always necessary to plead the statute of limitations specially." Chitty, Pleading, Vol. I. p. *526. PLEAS IN BAR. 459 / LILLIE V. PRICE. In the King's Bench. 1836. Reported 5 Adolphds & Ellis, 645. Privileged communications need not be specially pleaded. Declaration for libel contained in a letter. Plea, not guilty. On the trial before Lord Denman, C. J., at the sittings in Middlesex after last Trinity Term, the defence was that the alleged libel was a privileged communication. The defendant's counsel objected that this answer could not be given under the plea of not guilty. The Lord Chief Justice thought otherwise, and left the whole case to the jury, who found for the defendant. Sir W. W. Follett in this term ^ moved for a rule to show cause why a new trial should not be had, on the ground of misdirection. It has never yet been decided that m an action for libel the de- fence of privileged communication may be set up, under a plea of the general issue. The point was brought before the Court of Common Pleas, but not decided, in Smith v. Thomas, 2 New Ca. 372. In the rules, Hil. 4 Will. IV., Pleadings in Particular Actions, IV. 1, 5 B. & Ad. ix, it is said that the plea of not guilty, in an action for slander of the plaintiff in his office, profession, or trade,^ " will operate to the same extent precisely as at present, in denial of speaking the words, of speaking them maliciously, and in the sense imputed, and with reference to the plaintiffs office, profes- sion, or trade ; but it will not operate as a denial of the fact of the plaintiff holding the office, or being of the profession or trade alleged." But it cannot be inferred from this that the same plea will let in the defence of privileged communication, which involves matter not properly determinable by a jury. The mere plea of not guilty does not give the plaintiff any notice of such a defence. In Stancliffe v. Hardvviok, 2 Cro., M. & R. 1 ; s. c. 5 Tyr. 551. Where a question of the same kind arose as to the admissibility of evi- dence, in an action of trover, to justify the conversion, it was held that, to let in such a defence, the plea ought to have been special. Cases bearing some analogy to the present have arisen in actions of assumpsit, as Barnett v. Glossop, 1 New Ca. 633, and where the defence was the want of a written contract to satisfy the statute of frauds, it has been held, since the New Rules, that that must be 1 November 5. Before Lord Penman, C. J., Patteson, Williams, and Coleriilge, JJ. 2 Tlie .slander in the present case was not charged as affecting the plaintiff in any particular capacity. 4G0 CASES ON COMMON-LAW PLEADING. specially pleaded.^ [Lord Dennian, C. J. In the instance of an action of slander, mentioned in the rule of pleading just cited, it is said that the plea of not guilty will operate as before, in denial of having spoken the words maliciously.] Cur. adv. vult. Lord Denman, C. J., now said: We have consulted the other judges on this point, and are of opinion that the defence of privi- leged communication, as it goes to the very root of the matter of complaint, need not be specially pleaded. Rule refused.^ Section VI. DETINUE. " In detinue the defendant pleadeth non detinet, he cannot give in evidence, that the goods were pawned to him for money, and that it is not paid, but must pleade it ; but he may give in evidence a gift from the plaintife, for that proveth he detaineth not the plaintife's goods." Coke upon Littleton, 283 a. / RICHARDS V. FRANKUM. In the Exchequer. 1840. Reported 6 Meeson & Welsby, 420. The only issue on non delinet is upon the fact of the detainer. This was an action of detinue for a promissory note. ' The defendant pleaded, first, non detinet ; SQCow&ly, that the plaintiff was not possessed of the note ; thirdly, that before the commence- ment of the suit, the plaintiff, for a good and valuable considera- tion, assigned and delivered the said promissory note to one John Granger, to be by him held as and for his own note ; and that the said John Granger, before the commencement of this suit, delivered the said note to the defendant, to be by him held for and on the behalf and for the use and benefit of the said John Granger ; and tliat the defendant, as the servant and by the command of the said John Granger, detained and still detains the said promissory note, as he lawfully might for the causes aforesaid. The replication traversed the assignment and delivery of the 1 But see Johnson v. Dodgson, 2 M. & W. 653. 2 See Cotton v. Browne, 3 A. & E. 312, where it was held that probable cause ought not to be specially pleaded to a declaration (since the new rules) for maliciously indicting. See also Delegal v. Higliley, 3 New Ca. 950; and Drumnioud v. Pigon, 2 JJew Ca. 114, there cited. PLEAS IN BAR. 461 note by the plaintiff to Granger, and the delivery by Iiim to the defendant. At the trial before Gurney, B., at the last assizes for the county of Oxford; the jury found a verdict for the defendant on the second and third issues ; the learned judge giving the defendant leave to move to enter a verdict on the issue on the plea of non detinct also, if the court should be of opinion tliat the matters of defence so found in his favor were evidence in support of that issue. Ludlow, Serjt., now moved accordingly. The jury, by finding on the second and third issues for the defendant, have found that the promissory note was not the property of the plaintiff, and so estab- lished the plea of non detinet, which puts in issue the wrongful holding and detaining of the note by the defendant. It is evident from the use of the words, " which he unjustly detains," in the original writ and declaration, that the unjust detention is the gravamen of the complaint, and that is therefore put in issue by the plea of non detinet, notwithstanding the New Rules. What- ever may be the eflect of the New Rules as to pleading specially matter of excuse, the unjust detention is the gravamen of the charge in the declaration ; and as that is a material allegation in it, and is traversed by the plea, and the finding of the jury on the other issues establishes that there was no unjust detention, the verdict ought therefore to be entered for the defendant. Lord Abinger, C. B. There is no ground whatever for this mo- tion. It is true that a party who brings an action of detinue brings it for the unjust detention of his property ; but where the detention is justified, the matter must be set out on the record. The only issue on non detinet is upon the fact of the detainer. If the party has a lawful excuse for the detainer, he must plead it. Parke, B. There is no ground for this application. Under the plea of non detinet a defendant might, at common law, prove that the goods were not the property of the plaintiff; but if he had a lawful excuse for the detention, as if the goods were pawned or pledged to him for money which was not repaid, he was bound to plead it. Co. Lit. 283 a. Lord Coke there says, " In detinue, the defendant pleadeth'^ion detinet ; he cannot give in evidence that the goods were pawned to him for money, and that he is not paid, but he must plead it ; but he may give in evidence a gift from the plaintiff, for that proveth that he detaineth not the plaintiff's goods." But it is perfectly clear that, since the New Rules, the defendant cannot give in evidence, under the plea of non detinet, that the goods were not the property of the plaintiff: so that, in any view of the case, the matters proved in support of the second 462 CASES ON COMMOX-LAW PLEADING. and third ple^ were not evidence under the first. If the object be to show that the chattel is not the property of the plaintiff, that cannot be done under such a plea since the New Rules. If the object be to show that the detention was lawful, and the party had a good excuse for detaining the property, then, according to the authority of Lord Coke, such a defence ought to be pleaded, even at common law. Under the plea of non detinet, the fact of deten- tion is alone in issue. Alderson, B. In an action of trover, the plea of not guilty puts in issue the mere fact of the conversion, and so under the issue of non detinet the fact of the detention is alone in issue. Eolfe, B., concurred. " Rule refused. LANE V. TEWSON. In the Queen's Bexch. 1841. Reported 1 Gale & Davison, 584. Detinue of goods. Plea, that the said goods, etc., were not the goods of the plaintiff. At the trial before Parke, B., at the last assizes for the county of Lincoln, the defendant contended that he had a lien upon the sub- ject of the action for his charges as an auctioneer. It was objected, on the part of the plaintiff, that this defence was not admissible under the plea. The learned Baron reserved leave to the plaintiff to move to enter a verdict for him on this objection, if the opinion of the jury should be adverse upon the question, which he left to them, of the fact of the lien. The jury having found a verdict for the defendant, Balguy 1 now moved to enter a verdict for the plaintiff, pursuant to leave reserved. He cited Richards v. Prankum as an authority that in detmue a lien must be specially pleaded. Cur. adv. vult. Lord Denman, C. J., now delivered judgment. The question in this case was, whether in detinue, under a plea denying that the goods were the plaintiff's, a lien could be set up. We think, that the learned judge ruled rightly that it might. A similar point has been already decided in an action of trover. Rule refused. 1 On Friday, November 5, before Lord Denman, C. J., Williams, Coleridge, and Wightman, JJ. PLEAS IN BAE. / 463 PHILIPS V. ROBINSON. In the Common Pleas. 1827. Reported 4 Bingham, 106. Want of property in the plaintiff may be given in evidence under non cletinet. Detinue for deeds. The declaration alleged that the plaintiff de- livered, and caused to be delivered, to the defendant certain deeds (describing them) of the said plaintiff, of great value, to wit, of the value of £1000, to be re-delivered by the defendant to the plaintiff when the defendant should be thereunto afterwards requested ; yet the defendant, although requested, refused to re-deliver them, and unjustly detained them. Second count, that the plaintiff was lawfully possessed, as of his own property, of certain other deeds (describing them), and, being so possessed, lost them, and they came to the defendant's possession by finding. Yet the defendant, knowing them to be the property of the plaintiff, had not delivered them to plaintiff, though re- quested, but detained them. Pleas: 1st, non detinet ; 2dly, that the plaintiff did not deliver the deeds to the defendant ; 3dly, that the plaintiff was not law- fully possessed of the deeds, as of his own property ; 4thly, that they were not the property of the plaintiff; 5thly, that defendant, as a conveyancer, had a lien on them. At the trial before Gaselee, J., Middlesex sittings after last Michaelmas Term, it appeared that the defendant was entered as a student at one of the Inns of Court, and had taken out a certi- ficate as a conveyancer ; that the deeds in question were the title deeds of an estate belonging to the plaintiff's wife; that the plaintiff or his agent, after his marriage, had delivered them to the defendant, with instructions to prepare a conveyance of the property ; that the defendant prepared the conveyance accordingly ; that an attorney was employed by him to levy a fine of the property, to which the plaintiff and his wife were parties ; and that a fine was levied accordingly ; the uses of which were declared to such person as plaintiff's wife should appoint, and for default of appointment, to George Philips, second son of plaintiff and his wife. The defendant detained the deeds, on the ground that his charges for preparing the conveyance had not been paid. The learned judge directed the plaintiff to be nonsuited, with 464 CASES ON COMMON-LAW PLEADING. leave to move to set the nonsuit aside and enter a verdict instead, thinking, under the above circumstances, that he had no property in the deeds at the time the action was commenced. Best, C. J. This was an action of detinue for certain deeds ; to which tlie defendant pleaded, first, that he did not detain them ; secondly, that they were not lawfully in the possession of plaintiff ; thirdly, that they were not the plaintiff's property. At the time the action commenced these deeds were not the property of the plaintiff, because, whether they were originally so or not, the plaintiff had at that time consented to a fine, by which the property in the lands to which the deeds referred had been conveyed to his second son. It is a clear principle of law, that the muniments of an estate belong to the person who has the legal interest in it ; so that if the plaintiff was originally entitled to receive the deeds on request, he was not so at the time of action, for he could only be so entitled as long as the right to the property continued in him. The case cited from Viner is decisive on the point. That case rests on a decision in the year books, in which the party delivering a deed to the bailee had originally a right to it ; but his right having passed away, the court held he could not sue the bailee. No distinction has been pointed out between that case and the present ; and it is perfectly consistent with good sense. Why should not the rightful owner in such a case sue at once ? Why should the party who originally delivered the deed be supposed to retain a special property in it, in order to do that which the true owner might do directly ? I do not agree to the position that a principal may in all cases recover property which he has delivered to his agent. Suppose a principal delivers the property of another who claims it at the hands of the agent : could the agent set up as a defence that he received the property from his principal ? Certainly not. He would be answerable to the true owner, and not to the false claimant. With respect to the supposed analogy between this case and that of a landlord and tenant, it is true a tenant cannot dispute that his landlord had a title at the time of the lease, but he may show that the title has expired subsequently to the lease, England d. Syburn v. Slade, 4 T. E. 682. So here the defendant may admit that the plaintiff had once a title to these deeds, but insist that he parted with it before the com- mencement of this action. Dixon v. Hamond has no bearing on the present question. In that case, a ship, originally belonging to one of two partners, had been conveyed to one Hart for securing a debt; subsequently Hart conveyed her to the defendant upon his advancing to Hart the sum secured: the defendant, who was PLEAS IN BAR. 465 an insurance broker, afterwards effected an insurance in the names of the two partners, charged them with the premiums, and, the ship having been lost, received the amount of the insurance as their agent, but refused to pay such money to the assignees of the two partners, alleging that he was only accountable to the repre- sentative of the single partner to whom the ship tirst belonged. The court would not endure so dishonest a proceeding ; and Abbott, J., said, " The defendant has received the money as agent for the partnership, and he cannot now be permitted to say that he re- ceived it for the benefit of Flowerdew alone." The present defendant has not received money for two persons, and then attempted to say, " I received it only for one ; " but he has received deeds under color of a title which has now passed away from the party who delivered them. Suppose the case of the conusor of a fine : the estate and muniments belong to the conusee after the levying of the fine : could the conusor, after the fine had passed, maintain trover against the attorney for not re-delivering the title deeds of the estate ? When the right to the estate went, the right to the muniments went also. The present case is of the^ame nature, and the rule for setting aside the nonsuit must be discharged. Park, J. In supporting this nonsuit I am not afraid of impeach- ing any principle of law. In order to support an action of detinue, the plaintiff must have a general or a special property in what he seeks to recover. If he has not such a property, it may be shown on the plea of 7ion detinet. But at all events the fourth plea in this case has been clearly established. The plaintiff had no property whatever in these deeds at the time of the action : it was all gone by the operation of the fine : if so, the case in Viner is in terms the same as the present. The plaintiff here liad conveyed the property to his son ; and he, therefore, might have sued for the deed, although he had never been in possession of the property. Eoll. Abr. Detinue. Therefore, without entering on the defendant's right to detain, it is clear the plaintiff had no riglit to sue. Burrough, J. In detinue the plaintiff may recover either the specific thing detained, or the value of it. But what value could the jury find for the plaintiff in the present case ? I am clearly of opinion that this was an answer to the action upon non detinet. The province of the jury in this respect cannot be supplied by a writ of inquiry. But in order to establish that the deeds are of any value to him, the plaintiff must show that he has a right to them. In Co. Lit. 283, it is laid down: "If the defendant plead noil detinet, he may give in evidence a gift by the plaintiif, for 30 466 CASES ON COMMON-LAW PLEADING. that shows he does not detain his goods." At the time of this action the plaintiff had no interest in these deeds ; they were of no value to him ; and, therefore, the nonsuit was right. Gaselee, J. I had some doubts at first whether want of property in the plaintiff might be given in evidence on non detinet, but the passage from Lord Coke renders that point clear. If the defendant relies on a lien, that must be specially pleaded; but he may give in evidence, under non detinet, that the plaintiff has no property in the thing sought to be recovered. The circumstance that the plaintiff delivered the deeds to the defendant will not avail him^s&ince he himself has subsequently executed a conveyance which carries the deeds with it. Eule discharged.^ / Section VII. EEPLEVIN. MICHAEL F. D'ARCY v. JENNIE D. STEUR.' Supreme Judicial Court of Massachusetts. 1901. Keported 179 Massachusetts, 40. Non cepit does not put in issue property in the replevied goods. Eeplevin for certain doors alleged to be the property of the plaintiff and detained by the defendant. Writ dated May 4, 1899. The answer was a general denial. In the Superior Court the case was heard without a jury by Stevens, J., who found for the defendant and assessed damages in the sum of $1. Afterwards the defendant moved for an order for a return. The plaintiff objected on the ground that the answer being only a general denial did not set up title to the goods in the defendant or show any grounds for a return of the goods replevied, and requested the judge to rule that an order for a return should not issue. The judge refused so to rule, and granted the motion of the defendant that an order of return should issue. The plain- tiff alleged exceptions. G. J. Weller, for the plaintiff. P. Tworoger, for the defendant. Holmes, C. J. An answer in the form of a general denial long has been sanctioned under our practice act. Boston Eelief & Sub- marine Co. V. Burnett, 1 Allen, 410. It is permissible in replevin, as in other actions, and puts in issue the plaintiff's right of posses- 1 The arguments of Wilde, Serjt., for the plaintiff, and Gross and Spankie, Serjts., for the defendant, are omitted. PLEAS IN BAR. 467 sion. Spooner v. Cummings, 151 Mass. 313. In other words it is broader than the old plea non cepit, and dispenses with the neces- sity of an avowry or cognizance in order to justify a judgment for a return. See Bartlett v. Prickett, 98 Mass. 521 ; Pub. Sts. c. 184, s. 13. The practice in many other states under statutes would seem to be more or less like ours. Fleet v. Lockwood, 17 Conn. 233, 243; Holiday v. McKinrie, 22 Fla. 153, 158; Connor v. Comstock, 17 Ind. 90, 92, 93 ; King v. Kamsay, 13 111. 619, 623 ; Bates v. Buchanan, 2 Bush, 117. Exceptions overruled. / CALVIN GOULD v. THOMAS BARNARD. Supreme Judicial Court, Massachusetts. 1807. Eeported 3 Massachusetts, 199. This must be done by an avowry or conusance. This was a writ of replevin, to which the defendant pleaded, in abatement, that, at the time of the service of the writ, it was not endorsed by any responsible person with his Christian and sur- name, as the law requires. To this plea the plaintiff demurred, and the defendant joined in demurrer. Bliss, for the plaintiff, argued that the statute, which required writs to be endorsed by the plaintiff, related only to those writs, the forms of which were prescribed by that statute, 1784, c. 28. But he seemed to rely more on the special provision prescribed by the statute particularly relating to this process of replevin, 1789, c. 26, which requires the plaintiff to give bond to the sheriff in double the value of the goods to be replevied, conditioned, among other things, for the payment of the costs which the defend- ant might eventually recover in the action. This special provision, being in a statute posterior to that requiring original writs to be endorsed, has superseded the use or necessit)'' of such endorsement in this case, even if the former statute should be understood to apply to writs of replevin, of which there is great room to doubt, as the necessity of giving bond in suing out writs of re])levin, existed long before the law required writs to be endorsed for the securing to the defendant his costs. Ashman, for the defendant, observed that the words of the statute required " all original writs issuing out of the Supreme Judicial Court, and Court of Common Pleas " to be endorsed, whether those prescribed in that statute, or in any prior or posterior 468 CASES ON COMMON-LAW PLEADING. statute. The language is authoritative and binding. No argu- ment, showing that in any particular case, there is less necessity or use in the endorsement, can avail against the plain and positive requirement of a statute. We are not bound to give reasons which induce the legislature to enact any particular law. It is enough for citizens to understand and obey it, and for courts to enforce it, when enacted. One reason, however, of tliis provision, and it will apply as well to writs of replevin as to any other original writs, may have been that the defendant, by the plaintiffs signature on the back of the writ, may be assured that the action was really commenced at his instance. This in many cases is quite as essential to the defendant as an assurance for a bill of costs which he may eventually recover. But suppose the whole use of the en- dorsement to be the assuring to the defendant his eventual costs ; the legislature might think it proper, in an action so different from the usual common-law process, to give a cumulative remedy to the defendant for his costs by requiring a bond, over and beyond the endorsement of the writ. Bliss, in reply, observed that the defendant might be equally satisfied that the suit was commenced at the plaintiffs instance by the bond given, as by the endorsement upon the writ. The statute regulating the process in replevin was not in existence until years after the statute requiring the endorsing of writs, was enacted. Parsons, C. J. I do not see any benefit accruing to the defend- ant, from requiring writs of replevin to be endorsed. The replevin bond, which must be executed by the plaintiff", with sufficient surety or sureties, is conditioned, among other things, to pay the defendant the costs he shall recover ; and to secure to him his costs, by a cumulative remedy, does not appear necessary. But the statute expressly requires all original writs to be endorsed, or they may be abated. A writ of replevin is, without question, an original writ. It must therefore be endorsed. Writ abated. After this decision, the defendant's counsel moved for a return. The court, after taking time to consider the motion, refused to grant it. They observed that as the defendant had neither avowed, nor made conusance, nor made any plea or suggestion on record to entitle him to the possession of the goods, he could not have a re- turn, and they gave judgment only for Costs for the defendant.^ 1 The opinions of Parker and Sedgwick, JJ., are omitted. PLEAS IN BAR. GILBERT V. PARKER. In the Queen's Bench. 