ciently substantiates the charge or answer for the purpose of pleading, if his pleading establish a prima facie charge or answer. He is not bound to anticipate, and therefore is not compelled to notice and remove in his declaration or plea every *possible exception, answer, or objection, which may exist, and with which the adversary may intend to oppose him. Thus, in a declaration on a bond, it is not necessary to aver that the defendant was of full age when he executed the bond (r). In an action of debt on a bond conditioned that B. should remit all monies received for C. to C., or pay the same to him or his order, as should be directed, it is sufficient to state a non-payment to C.; and it is not necessary, in a replication to a plea of general performance, to allege any order given by C.; for if any had been given, it should be shown by the defendant (s). So in an action on a post obit bond, the plaintiff need not aver the death of the person on whose death the money was payable (†). So in an action on a promise made by a testator upon a good consideration, that his executor should pay it, it is not necessary to aver in the declaration that the defendant has assets (u). So in assumpsit on a contract to transfer stock to the plaintiff or his order on request, the plaintiff stated a request, and averred that the defendant had not transferred; and on an objection being taken that the plaintiff should have averred that the defendant had not paid to the plaintiff's order, it was overruled, because the averment of payment to such order ought to come from the other side (x). 1. THE FACTS NE TO BE STATED. [*255] If the plaintiff allege a condition subsequent to his estate, he need not aver performance, but the breach must be shown by the defendant; and matter in defeasance of the action need not be stated; and wherever there is a circumstance, the omission of which is to defeat the plaintiff's right of action, prima facie well founded, whether called by the name of a proviso or a condition subsequent, it must in its nature be a matter of defence, and ought to be shown in pleading by the opposite party (y). In pleading upon statutes, where there is an exception in the enacting clause, the plaintiff must show that the defendant is not within the exemption, but if there be an exception in a subsequent clause, that is matter of defence, and the other party must show it to exempt himself from the penalty (z)(506). And where *an act of parliament [ *256] in the enacting clause creates an offence, and gives a penalty, and in the same section (a) there follows a proviso containing an exception, which is not incorporated with the enacting clause by any words of reference, it is not neces (r) Plowd. 564; 1 Vent. 217; Steph. 2d Ab. Statute, L.; 1 East, 646, 647; 2 Chit. edit. 395, 396. Rep. 582. (s) 1 T. R. 485. (t) 2 B. & C. 82; 3 D. & R. 231, S. C. (u) 7 Taunt. 580. (r) Ld. Raym 114, 247, 673, 989. (y) Per Ashhurst, J., 1 T. R. 645, 646; Com. Dig. Pleader, C. 81. (z) 1 T. R. 144, 145; 6 Id. 559; Bac. (a) Mere placing the proviso in the same section of the printed act, does not make it necessary to notice it in pleading, unless it is also incorporated in the enacting sentence; for statutes are not divided into sections upon the rolls of parliament. Per Bayley, J., 3 B. & C. 189; 5 D. & R. 19, S. C. 459,463. Shum et al. v. Farrington, 1 Bos. & Pul. 640, S. C. 8 Term Rep. 463. Postmaster General v. Cockran, 2 Johns. Rep. 415, 416. Hughes v. Smith, 5 Johns. Rep. 168. Willcocks v. Nicholls, 1 Price's Exch. Rep. 109. 9 Wend. R. 378. (506) Acc. Jones v. Axen, 1 Ld. Raym. 120. Rex v. Ford, Str. 555. Rex v. Bryan, Id. 1101. Sheldon v. Clark, 1 Johns. Rep. 513. Bennet v. Hurd, 3 Johns. Rep. 438. Teel v. Fonda, 4 Johns. Rep. 304. Hart v. Cleis, 8 Johns. Rep. 41. Smith v. United States, Rep. C. C. U. S. First Circt., {1 Gallis. Rep. } 261. 1 Saund. 262 b. Donnelly v. Vandenburgh, 3 Johns. Rep. 41, 42. I. THE FACTS NE- STATED. sary for the plaintiff in suing for the penalty to negative such exception (b)(507). The recent case of Vavasour v. Ormrod (c) well elucidates this doctrine. It TO BE was an action upon a lease, and the declaration described the reddendum as containing an absolute reservation of rent. In fact, the reddendum was "yielding and paying during the said term (except as hereinafter mentioned) the yearly sum, &c." In the latter part of the lease there was a covenant and proviso by which a deduction was to be made, if a certain event happened; and it was held that the declaration was bad. And Lord Tenterden said, "if an act of parliament, or a private instrument, contain in it, first, a general clause, and afterwards a separate and distinct clause, something which would otherwise be included in it, a party relying upon the general clause, in pleading may set out that clause only, without noticing the separate and distinct clause which operates as an exception. But if the exception itself be incorporated in the general clause, then the party relying upon it must in pleading state it with the exception; and if he state it as containing an absolute unconditional stipulation, without noticing the exception, it will be a variance. This is a middle case. Here the exception is not in express terms introduced into the reservation, but by reference only to some subsequent matter in the instrument. The words are except as hereinafter mentioned.' The rule here applies verba relata inesse videntur. And the clause thereinafter mentioned must be considered as an exception in the general clause, by which the rent is reserved; and then, according to the rule above laid down, the plaintiff [*257] *ought in his declaration to have stated the reservation and the exception. Not having done so, I am of opinion that the variance is fatal, and that