II. QUALITIES. matter which the plea professes to answer must be stated with great precision, as if a wounding or handcuffing be justified under a latitat, &c., an attempt to rescue, or other resistance, must be fully stated (1). And if an officer justify breaking an inner door of a house, in order to search *for and arrest a [*571] party, it must be alleged that he demanded the key, or that no one was present of whom such demand could be made, and it is not sufficient to say that the door was locked so that without breaking open the same the defendant could not enter, without alleging the particular circumstances which rendered the breaking necessary (m). And a plea in trover for taking a ship, that the defendant as captain of a man-of-war seized it "as a prize," without showing how it became such, is demurrable (n). So, in pleading matters in excuse, all the circumstances should be shown (o) (959). Necessary circumstances will, however, in general, be intended in a plea, as if a feoffment be pleaded, livery need not be alleged, for it shall be intended, and is included in the word feoffment or enfeoffed (p); and it is not requisite to have so much certainty in pleading a matter which is only conveyance or inducement (q), or matter in the negative (r). · And in a plea, as well as a declaration, less certainty is required in stating a matter which is more properly and peculiarly within the knowledge of the opponent (s). With regard to the certainty required in a plea in the statement of the time Certainty and place when and where material facts have happened, we shall hereafter as to time and place. see that it was an ancient rule that the time and place mentioned in the declaration should be adhered to, unless it be necessary for the defence to vary therefrom (1). Matter of discharge, as a release, &c., must be shown to have taken place after the trespass, &c. (u), and at common law in pleading payment of a bond, &c. it was necessary to show that it was made on a named day (x). Unless a particular place was material to the defence, it does not appear to have ever been necessary to state any place where the facts happened (960); for though a distinction was formerly taken between a plea in abatement and a plea in bar, a venue was afterwards deemed to be unneces sary in both (y). The doctrine of venues was clearly and correctly stated by Eyre, C. J. in Ilderton v. Ilderton (z), who said, "that as defendants, with respect to transitory matters, are obliged to lay the venue in their plea in the place *laid in the declaration, and since the statute (a) has directed that the [*572] jury shall come de corpore comitatus, the law of venues will be found to be very substantially altered, and to lie in a narrow compass, and the distinction between laying no venue at all in a plea, and being obliged to lay the same venue as in the declaration, will be a distinction without a difference; and (1) 1 Saund. 296, note 1; 8 T. R. 299; 4 B. & C. 596. (m) 3 B. & P. 223. Sed vide 3 Lev. 92. (n) Carth. 31. (o) Bac. Ab. Trespass, I. (p) Com. Dig. Pleader, E. 9; ante, 253. (q) Com. Dig. Pleader, E. 10; 1 Saund. 346, n. 2; ante, 319. (r) Com. Dig. Pleader, E. 11. (s) Ante, 254, 269, 417. (t) 2 Saund. 5, note 3. (u) Plowd. 46. (x) Plowd. 104; Com. Dig. Pleader, E. 6. (z) Hen. Bla. 161. (a) 4 Ann. c. 16, s. 6. (959) Vide The King v. Bridekirk, 11 East's Rep. 304. (960) Acc. Thomas v. Rumsay, 6 Johns. Rep. 33, 34. Furman v. Haskin, 2 Caines' Rep. 373. IT. QUALITIES. the principle now is, that the place laid in the declaration draws to it the tria¡ of every thing that is transitory, and it should seem that neither forms of Certainty. pleading, nor ancient rules of pleading established on a different principle ought now to prevail." (b) We have seen that the recent pleading rule, Hil. T. 4 W. 4, reg. 8, orders that no venue shall be stated in the body of the declaration, or in any subsequent pleading (c), but provides that in cases where local description is now required, such local description shall be given (d) †. 7thly. Must be direct and and not argumen tative. A plea need not state facts of which the Court will ex officio take notice (e). 7thly. We have already seen that pleading is a statement of facts, and not a statement of argument; it is therefore a rule that a plea shoud be direct and positive, positive, and advance its position of fact in an absolute form, and not by way of rehearsal (f), reasoning, or argument, (961), which would lead the fact to be collected by inference and argument only, and thereby tend to create unnecessary prolixity and expense (g). If scire facias be brought against a parson for the arrears of an annuity recovered against him, and he plead that before the writ brought he had resigned into the hands of the ordinary, who accepted thereof, this plea is argumentative, for he should have pleaded directly that he was not parson on the day of the writ brought, instead of merely pleading facts from which that conclusion was to be drawn (h). A plea in debt for an escape that "if the party escaped, he escaped without the defendant's knowledge, and returned, &c." is bad (i). So, a surrender by operation of law should be pleaded as a surrender, and not merely circumstantially; thus, if a surrender be by acceptance of a new lease, it is not sufficient to say "that the lessee being possessed under a former lease, the lessor demised to [*573] him," but the plea *should