AND PARTS. 4thly. The commence IV. FORM Secondly, on an account stated, the defendant without a rule to plead several matters pleaded "that he did not accept the bill," and for a further plea that "he did not account," and it was held that the informality of omitting to confine each plea to the count to which it applied did not authorize the plaintiff' ment. to sign judgment (s). It may here be proper to refer to the recent decision (1), that the several statements of debts for goods sold, work and labor, money lent, paid, had and received, and account stated, are for all pleading purposes to be considered as separate counts. But still it is necessary and proper that when a plea is pleaded, or when the matter pleaded is properly applicable only to a part of the declaration, that the commencement of the plea should be expressly and in terms limited to that part (u). No formal The Reg. Gen. Hil. T. 4 W. 4, reg. 10,† orders" that no formal defence shall defence re- be required in a plea, and it shall commence as follows: The said defendant quisite. by Y. Z. his attorney (or, in person,') says that, &c.'" By leave of Court, &c. not es sential in case of several pleas. Reg. 11 orders that " It shall not be necessary to state in a second or other plea or avowry that it is pleaded by leave of the Court, or according to the form of the statute, or to that effect." 5thly. The 5. With respect to the body of the plea, which states the substance of the body of the defence, the allegations depend on the *circumstances of each particular plea. [*588] case. The forms of those pleas which usually occur in practice are given in the Third Volume; and the qualities of a plea, as well in respect to certainty of time and place, &c. as in relation to more material matters, have already been considered (x). As a protestando (y), and a formal traverse (z), more frequently occur in replications, we will postpone the particular consideration of them till that part of the work. Quæ est eadem. In point of form in trespass and other actions, when the plea necessarily states the trespass to have been committed at some other time or place than that laid in the declaration (a), it is proper, immediately preceding the conclusion of the plea, to allege that the supposed trespasses mentioned in the plea are the same as those whereof the plaintiff hath complained. This allegation is usually termed quæ est eadem (973); and when it is adopted in the above case, if the plea also conclude with a traverse that the defendant was guilty at any other time or place, the plaintiff may demur specially (b). But when it (s) Vere v. Goldsborough, 1 Bing. N. C. 353. (t) Jourdain ». Johns n, 2 Cr. M. & Ros. (u) Dueer v. Triebner, 3 Dowl. 133. (y) Com. Dig. Pleader, N. (z) Com. Dig. Pleader, G. 1, &c. (b) Com. Dig. Pleader, E. 31; Cro. Jac. 372; 2 Saund. 5, n. 3; Cowp. 162; 1 Saund. 297; Willes, 202. Where the plea varies from the day laid in the declaration, either the averment of quæ est eadem, or the traverse of the time laid in the declaration is propr, and will suffice: but it is superfluous and improper to have both the quæ est eadem and the traverse, id. And, as remarked by the learned editors of the 5th edit. of Saunders' Rep. vol. ii. 5 e, note (p), there seems to be no good reason why the averment of que est eadem should not be considered a good traverse of the place in the declaration, as much as it is of time. Sed vide Mr. Serjeant Williams' note, id. (973) Vide Nevins v. Keeler, 6 Johns. Rep. 63 AND PARTS. is unnecessary, and consequently improper, to vary from the time or place laid IV. FORM in the declaration, and the declaration and plea are in these respects conformable with each other, the quæ est eadem need not be inserted (c), though the insertion will not predjudice: but in that case if a traverse were added, the 5thly. The body of the plea would be informal (d). If, however, the traverse were defective, it was plea. holden that it would be rejected as surplusage (e); but, in a late case, it was held that an unnecessary traverse after the quæ est eadem is bad on special demurrer (ƒ). A plea of illegal consideration or contract contrary to any express statute Contra