SET-OFF. VII. PLEAS we have seen the defendant may avail himself as a matter of right in defence OF of the action, opposite demands, as well for debts as for costs, founded on cross judgments, may, by the practice of the Court, in many cases, be set off against each other on a summary application to the Court; but this is rather •a matter of practice than of pleading, and therefore it will suffice to refer to the practical works on the subject (b). (b) Tidd, 9th ed. 991; Montague's Law of Set-off, 5 to 15; 6 Taunt. 176; 1 Chitty's Gen. Prac. 667. *CHAPTER VIII. Of Replications. OBSERVA TIONS. ing. BEFORE the plaintiff replies or demurs to the plea, he should consider GENERAL whether or not he may treat it as a nullity, and sign judgment with or without leave of the Court, as on account of the plea being such a description of Steps to be sham plea, that the Court will not permit to be pleaded (a), or as being totally taken before replyinappropriate to the form of action (b). If several pleas be pleaded, it will be material to consider whether some of them are not so wholly inconsistent with the rest, that the Court will on application restrain the defendant from pleading all of them (c). Sometimes it becomes necessary to apply to the Court to set aside the plea, or one or more of several pleas, as having been pleaded contrary to good faith, &c.; as where the defendant pleads a release, fraudulently given by a nominal plaintiff to the prejudice of the real claimant (d). And it was frequently important, where a special plea was pleaded in the King's Bench, to rule the defendant to abide by his plea, in order to prevent him, when not under terms of pleading issuably, from striking out his special plea and subsequent pleadings when the paper-book was delivered to him and returning it with the general issue, a mode of obtaining time formerly very unfairly practised (e). But such a rule was rendered unnecessary by Reg. Gen. Hil. T. 2 W. 4,† reg. 46, which orders that a defendant shall not be allowed to waive his plea without leave of a judge for that purpose, and which will not be granted unless justice require (f). It is sometimes necessary to apply to the Court of Chancery to prevent the defendant from relying on a plea, as where the statute of limitations is pleaded, and the plaintiff did not sue before in consequence of a bill in equity having been filed and injunction obtained by the defendant (g). tiff's Dis If the plaintiff perceive that he cannot support his action to any extent, he of plainshould either obtain leave to discontinue (i), *or he may enter a nolle prosequi continuas to the whole or a part of the cause of action (k) (1004), unless there has ing, and (a) Ante, 574. (b) As to nil debet in assumpsit, &c. see ante, 552. (c) Ante, 552; 2 M. & P. 19; 5 Bing. 12, S. C.; 2 M. & P. 105; 5 Bing. 42, S. C.; 6 Id. 197. (d) 1 B. & P. 447; 7 Moore, 617; 1 Y. & J. 362; 1 Campb 392; 1 Chit Rep. 390, and notes; see further, Tidd, 9th edit. 677; fraudulent release by one of several plaintiffs, 1 Y. & J. 362; 1 Chit. Rep. 390. (e) See Tidd, 9th edit. 673; in C. P. the defendant could not waive his plea after the (1) Jervis's Rules, 54, note (v). (h) See 3 Chitty's Gen. Prae. 739. (k) Tidd, 9th ed. 681; see the form, post, (1004) Vide Hughes v. Moore, 7 Cranch, 565. To entitle to have the benefit of the proviso of the statute of limitations in favor of infants, &c. the infancy and bringing of the suit within the time limited after disability removed, should be pleaded specially. Hyde v. Stone, 7 Wend. Rep. 354. Palister v. Little, 6 Greenl. Rep. 351, 352. See American Editor's Preface. Nolle pro- GENERAL OBSERVA TIONS. What answers to the plea been a demurrer for misjoinder (1). Where there are several defendants in an action for a tort, or if in an action ex contractu, the plea of one of the defendants is merely in his particular discharge, as bankruptcy, &c. the plaintiff may enter a nolle prosequi as to him (m). So the plaintiff might enter a stet processus or cassetur billa vel breve (n). The points relating to discontinuing the action (o) and entering a nolle prosequi, &c. (p) are fully treated of in the Books of Practice. As the replication is in general influenced by the plea, and most frequently denies it, the pleader has not often much difficulty in deciding what replication the