1704. Reported in 2 Salkeld, 629. 469 In replevin for taking cattle, the defendant made conusance that A., his master, was seised of the locus in quo, and per ejus jprcecejat, he took them damage-feasant. Plaintiff replied, that he was seised of one-third part, and put in his cattle, alsque hoc, that the said A. was sole seised. To this the defendant demurred, and judgment was given against him ; for the defendant makes a conusance under his master as sole seised, when he was only tenant in com- mon ; in which case he should have pleaded according to the truth, that he was only tenant in common, etc. When the defendant pleads his master was seised in fee of the place where, etc., that must necessarily be understood that he is sole seised ; and what- ever is necessarily understood, intended, and implied, is traversable as much as if it were expressed ; and, therefore, though a seisin in fee is only alleged generally, yet that being intended a sole seisin, the plaintiff may traverse, absque hoc, that he is sole seised ; since the plaintiff makes himself tenant in common with the defendant, it had not been enough to say that he is tenant in common, with- out traversing the sole seisin. HILL V. WRIGHT. At Nisi Prius, coram Buller, J. July, 1798. Reported 2 Espinasse, 669. This was an action of replevin. The defendant, by his avowry, stated that the plaintiff held of him certain premises, the rent whereof was reserved quarterly, and then avowed for a quarter's rent in arrear to Christmas, 1797. Plea in bar to the avowry. No rent in arrear. The counsel for the plaintiff stated his case to be, that he held under a lease from the defendant's father, under whom the defend- ant claimed; which lease he had ready to produce, but in wliich the rent was reserved half yearly, and not quarterly, as the defend- ant had avowed. • Buller, J. The plaintiff cannot go into that evidence on these pleadings. Shepherd, Serjt., contended that it could. That the issue was, 470 CASES ON COMMON-LAW PLEADING. that there was no rent in arrear on the day stated in the avowry. No rent was by law due till the days on which it was reserved and made payable ; and, by the lease, those days were Michaelmas and Lady-day ; so that no rent was in arrear at Christmas, on which day the defendant avowed, no rent being then due or payable. Buller, J. Biens en arrere admits the title of the defendant as stated in the avowry. The holding, therefore, must be taken to be a holding reserving the rent quarterly. The plaintiff might have, by his plea in bar, denied the holding. He has not done so, but chosen to take issue only on no rent being in arrear at Christmas, 1797. Unless, therefore, he can show that he has paid the rent up to that time, the defendant must have a verdict. The plaintiff having no evidence to that effect, the defendant had a verdict. DOVER V. RAWLINGS. At Nisi Prius, coram Tindal, C. J. February, 1844. Reported 2 Moody & Robixson, 544. Replevin. Plea, non cepit, and issue thereon. The plaintiff proved a seizure of the goods by the defendant, but failed in proving any property in them, or that at the time of the seizure they were in his (the plaintiff's) possession. Channell, Serjt., objected that upon the issue joined it was neces- sary for the plaintiff' to show himself in possession of the goods. The New Rules had introduced no alteration in the pleadings in re- plevin, and before those rules no7i cepit put the property in issue. Tindal, C. J. I agree that the New Rules do not apply to this form of action ; but I find that in Comyns's Digest a plea is given expressly denying the property, and I think that the plea of non cepit would not, according to the old course of pleading, put the plaintiff on proof of the possession. The plaintiff accordingly had a verdict. ARUNDELL v. TREVILL. Ix THE King's Bench. 1672. Reported Siderfin, 81. In replevin brought by an execntor for a mare and colt, the de- fendant pleaded not guilty of the taking aforesaid within six years now last past, and it was urged for the defendant that this is a good plea, because it is in effect non cepit. . . . But upon consultation it was resolved by the court that the plea is not good, because it PLEAS IN BAR. 471 does not answer the detainer forasmuch as here the colt was not taken but sold in the pound, and one may distrain a thing lawfully and afterwards may detain it unlawfully, as when one puts it in a castle, etc., so that it cannot be replevied. Fitz. Repl. 6-21. And as for its being said that the executor may not have replevin, the law is contra. Fitz. N. B. 121 . . . for replevin affirms property and so the executor may well have this or quare impedit or ravish- ment of his ward. RECAPITULATION OF THE GENERAL ISSUE. " In trespass to persons, the general issue of not guilty may be properly pleaded, if the defendant committed no assault, battery, or imprisonment, etc. ; in the trespass to personal property, if the plaintiff had no property in the goods ; and in trespass to the real property, if he was not in possession of the land, etc. And liberum tenementum, or other evidence of title or right to the possession, may be given in evidence, under the general issue. But regularly, by the common law, matter of excuse or justification must be specially pleaded ; as in trespass to persons, or justification must be specially pleaded ; as in trespass to persons, son assault demesne ; or in trespass to real property, a license; that the beasts came through the plaintiff's hedge, which he ought to have repaired ; or in respect of a rent-charge, common or the like. And the defend- ant must plead specially a release or other matter in discharge of the action. But in actions against justices, etc., and in various other cases, the defendant by act of Parliament is allowed to plead the general issue, and give the special matter in evidence. " In actions upon the case, the defendant, upon the general issue of not guilty, may not only put the plaintiff upon proof of the whole charge contained in the declaration, but may offer any matter in excuse or justification of it ; or he may set up a former recovery, release or satisfaction : for an action upon the case is founded upon the mere justice and conscience of the plaintiff's case, and is in the nature of a bill in equity, and in effect is so ; and therefore such a former recovery, release, or satisfaction need not be pleaded, but may be given in evidence ; since whatever will, in equity raid conscience, according to the circumstances of the case, bar the plaintiffs recovery, may, in this action, be given in evidence by the defendant ; because the plaintiff must recover upon the justice and conscience of his case, and upon that only. In an action for words, the truth of the words cannot be given in evi- dence, under the general issue of not guilty. And by the 8 & 9 472 CASES ON COMMON-LAW PLEADING. Will. Ill, c. 27, s. 6, ' no retaking on fresh pursuit shall be given in evidence, on the trial of any issue, in any action of escape, against the marshal, etc. unless the same shall be specially pleaded ; nor shall any special plea be received or allowed, unless oath be first made in writing by the defendant, and filed in the proper office, that the prisoner, for whose escape such action is brought, did escape without his consent, privity or knowledge.' " Where the defence consists of matter of fact, and the general issue may, it ought to be pleaded ; it being in such case a good cause of demurrer, that the plea amounts to the general issue. But it is observable, that in many cases, where the defence consists of matter of law, the defendant may either plead it specially, or give it in evidence under the general issue ; as in assumjjsit, infancy, accord and satisfaction, or a release, etc. may be either pleaded, or given in evidence upon non assumpsit ; and in debt on bond, made by a married woman, the defendant may either plead coverture, or give it in evidence upon non est factum. In these cases, from the nature of the defence, the plaintiff has an implied color of action, bad indeed in point of law, if the facts pleaded be true, but which is properly referred to the decision of the court. And where, from the nature of the defence, the plaintiff would have no implied color of action, the defendant, in some cases, is allowed to give him an express color. Thus in the common and almost only case where express color is now given, if in an action of trespass quare clausum f regit, the defendant plead a possessory title, under a demise from a third person, (for if he claim under the plaintiff, there is an implied color) this, without more, would amount to the general issue ; for it goes to deny that the trespass was committed in the plaintiffs close : but if the defendant, after stating his ov/n title, supposes (as is usual) that the plaintiff entered upon him, under color of a former deed of feoffment without livery, and that he re-entered, this creates a question of law, for the decision of the court ; and by that means prevents the plea from amounting to the general issue ; and being matter of supposal, it is not traversable. " In trespass for taking goods if the defendant plead that A was possessed of them, as of his proper goods, aud sold them in market- overt, or that B stole the goods from A and waived them within his manor, wherefore he took them, the defendant must give color; for his plea proves that no property was in the plaintiff, so he had no color of action ; and the color usually given in such cases is, that the defendant bailed the goods to a stranger, who delivered them to the plaintiff, from whom the defendant took them. But PLEAS IN BAR. 473 in the same cases, if the defendant plead that A sold the goods in market-overt, without saying that they were his own, or that B took them de quodam ignoto, and waived them, the plea is good without color ; for it does not deny but that the property was in the plaintiff, and the defendant is not bound to show expressly in whom it was." Tidd, Practice, 597-601. II. PLEAS IN CONFESSION AND AVOIDANCE. (a) In Justification or Excuse. B. says to C, " A. murdered X." A. sues B. for slander. The words are true. B. cannot plead 7iot guilty, for he did speak the words. B. will plead a special plea. He will, in effect, say, " I confess that I spoke the words, but I avoid their legal effect by saying that they are true." (b) la Discharge. B. executes and delivers to A. a specialty promising to pay A. £10 at Easter. At Easter, B. refuses to pay. A. brings an action of debt on B.'s bond. B., however, has a release under seal from A., executed and delivered the day after the delivery of the obligation on which suit is brought. B. cannot plead non est factum, for the deed sued on is his deed. B. will plead a special plea. He will, in effect, say, " I confess the signing, sealing, and delivery of the obliga- tion on which I am sued, but 1 repel its legal effect by showing to you this release under seal by A. of my debt to him." " The quality of a plea in confession and avoidance is more peculiar [than that of a plea in denial], and demands particular attention. A plea of this description is either in justitication or excuse of the matters alleged in the declaration ; as, imprisonment under a magistrate's warrant, or son ansault demesne in trespass ; or it is in discharge of the cause of action by subsequent matter, as accord and satisfaction, or a release. It is observable that each of / 474 CASES ON COMMON-LAW PLEADING. these pleas admits the mere facts stated in the declaration, as that the defendant committed the trespass charged ; that the contract was made, or the debt was incurred, etc. But the matter which they allege by way of defence defeats or avoids the legal effect of those facts, and disproves, if true, the plaintiff's right of action. . . . " It is plain that a plea which shows some new matter in avoidance or discharge of the plaintiff's allegations is double and argumenta- tive, if it do not admit the apparent truth of those allegations as matter of fact. There can be no occasion to adduce grounds for defeating the operation of disputed facts. The plea in avoidance must therefore give color to the plaintiff, that is, must give him credit for having an apparent or prima facie right of action, inde- pendently of the matter disclosed in the plea to destroy it." Chitty, Pleading, *552. RADFORD V. HARBYN. In the King's Bench. 1006. Reported Croke's James, 122. Color defined. Trespass, for taking and carrying away a hundred load of wood. The defendant justifies, for that J. S. was possessed of them ut de bonis prop riis ; and the plaintiff claiming them by color of a deed of gift of them afterward made, took them, and the defendant retook them. It was thereupon demurred : Because the color given to the plaintiff is a good title for the plaintiff, and confesseth the interest in him ; for color ought to be such a thing which is good color of title, and yet is not any title ; as a deed of a lease for life, because it hath not tfhe ceremony, viz. livery. So grant of a reversion without attornment is not good ; but a deed of goods and chattels without other act or ceremony is good. So of color by a lease for years or letters patent, it is not good ; because they make a good title in the plaintiff. — And of that opinion was all the court. HATTON V. MORSE. In the Queen's Bench. 1702. Reported 3 Salkeld, 273. Kinds of color distinguished. There is a short note of this case in 1 Salk. ; but the case was thus : ss. Ill assump)sit, etc. The defendant pleaded, that true it is he did promise, but tXioX ante diem impetrationis hilloe, he paid the money; PLEAS IN BAR. 475 and upon a demurrer to this plea it was objected, that it amounted to the general issue. But per Holt, Ch. Just. This doth not amount to the general issue ; for though payment may be given in evidence upon noil assumpsit pleaded, yet it was long before that obtained ; it is likewise giving color, for he says, there was a promise, but that he performed it : now there are many things which may be given in evidence under the general issue, and yet those things may be pleaded specially : as, for instance, in an action of debt the defendant may plead a release, or he may give it in evidence upon nil debet pleaded, so in debt for rent upon a demise, the defendant may plead an entry and eviction, before any rent became due, or he may give it in evidence upon nil debet. 8. There are two sorts of color, the one is express, the other implied. 9. Express, as in trespass quare clausum f regit, the defendant in pleading makes title under W. R setting forth, that the plaintiff claims under a feoffment from the said W. E. by which nothing passed, but that he entered by color thereof : now here the defendant gave color of action to the plaintiff because by the feoffment he was tenant at will, and entered, and by virtue of his possession he may maintain an action against every one, but not against him who hath a right ; so likewise in trespass quare clausum fregit, if the defendant pleads, that the plaintiff was seised, etc., and made a lease to him for years, there is no occasion to give express color, because the defendant allows, that the plaintiff hath the reversion, which is color enough.^ ^ HALLET V. BYRT. In the King's Bench. 1698. Reported 5 Modern, 252. In trespass, possession is a good color. Trespass against Byrt and Hallet, for taking and detaining the plaintiff's cattle. The defendants plead not guilty as to all, but the taking three cows: and as to that, they say, that the hundred of Beaminster is an ancient hundred, whereof the Bishop of Salisbury was seised in fee, and that he and his predecessors have time out of mind kept a court 1 Per Holt, Chief Justice, in Ashmead v. Ranger, 1 Ld. Raym. 551 : "If the plain- tiff replies, the defect of color is waived; but upou a general demurrer advautiige might have been taken of it." 476 CASES ON COMMON-LAW PLEADING. i ■ » there from three weeks to three weeks, for the» tf ^^^.V ^^ personal actions, under the vaRie of forty shillings, and so prescribes to grant replevin either by himself or steward in court, or out of court, upon complaint made to them of the taking, and unjustly detaining any cattle within the said hundred : that the Bishop afterwards conveyed this hundred to one Whitlock for three lives, by virtue whereof he was seised ; that the plaintiff and one Rodbart took and impounded the cows within the said hundred, being the cows of a stranger, who made complaint thereof to the steward, and he directed his warrant to the bailiff of the hundred, and to the said Hallet, com- manding them to replevy the cattle ;, by virtue whereof, Hallet, and the other defendant Byrt, in auxiliurn ejus, did take and de- liver them to the owner ; and traversed that they were guilty of the taking at any time before the warrant, or after the return, aliter vel alitcr modo. The plaintiff demurred, and showed for cause that this plea amounted to the general issue. But it was argued, to maintain it, that there was sufficient color to make this plea good, for in an action of trespass, possession is a good color ; and the defendant may have the benefit of such plea, when the substance of it is by way of excuse, though he might have pleaded the general issue. E contra} ■ But the court did not speak to this point.^ " Where the defence consists of matter of fact, merely amounting to a denial of such allegations in the declaration as the plaintiff would on the general issue be bound to prove in support of his case, a special plea is bad, as unnecessary and amounting to the general issue : first, because such special plea, if considered as a traverse, tends to needless prolixity and expense, and is an argu- mentative denial and a departure from the prescribed forms of pleading the general issue ; and, secondly, if viewed as a plea in confession and avoidance, it does not give color or a plausible ground of action to the plaintiff". " Thus, in assumpsit or debt on a simple contract, a plea of matter which shows that no such contract was in fact made, is bad ; as a plea in an action for the price of a horse, * that the defendant did not buy the horse.* " Chitty, Pleading, * 552. 1 The argument e contra is omitted. 2 The plaintiff had judgment on another ground, the plea being naught, for that the hundred courts could not legally hold pleas in replevin. /L*y^ PLEAS IN BAR. 477 4^^ HJo^' GOULD V. LASBURY. Ix THE ExCHEQUEK. 1834. Reported 1 Crompton, Meeson, & Roscoe, 254. The confession, in a plea of confession and avoidance, must be unqualified. Declaration in debt on simple contract. Plea, that the defendant was discharged, under the Insolvent Debtors' Act, " from the debts and causes of action, if any, and each and every of them." Special demurrer, assigning for cause that the said plea did not confess and avoid the cause of action, etc. ; and that the plea neither set out the charge specially nor was pleaded generally, in the form given by the statute. Erie, \\\ support of the demurrer. There are two defects in this plea : First, the well-known rule of law, that a plea must either traverse, or confess and avoid, is violated. A plea like this, of con- fession and avoidance, must admit and confess the matter stated in the declaration distinctly. Taylor v. Cole, 3 Term Eep. 292, is a decisive authority on this point. So in Griffiths v. Eyles, 1 Bos. & Pull. 413, where a hypothetical replication was attempted. Chief Justice Eyre said that the party could not plead hypothetically. The admission here is most clearly hypothetical. Secondly, if the statute gives a form of pleading, the party must either conform to that form, or must plead in the more special form, which the usual rules of law would present. Sheen v. Garrett, 6 Bing. 686. Here the plea is general, that the party was discharged ; but it does not follow the form given by the act, which contains no such words as " if any." Kelly, contra. The general rule, that a party must traverse, or confess and avoid, every material allegation, is not disputed ; the question is, whether this plea does not substantially confess the matter in the declaration. Similar expressions are used in numer- ous instances ^nd are to be found in all the forms in the books of pleading. In pleas of the Statute of Limitations, of infancy, of bankruptcy, of the Insolvent Debtors' Act, and of set-off, it is usual to use words of this description. The expressions, "if any such there be," or " the supposed," are common in all these forms. The usual words were " the supposed " causes of action, which is quite as hypothetical an expression as "if any." In a case of Gale v. Capern, 1 Ad. & Ell. 102, in the King's Bench, which is not yet reported, the declaration was for goods sold. There was a plea of set-off on a bill of exchange ; the replication alleged that the " sup- 478 CASES ON COMMON-LAW PLEADING. posed " cause of set-off did not accrue within six years, upon which issue was taken. It was held at the trial that the handwriting of the acceptor and indorsers was admitted, and need not he proved. On motion for a new trial, it was contended that the word " sup- posed" prevented any such admission; but the court held that the word " supposed" did not at all alter the effect of the replication. [Alderson, B. You would contend that the expression "supposed" is no more than a protestation.] Exactly so. The object of the rule of pleading is not tliat there should be an absolute, unquali- fied, and express confession, but that there should be what may amount to a confession in the particular suit. There must be such a confession as will relieve the other party from the necessity of proving it. [Lord Lyndhurst, C. B. The word " supposed " may perhaps be considered as no more than " alleged." I find the word " supposed " in several of the forms you have adverted to, but not the words "if any such there be."] In a plea in abatement for nonjoinder, the words, " if any such there be," are invariably used. The defendant says sufficient if he admits for the purpose of the particular action, though he protests for the purpose of any other. The forms alluded to show that it is not necessary that the con- fession should be in the unqualified form contended for on the other side. If the plaintiff had replied generally, he would not have been bound to prove the cause of action at the trial. The present form is taken from a late edition of an approved book of pleading. Erie, in reply. The plea does not amount to an unqualified ad- mission. The admission is qualified and hypothetical. In Taylor V. Cole, BuUer, J., said, " It is a rule in pleading that the party justifying must show and admit the fact." The illustration of the plea in abatement is unfortunate for the defendant. It is remark- able that the plea in abatement is the only instance in which the words, " if any such there be," are used. The word " supposed " is nothing more than " alleged." Now, when the case of a plea in abatement is considered, the exception in that case serves rather to strengthen the general rule. The rule as to confessing and avoiding is only applicable to a plea in bar. A plea in abatement need not confess and avoid; the defendant is not bound to traverse or confess all matters alleged ; he has at that stage nothing to do but to show that the plaintiff may have a better writ, and the judgment is not to be that the plaintiff is to recover or not on the allegations upon the record, but that the writ be quashed, or that the defendant answer over. It is singular that it is only in the case of such a plea that the words " if any " appear to be usually adopted. The argument from the doctrine of protestations is equally inapplicable. PLEAS IN BAR. 479 If a person has to answer when he either is bound or chooses to answer one matter only, there are cases where he may take the other matters by protestation ; but it is different as to the matter which a party assumes to be answering. Besides, the facts taken by protestation are admitted in the action by a well-known rule of law ; but here the admission is coupled with a qualification. In Gale V. Capern, the only question was as to what was the issue to be tried. The handwriting was not in issue, but that had nothing to do with the question of the form of pleading. If it could be matter of doubt on the trial, we have a right to say on special demurrer that it is not well pleaded. [Alderson, B. In Taylor v. Cole and Griffiths v. Eyles the fact was in the peculiar knowledge of the party pleading.] So, here, the defendant must have known whether he was indebted or not. Lord Lyndhurst, C. B. It is difficult to distinguish the expres- sion " supposed " from that of " if any." As there has been a deci- sion in which a construction is said to have been put on the word " supposed," we will confer with the judges of the other courts. Cur. adv. vult. On a subsequent day Lord Lyndhurst, C. B., said: In the case of Gould V. Lasbury, there was a plea of a discharge under the Insol- vent Debtors' Act, which was contended to be bad, because it did not directly confess and avoid the matters alleged in the declaration, but merely stated the discharge from the said causes of action, " if any." A similar point having been argued in the King's Bench, we have conferred with the judges of that court on the subject, and we concur with them in thinking that the words vitiate the plea. The demurrer, therefore, must be allowed. Judgment for the plaintiff.