forshould, like a declaration on a statute for a penalty incurred, in strictness con- mam statuclude contrary to the form of the statute. It has nevertheless been decided that if such conclusion be omitted the plea may be sustained (g). ti, when requisite in a plea. Conclusion. *Every plea in bar must have its proper Conclusion (h), which is either to [*589] the country, or with a verification; and the latter is either of fact, or of mat- 6thly. The ter of record (h). An avowry or cognizance in replevin, in which the defendant is an actor, is an exception to this rule, and need not have any conclusion (i). In an action against husband and wife, both should join in the concluding part of the plea (j) (974). When there is a complete issue between the parties, viz. a direct affirmative and negative; as if the general issue be pleaded (975); or the defendant simply deny some material fact alleged in the declaration (976), as where the plaintiff declares on an award, and the defendant pleads no such award; the plea should conclude to the country (k). And such conclusion seems to be proper, although the plea unnecessarily contain a formal traverse (1). This rule equally prevails whether the affirmative be first in the pleading, and the negative subsequent, or vice versa (m); and therefore, though the nega tive be asserted by the plaintiff, and the affirmative by the defendant, as where the plaintiff in his declaration alleges a breach of non-payment of a sum of money on a particular day, or in not repairing, &c., and the defendant pleads solvit ad diem, or that he did repair, the plea should conclude to the country; but in debt on bond, if the declaration be general, and no particular breach be assigned, a plea of performance of the condition must con (c) Skin. 387; Com. Dig. Pleader, E. 31; Carth. 281; 2 Saund. 5 b, note 1. (d) 2 Saund. 5, note 3; Com. Dig. Pleader, E. 31. (e) Id.; Salk. 641, 642; 2 Saund. 5, note 3. (f) Henbrow v. Bailey and others, 3 Tyr. 152. (g) Peate v. Dicken, I Crom. M. & Ros. 427. (h) Knowles v. Stevens, 2 Dowl. 664; 1 Crom. M. & Ros. 26; Com. Dig. Pleader, E. 28, &c.; Co. Lit. 303 b. (i) Saund. 318, note 7; Co. Lit. 303 a ; 594. (k) Com Dig. Pleader, E. 32; 2 Saund. (1) 1 Saund, 103 b; Com. Dig. Pleader, (m) Carth. 88, 89; Com. Dig. Pleader, E. 32. (974) In trespass quare clausum the defendant pleaded a licence upon which issue was joined; and held that the plaintiff might show that the licence was obtained by fraud without pleading it specially. Anthony v. Wilson, 4 Pick. 303. (975) Gazley v. Price, 16 Johns. Rep. 267. } (976) Vide Manhattan Company v. Miller, 2 Caines' Rep. 60. Snyder and others v. Croy, 2 Johns. Rep. 428. PARTS. 6thly. The Conclu. sion. IV. FORM clude with a verification (n). So, where a plea puts in issue matter of fact AND as well as matter of record, it should conclude to the country (977); as if it be alleged in a declaration that the plaintiff procured letters patent, and the defendant plead that the plaintiff did not procure them, the plea should conclude to the country; because the procurement is the principal point in issue ; so, if the issuing of a fieri facias and a levy under it be put in issue, the matter may be referred to the country by the party traversing those facts (o). [*590] And if a plea conclude with a special negative to the affirmative in the declaration, it should conclude to the country: as, for instance, in debt on bond, the allegation in the declaration of the making of the bond includes the allegation of the delivery as a deed; and therefore, if the defendant plead that he delivered the deed as an escrow, he may conclude to the country (p). But where there is not a direct negative and affirmative the plea need not so conclude; as if in debt on a bond to account, the declaration allege that the defendant received £20 for which he did not account, and the defendant plead that he accounted in manner following, viz. that he was robbed of it, and gave notice to the plaintiff; this plea giving color to the plaintiff, and referring the sufficiency of the mode of accounting to the Court, may conclude with a verification (q). And where the declaration is founded on matter of record, which