there is no ground for setting aside the nonsuit." So if the law raise an exception to a general right, it need not be stated in pleading (d). Therefore, although the holding a market on certain feasts is prohibited by statute, yet in pleading a right to hold a market, it may be alleged that the party was entitled to hold it on certain specified days in the week, without any exception as to those feasts (e). And it is a rule with respect to acts valid at common law, but regulated as to the mode of performance by statute, that it is sufficient to use such certainty of allegation as was sufficient before the statute (ƒ). But in acting upon the rule, that the pleading need not show and avoid distinct matter of defence or answer, which it is for the adversary to object, care should be taken to discriminate accurately whether the matter in question is not so intimately connected with the case of the party pleading, that its affirmation or denial is essential to the validity of his pleading, in reference to and in consequence of the prior pleadings upon the record. In case for disturbing a right of common by putting cattle thereon, the defendant pleaded a license from the lord of the manor, but did not aver that there was left a suffi (b) 1 B. & Ald. 94. Sometimes a clause apparently containing an exception is to be considered as merely explanatory of the enacting clause. See a decision upon the Wilful Trespass Act, 1 G. 4, c. 56; 4 Bing. 183, 189. (c) 6 B. & C. 430; 9 D. & R. 597, S. C. ; see 4 Campb. 20; 11 East, 640; 6 M. & Sel. 9. How to declare on an award, I Saund. 62 a, b, note. (d) Cro. Eliz. 485; 9 East, 339. (e) 7 B. & C. 57; 9 D. & R. 863, S. C. (ƒ) 1 Saund. 276 a and c, n. (2) ; 211, n. (2); Steph. 2d ed. 417; ante; post. (507) { Smith v. Moore, 6 Greenl. Rep. 278, and the American cases there cited. } cient common for the commoners; and on demurrer the Court held, that the plea was for this omission bad; for though it may be said, that the plaintiff' might reply that there was not enough common left, yet as he had already alleged in his declaration that his enjoyment of the common was obstructed, the contrary of this should have been shown by the plea to render it a perfect defence (g). And there are certain pleas which are regarded unfavorable by the Courts ; as pleadings in estoppel (h), and a plea of alien enemy (i); and as to these it is essential to their validity that they should, (contrary to the general rule,) show, not only a prima facie case or defence, but should mention and *affirm, or dispute, every matter which by possibility could afford the opposite party an answer to the pleading (k). 1. THE FACTS NE- TO BE STATED. [*258] state in ter of evi Although any particular fact may be the gist of a party's case, and the state4thly. It is ment of it is indispensable, it is still a most important principle of the law of not necespleading, that in alleging the fact, it is unnecessary to state such circumstan- sary to ces as merely tend to prove the truth of it (1). The dry allegation of the fact, pleading without detailing a variety of minute circumstances which constitute the evi- mere matdence of it, will suffice. The object of the pleadings is to arrive at a specific dence. issue upon a given and material fact, and this is attained, although the evidence of such fact, to be laid before the jury, be not specifically developed in the pleading. Therefore if the question be, whether wheat, after it had been cut, was suffered to lie on the ground "a reasonable time," it is sufficient to allege generally that such was the fact, without showing specifically how many days the corn remained on the ground, and what was the state of the weather during that period; although such matters may be material to the due consideration and decision of the question (m). So, under the common averment in a declaration upon a bill of exchange, that the defendant "had notice" of the dishonor, the plaintiff may show special circumstances or facts which render the notice valid, although it were given at a later period than would, in ordinary cases, have sufficed; for there is no need in pleading to state more than the legal effect of the facts (n). And upon this principle it is often sufficient, in setting out a custom or privilege, which is exercisable only to reasonable extent, or at seasonable times, to allege generally that such was the custom, &c., without showing specifically what was reasonable or seasonable, &c. (o). This rule may indeed be difficult in its application, but it has been rightly said (p), that it is so elementary in its kind, and so well observed in practice as not to have become frequently the subject of illustration by decided cases, and (for that reason probably) is little, if at all noticed in the digests and treatises. *Though the general rule is, that facts only are to be stated, yet there are [ *259] some instances in which the statement in the pleading is valid, though it does 5thly. not accord with the real facts, the law allowing a fiction; as in the action of (g, 2 Mod. 6; 1 Freem. 190, S. C.; Wil es, 619; Steph. 2d ed. 397. (4) Co. Lit. 352 b; 303 a; 2 H. Bla. 530. (1) 9 Rep. 9 b; Ld. Raym. 8; Carth. 491; Stephen, 1st ed. 348; 2d ed. 388. (0) 3 Bing. 61, and cases there cited. State ments of legal fictions, &e. 1. THE FACTS NE- TO BE STATED. 