* 1 Griffiths V. Eyles, 1 B. & P. 413; Margetts v. Bays, 4 A. & E. 489; Martin v. Swearingen, 17 Iowa, 346; Anson v. Dwight, 18 Iowa, 241 ; Morgan v. Ins. Co., 37 Iowa, 359 ; Conger v. Johnston, 2 Den. 96 ; Coinm. Bank v. Sparrow, 2 Den. 97 ; Hart V. Meeker, 1 Sandf. 623 ; Hamilton v. Hough, 13 How. I'r. 14, accord. See McCormick V. Pickering, 4 Comst. 276. — Ed. 480 CASES ON COMMON-LAW PLEADING. IN EXCX^SK (a) Special Asstanjisit. BRIND V. DALE. In the Exchequer, Trinity Term. 1837. Reported 2 Meesov & Welsby, 775. A plea averring matter which qualifies the contract declared on amounts to the general issue. Assumpsit. The declaration stated that the defendant, before and at the time of the making of the promise thereinafter mentioned, was a common catrier of goods in and by a certain cart, from divers places to divers other places ; and thereupon the plaintiff thereto- fore, to wit, on the 14th November, 1836, at the request of the defendant, caused to be delivered to him, as such carrier, a certain trunk containing certain goods and chattels therein particularly described, to be taken care of and safely and securely carried and conveyed by the defendant, as such carrier, in and by the said cart, from a place called Nicholson's Wharf to a place called Brook's Wharf, and there to be safely and securely delivered by the defend- ant for the plaintiff. The declaration then alleged in the usual terms a promise by the defendant safely to carry and convey and deliver the goods, and a breach in not carrying safely whereby the trunk and its contents were lost. Fifth plea, that at the said time when he, the defendant, received the said goods and chattels from the plaintiff, and at the time the said supposed promise of the defendant was made, an express con- dition and agreement was then made and entered into between the plaintiff and the defendant ; that is to say, that whilst the defend- ant carried and conveyed the said trunk with the said goods and chattels in and by his said cart from the said place called Nichol- son's Wharf to the\|iid place called Brook's Wharf, he the said plaintiff would accompany and follow the said cart of the defend- ant, and watch and protect the said goods and chattels from being stolen or lost out of the said cart; but that the plaintiff, contrary to the said condition and agreement in that behalf, wholly neglected and refused to accompany and follow the said cart, or to watch and protect the said goods and chattels from being stolen or lost from the said cart ; by reason whereof, and not by reason of any negli- gence, carelessness, or improper conduct in the defendant or his servant, the said goods and chattels were lost. Verification. Special demurrer, assigning for causes, first, that the said plea does PLEAS IN BAR. 481 not properly confess the promise in the declaration ; secondly, that the matter of defence in the said plea amounts to the plea of non- assumpsit, and ought to have been so pleaded. The marginal note stated that the plaintiff would also contend that the plea was bad in substance, inasmuch as the engagement entered into by the plaintiff, without consideration, could not limit the defendant's liability as a common carrier. Barstow, in support of the demurrer. The defendant is in this dilemma, — either the plea amounts to the general issue, or it is no answer to the action. It sets up a contract different from and in- compatible with that alleged in the declaration. The court then called upon W. H. Watson, to support the plea. The declaration alleges the defendant to be a common carrier, and avers a delivery to him as such. Though that allegation be true, there may yet be a special agreement, by way of qualification of his general liability. [Parke, B. The declaration says, the goods were delivered to be taken care of by the defendant ; the plea says they were not.] The defendant says, in substance, " I admit I received the goods as a common carrier, but I made also a collateral agreement that the plaintiff should watch them." The defendant would have his remedy over against the plaintiff for not watching the goods pursuant to his agreement ; and so, to avoid circuity of action, it is set up in the plea in discharge of the plaintiff's cause of action. [Parke, B. The effect of the agreement is to protect the carrier from theft or loss ; that qualifies the contract. ] If the court is of opinion that it amounts to a qualification of the plaintiff's contract, not to a substantial and collateral contract, the plea certainly cannot be sustained. Per curiam. Judgment for the plaintiff. y SMART u. HYDE. In the Exchequer, Trinity Term. 1841. Kepokted 8 Mekson & Welsby, 723. For it is a denial of the contract declared on. Assumpsit. The declaration stated that, in consideration that the plaintiff would buy of the defendant a mare at a certain price, the defendant promised the plaintiff that the mare was sound, and averred as a breach that the mare was not sound. The defendant pleaded, amongst other pleas, thirdly, that, before the promise, he the defendant sent the mare to a certain place for 31 482 CASES ON COMMON-LAW PLEADING. the sale of horses, called Lucas's Eepository, there to be sold accord- ing to certain rules, which were in the words following: "Terms of private sale. A warranty of soundness, when given at this re- pository, will remain in force until twelve o'clock at noon of the day next after the day of sale, when it will be complete, and the responsibility of the seller will terminate, unless in the mean time a notice to the contrary, accompanied by the certificate of a veteri- nary surgeon, be delivered at the office of E. Lucas ; such certificate to set forth the cause, nature, or description of any alleged unsound- ness ; " of all which the plaintilf, before and at the time of making the said promise, had notice. The plea then averred that the sale was a private sale, and that the promise, and the buying from the defendant, took place subject to the said rules and regulations touching the private sale of horses, and that the same were agreed to by the parties ; and although the time limited by the said rules for the delivery of the notice and certificate had elapsed before the commencement of this suit, yet no such notice or certificate had been delivered by or for the plaintiff, at the office of the said R Lucas. Verification. Special demurrer, assigning for causes, that the plea amounted to the general issue ; that whereas the plaintiff had declared on an absolute and unqualified undertaking that the mare was sound, the defendant had not confessed and avoided the same, nor had directly denied such promise, but had stated matters for the purpose of qualifying such promise, and of showing that the warranty re- mained in force only until twelve at noon of the day after the sale, and was a warranty against such unsoundness only as the plaintiff might discover within such period. Crompton, in support of the demurrer. The plea attempts to show tliat there was a qualification of the warranty, and that the contract was different from that declared upon, and it therefore amounts to the general issue. [Parke, B. The warranty, as set out in the declaration, is an absolute one. The plea admits the statement in the declaration, but sets out new facts, for the pur- pose of showing that there was no breach of contract ; it does not deny a sale of the horse, or the warranty that the horse was sound.] On the warranty stated in the plea, there is to be no responsibility at all in certain cases, and that is a qualification which might have been ijiven in evidence under the general issue. In Bywater v. Eichardson, 1 Ad. & Ell. 508 ; 3 Nev. & M. 748, where there was a similar condition, Littledale, J., treats it as a qualified warranty. [Parke, B. You say that the contract which would have to be proved would vary from that stated in the declaration, and there- PLEAS IN BAR. 483 fore might be given in evidence under the general issue.] Yes. In Latham v. Rutley, B. & Cr. 20 ; 3 D. & R. 211, the declaration stated a contract to carry goods from London, and deliver them safely at Dover; the contract proved was to carry and deliver safely, fire and robbery excepted ; and it was held to be a variance. Here the con- tract stated in the declaration is, that the defendant will be generally answerable for the unsoundness of the mare ; but the contract stated in the plea is, that he will not be answerable at all, if the act be not done within a given time. In Latham v. Eutley, Abbott, C. J., says, " The result of all the cases upon the subject is, that if the carrier only limits his responsibility, that need not be noticed in pleading ; but if a stipulation be made that, under certain circumstances, he shall not be liable at all, that must be stated." [Parke, B. The contract there stated was a contract to carry the goods safely, not a limited contract, if the goods were not affected by fire or robbery. Here the contract alleged is, that the defend- ant undertook that the mare was sound : that he is to be responsi- ble if unsound is merely an inference from that.] Where a condition merely limits the amount of damages, it is true that it need not be stated in the declaration : Clarke v. Gray, 6 East, 5C4 ; but where the contract, as in this case, is qualified by conditions, it is a vari- ance to state it as absolute in its terms. In Howell v. Richards, 11 East, C33, it was held, that, if a covenant for quiet enjoyment be restrained by any qualifying context, it must be stated, and if not, that the defendant might take advantage of it under the plea of the general issue, as being an untrue statement of the deed in substance and effect. Tempany v. Burnaud, 4 Campb. 20, and Browne v. Knill, 2 Brod. & B. 395, are authorities to the same effect. In Whittaker v. Mason, 2 Bing. N. C. 359 ; 2 Scott, 567, the plaintiff declared upon a contract of sale of certain books ; the defendant pleaded that the books were sold subject and according to the usage and course of dealing observed among booksellers in London ; to which the plaintiffs replied cle injuria ; and on demurrer to the replication, it was held that the plea in effect amounted to the general issue. [Parke, B. There the plea set up a different con- tract ; here the plea does not alter the consideration or the promise.] The omission to state the qualification entirely alters the legal effect of the contract. The case is distinguishable from Syms v. Chaplin, 5 Ad. & Ell. 634 ; 1 Nev. & P. 129, which was an action against a coach proprietor for the loss of a parcel above the value of £10 ; for the omission to declare the value of the parcel did not qualify the nature of the contract, but was a matter which avoided it, and therefore required to be specially pleaded. The general rule is, 484 CASES ON COMMON-LAW PLEADING. that contracts are entire, and it is only an exception to that rule, that where a part of the contract does not affect the rest which is declared upon, such part need not be stated. J. Henderson, contra. The plea is good. The truth of the facts stated in it is consistent wdth the contract alleged in the declara- tion. The defendant says. True it is I promised that the horse was sound, and it turned out to be unsound, but there were collateral circumstances which prevented your right to sue from arising. Where, indeed, the plea discloses a contract different from that alleged in the declaration, it is bad, as amounting to the 'general issue. The cases which have arisen since the new rules on indebi- tatus assumpsit sliow that where, if the plea be true, the declara- tion is not, in that case the plea is open to demurrer, as amounting to the general issue. In Latham v. Eutley, the promise alleged was absolute, but the contract proVed was a qualified one, and therefore did not support the promise declared on. But where there is an absolute promise, and the defence is that its efficacy has been destroyed by matters occurring subsequently, those matters must be specially pleaded. In Hotham v. The East India Com- pany, 1 T. E. 638, where there was a covenant in a charter-party, that no claim for short tonnage should be allowed, unless such short tonnage were found and made to appear on the ship's arrival, on a survey to be taken by four shipwrights ; it was held, that this not being a condition precedent to the plaintiff's right to recover for short tonnage, but a matter of defence to be taken advantage of by the defendants, the not averring performance was -no ground for arresting the judgment. That case resembles the present. It was not necessary for the plaintiff to aver performance of the condition annexed to this warranty ; it is sufficient for him to allege the con- tract and breach. The fact on which the defendant relies is col- lateral to the original contract, and therefore ought to be pleaded specially. Crompton, in reply. The contract as set out in the pica affects the consideration stated in the declaration, for the plaintiff is bound to give notice of the unsoundness before a specified time, in order to render it an absolute warranty, Hotham v. The East India Company turns on the distinction between covenant and assumpsit, and on the rule which is peculiar to the former, that a party need not set out more covenants than those of the breach of which he complains ; but that is not applicable to assumpsit. The condition, which it is not requisite to state, is such a one as does not qualify the original promise. The narrow point is, does this plea affect the liability which the defendant is under, upon the PLEAS IN BAR. 485 contract alleged in the declaration ? It is suljmitted that it does ; it shows that he is not absolutely bound ; whereas, on the contract as stated in the declaration, he is so. Latham v. Kutley is in point. [Parke, B. In that case there was no promise to carry safely at all events; here there was an absolute warranty of soundness.] Parke, B. I am of opinion that the plea is a good plea, and that the defendant is entitled to judgment. The declaration states, that, in consideration that the plaintiff would buy a mare of the defend- ant, the defendant promised that she was sound. Then there is a special plea, which states, that the mare was sent to a repository for the sale of horses, to be sold according to certain rules, which provided that the warranty of soundness was to remain in force up to a certain time only, unless notice of the unsoundness was in the mean time given; and it goes on to aver that the sale todk place subject to those rules, and that no notice was delivered within the time specified. It appears to me that such plea is not bad as amounting to the general issue. It admits the contract and the promise, but shows it to have been made subject to certain rules which have not been complied with. What is the meaning of those terms ? It seems to me to be this, that the warranty shall be deemed to have been complied with, unless a notice and certificate shall be delivered to the vendor before twelve o'clock at noon of the day next after the day of the sale. That is not a denial of the warranty, but a mere condition annexed to it. No notice and certificate were delivered, and therefore the contract is to be considered as complied with. If the matter relating to the notice had been by way of proviso upon the warranty, it might perhaps have been necessary to state it in the declaration ; but upon that point I give no opinion. It is enough to say that every word of this plea is consistent with the contract stated in the declaration. Alderson, B. The meaning of the plea is, that there was a sort of conventional warranty of soundness, and that the warranty was to be considered as complied with, unless a notice and certificate of unsoundness were given within a certain time, which was not done. That is not a denial of the contract, as alleged in the declaration. Gurney, B., and Ptolfe, B., concurred. Judgment for the defendant.^ 1 See Clarke v. Gray, 6 East, 564; Sharland v. Leifchild, 4 C. B. 533; Weedon v. Woodbridge, 13 Q. B. 462. — Ed. 486 • CASES ON COMMON-LAW PLEADING. LYALL V. HIGGINS. In the Queen's Bench. April, 1843. Reported 4 Queen's Bench Reports, 528. Hence, where the matter pleaded turns on a different mode of interpreting the contract, non-assumpsit is the proper plea. Assumpsit. The declaration (first count) stated that plaintiffs, at the time of the making of the promise after mentioned, viz., on, etc., had engaged one Alexander Christie to act in the capacity of collecting clerk to them, the said plaintiffs, but were desirous of having, and required, security for the correctness of the pecuniary transactions of the said A. C. as such collecting clerk with plaintiffs previously to employing A. C. in the capacity aforesaid, whereof defendant then had notice ; and thereupon afterwards, viz., on, etc., in consideration that plaintiff's, at the request of defendant and of one William Sands, would employ A. C. as such collecting clerk to plaintiffs as aforesaid, defendant and W. S. then guaranteed to plaintiff's the correctness of the pecuniary transactions of the said A. C. with plaintiffs, as such collecting clerk to plaintiff's as afore- said, to the amount of £500, in manner following : that is to say, defendant then undertook and promised plaintiffs to be security to them to the amount of £250. And the said W. Sands, etc. (the like undertaking by Sands). Averment that plaintiffs, relying on the guarantee, etc., did thereupon, to wit, on, etc., employ A. C. as such collecting clerk to plaintiff's as aforesaid, and A. C. remained and continued in their employment as such collecting clerk for a long space, etc., viz., two years then next following ; that, while A. C. so remained and continued, etc., he, A. C, as such collecting clerk, collected and received from divers persons divers debts and sums of money for and on account of plaintiffs and as their moneys, to a large amount, viz., to the amount of £20,000 ; yet A. C. did not correctly, honestly, and faitli fully account for or pay the said moneys to plaintiffs, but, on the contrary, whilst he was such collecting clerk to plaintiffs as aforesaid, wrongfully converted and disposed of a great part, to wit, £500, part of the said moneys so by him collected and received as such collecting clerk to plaintiffs as aforesaid, to his own use ; and thereby the pecuniary transac- tions of A. C. with plaintiffs, as such collecting clerk as aforesaid, became and were incorrect and deficient to that amount ; of all which, etc. : notice to defendant, on, etc., and request to him by plaintiffs to pay them the £250. Breach, non-payment. PLEAS IN BAR. 487 Plea 2. That, before defendant made the promise in the first count mentioned, ^nd before plaintiff's desired or required security for the correctness, etc., as in that count mentioned, viz., on, etc., plaintiffs and A. C. had agreed together that plaintiffs should employ A. C, and that he should serve them, in the said capacity of collecting clerk to the plaintiffs as in the first count mentioned, for certain commission and reward to A. C. in that behalf ; which agreement was in full force and effect, unexpired and undetermined, at the said time of making the defendant's promise in that count mentioned, and also at and during the period and times therein mentioned during which A. C. remained and continued in the employ of plaintiffs as such collecting clerk to them as aforesaid, as in the said first count mentioned. And that plaintiffs did not desire or require security for the correctness of the pecuniary transactions of the said A. C. as such collecting clerk as aforesaid, nor did defendant promise as in the said count mentioned, until after plaintiffs and A. C. had completely made and concluded the said agreement between them above mentioned. Verification.^ Special demurrer. Bain, for the plaintiffs. The second plea does not confess and avoid, and amounts, at most, to an argumentative denial of the consideration. Erie, contra. The second plea is good : it supplies the fact, not disclosed by the declaration, that the plaintiffs had agreed to employ Christie before they desired security from the defendant ; and their doing what they were already bound to do was no con- sideration for the defendant's promise. Stilk v. Meyrick, 2 Camp. 317; s. c. 6 Esp. N. P. C. 129. See England v. Davidson, 11 A. & E. 856 ; Jones v. Waite, 5 New Ca. 341, judgments of Patteson, J. ,2 Lord Abinger,^ and Lord Denman, C. J> [Lord Denman, C. J. Your plea introduces a different agreement between the plaintiffs and defendant from that stated in the declaration. Ought that to be specially pleaded ?] The plea only avoids the contract declared on. It alleges that such a contract w\as in fact made, but the plaintiff's were bound already. [Patteson, J. You do not deny the promise, or the fact stated as the consideration, but contend that you now find the agreement to have been nudum pactum ; that, although the plaintiffs professed that they would employ Christie at the defendant's request, they did not do it on his request, being already bound.] Bain, in reply. 1 Only so mucli of the case is given as relates to the secoiul plea. — Ed. 2 Page 351. » Page 356. * Pages 358, 359. 488 CASES ox COMMON-LAW PLEADING. Lord Denman, C. J. I am of opinion that the plaintiffs are entitled to judgment on the second plea. It sets np a different consideration from that which the declaration alleges; and the matter might have been given in evidence on non-assumpsit. It is not a confession, but adds something to the statement in the declaration, which makes a different contract. Patteson, J. The second plea is a denial of the alleged con- sideration, namely, that the plaintiffs, at the defendant's request, would employ Christie. It is now settled that the proper mode of traversing a consideration is by plea of non-assumpsit. It has been suggested that the plaintiffs might have previously engaged Christie, and yet that their promise to employ him in future might have been at the defendant's request. But, if it turns out on the plead- ing that they did not agree to employ Christie at the defendant's request, but had so agreed before it was made, that is a denial of his being employed at the request of the defendant. The con- sideration, therefore, is denied ; and the plea should have been non-assumpsit. Williams, J. The second plea turns only on a different mode of interpreting the contract from that adopted in the declaration. The plea should have been non-assumpsit, and the defence under it would have been variance. Judgment for plaintiffs on the second plea.