11. QUALITIES. Of sham pleas. [ *578 ] Recent the Court directed that if the defendant did not amend this subtle plea, the plaintiff might sign judgment (q). There are some pleas, which have long been used as sham pleas, for the purposes of procrastination, and which may be pleaded even at the present day with impunity, if the defendant has not subjected himself to the necessity of pleading an issuable plea. Pleas of this kind are simple and concise in their form, and long and inveterate practice has obtained for them this impunity. Pleas of judgment already recovered for the same cause of action, and of accord and satisfaction by the creditor's acceptance of goods, were of late years the pleas usually adopted. With regard to the former plea it has been permitted after the defendant had delayed and deluded the plaintiff by promises of payment (r), and had taken out a summons to stay proceedings on payment of debt and costs (s). With respect to the plea of accord and satisfaction, in a late case in the Court of Common Pleas, in which it was pleaded to a declaration on a bill of exchange, the Court refused to allow the plaintiff to sign judgment upon an affidavit that the plea was utterly false, and intimated that in future such applications would be discharged with costs (1). In one case the Court (u) set aside a false plea in assumpsit for use and occupation, that the defendant delivered to the plaintiff, and he accepted in satisfaction Riga hemp and Russia tallow. But in a subsequent case (v) they declined to interfere where a similar plea was pleaded, although its falsity was sworn to. An executor, by pleading a plea manifestly untrue, and which he knows to be false, may render himself liable de bonis propriis (x). *As a discouragement to sham pleading, the Court has suffered a plaintiff to amend a defective replication to a false plea without payment of costs (y). Formerly it was the practice for a defendant to gain time by first pleading rules com- a sham plea, and when the plaintiff had replied to the same, then the defendpelling defendant to ant would abandon such plea, and plead only the general issue; but now Reg. abide by his Gen. Hil. T. 2 W. 4, reg. 46,† precludes a defendant from abandoning his plea. Reg. Gen. first plea without express leave, which cannot be obtained unless when essen. tial for the purposes of justice (z). This rule has greatly tended to put an end to the practice of sham pleading. The Prac. Reg. Hil. T. 4 W. 4, reg. 8,† orders that "Where a defendant Hil. T. 4 shall plead a plea of judgment recovered in another Court, he shall in the margin of such plea state the date of such judgment; and if such judgment shall be in a Court of record, the number of the roll on which such proceed W. 4, reg. 8, as to pleas of judgment recovered. (q) 3 Taunt. 339. (r) 1 Bing. 380; 8 Moore, 437, S. C. When this plea is used as a sham plea, it should be alleged that the judgment was recovered in another Court, see the reason, ante, 465, n. (y). (s) Hill v. Tybatt, Hil. Term, 1820, K. (t) 1 M. & P. 338; 4 Bingh. 512, S. C. † See American Editor's Preface. II. QUALITIES. ings are entered, if any, and in default of his so doing the plaintiff shall be at liberty to sign judgment as for want of a plea; and in case the same be falsely stated by the defendant, the plaintiff, on producing a certificate from Of sham pleas. the proper officer or person having the custody of the records or proceedings of the Court where such judgment is alleged to have been recovered, that there is no such record or entry of a judgment as therein stated, shall be at liberty to sign judgment as for want of a plea by leave of the Court or a judge." (a) This rule entitles a plaintiff to sign judgment as for want of a plea, unless the defendant, in the margin of his plea of judgment recovered in another court, truly states in the margin thereof the particulars by which the judgment may be found on record. The effect of the rule prevents any such plea from gaining time during a vacation until the next term, and has put an end to the utility of a sham plea of judgment recovered in ordinary cases. But that rule does not apply to a plea by an executor or administrator of a judgment recovered against him by another creditor (b). The rules which prevail in the construction and allowance of a plea in bar I. RULES cre, OF CON- 1st, That it is to be construed most strongly against the defendant; 2dly, TION, &c. That a general plea, if bad in part, is bad for the whole; and 3dly, That surplusage will not in general vitiate. against the 1st. As it is a natural presumption that the party pleading will state his case 1st. Conas favorably for himself as possible, and that if he do not state it with all its struction legal circumstances, the case is not in fact favorable to him, it is a rule of con- plea. struction, that if a plea has on the face of it two intendments, it shall be taken most strongly against the defendant; that is, the most unfavorable meaning shall be put upon the plea (c); a rule which we have seen (d) obtains also in the case of other pleadings. Therefore in trespass, if the defendant plead a release, without saying at what time it was made, it shall be intended to have been made before the trespass was committed (e); and in trespass to land, a plea of liberum tenementum, not stating that the close was the defendant's freehold at the time of the trespasses, is insufficient (f). So at common law, if to a bond the defendant plead payment, it shall be intended to have been made after the day appointed for payment, if he do not aver it to be otherwise; and in pleading a promise by a third person to pay the debt of another, it seems to be necessary to aver in the plea that the promise was in writing (g). But this rule of construction does not obtain where the unfavorable meaning is inconsistent with another part of the plea (h). And there are some cases in which matters are implied in favor of the plea; thus, it is said by (a) See Jervis's Rules, 89, note (g). (b) Power v. Izod, 1 Bing. N. Č. 304; 3 Dowl. 140; 3 M. & Scott, 119, S. C. (c) Com. Dig. Pleader, E. 6; Co. Lit. 303 b; Plowd. 