6thly. Ct duplicity. ejectment, in which the statement of the demise to the nominal plaintiff is fictitious (q). So in trover and detinue, the usual allegation that the defendant found the goods, rarely accords with the fact (r); and where the number, quantity, species, or value of a thing, need not be proved precisely as laid, it is usual to state a greater number than really was the case, in order to admit of greater latitude in evidence; but except in these and a few other well known instances, established and recognized in pleading for the convenience of justice, the pleading matter, known to the party to be untrue, is censurable (8). And whenever the purposes of justice require that a fiction of law with regard to time, &c. should not be attended to, and that the real facts should appear, it is competent to a party to show the truth by averment in pleading (t). Thus, a party might, before the recent enactment, show that a judgment was actually signed in vacation, although by fiction or intendment of law, all judgments were supposed to be recovered in term, whilst the Court, who were supposed to have formally pronounced it, were sitting (u). Where a bill was filed against an attorney in vacation, which by fiction of law was supposed to take place in term, it was competent to the party filing the bill to show the very day it was filed. And so in the case of writs, which, before the uniformity of process act, 2 W. 4, c. 39, were supposed to issue in term, it was competent to a party to show the time when they actually issued, if that became necessary, in order to avail himself of the statute of limitations, &c. (x). We have before remarked that the object of the science of pleading is the production of a single issue upon the same subject-matter of dispute. The rule relating to duplicity, or doubleness, tends, more than any other, to the attainment of this object. It precludes the parties, as well the plaintiff as the defendant, in each of their pleadings, from stating or relying upon more than one matter, constituting a sufficient ground of action, in respect of the same *260] demand, or a sufficient defence to the same *claim, or an adequate answer to the precedent pleading of the opponent (y). The plaintiff cannot, by the common law rule, in order to sustain a single demand, rely upon two or more distinct grounds or matters, each of which, independently of the other (508), amounts to a good cause of action in respect of such demand. Thus at common law, in a declaration upon a bond, the plaintiff could not assign two breaches of the condition, because the bond was forfeited by one breach, which was sufficient to support his action, though in covenant several breaches of different covenants might be stated (z). And the same count must not contain two promises in respect of the same subject-matter, as a promise to pay a specific sum for a horse, and also a promise to pay for the same horse so much FACTS NE- TO BE as it is worth (a) (509). The defendant could not, in answer to a single claim, 1. THE rely on several distinct answers; nor can he now do so in one plea. Thus, in a plea of outlawry, the defendant cannot state several outlawries, because one would be sufficient to defeat the action (b); and on the same ground there cannot be a demurrer and a plea to the same part of a declaration or plea, &c. (c). The principle equally affects all pleadings; its application is, however, confined to instances in which there is, on the face of the pleading, one entire or single matter proposed to be supported or answered. Even at common law, the declaration may comprise several counts upon different distinct demands of the same nature; or distinct counts upon the same claim (d). The latter is evidently an evasion of the doctrine of duplicity, but even in this instance, the counts should purport to be founded on distinct demands (e); and at common law a distinct plea to each distinct and divisible cause of action (f), where several claims are combined in the same declaration, is admissible, although each plea differs in its nature from the others. As if there be a declaration with two counts on two bonds, the defendant might always plead non est factum, or other matter, to one count, and payment, *or a release, or [ *261] other matter, to the other count. And it is important to remember that several distinct facts or allegations, however numerous, may be comprised in the same plea, or other pleading, without amounting to the fault of duplicity, if one fact, or some of the facts, be but dependent upon, or be mere inducement or introduction to the others, or if the different facts form together but one connected proportion, or entire matter or point (g). With regard to declarations, there has been a statutable relaxation of the rule in actions upon bonds, or any penal sum for non-performance of covenants contained in any instrument. The statute (h) permits the plaintiff, in such actions, to assign as many breaches as he shall think fit, and this statute has been held to be compulsory on the plaintiff (i). And although the Reg. Gen. Hil. T. 4 W. 4, reg. 5, orders that there shall be only one count in personal actions on the same cause of action, yet it expressly allows several breaches of the same contract or duty to be assigned, for otherwise either the plaintiff would be precluded from recovering damages to the full extent of the injury, or the defendant would not be sufficiently apprized by the declaration of the extent of claim he would have to answer. And with respect to pleas in bar, the statute (k) provides that "a defendant or tenant in an action, or a plaintiff in replevin, in any court of record, may, with leave of the Court, plead as many several matters thereto as he may think necessary for his defence." S. C.; 4 B. & C. 547. And see Stephen, (h) 8 & 9 Wm. 3, c. 11, s. 8. (See 1 Saund. 58, n. 1, and ib. n. a. ; and post. (k) 4 Ann. c. 16, s. 4. The decisions upon the statute are noticed hereafter. (509) But in Cheetham v. Tillotson, 5 Johns. Rep. 240, where two distinct causes of action were stated in what was, in form, one count, the court of Errors chose to consider them as separate counts, and reversed the judgment because entire damages had been assessed. |