^ J SIEVEKING AND ANOTHER v. BUTTON. In the Common Pleas. ISiS. Reported 3 Common Bench Reports, 33L Incompatibility between the contract declared on and that pleaded is the test. Assumpsit. The first count of the declaration stated that the plaintiffs, at the request of the defendant, agreed to supply the de- fendant, and the defendant ordered of the plaintiffs, divers large quantities of wool, to be purchased by him upon certain terms, that is to say, etc., that in consideration thereof, and that the plaintiffs, at the like request of the defendant, then promised the defendant to deliver the said quantities of goods to the defendant, according to the said contract, the defendant then promised the plaintiffs to accept the said goods, and to pay for the same according to the 1 Sutherland v. Pratt, 11 M. & W. 296; Raikes v. Todd, 8 A. & E. 854; "Wade v. Simeon, 2 C. B. 548; Breech v. White, 12 A. & E. 670; Weedon ;;. Woodbriilge, 13 Q. B. 481, accord ; Passenger v. Brookes, 1 B. N. C. 587, contra. — Ed. PLEAS IN BAR. 489 terms of the said contract. Averment, that the plaintiffs had always been ready and willing, and afterwards, to wit, on, etc., tendered and offered to deliver the said goods to the defendant, according to the terms of the said contract, etc. Breach, that the defendant refused to accept them. Plea, that, at the time of the defendant's ordering the said quan- tities of wool, and making the said promise, as in the first count of the declaration alleged, the plaintiffs produced and showed to the defendant a certain sample of the said wool, and then promised the defendant to deliver the said quantities of wool to the defendant, and that the whole of the said quantities of wool were equal in quality and description to the said sample ; that the defendant then ordered the said quantities of wool, and made the said promise, as in the said first count mentioned, on the faith and terms, and in consideration of the said promise of the plaintiffs, and not otherwise ; but that the said quantities of wool, at the time when they were so offered and tendered for delivery by the plain- tiffs as in the said first count mentioned, were not equal in quahty and description to the said sample, but, on the contrary thereof, the same were of a very inferior and bad and indifferent quality and description, and of much less value, and of no use or value to the defendant ; whereupon and wherefore the defendant then refused to accept the said wool, or pay for the same ; as he lawfully might, etc. Verification. ^ To this plea the plaintiffs demurred specially, on the ground, amongst others, that it amounted to non-assumpsit. Dowling, Serjt., in support of the demurrer. The declaration alleges an absolute contract on the part of the defendant to receive the wool, without any condition as to quality, or any specific de- scription. The plea alleges that the contract was for a sale of wool, with a warranty that the bulk was equal to sample : that introduces a qualification into the contract, and amounts to a mere denial of the contract declared on. Morgan v. Pebrer, 3 N. C. 457 ; 4 Scott, 230 ; Nash v. Breeze, 11 M. & W. 352; Heath v. Durant, 12 M. & W. 438. Channell, Serjt, contra. Had this been pleaded to a count in indebitatus assumpsit for goods sold and delivered, or goods bar- gained and sold, the plea would undoubtedly have been open to the objection suggested. But the difficulty here arises from the new rules, which provide that the plea of non-assumpsit shall operate only as a denial in fact of the express contract or promise alleged, or of the matter of fact from whicli the contract or promise alleged may be implied in law. This plea does not deny the ex- 490 CASES ON COMMON-LAW PLEADING. press contract alleged in the declaration ; on the contrary, it admits it; and it seeks to justify the refusal to accept the wool, by show- ing that it differed in quality from that which the plaintiffs contracted to deliver. [Maule, J. The contract stated in the declaration is for the delivery of wool of a merchantable quality. Tindal, C. J. Upon non-assumpsit the plaintiffs would be non- suited, if they proved a contract other than that alleged. Cress- well, J., referred to Parker v. Palmer, 4 B. & Aid. 387. Maule, J. If issue were taken on the tender, the plaintiffs would fail unless they proved a tender of wool of the quality and description ordered.] The plea, at all events, complies with the spirit of the new rules. [Maule, J. The defendanfshould certainly be allowed to plead this defence, if it is not open to him under non-assumpsit.] Dowling, Serjt., in reply. The plea in question clearly amounts to no more than a denial of the contract alleged in the declaration. [Tindal, C. J. The contract set up by the plea is not necessarily incompatible with that stated in the declaration.] It is difficult to see how the two could coexist. [Maule, J., referred to Street v. Blay, 2 B. & Ad. 456.] The court, after some deliberation, were about to pronounce judg- ment in favor of the plea, when Dowling, Serjt., prayed leave to withdraw the demurrer ; which was granted, upon the usual terms. Kule accordingly.^ / (b) General Assumpsit. HAYSELDEN v. STAFF. In the King's Bench. 1836. Reported 5 Adolphus & Ellis, 153. Pleas amounting to the general issue and pleas disclosing matter admissible under the general issue distinguished. Indebitatus assumjysit for (among other considerations) the price and value of work done, and materials provided for the same ; promise to pay on request. Plea (among others) as to non-payment of £1 0.?. 9(7., parcel of the above, that the said work and materials were work done and materials provided for the same by the plaintiff for the defendant in and about the endeavoring to prevent a certain chimney from smoking, and upon the terms, agreement, and understanding that 1 See Parker v. Pahncr, 4 R. & Al. 387 ; Sharlaud i\ Leifchild, 4 C. B. 529 ; Weedou v. VVoodbridge, 13 Q. 13. 462. — Ed. PLEAS IX BAK. 491 the plaintiff should not be paid for the said work and materials, or any part thereof, unless he should succeed in preventing the said chimney from so smoking as aforesaid. Averment, that plaintiff hath not succeeded, etc. Verification. Demurrer, assigning for causes, that the plea amounts to the general issue, and is argumentative, and an evasive and indirect denial of the cause of action, and does not sutiiciently traverse, or confess and avoid it. The case was now argued.^ Busby, for the plaintiff. The plea, instead of confessing the con- tract, alleges matter to show that it never was made as alleged in the declaration ; it is therefore bad, and falls within the principle of the cases collected in Com. Dig. Pleader (E. 13), and (E. 14). It is true that not only matter in confession and avoidance may be specially pleaded, but also matter of law which may be given in evidence on the general issue. In Carr v. Hinchliff, 4 B. & C. 547, the plea was upheld on both these princijdes. But the present case does not fall within either. The case is the stronger, because here the plea goes to a part only of the consideration ; and therefore the unnecessary prolixity, which is the fault against which the rule was intended to guard,^ is aggravated. Martin, contra. The plea is good, whether considered with refer- ence to the new rules, or independently of them. The declaration alleges a performance of work and supply of materials at the de- fendant's request ; and from the fact so alleged it seeks to raise a legal implication of a promise. The general issue would amount to a denial of that fact, and of nothing more;^ but thatVfact is here admitted ; the plea therefore suggests a defence which the general issue would not raise. It is assumed on the other side that a plea in confession and avoidance, to a declaration in indebitatus assumpsit, must confess the debt ; whereas it need only confess the fact alleged as the ground of implying the promise. That being con- fessed, a primd facie right in the plaintiff is admitted, which the defendant is to avoid by new matter. Thus, in the new rules of pleading, it is said * that, in indebitatus assumpsit for goods sold and delivered, non-assumpsit denies merely the sale and delivery in point of fact. Here the plea certainly shows that the contract was conditional ; but it lay upon the defendant to allege the condition and deny its performance, as he could not deny the substantive 1 Before Lord Denman, C. J., Littlodale, Patteson, and Williams, JJ. 2 See Warner v. Waiiisfonl, Hob. 127 (ed. 5). 8 Rule, H 4 W. 4, Assumpsit, 1, 5 B. & Ad. vii. * 5 B. & Ad. vii. viii. 492 CASES ox COMMON-LAW PLEADING. fact. [Littledale, J. Certainly the new rules so far treat a con- tract, with a condition and without it, as the same thing, that they do not allow separate counts on each.] ^ The cases given in the new rules, under Assumpsit 3,^ show that the special plea need not confess the debt, but only the fact which prima facie raises a promise. Thus, coverture, illegality of consideration, unseaworthi- ness, misrepresentation, concealment, are all matters which show that the debt never arose ; yet they are to be specially pleaded, because they do not deny the fact alleged as the foundation of the debt. In Potts v. Sparrow, 1 New Ca. 594, it was held that an objection to an action of assumpsit for the costs of preparing an illegal agreement could not be taken on a plea of non-assumpsit, though it was urged that the new rules applied only where the illegality objected to was in the contract, the breach of which was the subject of the action itself. Edmunds v. Harris, 2 A. & E. 414 ; s. c. 4 N. & M. 182, goes much beyond the present case. [Lord Denman, C. J. If that decision be correct, no doubt it is an authority in your favor ; but some of the other cases put by you are instances of facts dehors the contract, and where, but for such facts, there would be a good contract. Perhaps the rule as to goods sold and delivered is not expressed so correctly as it might be.] Here that has been done for the defendant upon which, but for the matter alleged in the plea, the plaintiff would have an implied right to sue. [Patteson, J. It has been said that the " denial of the sale and delivery in point of fact " means, of the sale and delivery laid in the declaration ; that is, a sale and deliv- ery to be paid for on request; and that, if it appear that the pay- ment was to be on a future day, or upon condition, the sale and delivery alleged are negatived ; and that therefore such a defence amounts to the general issue.] The plea here, correctly speaking, does not show that the plaintiff was to be paid only if a certain event occurred, but that his right was to be defeated in case of the non-occurrence of the event : that is not a traverse, but new matter. In Waddilove V. Barnett, 2 New Ca. 538, the declaration was in assumpsit for use and occupation ; and it was held that the de- fendant could not, under the general issue, show that after the rent became due he had received notice from a party to whom the plaintiff had mortgaged the premises before the occupation com- menced, and that he had paid such party accordingly. [Lord Deuman, C. J. There the defence went to show that the plaintiff was not the real owner.] That could not have been the principle 1 R. H. 4 W. 4, General Rules and Regulatious, 5, 5 B. & Ad. ii. 2 5 B. & Ad. viii. PLEAS IN BAR. 493 of the decision ; for such a principle would also apply to rent be- coming due after the notice from the mortgagee ; whereas it was held tliat, as to this, the defence might be shown under non- assumpsit. The principle was that, as to the last-mentioned rent, the occupation by the sufferance and permission of the plaintiff, which was the fact raising the contract, was negatived by the evidence : as to the rent due before the notice, such occupation was not negatived but admitted ; and therefore matter showing that, though the fact raising the contract was true, still the debt had not arisen, was held not to be admissible in proof under non- assumpsit. Then, independently of the new rules, this matter might be spe- cially pleaded. It is necessary only that a special plea of this kind should, as this does, give color to the plaintiff, Stephen on Plead- ing, 421 (ed. 3). Carr v. Hinchliff, 4 B. & C. 547, shows this, and proves that a plea does not necessarily amount to the general issue, because the defence which it suggests might have been shown under the general issue. Bird v. Higginson, 2 A. & E. 696, is to the same effect. [Busby. The court did not expressly decide that point. Littledale, J. They gave judgment for the defendant, though the objection was assigned on special demurrer to the plea. In special actions on the case for disturbance, every one knows that the answer may be pleaded specially.] And that, whether it be by way of confession and avoidance, or by way of raising a question of law. [Littledale, J. It is said in Com. Dig. Pleader (E. 14) that this objection should be taken by motion, not by demurrer.^ That seems not to be considered law now.^] Cur. adv. vult. Lord Denman, C. J., on a subsequent day of this term (June 13th), delivered the judgment of the court. After stating the djeclaration, the plea, and the demurrer, and causes assigned, his Lordship proceeded as follows : — It must be first considered, whether the defence set up in the plea could be given in evidence under the general issue of non- assumpsit ; because, if it could not, then there is no ground for the demurrer. There is no doubt but it might be so before the new rules, be- cause not only might the fact of the actual contract itself be denied, but also it might be proved that it was void in law, or that 1 Citing Warner v. Wainsford, Hob. 127 (ed. 5), and Ward and Blunt's Case, 1 Leon. 178. 2 See Stephen on Pleading, 421 (ed. 3). 494 CASES ON COMMON-LAW PLEADING. the contract itself had been performed, or that the defendant was excused from the performance of it by many other circumstances. But, since the new rules (and which have the force and eflect of an act of Parliament) in actions of assumpsit, " the plea of non- assumpsit shall operate only as a denial in fact of the express con- tract or promise alleged, or of the matters of fact from which the contract or promise alleged may be implied by law." In actions of assumpsit for goods sold and delivered, the plea of non-assumpsit will operate as a denial of the sale and delivery in point of fact. And " in every species of assumpsit all matters in confession and avoidance, including not only those by way of discharge, but those which show the transaction to be either void or voidable in point of law, on the ground of fraud or otherwise, shall be specially pleaded." One of the general objects of these new rules was to compel a defendant to put his defence specially upon the record. And in conformity with this object the case of Edmunds v. Harris, 2 A. & E. 414 ; s. c. 4 K & M. 182, was decided. It was an action of debt for goods sold and delivered, to be paid for on request, and whicli as to this is the same thing as indebitatus assumpsit; to which there was a plea of never indebted ; and it appeared on the trial that the goods were sold on a credit which had not expired when the action was brought ; and, on a question whether this defence was admissible on the general issue, the Court of King's Bench held it was not, and that it ought to have been specially pleaded, and that it was one of the cases which the new rules were framed to avoid. But that case was doubted in Taylor v. Hilary, 1 Cr., M. & E. 741 ; s. c. 5 Tyrwh. 373, on the ground that, if the time of credit has not expired, the plaintiff proves a different con- tract from that which he has stated in the declaration, which was to pay on request. And so also in Knapp v. Harden, 1 Gale, 47, Parke, B. , considered it as doubtful whether Edmunds v. Harris, supra, was properly decided. We think, therefore, that the case of Edmunds v. Harris, supra, cannot be considered as a binding authority ; and, if not, as the defence set up on this record shows a diCferent contract from that which is stated in the declaration, inasmuch as the contract stated in the plea is that the money should be paid on a certain condition which has not been per- formed, it is not a contract to pay upon request ; and therefore the defence might be gone into upon the general issue. And in the case of Waddilove v. Barnett, 2 New Ca. 538, it was held, in an action for use and occupation, that, under the issue of non-assumpsit, the defendant might give in evidence that the PLEAS IN BAR. 495 plaintiff bad mortgaged the premises before the defendant came into the occupation, and that the mortgagee had given notice to the defendant not to pay the plaintifl' any rent becoming due after such notice. And this was determined by the court after considering the effect of the new rules. But, though the defence might be gone into under the general issue, it does not necessarily follow that the defence may not be specially pleaded on the record. In the case of Carr v. Hinchliff, 4 B. & C. 547, a defence was put upon the record, which, it was admitted, might have been gone into upon the general issue, and yet allowed to be a good plea. It was an action for goods sold and delivered ; and the plea was that the goods were sold by a third person as the agent of the plaintiff, with the proper averments of want of knowledge, etc.; and then the defend- ant set off a debt due from that third person. The question was much considered in that case ; but there was, in the first instance, a complete contract admitted by the plea of the jirimd facie liability of the defendant to the action, because, independently of the set-oft', the defendant would have been liable ; there was therefore a con- fession of the contract stated by the plaintiff ; but the plea stated matters which avoided it so far as to exonerate the defendant from the performance of it. There is a great distinction between the case of a plea which amounts to the general issue, and a plea which discloses matter which may be given in evidence under the general issue. Under the latter, as has been observed in the earlier part of this judgment, the various things enumerated may be given in evidence under the general issue, independently of any of the new rules ; but it is incorrect language to say that these things amount to the general , issue : they only defeat the contract ; but what, in correct language, may be said to amount to the general issue is, that, for some reason specially stated, the contract does not exist in the form in which it is alleged, and, where that is the case, it is an argumentative denial of the contract, instead of being a direct denial ; and which, accord- ing to the correct rule of pleading, is not allowed. The allegation in the declaration is that the defendant is indebted for work and labor and materials ; and that, being so indebted, he promised to pay on request. The plea does not confess that the defendant was indebted at all ; it admits that work was done, and materials were found and provided : but, instead of confessing that any debt was created by that, and showing anything to avoid it, he says that no money was to be paid unless the chimney was cured of smoking, which was not done ; and which is really saying, in the 496 CASES ON COMMON-LAW PLEADING. most distinct terms, that no debt ever arose, and therefore falls completely within the meaning of what may be termed an argu- mentative denial of the debt. In Solly V. Neish, 2 C. M. & R. 355 ; s. c. 5 Tyrwh. 625 ; 1 Gale, 227, the declaration w^as for money had and received. The defend- ant pleaded that the money was the proceeds of goods pledged to the defendant, with a power of sale, by persons who were allowed by the plaintiffs to hold the goods as their own, and which, in fact, were the property of those persons and the plaintiff's, and that the defendant was willing .to set off against the proceeds of the goods the advances made on them. There were subsequent plead- ings which led to a demurrer. The court, though they gave judg- ment for the defendant, said the plea would be bad on a special demurrer. In Gardner v. Alexander the declaration was for goods bargained and sold ; the defence was that they were sold under a special contract that they should be shipped within the current month and landed in London within a given time, which was not done. On an application to plead several matters, the question was, whether th^ facts could have been given in evidence under the general issue, or whether it was necessary to plead them specially. The Court of Common Pleas said it was unnecessary to plead them ; the special contract might be given in evidence under the general issue. And in Cousins v. Paddon, 2 C. M. & R. 547 ; s. c. 5 Tyrwh. 535, in the Exchequer, Michaelmas Term, 1835, it was held that, in debt for goods sold and delivered, and work and labor, the defend- ant may give in evidence, on the general issue of never indebted, that the goods were worthless and the work useless. Upon the whole, therefore, we are of opinion that the plea now before us cannot be supported, and that there must be judgment for the plaintiff. Judgment for the plaintiff. III. REPLICATIOX DE INJURIA AXD SPECIAL TRAVERS. A. thus complains of B., " B. hit me." B. answers, " I did hit you, but you hit me first " (son assault demesne). A. replies, "i)e injuria sua propria absque tali causa.'" The defendant committed the said trespass ^' Of his own wrong, without such cause " as the defendant alleges. "Of the traverse d'e injuria. — There is another species of traverse, which varies from the common form, which, though cou- PLEAS IN BAR. 497 fined to particular actions, and to a particular stage of the pleadings, is of frequent occurrence. It is the traverse de injuria sua iiropria, absque tali causa, or (as it is more compendiously called) the traverse de injuria. It always tenders issue ; but, on the other hand, differs, like many of the general issues, from the common form of a traverse, by denying in general and summary terms, and not in the words of the allegation traversed." Stephen, Pleading, Andrews' 1st ed. 241. " As the general issue allowed the defendant to deny by a brief formula the material averments of the plaintiff's declaration, so this species of traverse, which occurs only as a replication, gave the plaintiff a similar privilege in certain cases, with respect to the de- fendant's plea." Perry, Pleading, 252. The uses of the replication de injuria may be gathered from the following pages. / (a) Iie2)licatio)i de Injuria. EDWARD CROGATE'S CASE. In the King's Bench. 1608. Reported ix 8 Reports, G6. The qualities of the replication de injuria stated. Edward Crogate brought an action of trespass against Robert Marys, for driving his cattle in Town-Barningham, in Xorfolk, etc. The defendant pleaded that a house and two acres in Bassingham, in the said county, were parcel of the manor of Thurgarton, in the same county, and demised, and demisable, etc., by copy, etc., in fee- simple, etc., according to the custom of the manor, of which manor William, late Bishop of Norwich, was seised in fee in the right of his bishopric, and prescribed to have common of pasture for him and his customary tenants of the said house, and two acres of land in magna pecia pastures vocnf Bassingham common, jjro omnibus averiis, etc., onini teinpore aniii, and the said bisliop, at such a court, etc., granted the said house and two acres, by copy, to one William Marys, to him and his heirs, etc. And that the plaintiff put his said cattle in the said great piece of pasture, wherefore the defend- ant, as servant to the said William, and by his commandment, moUiter drove the said cattle out of the said place, where the said William had common in prced' villain de Town-Barningham, adjoin- ing to the said common of Bassingham, etc. The plaintiff replied 32 408 CASES ON COMMON-LAW PLEADING. de injuria siui j^ropria absque tali causa. Upon which the defend- ant demurred in law. And it was objected on the plaintiffs part that the said replication was good, because the defendant doth not claim any interest, but justifieth by force of a commandment; to which de injm'ia sua 2'>ropria absque tali causa may be fitly applied : and this plea, de injuria sua propria, shall refer only to the com- mandment, and to no other part of the plea; and they cited the books in 10 Hen. VI. 3 a, b, 9 a ; 16 Hen. VII. 3 a, b, etc. ; 3 Hen. VI. 35 a; 19 Hen. VI. 7 a, b, etc. But it was adjudged that the replica- tion was insufficient. And in this case divers points were resolved. 