29, 46. (d) Ante, 272. Effect of pleading over, VOL. I. 68 ante, 273. (e) Plowd. 46. (f) Com. Dig. Pleader, E. 5. (g) Ante, 254; 1 Saund. 276 a. Sed quære, ante, 566, n. (b). (h) 10 Co. 59 b; ante, 264, 265, 272. CONSTRUC TION, &C. RULES OF Lord Coke (i), that “all necessary circumstances implied by law need not be expressed, as in the plea of a feoffment of a *manor, livery and attornment are implied (j); so where it is pleaded that land was assigned for dower, it is not necessary to say it was by metes and bounds, for it shall be intended a lawful assignment, which is by metes and bounds (k); and where a surrender of a lease for years is pleaded, and that it was agreed to by the lessor, it is not necessary to say that he entered, for it shall be intended, and it is not usual to plead a re-entry upon a surrender, any more than it is to plead livery upon a feoffment (1); so, where it is pleaded that a sheriff made his warrant, it is unnecessary to say that it was under his seal, for it could not be his warrant if it were not." (m) And if a man plead that he is heir to A. he need not say either that A. is dead, or had no son (n). Other instances of this rule have been before given (o). And we have seen that if an allegation is capable of two meanings, that exposition shall be adopted which will support, not that which will destroy the pleading (p). 2dly. Bad in part, bad in whole. 2dly. If one entire plea be bad in part, it is insufficient for the whole(q)(965). We have already in part noticed this doctrine in considering that a plea must contain an answer to all it assumes to answer; and if it fail to do so, it is not an effective bar even as to the part really answered (r). In assumpsit on several promises in different counts, if the defendant plead the statute of limitations to the whole, and it is a bad plea as to one of the counts, it will also be insufficient as to the residue (s) (966); and in an action against an executor or administrator, if the defendant plead several judgments recovered against himself in that character, and that he has not sufficient to satisfy them, if the plea be bad, or false, or avoided, as to one of the judgments, it will be bad for the whole; but if the judgments pleaded had been against the testator, it would be otherwise (1)(967). In one case, however, it was held that if one of the judgments pleaded were [*580] against the testator and a third person, and the defendant *do not show that the testator survived, without which the executor is not chargeable, the plea is bad for the whole (u); but the propriety of this decision was questioned by Lord Vaughan (x). So, if several persons join in one plea, if it be bad for one, it will be bad for the others (y). The extent of this rule will be considered when we treat of pleas by several defendants (z). It seems that if a (i) 8 Co. Rep. 81 b; ante, 253. Bing. N. C. 96; and 1 Tyr. & Gr. 85; 3 (j) Co. Lit. 303 b, S. P.; Cro. Eliz. 401. Dowl 193, 194. (k) Com. Dig. Pleader, E. 9. (1) Cro. Car. 101. (m) Cro. Eliz. 53; Palm. 357, S. P. (p) Ante, 273. (q) Com. Dig. Pleader, E 36, F. 25; 3 T. R. 376; 3 B. & P. 174; 1 Saund. 337, note 1, 28, ote 2; 2 B. & C. 216; 6 Bing. 274. The rule explained, &c. St ph. on Plead. 2d el. 448; and see Tremeere v. Morison, I (r) Ante, 552, 553; 6 Bing. 274. (t) I Saund. 337, and notes; 5 T. R. 80, 307. (u) 2 Saund. 50, 51, note 4; 1 Saund. 337, note 1. (x) Vaugh. R. 104; 1 Saund, 337, note 1. (y) 3 T R. 376, 377; I Saund. 28, note 2; 2 Bing. 523, instance of a constable join. ing in a bad plea in trespass. (z) Post. (965) { Ten Eyck v. Waterbury, 7 Cow. Rep. 51. 410 } Briggs v. Cox, 7 Dowl. & Ryl. (966) Vide Perkins v. Burbank, 2 Mass. Rep. 81. (967) Acc. Douglas v. Satterlee and others, 11 Johns. Rep. 16. The plaintiff should demur specially to the judgments which are badly pleaded, and traverse the residue. Ibid. CONSTRUC TION, &c. special plea amount in part to the general issue, and be to that extent defec- RULES OF tive, for that reason it is bad in toto (a). The statement of several distinct debts in a plea of set-off is an exception, because the statement of the debts in such a plea is in the nature of a declaration containing several counts; and therefore if one of such debts be insufficient, the plaintiff must not demur to the whole plea, but only to that part of it which relates to the objectionable ground of set-off (b). In trespass, if a plea of justification consists of two facts, each of which would, when separately pleaded, amount to a good defence, it will sufficiently support the justification if one of these facts be found by the jury (c): the other might be rejected as surplusage. 