is traversed in the plea, the plea should not in general conclude to the country, but should allege that there is no such record, and usually concludes with a verification, and prayer of judgment, si actio, &c. (r); but a verification appears to be unnecessary in this case as the plea is in the negative (s): and if an action of debt be brought here on a judgment in Ireland, the plea of nul tiel record must conclude to the country (t). Conclusion ification. It is an established rule in pleading, that whenever new matter is introducwith a ver- ed on either side, the pleading must conclude with a verification or averment, in order that the other party may have an opportunity of answering it (u) (978). The usual verification of a plea containing matter of fact runs thus, “and this the said defendant is ready to verify, wherefore he prays judgment if the said plaintiff ought to have or maintain his aforesaid action thereof against him," &c.; and if the word " certify" be inserted instead of "verify,” no advantage can be taken of the mistake (x). An avowry, we have seen, does not require any conclusion (y). A plea of bankruptcy pleaded under the statute, though introductory of new matter, should pursue the terms of the act, (n) Id. (0) 3 Mod. 79; Com. Dig. Pleader, E. 32; Sayer's Rep. 208, 299; Hob. 244; Stra. 522; 1 M. & P. 102; 4 Bing. 428, S. C.; post, 591. (p) 1 Salk. 274; 4 Esp. Rep. 255; Com. (q) 2 Lev. 5; Com. Dig. Pleader, E. 32. (s) Fortes. 339; Com. Dig. Pleader, E. 29; Salk. 520. (t) 5 East. 473; 2 Smith R. 25, S. C.; 4 B. & C. 411; 9 Price, 1. (u) 1 Saund. 163 a, n. 3, and cases there cited; Com. Dig. Pleader, E. 33. (x) Willes. 6. (977) { Allen v. Crofoot, 7 Cow. Rep. 46. } Thomas v. Rumsey, 6 Johns. Rep. 26. (y) Ante, 589; 1 Saund. n. 7. Vide Lytle v. Lee, 5 Johns. Rep. 112. (978) Vide Hord's Ex'r r. Dishman, 2 Hen. & Mun. 660. Smith v. Walker, 1 Wash. 135. Service . Heermance, 1 Johns. Rep. 91. IV. FORM AND 6thly. The and conclude *to the country (z) (979). And where one of several facts in a declaration is denied with a formal traverse, the plea may conclude with a ver- PARTS. ification, or to the country (a). If matter of record be pleaded, as a judgment recovered for the same demand, &c., the plea should conclude with a Concluprout patet per recordum, and a verification by the record; and if several re- sion. cords be pleaded, they should be respectively verified (b). But if matter of fact as well as matter of record be jointly put in issue, the trial may be by jury, and the plea may conclude to the country (c). So, if matter of record, as a fine, be pleaded with other matters not of record and constituting one entire defence, although that part of the pleading which states the fine should refer to the record thereof, yet the plea may conclude with the general verification, without verifying by the record (d). To a scire facias upon a recognizance against bail in error, if the defendant plead that the judgment is pending and not determined, he need not conclude prout patet, &c. the plea being in the negative (e). The usage and practice of the Court is not matter of conclusion to the country, for such usage is not admissible in a plea which puts it in issue (ƒ). Where the plea contained a verification, it generally concluded with a prayer Prayer of of judgment in favor of the defendant, which was termed the demand or peti- judgment. tion of the plea (g), as "wherefore the defendant prays judgment if the said plaintiff ought to have or maintain his aforesaid action thereof (h) against him, &c." This prayer, before the recent rule, ought properly to have corresponded with, and be founded on, the commencement of the plea, and the effect of the matters contained in the body of it; and therefore it was necessary that a plea of matter of defence arising after the commencement of the suit should be concluded with a prayer as to the further maintenance of the suit (i): and a plea in abatement, which contained matters in part abatement of the writ, must be pleaded accordingly (k). But as the Court would ex officio give judg ment in favor of the defendant according to the substance of the plea, with- [*592] out reference to its conclusion (980), an error with regard to the prayer of judgment in the concluding part of the plea was not material, except in the case of a plea in abatement (1). In an action of debt the defendant, in pleading a tender, ought to have concluded his plea by praying judgment if the plaintiff ought to have or maintain his action to recover any damages against him; for in that action the debt is the principal, and the damages were only accessary: (z) I P. Wms. 258, 259; 10 Mod. 150, 247; Fortes. 