be that the lessee "surrendered," and then that the lessor demised, or that the lessor entered and demised (k). In trespass for taking goods, a plea that the plaintiff "never had any goods" is argumentative, and therefore bad (1). And in a late case it was held that a plea to debt on a bail bond that there was no proper affidavit of debt made and filed of record before issuing the process against the bail, on the ground that issues tendered in pleading must not be alleged argumentatively, but in terms on which a direct issue can be taken (m). Special pleas which amount to the general issue, without professing to be so, seem to be defective chiefly on account of their being opposed to the rule under consideration (n). The general rule that deeds and other matters should be pleaded according to their legal effect and meaning (o), seems also to be partly founded on the maxim that pleading should not be circuitous and argumentative. This fault sometimes occurs in a traverse, as will be explained when we consider the nature of Traverses. An argumentative plea is aided after verdict, and upon a general demurrer (p)(962). 11. QUALITIES. Must be Sthly. Every plea should be so pleaded as to be capable of trial, and there- 8thly. fore must consist of matter of fact, the existence of which may be tried by a capable of jury on an issue (963), or the sufficiency of which as a defence may be deter- trial. mined by the Court upon demurrer (964); or of matter of record, which is triable by the record itself (q). And if fact be improperly confounded or mixed in the plea with matter of law, so that it cannot be tried by the Court or jury, the plea is bad; as if the defendant plead that A. lawfully enjoyed the goods of felons, it will be bad; for the jury cannot determine whether he lawfully enjoyed, nor the Court whether he in fact enjoyed, and the plea should have stated the particular facts and title by virtue of which A. did enjoy (r). So, if the condition of a bond be that the defendant will show a sufficient discharge of an annuity, it seems that it cannot be pleaded merely that he showed a sufficient discharge; for the jury cannot try whether it is sufficient, and he ought to show what discharge he gave, in order that the Court may judge whether it was sufficient (s). But where the effect of the words presents a matter triable, it is sufficient, though according to the precise words it would not be triable; as in covenant for quiet enjoyment free from arrears of rent, a plea that he delivered money to the plaintiff with intent that he should *therewith discharge the arrears will be sufficient, though the in- [*574 ] tent is not triable, for it is equivalent to the allegation that the defendant delivered the money to pay (t). A defect in this respect in a plea may be aided by the plaintiff's taking issue upon a triable point; but if he should take issue upon an immaterial matter, it might be necessary to award a repleader. 9thly. Every plea should be true and capable of proof, for as it has been 9thly. quaintly said, “truth is the goodness and virtue of pleading, and certainty is Must be true, and the grace and beauty of it," and if it appear judicially to the Court on the must not defendant's own showing that he hath pleaded a false plea, this is a good be too large. cause of demurrer (u). Thus, where the defendant pleaded to an action of debt upon bond condition for performance of covenants contained in an indenture, of which he made a profert that there were no covenants contained in the indenture, and upon oyer by the plaintiff it appeared that the deed did 11. contain divers covenants QUALITIES. was held insufficient (x). on the part of the defendant, the plea on demurrer The plea must not be too large, and claim more True, and than the defendant is capable of proving to support his defence. Thus, where not too large. the defendant pleaded that a close called A. had been separated and inclosed from a waste for twenty years, to support the allegation, it was held necessary to prove that every part of the close has been so long enclosed, and only part of the close having been so enclosed, the defendant failed in the plea (y). This subject will be further explained when the doctrine of Traverses comes under consideration. Of sham Sham pleading, that is the pleading a matter known by the party to be false pleas (z). for the purpose of delay or other unworthy object, has always been considered a very culpable abuse of justice, and has often been censured and set aside with costs (a). It is of course in general the sole province of the jury to decide upon the [*575] truth or falsity of a mere matter of fact *pleaded by a defendant. But there are many instances in which a plea may be so palpably and manifestly untrue, that the Court will assume that it is so, or will, on an affidavit that it is false, permit the plaintiff to sign judgment as for want of a plea, and make the defendant or his attorney pay the costs occasioned by the plea, with the costs of the application (b). Although in these cases it is prudent to obtain the prior sanction of the Court, yet it seems that the plaintiff may in general sign judgment without such previous authority (c). But unless the plea be manifestly absurd, or probably a sham plea, the plaintiff, in the King's Bench, will not be justified in signing judgment as for want of a plea without a previous application to the Court (d), which is also necessary, it is said, after the defendant has been ruled to abide by his plea (e). But it has been decided that the plaintiff is not estopped from making the application to the Court by having ruled the defendant to abide by his plea (ƒ). The following are instances in which false pleas have been treated as falling within the description of sham pleas which shall be regarded as a nullity, although the defendant may not be under terms of pleading issuably (g). (x) 1 Saund. 