1. That absque tali causa doth refer to the whole plea, and not only to the commandment, for all maketh but one cause, and any of them, without the other, is no plea by itself. And therefore, in false imprisonment, if the defendant justifies by a capias to the sheriff, and a warrant to him there, de injuria sua propria generally is no good replication, for then the matter of record will be parcel of the cause (for all makes but one cause), and matter of record ought not to be put in issue to the common people, but in such case he may reply de injuria sua propria, and traverse the warrant, which is matter in fact. But upon such a justification, by force of any proceeding in the Admiral Court, hundred, or county, etc., or any other which is not a court of record, there de injuria sua pro- pria generally is good, for all is matter of fact, and all makes but one cause. And by these differences you will agree your books in 2 Hen. VII. 3 b; 5 Hen. VII. 6 a, b ; 16 Hen. Vll. 3 a; 21 Hen. VII. 22 a (33); 19 Hen. VI. 7 a, b ; 41 Edvv. III. 29 b; 17 Edw. III. 44; 18 Edw. III. 10 b; 2 Edw. IV. 6 b ; 12 Edvv. IV. 10 b; 14 Hen. VI. 16; 21 Hen. VI. 5 a, b ; 13 Eich. 11. Issue 163. 2. It was resolved that when the defendant in his own right, or as a servant to another, claims any interest in the land, or any common, or rent going out of the land, or any way or passage upon tlie land, etc., tliere de injuria sua propria generally is no plea. But if the defendant justifies as servant, there de injuria sua propria in some of the said cases, with a traverse of the commandment, that being made material, is good ; and so you will agree all your books, scil., 14 Hen. IV. 32 ; 33 Hen. VI. 5 ; 44 Edw. III. 18 ; 2 Hen. V. 1 ; 10 Hen. VI. 3, 9 ; 39 Hen. VI. 32; 9 Edw. IV. 22; 16 Edw. IV. 4; 21 Edw. IV. 6; 28 Edw. III. 98; 28 Hen. VI. 9; 21 Edw. III. 41 ; 22 Ass. 42; 44 Edw. III. 13; 45 Edw. III. 7; 24 Edw. III. 72 ; 22 Ass. 85 ; 33 Hen. VI. 29 ; 42 Edw. III. 2. Eor the general plea, de injuria sua propria, etc., is properly when the defendant's plea doth consist merely upon matter of excuse, and of no matter of interest whatsoever; et dicitur de injuria sua PLEAS IN BAR. 499 propria, etc., because the injury properly in this sense is to the person, or to the reputation, as battery or imprisonment to the person', or scandal to the reputation; there, if the defendant excuse himself upon his own assault, or upon hue-and-cry levied, there properly de injuria sua pru^jria generally is a good plea, for there the defendant's plea consists only upon matter of excuse. 3. It was resolved, that vvlien by the defendant's plea any author- ity or power is mediately or immediately derived from the plaintiff, there, although no interest be claimed, the plaintiff ought to answer it, and shall not reply generally de injuria sua propria. The same law of an authoritv given by the law ; as to view waste, etc. Vide 12 Edw. VI. 10 ; 9 Edw. IV. 31 ; 20 Edw. IV. 4 ; 42 Edw. III. 2 ; 16 Hen. VII. 3. Lastly, it was resolved that, in the case at bar, the issue would be full of multiplicity of matter, where an issue ought to be full and single for parcel of the manor, demisable by copy, grant by copy, prescription of common, etc., and commandment would be all parcel of the issue. And so, by the rule of the whole court, judg- ment was given against the plaintiff. TAYLOR V. MARKHAM. In the King's Bench. 1609. Reported Croke's James, 224. De injuria will not put immaterial matter in issue. In an action of trespass and battery, the defendant pleaded, that he, at the time of, etc. was seised of the rectory of D. in fee ; and that at the same time and place where the trespass and battery were supposed, etc. corn was severed from the nine parts : and for that the plaintiff would have carried away his corn, the defendant there stood in defence thereof, and kept the plaintiff from carrying it away ; so as the harm which the plaintiff received was of his own wrong, etc. The plaintiff replies, that the trespass and battery were done sans tiel cause alledye, etc. Whereupon the defendant demurred in law. It was adjudged for the plaintiff; for it is not requisite in this case for the plaintiff to answer the defendant's title, because he does not by this action claim anything in the land or corn, but only damages for the batterv, which is collateral to the title ; and there- fore the general replication [de injuria'] is good : but when the plaintiff makes a title in his declaration to anything, and the de- 500 CASES ON COMMON-LAW PLEADING. fendant pleads another thing against it, the plaintiff must reply especially, and not say sans tiel cause, as it is iu 14 Heu. IV. and 16 Edw. IV. , ISAAC V. FARRAR. In the Exchequer. 1836. Reported 1 Meeson & Welsby, 65. De injuria can be used in assumpsit. Assumpsit by the indorsee against- the maker of a promissory note for £250, payable three months after date to the order of the maker, and by him indorsed to one Henry Eichardsou, who in- dorsed it to the plaintiff. Plea, that before the making of the said promissory note, to wit, on, etc., a certain advertisement had been and was inserted in a cer- tain newspaper, to wit, the Morning Herald, to the tenor and effect following, viz. : " Money to lend upon personal security. — Noble- men, clergymen, and persons of responsibility, requiring the tem- porary advance of money, can be immediately accommodated with loans to any amount, at a very low rate of interest ; application to be made in the first instance in writing, addressed to Mr. Anderson, Fludyer Street, Westminster." And the defendant averred, that in consequence of the advertisement he did, to wit, on, etc., call at the said place, to wit, etc., and there saw one Charles Anderson, and that in consequence of the representations made to him by the said C. Anderson, he the defendant was induced to draw and deliver, and he did then draw and deliver, to the said Anderson, two promissory notes, whereby and by each of which the defendant promised to pay to his own order the sum of £250, three months after the date thereof, (one of them being the said note in the said first count mentioned,) upon the faith of and promise from the said Charles Anderson, that the said notes should be renewed, when due, for the space of two years, and that he should receive from the said Charles Anderson, on a certain day, to wit, the Friday then next following, being, to wit, the first day of May, 1835, the amount of the said notes, deducting discount and stamp. And the defendant further saith, that the said Charles Anderson did not nor would, either on Friday the said first day of May, 1835, or at any otlier time, (although often requested so to do,) pay to the said de- fendant the amount of the said notes, deducting as aforesaid, or any sum of money whatever ; but on the contrary thereof, the defend- ant saith, that he the said defendant, to wit, on the said first day PLEAS IN BAK. 501 of May, 1835, by appointment of the said Charles Anderson, went to the said place, to wit, 12 Fludyer Street, but the said Charles Anderson was not, nor was any such person, either then or at any time afterwards, ^here to be found, and that the said transaction was a gross fraud and imposition upon him the defendant, and that the note was indorsed to the plaintiff without consideration, and that he holds the same without value or consideration, and that there never was and is not any consideration or value on the said note between any parties thereto ; and he further saith, that the said Henry Eichardson, and the said plaintiff, and each of them, at the several and respective times when the said note in the said first count mentioned was so indorsed and delivered to them respec- tively, as in the said first count mentioned, was privy to and had full knowledge and notice of the said transaction in this plea de- tailed, and of the said fraud and imposition : and this the defendant is ready to verify. Keplication. That the defendant of his own wrong, and without the cause by him in that plea alleged, broke his said promise in the said first count mentioned, in manner and form as the said plaintiff hath in the said first count of the said declaration in that behalf complained against him, etc. Special demurrer, assigning for causes — First, that the replica- tion de injuria is a bad plea to the defendant's plea in assumpsit. Secondly, that the replication is bad for duplicity, because it is too large, and puts in issue all the several facts alleged by the plea, in- stead of putting in issue the point to be tried between the parties. Thirdly, that the facts of the fraud and notice to the plaintiff, and the want of consideration for the note in the plaintiff's hands, alleged by the plea, are distinct and separable facts, on either of which the plaintiff' might and ought to have tendered an issue, and he cannot by his replication put both in issue ; and the replication, because it puts both such facts in issue, is bad. The case was argued in the present term, by Hoggins, in support of the demurrer ; and by Humfrey, contra, in support of the repli- cation. The court took time to consider, and the judgment of the court was now delivered by Lord Abinger, C. B. On this demurrer to the replication, two objections were made : First, that its form was improper, as the in- ducement of de injuria, etc., was inapplicable to an action of assumpsit ; and, secondly, that it was bad because it was multi- farious, and put in issue several distinct facts, each of which would, if disproved, be decisive of the action. 502 CASES ON COMMON-LAW PLEADING. We think the replication is good, notwithstanding these objections. This form, though most commonly used in actions of trespass, or trespass on the case for an injury, is not inappropriate to an action of trespass on the case for a breach of promise, where the plea admits a breach, and contains only matter of excuse for having committed that breach. The defendant's breach of promise may be considered as. a wrong done, and the matter included under the general traverse absque tali causa, and thereby denied, as matter of excuse alleged for the breach. — Per Lord Ellenborough, Barnes v. Hunt, 11 East, 455. No case in which this form of replication has been held to be improper, resembles the present. In Crisp v. Griffiths, 2 C. Mee. & Eos. 159, the plea was not matter of excuse for the breach of contract, but of subsequent satisfaction for that breach. In Solly V. Neish, 2 C. Mee. & Eos. 355, the plea was a denial of the promise. So, in Whittaker v. Mason, 2 Bligh, New C. 359 ; s. c. 2 Scott, the plea denied the contract as alleged ; and although the court intimated that it might be doubtful whether a traverse in this form was applicable to any action on promises, they abstained from deciding that question. On the other hand, in the case of Noel V. Eich, 2 C. Mee. & Eos. 360, this court expressed a strong opinion that this general form of traverse, in a case similar to the present, was proper : and we think that it is ; for the plea confesses that the defendant made the note in qviestion and in- dorsed it to Eichardson, who indorsed it to the plaintiff, which con- stitutes Q, prima facie case of liability, and an implied promise to pay the amount to the plaintiff ; and it avoids the effect of that ad- mission by showing that the note was made and indorsed without value bona fide paid, whereby the defendant was excused from per- forming that promise. As to the objection that the replication is multifarious, the facts contained in the plea, though they are several, constitute one ground of defence ; and the rule of pleading is not that the issue must be joined on a single fact, but on a single point of defence. This was laid down by Lord Mansfield in Eobinson v. Ealey, by the Court of King's Bench in O'Brien v. Saxon, and by Mr. Justice Bayley in the case of Carr v. Hinchliff, 7 D. & E. 42 ; 4 B. & C. 547. In each of these cases, the facts there allowed to be included in one issue, as amounting to a single ground of defence, were several. In the first, the facts that the cattle were commonable, and levant and couchant, constituted one proposition, viz., that the cattle were entitled to common ; in the second, the tradmg, petition- ing creditor's debt, and act of bankruptcy, formed one point of de- PLEAS IN BAR. 503 fence, viz. the bankruptcy of the plaintiff ; and in the last, the facts of the goods, for the price of which the action was brought, being sold by an agent as principal, and a set-off of a debt due from the agent, constituted the defence of payment, or satisfaction of the plaintiff's demand. So, in the present case, the plea contains in substance one ground of defence only, that is, that the plaintiff was not the bona fide holder for value, although several facts are necessarily averred as constituting parts of it. Every indorsee of a bill has his own title, and that of each intermediate party ; and if he or any of such parties gave value for the bill without fraud, he is a holder for value. The plea in this case alleges in effect that the defendant had no value for making the note, and that neither the first indor- see, nor the second, received the bill bona fide, which is only a statement, necessary in point of law, of the several facts con- stituting the defence, that the plaintiff is not a bona fide holder for value. If this replication were not allowed, some inconvenience would follow, for in every action on a bill or note it would be competent for a defendant, by alleging fraud, or such other circumstance as would throw the proof of value on the indorsee, to compel him to prove it. For it would seldom happen that a plaintiff, if he were tied down to dispute one fact, could take issue on such an allegation ; and then he would be obliged to take an issue which would admit the fraud, and throw the proof of value on himself, thereby placing him in a worse situation than before the late rules. On the other hand, if this replication be allowed, the indorsee is left in the same situation as he was before, with the additional advantage that he is made acquainted with the defence intended to be set up, which was one grand object of the pleading regulations ; and he will be called upon to prove value given or not, accordingly as the defendant shall prove or fail in the proof of the allegation of fraud, as he would before under the general issue. We do not, however, decide this case on the ground of con- venience, but in conformity with the established rules of pleading ; and we are of opinion that the demurrer must be overruled. Judgment for the plaintiff. 504 CASES ON COMMON-LAW PLEADING. THOMAS COCKERILL v. MATTHEW ARMSTRONG AND SIX OTHERS. In the Common Pleas. 1738. Reported Willes, 99. When the plaintiff in his declaration makes title, and the defendant replies against it, de injuria is not a good replication. The opinion of the court was thus delivered by Willes, Ld. C. J. Trespass for taking, leading away, and im- pounding a gelding of the plaintiff's, and for keeping him in pound for the space of four days, etc. Damage, £30. The defendants all pleaded a special plea, that the place where the gelding was taken at the time when, etc., was a close called Weapness, containing 1000 acres of pasture ground; of which said lUOO acres the bailiffs and burgesses of the borough of Scarborough were at the time, when, etc., seised in their demesne as of fee, and because the said gelding in the declaration mentioned at the time, when, etc., was in the said 1000 acres feeding upon and eating the grass there growing, and doing damage there, the said Matthew, etc., as servants of the bailiffs and burgesses of the said borough, and by their command, took the said gelding so feeding and doing damage there, and impounded the said gelding in the common and open pound at Scarborough aforesaid, and detained him there for the time mentioned in the declaration, as it was lawful for them to do ; which is the same trespass, etc. The plaintiff replies that the defendants took away and im- pounded the said gelding of their own wrong, without any such cause, etc. The defendants demur ; and for cause of demurrer show that the plaintiff in his replication hath traversed the said several matters contained in the plea, whereas he should have traversed one single matter, whereon a proper issue might have been joined ; and that the said replication is uncertain, etc. The plaintiff' joins in demurrer. The single question is,^ whether de injuria sua propria absque tali causa be a good replication, and we are all of opinion that it is not a good replication, for two reasons, both expressly laid down in Crogate's Case. 1 This case was twice argued, the first time in Easter, 1738, hv Eyre, King's Serjt., for the defeudants, and Bootle, Serjt., for the plaintiff ; and again on the 10th of June, 1738, by Wynne, Serjt., for the former, and Burnett, Serjt., for the latter. PLEAS IN BAR. 505 The first of them is the reason assigned as the cause of the demurrer, because it puts several things in issue, whereas the issue ought to be plain and single. For upon this issue the defendants must prove that the bailiffs were seised in fee (or, at least, that tliey were possessed) ; that the defendants acted by their command ; that the gelding at the time when he was taken was in a close called Weapness, and that he was depasturing the grass and doing damage there. The other rule, which is laid down by Lord Coke, is, that when the defendant in his own right, or as servant to another, claiming any interest in the land, or any way or passage therein, or rent issuing thereout, justifies the trespass, de injuria sua projjy-ia absque tali causa is not a good replication : and Crogate's Case is exactly parallel to this, only the present is a little stronger. There the action was only for chasing the plaintiff's cattle, which does not so much as imply any claim of right in the defendant ; but here it is for taking aw^ay and impounding, which seems to imply a claim of right. And the plea is almost the same as this ; for the defend- ant justifies as servant to one who claims a right in the place where, only it is not said there that the cattle were damage- feasant. So that in that respect likewise the present case is stronger than that. And yet, though the case in Coke is not so strong as the present in these two respects, de injuria sua irropria absque tali causa was halden on a demurrer by the whole court after a solemn argument not to be a good replication. I do not at all rely on the case in Cro. Jac. 599, because absque tali causa is there omitted. But the case of Taylor v. Markham, though cited for the plaintiff in this case, makes, I think, rather against him. The case itself is plainly distinguishable from this ; for the action is an action of assault and battery, where the title of 'the land can never possibly come to be material. But it is ex- pressly there laid down that where the plaintiff in his declaration makes a title to any thing, and the defendant pleads another thing against it or in destruction of the cause of action of the plaintiff, there the plaintiff must reply specially, and de injuria sua propria absque tali causa is not a good replication ; which is exactly the present case. And there is a case cited in Yelv., out 14 Hen. IV. 32, trespass for taking the plaintiff's servant ; the defendant pleaded that the father of the person taken held of him by knight's service and died seised, the person taken being under age, and that he seised him as his ward ; the plaintiff replied de injuria sua propria absque tali causa, and held to be no good replication ; which case seems to be exactly parallel to the present. 1 do not rely at all on 506 CASES ON COMMON-LAW PLEADING. the case of Cooper v. Monke and Others, Willes, 52, which was determined in this court as to this point in Hihiry Term, 1737 ; because that was an action for breaking and entering a house, which, to be sure, is plainly distinguishable from the present case. The case of Whitnell v. Cook, Cro. Eliz. 812, seems to be a case in point. Eeplevin for taking cattle ; the defendant, as baiHfT to one Payne, seised of the third part of the place where, justified taking them damage-feasant ; the plaintiff pleaded that a stranger was seised of the other two parts, and that he put the cattle in by his license, de injuria sua propria, etc., by the defendant ; and that held on a demurrer not to be good, but judgment for the plaintiff. It is said, indeed, in the case of the Archbishop of Canterbury v. Kemp, Cro. Eliz. 539, that where the defendant himself claims an interest in lands, this is not a good replication, but where he justi- fies by command of another claiming interest, there it is : but this seems to be a distinction without a difference, as the title to the land must equally come in question, and is alike necessary to be proved in both cases ; and it is directly contrary to Crogate's Case. Whether or no in the present case it was necessary for the de- fendant to set forth a title, or whether he might have relied only on a possession (as this is not a quare clausum f regit, but an action for taking a personal thing without claiming any right to the place), we need not determine, though I think it was not necessary ; be- cause he having insisted on a seisin in fee, we think it is more than an inducement, and that it is necessary to prove it, or at least a possession which is prima facie a proof of a seisin in fee, and will be exactly the same thing in respect to the present point. And there is a plain difference between the present case and the case of an action for an assault and battery ; because there, if the party be possessed, even though the plaintiff should have a title to the house or place, it will signify nothing ; for his bare possession will justify him even turning the right owner out of the house : whereas here, if the plaintiff has a right to the place where, etc., for right of common, etc., it may quite destroy the defendant's plea. And the present case is the stronger, as the defendants have specially assigned this as a cause of demurrer. We are therefore all of opinion that judgment must be for the defendants. PLEAS IN BAR. / 507 H. C. SELBY, ESQ., v. BARDONS AND ANOTHER. In the King's Bench. 