334; Barnes, 330; 4 T. R. 156; 3 B. & P. 171; 6 Bing. 636. To a special plea of bankruptcy, the plaintiff may reply that the certificate was obtained by fraud, and such replication will be a good answer to the plea, though the enactmeat to that effect in 5 G. 2, c. 30, s. 7, is not repeated in 6 G. 4, c. 78; Horn v. Ion, 4 B. & Adol. 78. (a) 1 Saund 103 b, c; Com. Dig. Pleader, E. 33. (b) Com. Dig. Pleader, E. 29; Willes, (979) Vide Lytle v. Lee, 5 Johns. Rep. 112. Thomas . Rumsey, 6 Johns. Rep. 26. (980) The King v. Taylor, 5 Dowl, & Ryl. 431. Per ABBOTT, C. J. AND PARTS. IV. FORM but in assumpsit the damages are the principal, and therefore in pleading a tender in that action, the defendant ought to have concluded his plea with a prayer of judgment if the plaintiff ought to have or maintain his action, to recover any 6thly. The conclusion. more or greater damages than the sum tendered, or any damages by reason of the non-payment thereof (m). In pleading matter of estoppel, the defendant in the conclusion of his plea should rely upon it (n); and that established rule as applied to estoppel was expressly continued by Reg. Gen. Hil. T. 4 W. 4, reg. 9. How and when to 66 It was enacted by the statute of 4 & 5 Ann. c. 16, s. 1 (981), “ that no adobject to vantage or exception shall be taken of or for the want of averment of hoc paconclusion ratus est verificare, or hoc paratus est verificare per recordum; or of or for not of plea. alleging prout patet per recordum, or any other matter of like nature, except the same shall be specially and particularly set down, and shown for the cause of demurrer." Since this statute, a wrong or defective conclusion, either to the country or with a verification, &c. can only be objected to by special demurrer (o). When no prayer of We have just seen that Reg. Gen. Hil. T. 4 W. 4, reg. 9, orders that "in judgment a plea or subsequent pleading intended to be pleaded in bar of the whole acis necessa- tion generally (p), it shall not be necessary to use any prayer of judgment, Reg. Gen. but the case of an estoppel is excepted (p).” ry since 9. Hil. T. 4 Reg. Gen. Hil. T. 4 W. 4, reg. 13, orders that "all special traverses, or W. 4, reg. traverses with an inducement of affirmative matter, shall conclude to the counConclusion try, provided that this regulation shall not preclude the opposite party from pleading over to the inducement when the traverse is immaterial."+ of trav erses. No protes tation to be made. Conse Reg. 12 orders that "no protestation shall hereafter be made in any pleading, but either party shall be entitled to the same advantage in that or other actions as if a protestation had been made." A defendant has a right to give evidence in support of his plea on which quences of issue in fact has been taken, however defective such plea may be (q). defect in a plea. V. OF SEVERAL PLEAS. V. OF SEVERAL PLEAS. With respect to the pleading of several pleas to the same declaration, we will first consider the former practice, and, secondly, the practice since Reg. Gen. Hil. T. 4 W. 4.† With respect to the former practice we have already fully considered the (m) 2 Salk. 622, 623; 1 Ld. Raym. 254; Willes, 13. (n) Co. Lit. 303 b; Com. Dig. Pleader, E. 31; Estoppel, E.; vide also 1 Saund. 325 a, n. 4; Willes, 13; Steph. 2d ed. 443; ante, 457, 458; 2 C. & P. 148. (981) { The first thirteen sections and the sylvania, 3 Binn. 625. Roberts' Dig. 43. } R. L. 120. {2 Rev. Stat. 352, s. 4. } (o) 2 Saund. 190, n. 5. (P) See the rule ante; see the meaning of those words ante, 587. (q) Bowman v. Rostrow, 4 Nev. & Man. 551. 20th and 27th sections, are in force in PennSee Laws of N. Y. sess. 11. c. 32. s. 6. 1 † See American Editor's Preface. |