316, 317; 1 Id. 9 b, n. 1. (z) See further as to sham pleas, 3 Chit. (a) Bac. Ab. Pleas, G. 4; 2 Wils. 394; Salk. 515; 2 B. & A. 198. (b) 2 B. & Ald. 197; 1 Chit. R. 182, 564 a; Tidd, 9th ed. 565; and see 1 Moore & P. 643; 4 Bing. 663. And in debt on a judgment the defendant pleaded a release destroyed by accident. Upon affidavit that the plea was false, the Court allowed the plaintiff to sign judgment as for want of a plea, Smith v. Hardy, 8 Bing. 435; but see 4 Bing. 512; 1 Moore & P. 538, where the Court of C. P. refused leave to sign judg ment on an affidavit that a plea of delivery of a pipe of wine in satisfaction was false. As to sham pleas, see further 3 Chitty's Gen. Pr. 729 to 731. And as to plea of judgment recovered in particular, id. 730. (c) 6 M. & Sel. 134; 3 B. & P. 398; Tidd, 9th edit. 561, 565, 473. (d) 1 Chit. Rep. 525, notes; 6 M. & Sel. 133; Tidd, 9th ed. 564, 565. (e) Id.; Chit. Rep. 565, note; 5 M. & Sel. 518, S. C.; see, however, 2 B. & Ald. 197. To support a motion for leave to sign judgment for want of a plea, on the ground that improper pleas have been pleaded, it seems that in the King's Bench there must be an affidavit, not only that they are untrue, but also that they are vexatious, and calcula. ted to create unnecessary delay and expense, 1 Chit. Rep. 524, 355, 564; 2 B. & Ald. 777; 1 D. & R. 359; 2 B. & C. 81; 3 D. & R. 231; but see 1 B. & C. 286; 3 D. & R. 661, S. C. contra. (f) 2 B. & Ald. 197. (g) As to issuable pleas, ante, 550. II. QUALITIES. 1st. False pleas, calculated to raise issues requiring different modes of trial, as a set-off for money due upon a judgment or recognizance enrolled, (the issue upon which is liable by the record,) and for money due on simple of sham contract, the truth of which is triable by the country (h); or a plea of judg- pleas. ment recovered as to some of the counts, and another plea of payment as to the other counts (i). But in these cases there must be something to convince the Court that the pleas are untrue; "unless the inference be irresistible, *the plaintiff is not at liberty to take upon himself to pronounce that the [576] plea is a nullity." (j) 2dly. Pleas obviously false on the face of them, and the truth of which is impossible on the defendant's own showing, as a plea of judgment appearing and shown in the plea to have been recovered in the Exchequer in Ireland, (or elsewhere,) before the cause of action accrued (k). 3dly. False pleas, which, although they might by possibility be true, yet are in all probability fictitious; as a plea of judgment recovered in the Court of Pie Poudrie, in Bartholomew Fair, couched in terms and showing proceedings palpably fictitious or unlikely (1). And in Pierce v. Blake (m), Lord Holt said that he remembered a case where judgment having been given against a defendant above forty years of age, he brought a writ of error, and assigned for error, infancy and appearance by attorney, and the Court fined the attorney for assigning those errors which were notoriously false and frivolous. 4thly. False pleas, being subtle and ensnaring, and tending to raise nice and intricate points of law, upon which it would be proper for the plaintiff's attorney to consult counsel, whereby delay and expense are occasioned (n). Thus, where to a declaration on a bill of exchange and the money counts, the defendant pleaded that the parties accounted together; that a certain sum was found due; that in satisfaction of part, the defendant indorsed a bill to the plaintiff, which was outstanding in the hands of a third person; and that in satisfaction of the remainder, the defendant assigned to the plaintiff an Irish judgment, which was in force, as appeared by the record; the Court, on an affidavit of the falsity of the plea, allowed the plaintiff to sign judg ment, and directed that the defendant's attorney should pay the costs of the application (o). And a false plea in assumpsit on a bill, that the plaintiff was indebted on a recognizance of bail, as appears by the record (p), is open to objection on the same ground. And where in debt on a bail-bond, the defendant pleaded that the writ was sued out before the *assignment was stamped, and before the cause of action accrued, which he averred and prayed judgment, and that the plaintiff might be directed to cause the writ to be returned and filed of record, and that the record might be inspected, &c., (h) 5 M. & Sel. 518; 2 M. & Sel. 606; Ald. 198, per Bayley and Holroyd, Justices. and see I Chit. Rep. 564 a. (i) 2 B. & Ald. 197. (j) 6 M. & Sel. 133; see id. 136. (k) 6 M. & Sel. 134; see 1 Chit. Rep. 525, 526, notes; 4 Taunt. 668; 1 D. & R. 577. (1) 10 East, 237. (n) See I Saund. 327 a, where the Court reproved Saunders for pleading subtly, to trick the Court, and see recital in 38 H. 8, c. 30; 1 Bla. R. 276. (0) 2 B. & Ald. 199; see 1 Taunt. 224, 225. (p) 5 B. & Ald. 750; 2 Chit. R. 335; 1 (m) 2 Salk. 515; recognized in 2 B. & D. & R. 446, 448, S, C. [*577] |