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If the plea professes to be an answer to only part of the declaration, it will be best for the plaintiff to take judgment by nil dicit, for the part not answered. For, if the plaintiff should demur or plead over, the whole action will be discontinued. 1 Ld. Raym. 231, 716, 841;

1 Saund. 28, n. 3; 1 Salk. 79, 80. See, however, the opinion of
Spencer J., in 20 Johns. 206. Though, the discontinuance will be
cured by a verdict for the plaintiff. 4 Mod. Rep. 246.
But mere
matter of aggravation, need not be answered in the plea. 3 Wils. 20;
1 Saund. 28, n. 3.

3. The matter pleaded must be triable.

In order to be triable, the matter pleaded must consist either of matter of law, determinable by the Court; or matter of record, triable by the record; or, matter of fact, triable by the country. And, if matter of fact and matter of law be so mixed together, as to be triable neither by the Court nor by the jury, the plea will be bad. 2 Wils. 74; 6 Mass. R. 190; 1 Šid. 302; 1 Lev. 193. To such plea the plaintiff may demur.

4. The Plea must not be double.

If the plea alleges several distinct matters, which require several answers to the same thing, it is bad. In other words, if the plea contains two or more defences to the declaration, or to the same part of it, it will be bad on special demurrer. 1 Ld. Raym. 332; 1 Salk. 218, 219; Co Litt. 303 a; 1 Wils. 219.

If the plaintiff answer over, he must answer to both defences or justifications, and the duplicity will thereby be cured. 1 Vent. 272. If the plaintiff demurs generally, the duplicity will thereby also be cured. Saund. 337 b, n. 3.

5. A Plea must be certain.

Want of certainty in a plea, makes it bad on special demurrer. 1 Saund. 116, n. 1. But the defect will be cured by pleading over, or by a general demurrer. Ibid. 2 Ld. Raym. 1416.

As, where a bond is conditioned for the performance of several particular things, the defendant in pleading performance, must set forth in his plea, how he has performed each particular thing, and state a time and place. 1 Sid. 215; 1 Lev. 303.

But, where the condition of a bond is general, for the performance of all the covenants in an indenture, the defendant may plead performance generally, and then the plaintiff must show a particular breach. 2 Saund. 411; 1 Lev. 303.

If, however, in such case, some of the covenants are in the negative, he must give a special answer to them. Co. Litt. 303. And if they are in the disjunctive, he must show in his plea which of them he has performed. 1 Saund. 117, n. 1; Bac. Abr. Pleas, I. 3.

Where

any thing is omitted, which is necessary to give certainty to the statement in the plea, it shall be taken most strongly against the defendant. But if the bar is good according to the most common intent, it will be good. Plowd. 29 a, 46 a.

But there shall be no such intendment, if inconsistent with another part of the plea. 10. Co. 59; Com. Dig. Pleader, E. 6. And circumstances necessarily implied from those stated in the plea, shall

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be intended; and the omission shall not make a plea bad; as, livery to a feoffment, &c. Co. Litt. 303 b.

But certainty to a common intent is sufficient; and where words in a plea, have a natural sense, and also may bear an artificial one, or one to be made out by inference, the natural sense shall prevail. 2 H. Bl. 530. See also the different opinions of the judges, Plowd. 29, Colthirst v. Bejushin.

Where the certainty cannot be known at the time of the plea, and is to be ascertained by the evidence, less certainty is required, and it is sufficient to make an allegation in general, in the pleading. As, in case of an undertaking to give bond with sufficient sureties, it would be sufficient for the defendant to plead, that he gave bond with sufficient sureties, without saying in what penalty, if it cannot be known at that time how much is sufficient. 1 Lev. 297; Archb. Plead. 236.

Where a defendant, in traversing a fact, is prevented from also traversing the time, place, and other circumstances, lest the traverse should be too large, he may traverse that he did (whatever is charged against him in the declaration) in manner and form as alleged against him in the plaintiff's declaration. Co. Litt. 281 b. See Archb. Pl. 236.

To avoid excessive prolixity also, the law will sometimes allow general pleading, without setting forth particulars. But it will be most safe to restrict this rule to cases, where the knowledge of such particulars, belongs more properly to the other party. See Archb. Pl. 237. See also 2 Burr. 772; 1 Sid. 215. But in 1 Bulst. 43, a plea was held bad for not pleading performance of the condition of a bond, with sufficient certainty.

And much certainty is not requisite in setting forth negative matter, or mere inducement. Com. Dig. Plead. E. 11; Cro. Car. 138. In estoppels, on the contrary, the utmost certainty, in every respect, is required. Co. Litt. 352 b.