1832. Reported 3 Barnewall & Adolphcs, 2. De injuria can be used in replevin as a plea to an avowry or cognizance. Declaration in replevin for taking the plaintiffs goods and chat- tels in Verulam Buildings, Gray's Inn, in the county of Middlesex, and detaining the same against sureties and pledges. The fourth avowry and cognizance were by the defendant Bardons, as collector of the poor-rates of that part of the parish of St. Andrew, Holborn, which lies above the bars, in the county of Middlesex, and of the parish of St. George the Martyr in the said county, and by the other defendant as his bailiff; and it stated that the plaintiff was an inhabitant of the said part of the parish of St. Andrew, Hol- born, and by law ratable to the relief of the poor of that part of the said parish, and of the parish of St. George the Martyr, in respect of his occupation of a tenement situate in the said place in which, etc., and within the said part of the parish of St. Andrew ; that a rate for the relief of the poor of that part of St. Andrew, Holborn, and of the parish of St. George the Martyr, was duly ascertained, made, signed, assessed, allowed, given notice of, and published according to the statutes ; and that by the said rate the plaintiff was, in respect of such inhabitancy and occupation as aforesaid, duly rated in the sum of £7 ; that Bardons, as collector, gave him notice of the rate, and demanded payment, which he refused ; that the plaintiff was duly summoned to appear at the petty sessions of the justices of the peace for the said county, to be holden at a time and place duly specified, to show cause why he refused payment ; that he appeared, and showed no cause ; that a warrant was duly made under the hands and seals of two justices of peace for the county then present, directed to Bardons as col- lector, requiring him, according to tlie statute, to make distress of the plaintiff's goods and chattels ; that the warrant was delivered to Bardons, under which he, as collector, avowed, and the other defendant, as his bailiff, acknowledged the taking of the goods as a distress, and prayed judgment and a return of the goods. The plaintiff pleaded in bar that the defendants of their own wrong, and without such cause as they had in their avowry and cognizance alleged, took the plaintiff's goods and chattels, etc. To this plea there was a special demurrer, and the causes assigned were, that the plea in bar tendered and offered to put in issue several distinct 508 CASES ON COMMON-LAW PLEADING. matters, — the inhabitancy of the plaintiff; his chargeability to the relief of the poor, in respect of his occupation mentioned in the avowry and cognizance ; the ascertainment, making, signing, assessing, allowance, notice, and publication of the rate ; the rating and assessment of the plaintiff; the notice to him of the rate ; the demand and refusal of the sum assessed; the summons, the appear- ance before the justices, the warrant of distress, and delivery thereof to the defendant Bardons. Another cause assigned was, that the plea in bar was pleaded as if the avowry and cognizance consisted wholly in excuse of the taking and detaining, and did not avow and justify the same, and claim a right to the goods and chattels by virtue of the statutes. To the fifth and six avowries and cognizances, which were similar in form to the fourth, the plaintiff' pleaded de injuria; and there were special demurrers, assigning the same causes as above. The plaintiff joined in demurrer. The case was argued in last Michaelmas Term by Coleridge in support of the demurrer, and Maule, contra. The judges, not being agreed in their opinions, now delivered judgment seriatim. The points urged and the authorities cited in argument are sufficiently stated and commented on in the opinions delivered by them. Patteson, J. The pleas in bar to the fourth, fifth, and sixth cognizances are so entirely at variance with one of the principal objects of special pleading, viz. that of bringing the parties to clear and precise issues of fact or of law, that I cannot bring my mind to consider them as maintainable upon principle. But if, upon the authority of decided cases, it should appear that they are main- tainable, I am not prepared to overrule those cases upon any opinion that I may entertain respecting the inconvenience of so general a form of issue ; and I am free to confess that, after an attentive examination of the authorities, I am of opinion that the pleas are maintainable. The leading case upon the subject (I mean Crogate's Case, for the Year-Books throw little light on the subject) is by no means consistent in all its different parts, and much that is contained in the four resolutions is unnecessary to the decision of the case itself. The pleadings were in substance as follows : Trespass for driving cattle. Plea, a right of common as copy-holder in a piece of pasture into which the plaintiff had put his cattle; and that de- fendant, as servant of the commoner, drove them out. Eeplication, de injuria sua propria absque tali causa. The first resolution is in substance this : that the replication de PLEAS IN BAR. 509 injuria absque tali causa refers to the whole plea; for all is but one cause. The second resolution is, that where any interest in land, or common, or rent of or way over land is claimed, de injuria is no plea ; for it is properly wlien the plea does consist of matter of excuse only, and no matter of interest whatever. The third reso- lution is, that wliere the defendant justifies under authority from the plaintiff', de injuria is no plea ; so where he justifies under authority of law. The fourth resolution is, that the issue in the case then at bar would be full of multiplicity. Upon the authority of this case, if the pleas in bar now under consideration be bad, they must be so on one of the following grounds : — Either that the avowries claim some interest, or that the de- fendant justifies under authority of law within the meaning of the third resolution, or that they are bad for multiplicity. In the first place, as to any claim of interest, it is plain that the avowries claim no interest whatever in land, the sort of interest to which the second resolution is in words confined. But, supposing any interest in goods were within the spirit of that resolution, still, I apprehend that it must be an interest existing antecedent to the seizure complained of, and not one which arises merely out of that seizure ; otherwise this plea could never be good in replevin where a return of goods is claimed, and, of course, an interest in them is asserted. Indeed, it seems to be considered in some text- books that this plea in bar can never be used in replevin ; but on reference to the authorities cited for that position, they all appear to be cases where an interest in land was claimed by the avowry. In this respect, I confess that I cannot see any distinction between an action of replevin and one of trespass ; and as the plaintiff can bring either at his election, it would be strange if he should be able by suing in trespass to entitle himself to the general form of replication, but if he sues in replevin should be debarred from it. The case of Wells v. Cotterel, 3 Lev. 48, was cited at the bar to establish that the plea of de injuria is good in replevin ; but it appears in that case that three of the judges held it good against the opinion of the fourth, but that all the court held the avowry bad, and therefore no decision was necessary as to the plea. On the other hand, the case of Jones v. Kitchin is commonly referred to as establishing the position that this plea in bar can never be used in replevin ; but it does not go that length, for the avowry there was for rent in arrear, and, therefore, de injuria would have been equally bad had the form of the action been trespass. For, in White v. Stubbs, 2 Saund. 294, which was an action of trespass. 510 CASES ON COMMOX-LAW TLEADIXG. de injuria was held to be a bad replication, the plea claiming an interest in land, and justifying the taking the goods as encumber- ing a room to which the defendant showed title. As, therefore, the avowries in this case show no interest in land or in the goods seised, except that which arises from claiming a return ; and as I find no authority for saying that such claim of return is an interest within the meaning of the second resolution in Crogate's Case, it seems to me that the avowries show matter of excuse only, and that,, as to this ground of objection, tiie general pleas in bar of de injuria are good. In the next place, are the general pleas bad on account of any authority in law shown by the avowries ? It is certainly stated in the third resolution in Crogate's Case, that the replication de injuria is bad where the plea justifies under an authority in law ; but this, if taken in the full extent of the terms used, is quite inconsistent with part of the first resolution, which states, that where the plea justifies under the proceedings of a court not of record, the general replication may be used, or where it justifies under a capias and warrant to sheriff, all may be traversed except the capias, which cannot, because it is matter of record and cannot be tried by a jury. Now, the proceedings of a court not of record, and the warrant to a sheriff and seizure under it, are surely as complete authorities in law as any authority dis- closed by the present avowries. With respect to the proceedings of a court not of record, a quaere is made in Lane v. Robinson, 2 Mod. 102, whether a replication de injuria would be good; but the point did not arise in the case, and the Year-Books referred to in Crogate's Case warrant the conclusion that it would. In Bro. Abr. title De Son Tort Demes7ie, there are instances of this replication to a plea justifying by authority of law. There is also the case referred to in the argument at the bar, of Chancy v. Win and Others, in which it is laid down by Lord Holt, that de injuria is a good replication in many cases where the plea justifies under an authority in law. I do not therefore think that the present pleas are objectionable on that ground. In the last place, are the pleas bad on account of the issue, tendered by them, being multifarious ? If this were res integra, I should have no hesitation in holding that they were bad ; and it cannot, I think, be denied that the present issues are as full of multiplicity as that in Crogate's Case, and to which the fourth resolution there applied. But I am un- able to find any instance in which this general replication has been held bad on that ground. The objection is indeed mentioned in PLEAS IN BAR. )11 the cases cited from Lord Chief Justice Willes's reports, but in no one of those cases does the decision proceed on that objection alone, and in all of them there were other undoubted objections. In Cooper V. Monke, Willes, 52, the plea justified under a distress for rent, and the general replication was clearly bad within the second resolution in Crogate's Case. In Cockerill v. Armstrong, the plea justified under a seizure of cattle damage feasant in a close of which the bailiffs and burgesses of Scarborough were alleged to be seised in fee ; an interest, therefore, was claimed in the land, and the general replication was bad within the same resolution ; and Lord Chief Justice Eyre, in commenting on that case in Jones v. Kitchin, expressly states that the replication was bad on that ground, and not because it put two or three things in issue, for that may happen in every case where the defence arises out of several facts all operatmg to one point of excuse. In Bell v. Warden, Willes, 202, the pleas set up a custom, which was held bad, and, therefore, any decision as to the general replication became unnecessary. It is every day's practice where the plea justifies an assault in defence of the possession of a close, or removing goods doing damage to it, to reply de injuria generally, and yet this objection as to the multifarious nature of the issue would apply in both cases. The same observation holds good where this general repli- cation is used in actions for libel or slander, in which a justification is pleaded. Many cases are referred to in Com. Dig. tit. Pleader, (F) 18, and several following numbers, and, again, 3 (M) 29, in none of which do I find that the general form of replication has ever been held bad on account of its putting in issue several facts. The cases of Robinson v. Eayley, 1 Burr. 316, and O'Brien v. Saxon, are authorities to show that it cannot be objected to on that account, provided the several facts so put in issue constitute one cause of defence, which, as it seems to me, they always will, where the plea is properly pleaded, however numerous they may be, since if they constitute more than one cause the plea will be double. The present avowries state many facts undoubtedly, but they are all necessary to the defence, and combined together they show but one cause of defence, namely, that the plaintiff's goods were rightfully taken under a distress for poor-rates ; and if the general replication be held bad in this case, I am at a loss to see in what case such a replication can be held good, where it puts more than one fact in issue. I am compelled therefore, however reluctantly, to come to the conclusion that the pleas in bar are good. 512 CASES ON COMMOX-LAW PLEADING. Parke, J.,^ after stating the pleadings, proceeded as follows : — The question for our decision is, whether the objections pointed out in the special demurrer, and which have been insisted upon in the argument before us, are well founded in law ? It appears to me, upon an examination of the authorities, that they are not, and that the pleas in bar are good. It is true that these pleas in bar put in issue a great number of distinct facts ; and it is also true that the general rule is, that where any pleading comprises several traversable facts or allega- tions, the whole ought not to be denied together, but one point alone disputed ; and I am fully sensible that the tendency of such a rule is to simplify the trial of matters of fact, and to save much expense in litigation. But it is quite clear, that from a very early period in the history of the law, an exception to this general rule has been allowed with respect to all actions of trespass on the case, in the plea of the general issue; and with respect to some actions of tort, iu the replication of de injuria sua propria absque tali causa. This replication, where it is without doubt admissible, generally, indeed it may be said always, puts in issue more than one fact, and often a great number. For instance, in an action of assault, where there is a justification that the defendant was pos- sessed of a house ; that the plaintiff entered ; that the defendant requested him to retire, and he refused ; that the defendant laid his hands on the plaintiff to remove him, and the plaintiff resisted ; — all these facts may be denied by this general replication. Com. Dig. Pleader, (F) 18. Hall v. Gerard, Latch, 128, 221, 273. So, where an obligation to repair fences, and a breach of the fences by the plaintiff is pleaded as an excuse for a trespass with cattle. Eastell, 621 a. Com. Dig. Pleader, 3 (M) 29. So, if there be a justification of assault and false imprisonment, on the ground of a felony committed, and reasonable suspicion of the plaintiff; Bro. Abr. De Son Tort, 49. So as to other justifications in the like action; Ibid. 18, 20. Under the precept of an admiralty court, or under a precept after plaint levied in a county or hundred court, Eastell, 668 a, many facts may be put in issue by the gen- eral replication, and there appears no question about the validity of such a replication ; Crogate's Case. The case of O'Brien v. Saxon is a further authority to the same effect, that many facts may be included in one issue ; and if many facts may be traversed, it can be no vaHd objection that more than usual are denied in any particular case. 1 Taunton, J., delivered no judgment, having been consulted in the cause when at the bar. PLEAS IX BAR, 513 I must not, however, omit to notice, there is a dictum of Lord Chief Justice Willes in the case of Bell v. AVardell, Willes, 204, that the general replication of de injuria was bad on this ground, and also in that of Cockerill v. Armstrong ; but Lord Chief Justice Evre, in Jones v. Kitchin, disapproves of that dictum, and says that the reason is not that the replication puts two or three things in issue ; and both these cases may be supported on another ground, namely, that in one a right in the nature of a right of way, in the other a seisin in fee, would be included in the traverse. It seems clear to me, therefore, that this general traverse in actions of tort is not bad on account of the multiplicity of the matters put in issue ; and unless there be some distinction between actions of replevin and actions of tort (a point I shall afterwards consider), the first ground of objection must fail. The second ground is, that the avowry and cognizance claim an interest in the goods, and that for this reason the pleas in bar are not admissible. Upon the best consideration I have been able to give to the authorities on this subject, which are (many of them) obscure and contradictory, T do not think that any interest is claimed in these pleadings, within the meaning of that word in the rules laid down on this suljject. In Crogate's Case, the principal authority, three cases are mentioned in which the general traverse is not allowed. The first is, where matter of record is parcel of the issue ; and that for the obvious reason, that if it were permitted, it would lead to a wrong mode of trial. The second case is, where the defendant in his own right, or as servant to another (who is by that decision put on the same foot- ing as his master), claims an interest in the land, or any common, or rent going out of the land, or any way or passage upon the land. The third case is, where, by the defendant's plea, any authority or power is mediately or immediately derived from the plaintiff. Un- der this description is included any title by lease, license, or gift from the plaintiff; Bro. Abr. De Son Tort Demesne, 41 ; or lease from his lessee; 16 Hen. VII. 3. Bro. Abr. De Son Tort Demesne, 53. It is also added in Crogate's Case, that the same law is of an authority given from the law, as to view waste ; but in the case cited from the Year Book, 12 Edw. IV. 10 b, as supporting this posi- tion, the plea stated that the plaintiff claimed as tenant by statute merchant, and defendant justified his entry under his right to view waste, so that matter of record would have been in issue under the general replication. This explanation of the case was given at the bar in Chancy v. Win, and in the same case Lord Holt says, that 33 514 CASES ON COMMON-LAW PLEADING. the case of a right of entry to view waste is upon a special reason, because the seisin of the lessor would be involved in the issue. As a general proposition, indeed, it is untrue that authority of law may not be included in the traverse, it being clear that an arrest by a private individual or a peace officer is by an authority from the law ; and yet pleas containing such a justification may be denied by a general traverse. Lord Coke says, after laying down these three rules, that the general plea de injuria, etc., is properly when the defendant's plea doth consist merely of matter of excuse, and of no matter of inter- est whatever. By this I understand him to mean an interest in the realty, or an interest in, or title to chattels, averred in the plea, and existing prior to, and independently of the act complained of, which interest or title would be in issue on the general replica- tion ; and I take the principle of the rule to be, that such alleged interest or title shall be specially traversed, and not involved in a general issue. It is contended, however, on the part of the defendants, that the interest here meant is one that the party would acquire by the seizure which forms the subject of complaint, and that the replica- tion would be improper whenever the defendant justified under any proceedings by which, if rightful, he would acquire an interest or a special property. If this were the meaning of the term " interest," a general repli- cation would be bad to a plea to an action of trespass justifying seizure under process of the Admiralty Court, or of any inferior jurisdiction not of record. So in case of a justification of taking beasts in withernam (16 Hen. VII. 2). So of a justification of seizure for salvage ; Lilly's Entries, p. 349. And yet in all these cases it appears to be settled that the general traverse is permitted. It seems to me, therefore, that the objection is applicable to those cases only where a party justifies as having an interest, or under one who has an interest, by title at the time of the act complained of, which interest would therefore be put in issue by the general traverse. No case or precedent cited on the argument, or any that I am aware of, is against this construction of the rule. In Cockerill v. Armstrong, indeed, before referred to, which was the case of a dis- tress, damage-feasant, and impounding. Lord Chief Justice "Willes says (among other observations) that the taking away and impound- ing seemed to imply a claim of right ; but there the plea stated a seisin in fee in the bailiffs of Scarborough, which would have been in issue ; and it is on that ground that the decision of the court is PLEAS IN BAR. 515 to be supported ; and so Lord Chief Justice Eyre seems to have thought in Jones v. Kitchin. It appears to me, then, that in an action of trespass de bonis asportatis, a similar justification to the present might be traversed by the general replication, as no matter of interest in the goods seized would be included in that traverse ; and the only remainiiifr question is, whether it makes any difference that the form of action is in replevin. Some modern treatises lay it down as a general rule, that this form of pleading is inadmissible altogether in replevin ; ^ but the authorities cited for this position do not bear it out. Finch's Law, 396, is one ; after stating that in all actions of trespass merely transitory, although the defendant pleads any special matter, the plaintiff may reply generally, except where the justification is by matter of record or writing (by which he means writing in the like nature) or by some title or license from the plaintiff himself, he proceeds to state that in all local trespasses where title is clainiiMl, the special matter must be answered ; and " in replevin, which i.s real, the title or special matter must be always traversed." I do not think this means to include all replevins, but those only where the avowry claims title to the realty. In Jones v. Kitchin, a case of replevin, the plea in bar was held bad, not because it was not pleadable in replevin, but because it would put in issue a title or interest in land ; and the proposition in the judgment in that case, that this plea could only be allowed iii actions for personal injuries, is certainly too limited, as many authorities have been cited to show that it is applicable to trespasses to goods. Indeed, it was conceded in the argument, that in some cases of replevin such a plea in bar would be admissible ; and if admissible at all, there seems to me no reason why it should not be governed by the same rules as in an action of trespass to goods ; viz. that it should not be admitted where matter of record, title, interest, or authority from the plaintiff should be put in issue by that plea in bar, but it should be in all others. And there are some precedents in actions of replevin, of such a plea in bar, which were cited on the argument. In Lilly's Entries, 349, there was an avowry for salvage, with a prayer of judgment of a return, and such a plea in bar. In Wells v. Cotterill, 3 Lev. 48 ; Lev. Entr. 185, there was a similar plea in bar, which was held bad on the ground that it traversed matter of title, but it does not appear to have been objected to for the general reason that such a plea was inadmissible in that form of action. Upon the whole, 1 I Chittv on Pleadincr, 622, 5th ed. 516 CASES ON COMMON-LAW PLEADING. therefore, my opmion is, that the plea in bar is good in this case, as it puts in issue no matter of title or interest in tlie goods, and there- fore that there should be judgment for the plaintiff. Lord Tenterden, C. J. I consider the system of special pleading, which prevails in the law of England, to be founded upon and to be adapted to the peculiar mode of trial established in this country, the trial by the jury; and that its object is to bring the case, before trial, to a simple, and as far as practicable, a single question of fact, whereby not only the duties of the jury may be more easily and conveniently discharged, but the expense to be incurred by the suitors may be rendered as small as possible. And experience has abundantly proved, that both these objects are better attained where the issues and matters of fact to be tried are narrowed and brought to a point by the previous proceedings and pleadings on the record, than where the matter is left at large to be established by proof, either by the plaintiff in maintenance of- his action, or by the defendant in resisting the claim made upon him, I am sensible that this principle has not always been kept in view by the courts, and that there have been, in practice, many instances of departure from it, founded upon very nice and subtle distinc- tions. The decisions of our predecessors, the judges of former times, ought to be followed and adopted, unless we can see very clearly that they are erroneous, for otherwise there will be no cer- tainty in the administration of the law; and if I had found the question in this cause distinctly decided in any former case, I should have thought it my duty to abide by the decision, espe- cially in a matter regarding rather the course of proceeding than a question of pure law. But after an attentive consideration of the cases quoted at the bar, and of such others as I have been able to meet with after a very diligent search, I do not find that this has been done. I find, indeed, many decisions and dicta not easily reconcilable with each other, founded, as I have already observed, upon very nice and subtle grounds, and not capable of being reduced to any plain, or, to my mind, any solid principle. There is one matter in which all the authorities in our books agree. If an action of trespass be brought for turning sheep or cattle to feed upon land in possession of the plaintili', and the defendant justifies the act by pleading that A. B., his landlord, was seised of certain lands, and demised the same to him for a term not yet expired, and that he thereupon entered and was possessed of the demised lands ; and then goes on to allege, in the ordinary form of prescription, that his landlord had right of common on the plaintiff's land for cattle levant and couchant on the demised land. PLEAS IN BA?