3dly. The rules with regard to surplusage and unnecessary allegations which 3dly. Surwe have before considered, prevail in general with respect to pleas and every plusage and repug other part of pleading (d): and we have explained that surplusage, or un- nancy. necessary matter, repugnant and contradictory to what went before in any point not material, will not vitiate the pleadings, according to the maxim, utile per inutile non vitiatur; and such surplusage and redundant or repugnant part shall be rejected, especially after a verdict (e). Various illustrations of the general rule have been given. As an additional instance we may observe that if the defendant in replevin make cognizance as bailiff to A. administrator of B. where A. might have distrained in his own right, the words "administrator of B." shall be rejected as surplusage (f). There is, however, *considerable danger in surplusage in the statement of material matter; for [ *581 ] where a party takes upon himself to state in any pleading a substantive matter, or alleges a precise estate, (although not bound to do so,) if it be material and bear on the question, he gives the other side the advantage of traversing it (g). Thus in Leake's case (h), it was necessary that the plaintiff should show that he had some right to put his cattle into the close, against which the defendant was bound to repair the fence, but a seisin in fee was not necessary to give that right; for a term for life or years, or even an estate at will, or right of common, or the owner's license, would have conferred that right (i); the plaintiff, however, thought proper to allege that the right he had arose from a seisin in fee, therefore the defendant was at liberty to deny that right as much as any other right which the plaintiff might have had to put his cattle into the close. So, in another case (k), the ground of the plaintiff's action was that the defendant would not permit him to cut down the remaining 200 trees; in order to show that so many trees were left standing in the wood, he stated that at the time of the agreement he had cut down only 800 trees, and though it was not necessary for him to have stated that precise number, but having done so, and the number that was left being material to show the damage which the plaintiff had sustained by the defendant's refusal to permit him to cut them down, he gave the defendant an advantage of traversing (a) See I Saund. 27; Com. Dig. Pleader, 305, 306, note 14; id. 291. E. 36; see, however, 3 Lev. 40. (b) 2 Bla. Rep. 910. (c) 1 Taunt. 146. (d) Ante, 261 to 266. (e) Id.; Bac. Ab. Pleas, I. 4; Com. Dig. Pleader, E. 12; Co. Lit. 303 b; 2 Saund. (f) Hob. 208. (g) Ante, 266. (h) Dyer, 365; 2 Saund. 206 a, n. 21, 22; and 207, n. 24. (i) I Saund. 346, n. 2, (k) Yelv. 195. TION, &C. RULES OF it (1). It seems, therefore, that a too precise or particular statement of mateCONSTRUC- rial matter may be taken advantage of upon the trial of a traverse thereof; but in general not by demurrer, as the objection does not appear upon the record, but depends upon the evidence; except where it is repugnant or contrary to matter precedent (m), and though such repugnancy may not in some cases be aided by verdict (n), yet if it appear that the verdict was given on another part of the plea the mistake will be aided (ø). [*582] AND PARTS. *IV. FORMAL PARTS OF PLEAS IN GENERAL. In framing every plea, whether in abatement or in bar, the pleader must constantly keep in view the following formal parts of the plea, and the rules and decisions respecting them, and the opponent, when endeavoring to discover a defect, should pursue the same course of examination. The following is the outline of the usual form. (1) In the King's Bench. ats. Davis. (2) On the 10th day of March, A. D. 1836. IV. FORM (3) Johnson (4) The defendant, by E. F. his attorney, [or "in his own proper person," (p)] says that, (5) &c. [here follows the ground of defence.] And of this he the said defendant puts himself upon the country, &c.; (6) [or if the conclusion be with a verification, the form is thus: "and this he the said defendant is ready to verify, wherefore he prays judgment if the said plaintiff ought (or "ought further"] to have or maintain his aforesaid action thereof against him, &c. 1st. The title of Court at top. 2dly. The date at top. 3dly. The names of parties in margin. 4thly. The commencement; describing (7) John Hulme. 1st. Defendant's appearance, whether in person or by attorney, or prochein ami. 2dly. When he is to make full or half defence. 3dly. Whether there is to be any preliminary suggestion or state ment. 4thly. Whether there is to be any prayer of judgment in the commencement or other petitio, or actionem non. 5thly. Whether the plea is to be in abatement to the whole, or to a part only. 6thly. Whether to be in bar, and whether to the whole or to a part. (1) 2 Saund. 207, note 24; 206, note 22; ground of defence, and which is still retain 2 East, 452. (m) Co. Lit. 303 b. (n) Bac. Ab. Pleas, I. 4. (p) Formerly the nature of the defence, ed. The alterations were introduced by the Reg. Gen. Hil. T. 4 W. 4, as will be presently shown. The ancient form was thus: comes and defends the wrong, [or in trespass, 'force,'] and injury, when, &c. and says that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, because he, &c." |