6. A Plea must be sensible and consistent.

If a plea is insensible or repugnant, it will be bad on general demurrer. Archb. Pl. 240. See ante, under the head, "Defects in a Declaration," the observations on repugnancy, &c., which apply with equal force to a plea.

7. A Plea must be direct; and not argumentative, or by way of rehearsal. Co. Litt. 303 b; 9 Johns. 313; 6 Cranch, 126. And, therefore, if it amounts to the general issue, or, answers in the affirmative to an affirmative, it is bad, as argumentative. Co. Litt. 303 b.

This fault must be taken advantage of by special demurrer, except in cases where a special traverse is omitted; an omission, which sometimes makes a plea bad on general demurrer. Com. Dig. Plead. E. 3.

8. Further observations on Pleas.

If the defendant pleads a plea merely void or frivolous, or a matter, which would not amount to a justification, if well pleaded, the plaintiff may sign judgment as on nil dicit. 1 Saund. 318; 1 Salk. 173. In New York, it seems, the plaintiff may either enter a default, or may demur. 3 Johns. R. 541. But, unless the pleas are palpably bad on the face of them, the party must demur, and cannot treat them as nullities. Coleman, 81.

If an entire plea is bad in part, it is bad for the whole. 1 Saund. 28, n. 3; 2 Mass. R. 82; 1 Lev. 48; 2 Saund. 50.

This does not extend to cases, where the defect is mere surplusage. 3 T. R. 374; 3 Wils. 20; 1 Saund. 28, n. 3.

And, therefore, where a replication states matter sufficient for the plaintiff to maintain his action, and unnecessarily makes an averment of something further, which is inaccurate, as notice, &c., and the defendant demurs, the whole is not vitiated. See 3 T. R. 374.

CHAPTER III.

OF THE FORM OF PLEAS.

Every plea in bar begins with appearance and defence.

1. Appearance.

With regard to appearance, it may be remarked, that generally every person has the option to appear either personally, or by attorney; except, however, that infants must appear by guardian; (2 Saund. 117 f, n. 1; 2 Johns. 192;) and even when sued with others. 2 Cro. 289. Married women, if sued without their husbands, must appear in person; (2 Saund. 200 c;) if sued with their husbands, they may appear either personally or by attorney. Lunatics, if of age, may either appear personally, or by attorney. Archb. Pl. 183. (Qu. How can a lunatic appoint an attorney?) In Massachusetts he appears by guardian. 4 Mass. R. 508. If under age, he must appear by guardian. Idiots must appear in person; and the best plea, by whomsoever suggested, is to be received for them. This, however, must be restricted to cases, where they have no guardian.

Attornies and other officers of Court, usually appear in person. Corporations must appear by attorney. Com. Dig. Pleader, (B 1.) In pleading to the jurisdiction, the appearance should be in person. 2 Saund. 209 b, c.

2. Defence.

It seems, that, in every plea in bar, it is necessary to make defence, except in pleading to a scire facias; (3 Lev. 182 ;) or a writ of dower; in pleas to the jurisdiction, and pleas of privilege. 1 Salk. 30.

The omission of defence, where necessary, will be bad on special demurrer. Archb. Pl. 183. See Note, preceding the forms in Abate

ment, POST.

3. Every Plea in Bar must have its proper conclusion, which is to the action. Co. Litt. 303 b. But more particularly, it should either conclude to the country, or with a verification. But an informal conclusion is aided on general demurrer. 2 Saund. 109, n. 5.

A plea concluding in common form, refers to the time of commencing the action; a plea against the further maintenance of the suit, goes to the time of plea pleaded. 4 East, 502. Since it shows some disability of the plaintiff to sue, or other defence, accrued since action brought. See 11 Mass. R. 119; 12 Mass. R. 8. It is a settled rule of pleading, that no matter of defence, arising after action brought, can properly be pleaded in bar of the action generally. Ibid. It must be pleaded as a plea since the last continuance. See post, under the head

of pleas since the last continuance. This distinction is material, as it settles the question of costs. See 3 T. R. 186.

A verification is either of matter of fact, or of matter of record. Where matter of record is pleaded, or matter to be proved by the record only, the plea concludes by refering to the record. 1 Lev. 211; Lutw. 163. The omission, however, must be shown for cause of demurrer. 1 Salk. 1. And, if the matter is negative, it is not necessary to conclude with such reference to the record. 1 Salk. 520. In what cases a plea concludes to the country, or with a verification, see POST.

4. With regard to the body of the plea: It should be remembered, that where the time, in which any thing occurred, is not material to the defence, the plea must follow the time alleged in the declaration, whether it is the true time or not. If the plea varies from the declaration in this respect, it will be bad on special demurrer. 1 Saund. 14; 2 Saund. 5, n. 3.