>. 517 and that he put the cattle on the plaintiffs land in the exercise of that right ; in such a case, I say, it is agreed by all the decisions that the plaintiff cannot reply generally de injuria sua loropria absque tali causa, hut must traverse some one of the facts alleged in the plea, admitting, for the purpose of the cause, all the others. In such a case, at least three separate and distinct facts are alleged: the seisin of the landlord, the demise to the defendant, the imme- morial right of common. Every one of these three is necessary to the defence ; but the plaintiff must elect which of them he will deny, and when he has so done, the cause goes down to the jury for the trial of that single fact ; the jury are not embarrassed by a multiplicity of matter, and the parties are relieved from much of the expense of proof, to which they would be subjected if all the facts alleged in the plea were to be matters of proof and contro- versy before the jury. In the case now before the court, the avowry alleged that a poor-rate was made ; that it was allowed by the justices ; that the plaintiff was assessed in it for his messuage in which the distress was taken ; that this messuage was within the parish; that payment of the assessment was demanded and refused; that a warrant of justices was issued to levy it, and that the goods were taken under the authority of that warrant. Many distinct and independent facts are thus alleged in the avowry, every one of which is necessary to sustain the right to take the goods, and to entitle the defendant to have them returncil to him; and if this general plea in bar be good, tlie defendant must prove every one of them at the trial, and the jury must consider and decide upon each before a verdict can properly be given. Now, I think I might safely venture to ask any plain and unlettered man, whether he could find any difference between the two cases that I have put, either in common understanding or in sound logic. For myself, I must say that I can find none. If no such distinction exists or can be found, why should a different rule prevail ? why should all the matters of fact be sent together to the jury in the one case and not in the other ? To this question T am persuaded that no satisfactory answer could be given to the mind of an un- lettered man. To a judge, who is to act upon the decisions of his predecessors, a binding if not a satisfactory answer might be given, by showing that the matter had been already so decided ; but this, as I conceive, has not yet been done. I find it decided, that wliere, in an action of trespass, the defend- ant's plea contains merely matter of excuse, and not matter of riglit, a replication in this form may be good: and to this there may, per- haps, be no objection in principle, because the matter of excuse 518 CASES ON COMMON-LAW PLEADING. may, and generally will he, the only matter to he tried, any previ- ous allegation heing a matter of inducement only. I find it also laid down, that where the defendant claims any interest in land by his plea, this general replication will not he good ; but it is said that it may be otherwise in the case of goods. Why there should be such a distinction I am nofe able to comprehend. The defendant in this case does, certainly in one of the avowries, claim an interest in the goods, because he claims to have them returned to him : but I do not rely on this. For the reasons which I have thus, perhaps imperfectly, given, and which are founded upon what I conceive to be principle, and not upon authorities, and wliieh, therefore, render it unnecessary for me to advert to particular cases, I feel myself reluctantly bound to differ from my two learned brothers; and it is a satisfaction to me to know that my opinion, which it is my duty to give as I entertain it, cannot prejudice the plaintiff, because, not- withstanding my opinion, the judgment of the court on these de- murrers must be given for the plaintiff. I would only add, that my view of the case would be the same if this were a replication to a plea in trespass, or if the defendant had pleaded instead of avowing, and so had not claimed a return of the goods. Judgment for the plaintiff.^ (b) Special Traverses. A., as heir of X., sues B. The action concerns land demised by X. to B. A. sues as B.'s landlord. B. must deny A.'s title. This he cannot do directly — a tenant is estopped directly to deny his landlord's title. Here, then, is a case where injustice will be done unless B. is given a plea which shall in some way break the spirit without breaking the letter of the estoppel rule. Let B. say, in substance, "X., when he leased to me this land, was seised thereof for life; he is now dead, and was continnously so seised until he died, etc., Absque hoc (without this) the reversion of this land belongs to A. and his heirs as A. alleges, And this I am ready to verify, and pray judgment if A. is to have this action against me." B. has not directly denied A.'s title ; the letter of the es- toppel rule is unviolated, and the plea is good. 1 Affirmed in Exchequer Chamber, 1 C. & M. 500; s. c. 9 Bing. 756. — Ed. PLEAS IN BAK. 519 " A technical traverse,^ when special, begins in most cases, with the words ' absque hoc; ^ (without this) ; which words, in pleading, constitute a technical form of negation. A traverse, commencing with these words, is called special ; because, when it thus com- mences, the inducement and the negation are, regularly, both special — the former consisting of new special matter, and the latter pursuing, in general, the words of the allegation traversed, or at least, those of them which are material." Gould, Pleading, c. vii. s. 6. " Thus, if to debt on a bond the defendant pleads, that he exe- cuted the bond by duress ; and the plaintiff replies, that the defend- ant executed it of his own free will, and for valuable consideration, without this, that he executed it by duress, the traverse is special. For, so, also, if the defendant pleads title to land, in himself, by alleging that J. S. died seised in fee, and devised the land to him ; and the plaintiff replies, that J. S. died seised in fee, intestate, and alleges title in himself, as heir to J. S. without this, that J. S. de- vised the land to the defendant ; the traverse is special. Here the allegation of J. S.'s intestacy, etc., forms a special inducement ; and the absque hoc, with what follows it, is a special denial of the alleged devise, i. e., a denial of it in the words of the allegation." Gould, Pleading, c. vii. s. 7. EFFECT AND OBJECT OF SPECIAL TRAVEKSES. " The use and object of a special traverse is the next subject for consideration. Though this relic of the subtle genius of the ancient pleaders has now fallen into comparative disuse, it is still of oc- casional occurrence ; and it is remarkable, therefore, that no author should have hitherto offered any explanation of the objects for which it was originally devised, and in a view to which it con- tinues to be, in some cases, adopted. The following remarks are submitted as those which have occurred to the writer of this work on a subject thus barren of better authority. The general design of a special traverse, as distinguished from a common one, is to ex- plain or qualify the denial, instead of putting it in the direct and absolute form ; and there were several different views, in reference to one or other of which the ancient pleaders seem to have been induced to adopt this course. 1 " A technical traverse is one which is preceded by introductory affirmative matter, called the inducement to the traverse ; and may be jjeneral [fur cxam])le, the replica- tion de injuria sun propria, absque tali causa] or special." Gould, Plcadini;, c. vii. s. 4. 2 In some cases " et non " instead of " absque hoc " is used. Gould, Pleadmg, c. vii. s. 8. 520 CASES ON COMMON-LAW PLEADING. " First. A simple or positive denial may, in some cases, be ren- dered improper by its opposition to some general rule of law. Thus, in the example of special traverse first above given (an action of covenant for non-payment of rent by the heir of a lessor against a lessee, wherein it became material for the tenant to deny his land- lord's title) it would be improper to traverse in the common form, viz. : ' that after the making of the said indenture, the reversion of the said demised premises did not belong to the said E. B. and his heirs,' etc., because, by a rule of law, a tenant is precluded (or, in the language of pleading, estopped) from alleging that his lessor had no title in the premises demised ; and a general assertion that the reversion did not belong to him and his heirs would seem to fall within the prohibition of that rule. But a tenant is not by law estopped to say that his lessor had only a particular estate, which has since expired. In a case, therefore, in which the decla- ration alleged a seisin in fee in the lessor, and the nature of the defense was that he had a particular estate only (e. g., an estate for life), since expired, the pleader would resort, as in the first ex- ample, to a special traverse — setting forth the lessor's limited title by way of inducement, and traversing his seisin of the reversion in fee under the absque hoc. He thus would avoid the objection that might otherwise arise on the ground of estoppel. " Secondly. A common traverse may sometimes be inexpedient, as involving in the issue in fact some question which it would be desirable rather to develop and submit to the judgment of the court as an issue in law. This may be illustrated by the second example of special traverse above given. In that case it would seem that a lease not .expressing any certain term of demise had been brought to the ordinary for his confirmation ; that he had ac- cordingly confirmed it in that shape under his seal; and that the instrument was afterwards filled up as a lease for fifty years. The party relying upon this lease states tliat the demise was to the de- fendant for the term of fifty years, and that the ordinary ' ratified, approved, and confirmed his estate and interest in the premises.' If the opposite party were to traverse in the common form, — ' that the ordinary did not ratify, approve and confirm his estate and in- terest in the premises, etc.,' and so tender issue of fact on that point, — it is plain that there would be involved in such issue the following question of law, viz. : whether the confirmation by the ordinary of a lease in which the length of the term is not at the time expressed be valid ? This question would therefore fall under the decision of the jury, to whom the issue in fact is referred, subject to the direction of the judge presiding at nui prius, and the ulti- PLEAS IN BAR. 521 mate revision of the court in bank. Now it may, for many reasons, be desirable that, without going to a trial, this question should rather be brought before the court in the first instance, and that for that purpose an issue in law should be taken. The pleader, therefore, in such a case, would state the circumstances of the trans- action in an inducement, — substituting a special for a common trav- erse. As the whole facts thus appear on the face of the pleading, if his adversary means to contend that the confirmation was under the circumstances valid in point of law, he is enabled by this plan of special traverse to raise the point by demurring to the replica- tion, on which demurrer a question of law arises for the adjudica- tion of the court. " By these reasons, and sometimes by others also, which the reader, upon examination of different examples, may, after these suggestions, readily discover for himself, the ancient pleader appears to have been actuated in his frequent adoption of an inducement of new affirmative matter, tending to explain or qualify the denial. But though these reasons seem to show the purpose of the inducement, they do not account for the two other distinctive features of the special traverse, viz., the abscpie hoc, and the conclusion with a veri- fication. For it will' naturally suggest itself that the affirmative matter might, in each of the above cases, have been pleaded per se, without the addition of the absque hoc. So, whether the absque hoc were added or not, the pleading might, consistently with any of the above reasons, have tendered issue like a common traverse instead of concluding with a verification. These latter forms were dic- tated by other principles. The direct denial under the absque hoc was rendered necessary by tliis consideration, that the affirmative matter taken alone would be only an indirect (or, as it is called in pleading, argumentative) denial of the precedent statement ; and by a rule which will be considered in its proper place hereafter, all argumentative pleading is prohibited. In order, therefore, to avoid this fault of argumentativeness, the course adopted was to follow up the explanatory matter of the inducement with a direct denial. Thus, to allege, as in the first example, that E. B. was seised for life, would be to deny by implication, but by implication only, that the reversion belonged to him in fee ; and therefore, to avoid argu- mentativeness, a direct denial that the reversion belonged to him in fee is added under the formula of absque hoc. With respect to the verification, this conclusion was adopted in a special traverse in a view to another rule, of which there will also be occasion to speak hereafter, viz., that wherever new matter is introduced in a plead- ing, it is improper to tender issue, and the conclusion must conse- 522 CASES ON COMMON-LAW PLEADING. quently be with a verification. The inducement setting forth new matter makes a verification necessary in conformity with that rule." Stephen, Pleading, Andrews' 1st ed. 251. BRUDNELL v. ROBERTS. In the Common Pleas. 1762. Reported 2 Wilson, 143. A tenant is estopped directly to deny his landlord's title. Covenant brought by the plaintiff upon a lease for years, as heir in reversion in fee to his father, and breach assigned for want of repairs ; defendant pleads that the father when he made the lease to him was only a tenant for life, and that the father being dead the lease is determined, absque hoe that after making the said indenture of lease the reversion belonged to James Brudnell (the father and his heirs), as the plaintiff hath alleged in his declaration. Demurrer and joinder. It was argued by Serjeant Hewitt for the plaintiff, that this plea was bad, because wherever a lessee accepts a lease for years by indenture, he shall be estopped to say that the lessor nil habuit in tenementis, and the plaintiff need not reply that estoppel, but may demur, because the declaration is on the indenture, and the estoppel appears on the face of the record ; other- wise if he had declared quod cum demisset, etc., 1 Salk. 277, Kemp V. Goodall ; and this is clearly law, for so is Co. Lit. 47 ; Cro. Jac. 312 ; Cro. Eliz. 362. And not only the lessor himself, but the grantee of the reversion, and all parties claiming under them, will have the benefit of the estoppel, which (he said) ran along with the lands ; and that the plaintiff claiming as heir under the lessor, his ancestor stands in his place. 2dly, It was urged for the plaintiff that the traverse was defective and uncertain; but I heard nothing said to show that it was uncertain. On the side of the defendant it was argued by Serjeant Nares, that this was an action of covenant brought by the plaintiff upon an indenture of lease for years made by the father of the plaintiff to the defendant, and breach assigned for want of repairs, upon a covenant in the lease ; the defendant pleads that the plaintiffs father the lessor was only tenant for life, that he is dead, and the lease is determined, and traverses as above ; that the lease being now at an end, there is an end of all the covenants therein, and of this action; a lease for years by tenant for life is so absolutely PLEAS IX BAR. 523 determined, that no acceptance of rent by the successor to the land can make it good. Co. Lit. 341 b. Nares, Serjeant, admitted that during the Hfe of the tenant for life (of the lessor) and the continuance of the lease, the defendant would have been estopped to say he had not the reversion in him, but he being dead, and the lease thereby at an end the lessee is, as it were, unmuzzled, and is not estopped to plead the truth, which he has done by this plea, in confessing the lease and avoiding it : and of that opinion was the whole court ; they also held that the traverse was well taken ; and judgment was given for the defendant per totam curiam. See Co. Lit. 47 b, si non que le lease soil per fait indent, etc., very apposite to the point of estoppel. N. Clive, Justice, said, the defendant might either traverse that the father was not seised of the rever- sion in fee, or that it did not descend to the plaintiff; qua fuit concessum. FOKTESCUE v. HOLT. Ix THE King's Bexcu. 1672.. Reported in 1 Ventris, 213. A scire facias was brought upon a judgment of £1,000, as ad- ministrator of J. S. The defendant pleaded that before the administration committed to the plaintiff, viz., such a day, etc., administration was granted to J. N., who is still aKve at D., and demandeth judgment of the writ. The plaintiff replies, J. N. died, etc., and de hoc ponit se super patriam. And to that the defendant demurs. For that he ought to have traversed absque hoe, that he was alive ; for though the matter contradicts, yet an apt issue is not formed without an affirmative and a negative ; and so said the court. PALMER V. EKINS. In the King's Bench. 1728. Reported 2 Lord Raymond, 1550. A. V. X. Covenant for non-payment of rent. Declaration : M. was seised in fee of Blackacre, and leased to X. with covenant to pay rent. X. entered, and continued possessed. M. assigned the reversion to A. The rent is due. Plea in form of a special traverse confessing that M. was a life tenant, and leased to X. ; and later conveyed his reversion to A., and later died, the re- version in A. dying with him. The plea is bad. The plaintiff, Henry Palmer, as assignee of John Palmer, brought an action of covenant against Elizabeth Ekins for non-payment of 524 CASES ox COMMOX-LAW PLEADIXG. rent, wherein he declared that John Palmsr was seised in fee of the messuage, etc., and being so seised, the 27th of March, 1716, by indenture made between him on the one part, and the defendant on the other part (one part of which indenture, sealed by the defend- ant, the plaintiff produces in court), demised to the defendant a messuage in the parish of St. Michael Crooked Lane, London, for twelve years from Lady-day, 1716, rendering £18 per annum during the said term to the said John Palmer, his heirs and assigns, payable at four quarterly payments ; that the defendant by the said indenture covenanted to pay the said rent at the days and times in the said indenture mentioned to the said John Palmer, his heirs and assigns ; that by virtue of this demise the defendant entered and continued possessed of this messuage, etc., till after the 26th of March, 1725. That John Palmer, being seised of the re- version in fee, by lease and release, dated the 22d and 23d of November, 1723, conveyed it to Henry Palmer, the plaintiff in fee; then the plaintiff assigns his breach, in the defendant's not paying three-quarters rent due, and ending Lady-day, 1725. The defend- ant, protestando that John Palmer did not make such lease, for plea says, that John Palmer was seised in fee of this messuage 19th of November, 1706, and being so seised by lease and release dated the 19th and 20th of November, 1706, conveyed this messuage, etc., to one John Bragg, in fee ; and traverses, absque hoc, that John Palmer ad aliquod tempus post prcedictum 20th of November, 1706, seisitusfuit de messuagio prcedieto in doininico sua ut de feodo, modo et forma as the plaintiff declares. To this plea the plaintiff de- murred generally, and the defendant joined in demurrer. This case was argued at several times by Mr. Serjt. Girdler, Mr. Serjt. Baines,and Mr. Fazakerley, for the plaintiff, and by Mr. Serjt. Belfield, Mr. Usher, and Mr. Filmer, for the defendant. And the 26th of November, 1728, I, at my brothers' desire, delivered the opinion of the court, that the plea was ill, and the plaintiff ought to have judgment. And we resolved, That the defendant could not plead, John Palmer nil habu.it in tenementis at the time of the lease made, to an action brought by John Palmer, supposing he had not conveyed to the plaintifi": because it appearing upon the face of the declaration that the lease was made to her by indenture made between John Palmer and her, which she had executed ; she is estopped l)y the indenture. And for that purpose the case of Kemp v. Goodhall, Pasch. 4 Annee, B. R. 6, 1 Ld. Ptaym. 1154, in debt for rent by indenture, if the de- fendant pleads nil habuit in tenementis, the plaintiflP may demur and need not reply the estoppel, because it appears upon the PLEAS IX BAR. 525 declaration ; but if the defendant plead nil hahuit in fenemenfis, and the plaintiff replies hahuit, etc., the jury may find the truth, notwithstanding the indenture.^ That this plea of the defendant amounted to a special nil hahuit in tenementis, for by the inducement to the traverse she shows that John Palmer, in 1706; long before he made the lease to the defend- ant, which was in 1716, conveyed in fee to Bragg. If so, John Palmer had nothing in the messuage, etc., when he made the lease. For an estate in fee-simple is always intended to continue, unless it be shown to be conveyed away or determined. Therefore this plea amounts to a special nil hahuit in tenemetitis, which is no more to be admitted to be pleaded by a lessee by indenture, than a general nil hahuit in tenementis. But the defendant, by a proper inducement, might have made this traverse good ; as if he had pleaded in his inducement to the traverse that J. S. was seised of the messuage in fee, and being so seised conveyed it to John Palmer for his life, and that John Palmer being so seised, made the lease to the defendant, and afterwards conveyed to the plaintiff, and that then John Palmer died ; whereby he would have showed that an interest passed by the lease to the defendant as long as John Palmer lived, and that by his death the lease was determined ; then such traverse as in the present case would have been good. For the estoppel that appeared upon the face of the declaration, would have been avoided by showing an interest past ; and such plea would not have amounted to a nil hahuit in tenementis, because an estate for life would have appeared to have been in John Palmer. But no interest appears to be in John Palmer in this case, when the lease was made to the defendant ; nor can the court intend there was any interest in him, since the plea sets out a conveyance before the lease to Bragg in fee simple, which estate must be intended to continue.^ 1 A portion of the case uot relating to the pleadings is omitted. — Ed. 2 See Brudnell v. Roberts, 2 Wils. 143. — Ed. CHAPTEE X. ■ KULES OF PLEADING. DEPARTURE. " A DEPARTUKE in pleading is said to be when the second plea containeth matter not pursuant to his former, and which fortifieth not the same, and thereupon it is called decessus, because he de- parteth from his former plea ; and therefore whensoever the re- joynder (taking one example for all) containeth matter subsequent to the matter of the barre, and not fortifying the same, this is regularly a departure, because it leaveth the former, and goeth to another matter. As if in an assise the tenant plead a discent from his father, and giveth a colour, the demandant intituleth himselfe by a feoffement from the tenant himselfe, the plaintife cannot say, that that feoffement was upon condition, and to shew the condition broken ; for that should be a cleare departure from his barre, be- cause it containeth matter subsequent. But in an assise, if the tenant pleadeth in barre, that I. S. was seised and infeoffed him, etc., and the plaintife sheweth that he himself was seised in fee, until by I. S. disseised, who infeoffed the tenant, and he reentered, the defendant may plead a release of the plaintife to I. S. for this doth fortifie the barre." Coke upon Littleton, 304 c. / WESTON V. CARTER. In the Common Pleas. 