IN DEBT, On specialties. therein denied the whole substance of the defendant's plea (s). And a plea (to a declaration on a bond conditioned amongst other things for the payment of £3000) that all the sums of money which became due on the bond were paid, may be replied to generally by a general denial of the words of the plea, without assigning any breach (t). The mode of framing the replication will be hereafter considered (u). Before the passing (x) of the 8 & 9 Wm. 3, c. 11, s. 8, the plaintiff, in an action on a bond, with a condition for the performance of any thing, could only have assigned one breach, and under that assignment was entitled to the full penalty of the bond; but now by the above statute, it is enacted," that in an action upon a bond, or any penal sum for non-performance of any covenants or agreements in any indenture, deed, or writing contained, the plaintiff may assign as many breaches of the covenants and agreements as he shall think fit; and the jury, upon the trial of such action or actions, shall and may assess not only such damages and costs of suit as have heretofore been usually done in such cases, but also damages for such of the said breaches so to be assigned as the plaintiff upon the trial of the issues shall prove to have been broken, and that the like judgment shall be entered on such verdict as heretofore hath been usually done in such like actions." Where the defendant does not plead, the statute provides, "that if judgment shall be given for the plaintiff on demurrer, or by confession or nil dicit, the plaintiff may suggest upon the roll as many breaches as he shall think fit ;" and upon such suggestion, a writ of inquiry is to be executed before the judge at the assizes, or at nisi prius, according to the venue, to ascertain the truth of the breaches, and to assess the plaintiff's damage (y). This statute is compulsory [*618] on the plaintiff to proceed *in the method it prescribes (z); and under the act the breaches must be assigned as at common law, not merely in the words of the condition, but specially stating the facts (a). At one time it was considered advisable to state the breaches in the declaration, because it was supcondition posed that if the defendant should plead non est factum or any other plea in the dec- on which the plaintiff might at common law have taken issue in his replication, without assigning a breach, it would be incorrect to assign a breach in a replication to such a plea: but the better opinion now is, that the breaches should not be stated in the declaration, but reserved for the replication, because the defendant in rejoining can only present one answer to each breach, whereas in pleading to the declaration he may answer each breach by any number of pleas; and if the defendant plead any plea on which the plaintiff might at common law have taken an issue in his replication, without assigning a breach of the condition of the bond, the plaintiff may still take issue, and enter a distinct and separate suggestion in the nature of an assignment of breaches to state breach of laration, or not until replication. judgment shall be a security for future breaches on a further suggestion being entered, &c. (z) 1 Saund. 58; 2 Id. 107 a, n. 2; 2 Wils. 377; Sayer on Damages, 67, S. C.; Cowp. 357; Tidd's Prac. 9th edit. 584; 13 East, 3, (a). The statute does not bind the crown, 1 Y. & J. 171. (a) 1 Marsh. 95; 5 Taunt. 358, S. C. under the statute, though he cannot incorporate such issue and such suggestion IN DEBT. in one and the same replication (b). If the defendant plead any plea which On spemakes it necessary for the plaintiff at common law to assign a breach in the cialties. replication, as for instance, general performance, the plaintiff must still assign the breach in the replication, with this difference, that he may now assign several breaches under the statute, whereas at common law he could only assign one. If only one breach be assigned in the replication, it is not necessary to state that it is assigned "according to the form of the statute," and it is doubtful whether that allegation be necessary in any case (c). If issue joined on non est factum and plea of fraud, and there be no suggestion of breaches, the judge will try the issues, but refuse immediate execution, and leave the plaintiff to suggest breaches, &c. (d) The breach of the condition of a bond, otherwise well assigned, is not vitiated by the superaddition of immaterial breaches (e). Where there is no plea to the declaration, and consequently no issue to be tried, judgment, either upon demurrer or by default, is to be signed for the penalty, as at common law, and the plaintiff suggests breaches on the roll, *of [*619 ] which a copy should be given to the defendant, with notice of inquiry for the sittings or assizes, and a writ of inquiry is executed, and upon that there is an award of execution (ƒ). This statute does not extend to a bond conditioned for the payment of a sum certain at a day certain, or to a post obit bond (g); nor a common money bond (h); nor a warrant of attorney payable by instalments (i), though a bond be also given (k); nor to a bail bond (1), nor a petitioning creditor's bond (m), nor a replevin bond (n). But bonds for the payment of money by instalments (0), or of annuities, or for the performance of an award, are within the statute (p). And although a bond be on the face of it a common money bond, yet if there be a concurrent instrument showing that it is in substance a bond intended to secure the performance of covenants, &c. within the meaning of the statute, it is necessary to suggest or assign breaches in pursuance of the act, although the bond does not refer to the instrument which explains it (q). The 3 & 4 W. 4, c. 42, s. 5, gives a special replication of a written acknowledgement or part payment to a plea of the statute of limitations to debt on an indenture, specialty, or recognizance, under the third section. To a plea of nul tiel record in debt on a record, the replication must state that there is such record, and conclude prout patet per recordum, with a (b) See 2 Saund. 