plain- he should adopt. If the plea does not profess to answer the whole action, and tiff may reply. leaves a part unanswered, the plaintiff should sign judgment pro tanto (q). And if a plea do not cover the whole of alleged trespasses, the plaintiff is entitled on proof of part to a verdict pro tanto, and need not new assign. When the plea properly concludes to the country, which we have seen can only be when the allegations in the declaration have merely been traversed or denied, then the plaintiff cannot in general reply otherwise than by adding what is termed the similiter (r); but when the plea has introduced new matter and has therefore concluded with a verification, and the plaintiff does not demur, the replication must then either, first, insist that the defendant could not so plead by showing matter of estoppel; or, secondly, may traverse or deny the truth of the matter alleged in the plea either in whole or in part; in the first case by a general replication de injuria, and in the second by a denial of a part, according to the facts of the particular case; or, thirdly, the replication may confess and avoid the plea; in which case, as will be fully explained when we consider the qualities of replications in general, the truth of the matter alleged in the plea must be admitted; or, fourthly, in the case of an evasive plea, may new assign the cause of action. And though at common law a replication cannot be double, or contain two or more answers to the same plea, and the statute 4 Ann. c. 16, does not extend to replications, (except in the instance of a plea in bar to an avowry in replevin, which is in the nature of a replication,) yet the plaintiff in many cases has an election of different replications; thus, if infancy be pleaded in assumpsit, the plaintiff may reply, either that the defendant was of age, or that the goods, &c. were necessaries, [*611] or that the defendant after he came of age ratified and confirmed *the prom ise; or he may reply as to part of his demand, that it was for necessaries, and to other part, that the defendant was of full age at the time of the contract, and to the residue, that he confirmed it after he came of age. So, if an executor or administrator plead several judgments outstanding and no assets ultra, the plaintiff may reply as to one of the judgments, nul tiel record, and to another, that it was obtained or kept on foot by fraud (s). So, if a set (4) 1 Hen. Bla. 108; 1 Saund. 285, n. 5; (m) Ante, 599; Tidd, 9th ed. 682, (p) Tidd, 9th edit. 681 to 683; 1 Saund. (q) Bush v. Parker, 1 Bing. N. C. 72. (r) Com Dig. Pleader, R. 1. See observations on the similiter, Boote's Suit at Law, 103, note *. If a defendant at the end of his plea concluding to the country, add the, &c. that may supply the want of a formal similiter, 6 Car. & P. 712. (s) 1 Saund. 337 b, note 2; 1 Salk. 298; 1 Lord Raym. 263, S. C. OBSERVA off on a recognizance or judgment, and also on simple contract, be pleaded, GENERAL the plaintiff may reply as to the first, nul tiel record, and as to the residue of TIONS. the plea, nil debet (t). And if a tender be pleaded, the plaintiff may either deny the tender or its sufficiency, or may reply a demand before or after the tender, or that a writ was previously issued (u). And in the case of a set-off, the plaintiff may either deny the existence of the debt, or may reply the statute of limitations. And if the statute of limitations be pleaded, the plaintiff may reply either that the defendant did undertake, or that the cause of action did accrue, within six years, in the negative of the words of the plea, or that the accounts were between merchants, or that the writ was issued within six years. In short, in almost every form of action, the plaintiff has frequently the choice of one of several replications, viz. either, 1st, to deny the allegations in the plea, or one of them; 2dly, to insist that the defendant was estopped or precluded from setting up the defence relied upon in the plea; or, 3dly, admitting the allegation in the plea, the plaintiff may reply setting up new matter, as where the defendant in trespass quare clausum fregit pleads liberum tenementum, or that the close was his freehold, the replication may state a lease from the defendant to the plaintiff, which entitles him to the present action, and to sue the defendant for