1658 or 1660. Reported 1 Siderfin, 9. Departure defined. Upon the replication the defendant avows in 0. for rent charge granted out of the manor of S. And says that the manor of S. lies in S. and 0. within the county of Surrey, Lady Weston says that she hath recovered on writ of dower and hatli a third part assigned in S. And shows that, etc. And so was seised as tenant in dower until the plaintiff distrained her cattle in a place called the Warren in S. And it was argued at bar by Earle and Barnard, first, if this was departure, and, second, what is effected by the Demurrer. And by RULES OF PLEADING. 527 the court [it was held] this is departure from the declaration. Aud it was agreed that in every replication there ought to be a town and a place assigned according to Eeade and Hawkes's Case, Hob. 16. And here the Warren is the place assigned, and S. is the town, and for that it cannot be in 0. where the avowry is, for the one town cannot be in the other town, nor the one place assigned in the other place assigned. And here 0. will be deemed to be a town insomuch as the avowry is supposed there, rather even more than a Parsonage- house will be deemed a town, and yet it is adjudged a town, Cro. 2, 274. Lawrence and Johns Case. Now S. is a town or not a town ; if not a town the replication is not good, because a town is wanting, and if it is a town it cannot be in the town of 0. And Bridsrman, Chiefe Justice, says that as well a place assigned as a town ought to be in the replication, for that both are traversable. But if there is no place assigned by name and the Plaintiff passes it over and does not demur, that is good, and so he says the several places can be reconciled. Now admitting 0. is a Parish and that S. is in the Parish of 0., yet the Plaintifi" hath not title, for she hath alleged a recovery upon a writ of dower of land in S., which is a town, which Recovery does not extend to land in 0. For if the Parish of D. contains 8 'towns, to wit, the town of D. and of C. etc. And a fine is levied or a recovery had of land in I)., this does not extend to lands in the other towns within the Parish outside of the town of D., which was agreed by the Court. Cro. 2, 120. Starke and Fox's Case agreeing. And when she avers that the Warren in S. is in 0., this averment is void for this, that it is repugnant and impossible for this that the one town cannot be in the other town as above. Note if D. be called a parish, that is a town and is sufficient, for it will not be inferred that there are several towns within the Parish if it be not shown. 1 Inst. 125 b. and Hob. 6. And Hyde, Justice, says that a departure is when the second plea contains novel matter that does not fortify the first. 2. It was objected that thro' this demurrer the Defendant hath • confessed the averment of the Plaintiff, but it was replied and re- solved that notwithstanding it is often times said that a demurrer is a confession, etc., yet this is not a confession of nny thing except that which is well pleaded. For things not well pleaded, which is the cause of the demurrer, are not by this confessed, but left to be determined by the Court. And judgment in the principal case was given for the Defendant. Although Atkins when he was justice here was of the contrary opinion. 528 CASES ON COMMON-LAW PLEADING. MOLE V. WALLIS, OR BOLD v. WARREN. In the King's Bench. 1662. Reported 1 Levinz, 81. Covenant on an indenture of apprenticeship to serve him seven years, which he liad not done, but departed. Tlie defendant pleads infancy ; the plaintiff replies the custom of London, for infants to bind themselves apprentices ; the defendant demurs ; and whether this was a departure? was the question. And Wyndham and Foster, Chief Jvistice at one time, seemed that it was not, it being laid in London, where the custom is known ; and Foster cited a case, where infancy being pleaded to a feoffment, the plaintiff replied the custom of gavelkind in Kent ; that an infant may make a feoffment at fifteen, and the action being laid in Kent, it was resolved to be good. Twysden and Mallet on the contrary said, that wdiich is pleaded generally as the common law cannot be maintained by custom, but is a departure, and cited Yel. 14 ; Plow. Com. 105 ; Mich. 6 Hen. VIL pi. 4 ; HiL 21 Hen. YII. pi. 29 ; 2 Cro. 494 ; Hutt. 63, 64. But they agreed, that if one pleads a statute, and the other says that it is repealed, the other may say that it is revived by another statute; or, if a man pleads a statute, and the other says» it was to continue but till such a time, which is expired, the other may say, that the first statute was afterwards made perpetual, be- cause it is only fortifying of the first matter. And in Hilary time first following, the party prayed leave to discontinue. OWEN AND ANOTHER v, REYNOLDS. In the King's Bp:nch. 1732. ' Reported Fortescue, 341. \ Debt on bond conditioned to save harmless from tonnage of coals due to William Biddle. Defendant pleads non damnificiat ; plain- tiff replies that Biddle distrained for said coals, and defendant rejoins that nothing was due to Biddle for tonnage ; this held to be a good rejoinder, and no departure, for it fortifies the plea, and gives a good reason why he was not damnified. DUPLICITY. " The plea of every man shall be construed strongly against him that pleadeth it, for everie man is presumed to make the best of his owne case ; amhiguum placit.um interpretari debet contra proferen- tum." Coke upon Littleton, 303 b. \ RULES OF PLEADING. 529 " The plea that contains duplicity or miiltiplicity of distinct matter to one and the same thing, whereunto severall answers (admitting each of them to be good) are required, is not allowable in law. And this rule you see extendeth to pleas perpetual or peremptory, and not to pleas dilatory ; for in their time and place a man may use divers of them ; and hereof ancient writers speak notably : ' Sicut actor una actione debet experiri faltem ilia durante, sic oportet tenentem una exceptione, dum tamen peremptoria (quod de dilatoriis non est tenendum) ; quia si, licerit pluribus uti excep- tionibus peremptoriis simul semel, sicut fieri poterit in dilatoriis, sic sequeretur, quod si in probatione unius defecerit, ad aliam pro- bandum possit habere recursum, quod non est permissibile, non magis quam aliquem se defendere duobus baculis in duello, cum unus tantum sufficiat.' But where the tenant or defendant may plead a generall issue, thereupon the generall issue pleaded, he may give in evidence as many distinct matters to barre the action or right of the demandant or plaintife, as he can." Coke upon • Littleton, 303 b. HAREBOTTLE v. PLACOCK.^ Ix THE King's Bench. 1607. Reported Choke's James, 21. Ejectment of land, and a coal-pit in the same land. The defend- ant pleaded not guilty, and it was found against him. It was now moved in arrest of judgment, that the declaration was not good,; for he cannot demand the land itself, and a coal-pit in the same land^ for that is Ms petitum. — But the court held it to be good, because it is a personal action, and he demands nothing certainly. / DAME AUDLEY'S CASE. In the Queen's Bench. 1561. Reported in Moore, 25. Detinue. The defendant says that after the bailment to him by the plaintiff she married Lord Audley, who during the marriage released him of all actions. Nichols. The plea seems double, for he has pleaded two matters in bar ; first, property in the husband by the marriage ; second, release by the husband. And it was held by all the judges that the plea was not double, since he could not plead the release without pleading that it was after the marriage, otherwise it was not material, wherefore, etc. 1 Part of the case, not bearing upon Duplicity, omitted. 34 530 CASES ON COMMON-LAW PLEADING. GAILE V. BETTS. In the Common Pleas. 1676. Reported in 3 Salkeld, 142. Debt upon bond, the defendant craved oyer of the condition, which was to pay £40 so long as the defendant should enjoy such an office, by quarterly payments every year ; that he pleads that the office was granted to three for their lives, and that he enjoyed it as long as they lived, and so long he paid the said rent quarterly. The plaintiff replied that he (the defendant) enjoyed the office longer, and that he had not paid the money by quarterly payments ; and upon demurrer to the replication, it was objected that it was double. Sed per curiam, it is not, for the defendant cannot in his rejoinder tender an issue upon payment of the money, because that would be a departure from his plea. SAUNDERS V. CRAWLEY. In the King's Bench. 1614. EePORTED 1 ROLLE, 112. Saunders brought debt on an obligation for non-performance of articles which were to pay so much at two fixed days in equal portions, which the defendant says he paid accordingly. The plaintiff replies that he has not paid accordingly, which is double plea, quodfuit concessum per curiam, for this goes to both days. HUMPHREYS v. BETHILY. In the Common Pleas. 1690. Reported 2 Ventris, 198, 222. In an action of debt upon a penal bill, where the defendant was to pay 10s. on the 11th of June, and 10s. more upon the 10th of July next following, and 10s. every three weeks after, till a certain sum were satisfied by such several payments. And for the true pay- ment thereof the defendant obliged himself in the penal sum of £7. The plaintiff in facto dicit pleaded, that the defendant did not pay the said sum, or any part thereof, upon the several days afore- said, unde actio accrevit for the £7. The defendant pleaded that he paid 10s. upon the 11th of June, et hoc paratus est verificare, etc. RULES OF PLEADING. 531 The plaintiff replied that he did not pay it, et hoc petit quod in- quiratur per patriam. To which the defendant demurred. The plea was held altogether insufficient. But then Pollexfen, C. J., observed that the declaration was naught ; for he should have declared that the defendant failed in payment of one of the sums, which would have been enough to have entitled him to the penalty ; but he says, the said several sums of money, or any of them, and this is double ; and he inclined that it was not aided by answering over, or by the general demurrer. Adjornatur. Vide Saunders and Crawley. The court now delivered their opinions that the doubleness in the declaration was cured by answering, and no exception can be taken to it upon the general demurrer. Saunders and Crawley is the same with this. Judicium pro quer '. JOHN RATHBONE v. SAMUEL RATHBONE. Supreme Judicial Court, Massachusetts. 1827. REroRTED IN 5 Pickering, 221. Mere surplusage will not make a pleading double. Debt. The defendant pleaded in abatement, that the writ, "at the time when it was put into the officer's hands for service, and at the time when it was served, by attaching the property of the said Samuel, contained no count or declaration ; nor was there any cause of action in any way or manner set forth." The plaintiff demurred because the plea was double, in averring that there was no count, etc., in the writ both at the time when it was put into the officer's hands and when it was served ; also in averring that there was no count or declaration, nor any cause of action set forth in the writ. Ashmun, for the plaintiff. A plea is double wlien either of two matters alleged is alone sufficient. Here, if the want of a declara- tion when the writ was served was fatal, the want of one when it was put into the officer's hands was likewise, and vice versa. Thayer v. Eogers. A plea is double when the other party cannot make one answer to it. Here there may have been a declaration when the writ was put into the officer's hands, and not when it was served; and vice versa. The plea alleges too that tlie writ contained no declaration or any cause of action. If these mean 532 CASES ON COMMON-LAW PLEADING. the same thing, then the same defence is repeated ; which infor- mality is fatal to a plea in abatement. But they do not mean the same thing. A declaration is a formal statement of the cause of action. In assumpsit upon an account annexed, if the account is left out, there is a declaration, but no cause of action ; and if the writ has only the account annexed, there is a cause of action but no declaration. The plea, therefore, is double. ]\Iills and Newcomb, on the same side. Wells and Maxwell, for the defendant. The opinion of the court was drawn up by Parker, C. J. We consider the plea in abatement good, notwith- standing the causes assigned in support of the special demurrer. It is immaterial what the writ contained when it was first filled, provided it did not contain any cause of action when put into the hands of the officer to be served, and when actually served ; for the question must always be, whether then when it was served it was a good writ, so as to hold the property attached. The allegation of there being no cause of action when it was put into the officer's hands for service, is surplusage and may be rejected ; so that there is no duplicity. J FISHER V. WREN. In the Common Pleas. 1688. Reported 3 Modern, 250. Duplicity should be attacked by demurrer. The plaintiff brought an action of trespass on the case, and de- clared that he was seised of an ancient messuage, and of a meadow, and an acre of land parcel of the demesnes of the manor of Crosth- wait ; and sets forth a custom to grant the same by copy of court roll ; and that there are several freehold tenements parcel of said manor, and likewise several customary tenements parcel also tliereof, grantable at the will of the lord ; and that all the free- holders, etc., time out of mind, etc., together with the copyholders according to the custom of the said manor have enjoyed solam et separalem pasturam of the ground called Garths, parcel of the said manor, for their cattle levant et couchant, etc., and had liberty to cut the willows growing there for the mending of their houses ; and the defendant put some cattle into the said ground called Garths, which did eat the willows, by reason whereof the plaintiff could have no benefit of them, etc. Upon not guilty pleaded, there was a verdict for the plaintiff. RULES OF PLEADING. 533 Pemberton, Serjeant, now moved in arrest of judgment ; and took these ^ exceptions. First, as to the manner of the prescription which the plaintiff, had laid to be in the freeholders, and then alleged a custom for the copyholders, etc., and so made a joint title in both, which cannot be done in the same declaration, because a prescription is always alledged to be in a person, and a custom must be limited to a place, and therefore an entire thing cannot be claimed both by a pre-- scription and custom, because the grant to the freeholders and this usage amongst the copyholders could not begin together. E. contra it was argued. That it cannot be denied, but that there may be a custom or prescription to have solam et separalem pasturam. But whether both prescription and custom can be joined together, is the doubt now before the court ; and as to that he held it was well enough pleaded, for where there is an unusual right, there must be the like remedy to recover that right ; it was thus pleaded in North's Case, 1 Saund. 347, 351 ; 1 Vent. 383. But admitting it not to be well pleaded, it is then but a double plea, to which the plaintiff ought to have demurred ; and this may serve for an answer to the first exceptions. Adjournatur. / READ V. MATTEUR. In the King's Bench. 1735. Reported Cases Time of Hardwicke, 286. Trover against Christopher Matteur ; defendant pleads in abate- ment that he is called John Mether, and by the same name and sirname was always known and called, absque hoc that he is named by that name and sirname of Christopher Matteur, or by the same name or sirname was never known or called ; to which plea plaintiff demurred. Serjeant Hayward for the plaintiff, objects, Ist,^ That this is a- double plea because here are two matters put in issue, viz. Whether his christian name be Jolm, and whether his sirname be Mether. Kyffin for defendant. The two names are but one description, and showing the whole name to be mistaken is but one fact put in issue. Lord Hardwicke : I think the plea is well enough, and not double. It is an uncommon thing for plaintiff to mistake both 1 The other exceptions and matter relating thereto, since not here relevant, are omitted. 2 Matter relating to the second plea, since not here relevant, is omitted. 534 CASES ON COMMON-LAW PLEADING. names of defendant, and therefore there may not be many pre- cedents of such a plea, but when such a mistake is made, I do not see how the defendant can plead otherwise : and as the defendant is in plea in abatement to give the plaintiff a better writ, how could he do so in this case without showing what his real name is ? Judgment that the bill be abated. ARGUMENTATIVENESS. " Every plea must be direct, and not by way of argument, or rehearsall." Coke upon Littleton, 303 a. EXECUTORS OF GRENELIFE v. W . In the King's Bench. 1538. Reported 1 Dyer, 42 a. Argumentativeness defined. The executors of one Grenelife brought debt on a bond made in August, and indorsed with this condition : " The condition, etc. That whereas the within bounden W. hath sold to the within named I. G. a certain meadow in D. the aforesaid W. shall warrant the said I. G. and save harmless against lord, and king, and all other, if that the said I. G. shall have and peaceably enjoy the said meadow, to him and to his heirs, to hold of the lord of W. Hall, by the service thereof, after the custom of the manor, that then, etc." The defendant pleaded, that the said meadow was cus- tomary and parcel of the said manor of W. and demised, and demisable by copy, etc., and that there is a custom within the manor, that if the customary tenants fail in payment of their rents and services, or commit waste, then the lord for the time being may enter for forfeiture: and he said, that the said I. Grenelife took the said meadow by copy to him and his heirs, at a court "holden in October next after the making of the bond ; and showed the certainty, and who was steward ; and he further said, that the said I. G. during all his life time had and peaceably enjoyed the meadow, and died seised thereof, by reason whereof the said meadow descended to one B. as* son and heir, which son de injuria sua propria entered without the admission of the lord, against the custom of the said manor ; and because three shillings of rent were in arrear on such a day, the lord entered the meadow, as into lands forfeited to him ; whereof he prayed judgment, etc. And to this the plaintiff demurred. . . . And Shelley compared the case to a Banbury cheese, which is RULES OF PLEADING. 535 worth little in substance when the parings are cut off, for so this case is brief in substance, if the superfluous trifling which is on the pleadings be taken away ; for the intention of the condition was, that the obligor should warrant and save harmless I. G. for the land sold, and that is the effect of the condition. And then there is nothing more to be seen but how the defendant hath performed such intention, when he pleads that I. G. had and peaceably en- joyed it all his life. And it appeared to him that this was not well pleaded, for it is only argument, s. if he has peaceably enjoyed the land ; therefore he hath guaranteed and saved him harmless, but he thought this was not sufficiently pleaded, for divers cases are ruled in the books, that a man shall not plead by argument, but directly in fact. As if in trespass for carrying away goods, the defendant would plead that the plaintiff never had any goods, this is argumentative, that then the defendant is not guilty ; and never- theless it is no plea, and yet in that case the argument is infallible ; therefore a multo fortiori in this case, here, where he pleads per- formance of the condition by a fallible argument, for although the obligee hath peaceably enjoyed, this may be, and yet he may have cause of warranty, and also so to be saved harmless ; because if a man bring against him a plaint for the land, and he have cause to vouch, and the other be nonsuited or barred, so that the obligee continue his estate peaceably, yet the condition is broken, and the suing of an action is not tortious, nor contra pacem, and whatever is not forcible is peaceably done. (And he examined, and dwelt much upon that word peaceably.) And also it might be that I. G. forfeit issues to the king, whereof he is not saved harmless ; and therefore this argument which is fallible is not well pleaded, wherefore, etc. But if he had alleged that I. G. was impleaded, and he guaranteed and defended him, where he paid the issues for him, that would have been good : or if he had said directlv, that no man had brought an action against him, and that he was not damnified by the king, or any one else, etc. that would have been well pleaded ; but as it now is pleaded, the plaintiff ought to recover. But Baldwin was of a contrary opinion ; though neither I, nor any one else, I believe, understood his refutation,^ EEPUGNANCY. " Eepugnancy ... as the term imports, is some contrariety or inconsistency between different allegations of the same party." Gould on Pleading, 154. * Matter not here relevant \s omitted. 536 CASES ON COMMOX-LAW PLEADING. PALMER V. STAVELY. In the King's Bench. 1701. Reported 1 Salkeld, 24. Indebitatus assumpsit for money had and received by the de- fendant for the plaintiff ad usum of defendant, and verdict upon no)i assitmpsit for the plaintiff. And, upon motion in arrest of judgment, the court held, that these words ad usian of the defend- ant, should be rejected, because they are insensible and repugnant, and then the promise was for money had and received by the defendant for the plaintiff, which is well. HART V. LONGFIELD. In the Queen's Bench. 1703. Reported 7 Modern, 148. Indebitatus asiumpsit. There were several counts in the declara- tion ; and demurrers to some, and issues taken upon others. One of the counts, to which there was a demurrer, was this : The plaintiff declared, that whereas such a day and year the defendant was indebted to him in such a sum for nourishing Edward Longfield, at the request and instance of the defendant, and that he, the defendant, promised to pay him. There was also a quantum meruit for nourishing the said Edward Longfield, for the same time. The second exception ^ was. That the first declaration being an indebitatus for nourishing of Edward Longfield for such a time, there is likewise a quantum meruit for the same nourishing, and it is contradictory, that there should be one agreement to pay so much as it should be worth, and another to pay a sum uncertain, and both stand. Holt, Chief Justice. These cannot be his agreements, and both stand for the same thing at the same time ; for in such case, the last will destroy the first, and the last will only stand ; but the way had been, to aver them to be different children ; and that is the right way when a quantum meruit and indebitatus is brought for the same thing ; for here you ought to multiply Edward Long- field as often as you multiply your declaration. . . . And the court directed the plaintiff to enter a non pros, upon all but the first, and take judgment upon that, and so it was done. 1 Matter relating to the first exception is liere omitted. RULES OF PLEADING. 537 NEVIL V. SOPER. In the King's Bench. 1698. Reported 1 Salkeld, 213. In covenant against an apprentice the plaintiff assigned for breach, that the apprentice, before the time of his apprenticeship expired, ^ durante tempore quo survioit departed from his master's service. The defendant demurred, and had judgment, because the declaration was repugnant, for it should have been durante tempore quo servire dehuit. The case of Lawly v. Arnold, Hill. 8 W. III. B. K. was not unlike this : That was trespass for taking and carrying away his timber and brick, super terram suamjacent. ergo confectionem domus de novo cedificat. And the court held this insensible, for they could not be materials towards the building of a house already built. Sed quaere, If that was not surplusage ? WYAT V. ALAND. In the Queen's Bench. 1703. Reported 1 Salkeld, 324. Surplusage when material. An action qui tarn was brought by an informer against one Aland for taking more than statute interest; and he declared, that the de- fendant Aland had lent to one Nicholson £200 for so long, and that at the day of payment it was corruptly agreed between them the said Aland and Nicholson, that the said Nicholson should give the said Aland £40 pro deferendo