But, where it is material to the defence, the true time should be shown in the plea, though it may vary from the day laid in the declaration. Com. Dig. Plead. (G. 2.) 16. And then the ancient practice was, to conclude with a traverse of any other time, than that stated in the plea. Ibid. 2 Saund. 5, n. 3. But the modern practice is to aver, that the matter justified is the same trespass, of which the plaintiff complains. Ibid. Archb. Pl. 228.

So, where the place is not material to the defence, the plea must follow the place alleged in the declaration. 2 Saund. 5. n. 3; 248, n. 1; 1 Salk. 173. Otherwise, the plea will be bad on special demurrer. Ibid. 1 Saund. 8, n. 2.

But, where the justification is local, the plea should state the true place, and traverse every other. 2 Saund. 5, n. 3; Cro. Eliz. 504.

A plea should state the dates of instruments, with truth; and, in general, great care is necessary in setting out the contents of deeds or contracts, as also in describing records; because the slightest variance in substance, and sometimes a want of mere literal exactness, in either will be fatal. 8 Johns. 253, 392; 7 Johns. 468; 4 Johns. 450; 8 Johns. 26. See 8 T. R. 151; Archb. Pl. 240. And generally the matter of defence should be stated in a plea, substantially as it will turn out in the evidence. However, it should be remarked, that a defendant is not restricted in his proof, to the time or place mentioned in his plea, if they are stated after a videlicet, and are not material to his defence. See 1 Bl. Rep. 495.

5. What need not be stated in a Plea in Bar.

Though the matter stated in a plea in bar, must consist of facts and circumstances, amounting to a complete defence to the action, yet it is not necessary to set forth in it the rules of the common law, public statutes, general customs, matter implied by law, matter apparent to the Court, or a condition subsequent, which goes to defeat the action. But, where necessary to the defence, private statutes, and local customs and usages, must be recited in the plea; and every thing must be alleged in it, which is necessary to bring the defendant's case within such statutes, customs, or usages. Archb. Pl. 188; Com. Dig. Pleader, C. 81.

CHAPTER IV.

OF THE DIFFERENT KINDS OF PLEAS.

A plea in bar is either, 1stly, in denial; 2ndly, in confession and avoidance; or 3rdly, by matter of estoppel.

CHAPTER V.

OF PLEAS IN DENIAL.

1. Of the general issue. 2. Of a special traverse. 3. Of what may not be traversed. 4. Rules for the traverse.

A plea in denial is either, 1. a general, or, 2. a special traverse. 1. The general traverse is usually called the general issue, and wherever matter is specially pleaded, which, in effect, amounts to the general issue, that is, an unqualified denial of the charge in the plaintiff's declaration, the plea is generally bad on special demurrer; because, in such case, the general issue itself ought to be pleaded. Cro. Car. 157; Com. Dig. Pleader, E. 14. Whenever this takes place, it is recommended to move the Court to set aside the plea. See Archb. Pl. 197; Chitty on Pl. 500. See 2 Day, 431.

Where, however, the defence consists of matter of law, it may be pleaded specially, though it may also be given in evidence under the general issue. Archb. Pl. 195; 1 Salk. 344, 394; 1 Vent. 258; 1 Sid. 151; Skin. 362.

So, an entire plea is good, though, as respects part of the declaration, it may amount to the general issue. 3 Lev. 40.

As remarks will be found at some length, in the body of the work, upon the general issues in the different actions, it is unnecessary to enlarge farther on them in this place.

2. A special traverse, which may be found in any part of the pleadings after the declaration, either on the side of the defendant or of the plaintiff, is where the cause of the plaintiff's action, as set forth in the declaration, or the foundation of the defendant's defence, as shown in his plea, depends on a number of facts, so material, that a disproof of either, will defeat the action, or subvert the defence, and one of them is specially denied for that purpose. And, therefore, a traverse may be of any fact essential to the cause of action, or to the defence. Dyer, 364 b; Sir Francis Leke's case, idem. 366 a; Lord Crumwell's case, 2 Co. 45, third point; 1 Leo. 50.

And where a party takes upon himself in any pleading, to make a substantive averment, which he is not bound to do; if it be material, and have a bearing on the question, he gives the other side the advantage of traversing it. 2 Saund. 207 a, n. 24.

So, also, where the party does not rely on the most material point, as he might do, he thereby gives the adverse party the advantage of traversing his allegation. Lutw. 108; Com. Dig. Pleader, G. 10.

A traverse of a fact, unnecessarily alleged, and which is also immaterial, is bad. 2 Saund. 207 a, n. 24.

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