the trespass pending such lease. As to rep lications merely in Denial of the plea, as the rep and when When a defendant has pleaded a special plea and the plaintiff denies the whole of the several grounds of defence stated in such plea, then it is obvious that the most general and comprehensive replication, putting the defendant on the proof of all the material allegations in his plea, is the most advantageous to the plaintiff, because it imposes most difficulty on the defendant. In trespass lication de to persons and personal property, where a special plea of justification or excuse injuria, had been pleaded, the plaintiff was allowed to put in issue the whole plea, by it is adreplying generally that the defendant committed the said alleged trespasses missible. of his own wrong, and without the cause (i. e. excuse) alleged in the plea. That comprehensive mode of replying was not anciently adopted in any other form of action; but at length it seems to have been considered that such a replication is admissible in covenant or special assumpsit, in answer to a special plea in excuse of performance; for instance, a replication that the defendant committed the said breach or breaches of covenant, or committed or suffered the said breach of the said promises of his own wrong, and without the cause alleged in the said plea, and concluding to the country (x), although according to prior decisions so general a replication was illegal and insufficient (y). The pleader should well consider when a common replication traversing the plea will suffice, or when it must state new facts, either by special replication or new assignment; for if the latter when requisite be omitted the plaintiff may fail in toto (z). Where the plaintiff, instead of demurring or taking advan Neish, id. 359; 2 Bing. N. C. 359; Crisp (z) Price v. Peck, 1 Bing. N. C. 386, 387. GENERAL tage of matter of estoppel, takes issue on the plea or pleas, he will lose the OBSERVA- advantage of such estoppel (a). TIONS, Subdivi sions of subjects relative to replications. We will consider the points relating to replications under the following divisions: I. The several replications which usually occur in practice. 1st. In assumpsit. 2dly. In debt. 3dly. In covenant. 4thly. In detinue. 5thly. In actions against executors and heirs. 7thly. In trover. 8thly. Pleas in bar in replevin. 9thly. In trespass. II. Their forms and parts. III. Their qualities and requisites in general. [*612] IN ASSUMPSIT. *I. OF THE SEVERAL REPLICATIONS. In assumpsit as well as in other actions the replication may, if the plea properly conclude to the country, add the similiter, or if the plea conclude with a verification may deny the alleged matter of defence, or may confess and avoid it by replying new matter. In assumpsit, if the defendant has pleaded Infancy in bar, the plaintiff may, if the plea were untrue, reply, denying the fact (b), or if true, he may reply, that the goods mentioned in some of the counts of the declaration to have been sold to the defendant were necessaries, which fact will not be intended unless alleged, and that the money mentioned in the count for money paid was paid in the purchase of necessaries for the defendant, and may enter a nolle prosequi as to the counts for money lent, had and received, and upon an ac count stated (c); or he may reply to the whole or part, that the defendant ratified and confirmed the promise after he came of age (d); and a ratification by defendant of his acceptance of a bill of exchange after he came of age, and before the bill fell due, will support a count on a promise to pay according to the tenor and effect of the bill (e). But to a plea in bar of Coverture at the time the promises were made, the plaintiff can only deny the fact, or reply some matter which shows that at the time the defendant was competent to contract, as that her husband was then civiliter mortuus (1005); and the plaintiff cannot reply that she had a separate maintenance secured to her by deed (ƒ), or that the husband was an alien living out of the kingdom (g), and (a) 4 Nev. & Man. 276, note (c). 22. proper form, id.; 1 M. & Sel. 724, 725; 3 Id. 481. (e) Hunt v. Massey, 5 Bar. & Adol. 90%. (f) 8 T. R. 545. (g) Stretton v. Busnach, 1 Bing. N. C. (d) Post, vol. iii.; 1 T. R. 648. See the 139. (1005) Gregory v. Paul, 15 Mass. Rep. 31. |