187 a, &c. and note (c) by the editors of the 5th edit.; 5 M. & Sel. 60; 5 Moore, 198; 1 Marsh. 95; 5 Taunt. 386; 8 T. R. 255; 2 Chit. Rep. 278; 2 N. R. 862; 2 Moore, 220; Tidd, 9th ed. 686. See, however, 3 C. & P. 608, why better in declaration. (c) 13 East, 1; 2 Saund. 187 a, &c. 5th edit. (d) D'Aranda v. Houston, 6 Car. & P. 512, 514. (e) Stothert v. Goodfellow, 1 Nev. & Man. (g) 2 B. & C. 82, 89; 3 D. & R. 278, (i) 3 Taunt. 74; 5 I. 264; 16 East, (1) 2 B. & P. 446. (m) 3 East, 22; 7 T. R. 300. (0) D'Aranda v. Houston, 6 Car. & P. (p) See 8 T. R. 126; 6 East, 550, 613; 2 Saund. 187, n. c; Tidd, 9th ed. 584; 3 M. & Sel. 156. (q) 5 B. & C. 650; 8 D. & R. 424, S. C. On re cords, &c. On records, &c. IN DEBT. prayer that it may be inspected, &c. (r) (1015). If to debt on a recognizance of bail, the defendant has pleaded no ca. sa. against the principal, the replication must state the ca. sa. and conclude with a verification (8); and where the defendant has pleaded the death of the principal, before the return of a ca. sa., the writ and return must be replied, and it must be averred that the principal was then living (l). If to debt on a statute the defendant plead a prior action depending, or a compromise by rule of Court, &c., the plaintiff may traverse the fact, or reply per fraudem (u). [ *620] *In COVENANT, as the declaration states the breach, and the plea usually IN COVE- denies it, and concludes to the country, a special replication does not so often occur as in assumpsit and some other actions (x)(1016). NANT. IN ACTIONS AGAINST EXECU In actions, whether of assumpsit, debt, or covenant, against an EXECUTOR or ADMINISTRATOR, as such, to the plea of ne unques executor, or administrator, TORS, &c. the plaintiff may re-assert the fact (y). To the plea of plene administravit, if untrue, the plaintiff should reply, that at the time of the exhibiting the bill, or the commencement of the suit, the defendant had assets (z); or if assets have come to his hands since the commencement of the suit, and before the plea (a), or if at the time the defendant first had notice of the action he had assets, but unduly administered them afterwards, these facts may be replied specially (b). So, if the plea be plene administravit, except a sum not sufficient to satisfy bonds or judgments outstanding, the plaintiff may reply that the defendant had assets ultra (c); or that the judgments mentioned in the plea were obtained by fraud and covin (d), or suffered fraudulently for more than was due (e), or that the bond pleaded as an outstanding debt is satisfied, and kept on foot by fraud (f). If the plaintiff cannot deny the plea of plene administravit he should pray judgment of assets quando acciderint, either generally or specially; as, "which, after satisfying monies due on the outstanding judgments, bonds, &c. mentioned in the defendant's plea, shall come to the defendant's hands as executor, &c. to be administered;" (g) or if plene administravit præter a sum acknowledged to be in hand has been pleaded, the plaintiff should pray and take judgment pro tanto, aud of assets quando acciderint as to the residue in case the plea be true. If the defendant has pleaded the general issue, or any other plea denying the debt or cause of action, AGAINST with the *plea of plene administravit, the plaintiff must proceed to trial to es- IN ACTIONS tablish his debt, and on the prayer of judgment of assets, quando, &c. upon EXECUthe plea of plene administravit, there is a stay of judgment till the determina- TORS, &c. tion of the issue. But where the debt has not been denied, and the defendant has merely pleaded plene administravit generally or specially, and the plaintiff prays judgment of assets quando acciderint thereon, there should be an entry of that judgment immediately, and an award of an inquiry to ascertain the amount of the plaintiff's demand, unless the defendant has by cognovit confessed the same in order to save the expense of an inquiry (h); or unless in reference to the form of action the judgment is final in the first instance, as in debt, &c. On a plea of plene administravit præter, the plaintiff is entitled to judgment of assets in futuro quando for costs as well as for the debt (i), and the plaintiff should not take issue on the plea, for if he do, and the plea be found for the defendant, the latter will be entitled to all the costs (k). In debt against an HEIR on the bond of his ancestor, to a plea of parol demurrer, the plaintiff may deny or confess the plea (1); and to a plea of rien per descent the plaintiff may reply either that the defendant had such assets at the time of the commencement of the suit (m), or that he had them between that time and the death of his ancestor (n)(1017), or if rien præter a reversion be pleaded the plaintiff may take judgment, &c. cum acciderint (0). In an ACTION ON THE CASE for a libel or verbal slander, the general repli- IN CASE. cation de injuriâ suâ propria absque tali causa, (the nature of which will be hereafter fully considered), is sufficient to a plea of justification when untrue (p)(1018); unless the plea allege that the plaintiff committed perjury in a Court of record, when this general replication would be improper, because it would refer the matter of record to be tried by the jury (q). So if in an action on the case for slander of title, if the defendant has pleaded that he spoke them in defence of his own title, the replication de injuria is incorrect on general demurrer, though good after verdict (r). But if the plea be true, the plaintiff must reply some matter in confession and avoidance; as that after the commission of the crime, and before the speaking, &c. he was pardoned, &c. (s) To a plea by a sheriff in an action for an escape, that the *escape was neg- [*622 ] ligent, and that the party was taken on fresh suit, the plaintiff may reply that the escape was voluntary, or allege that the party was not, after the retaking, (1017) And the replication in this case may conclude with a verification. wife v. Cantine and others, 13 Johns. Rep. 272. Labagh and IN CASE. kept in safe custody (t). If accord and satisfaction, or the statute of limitations be pleaded in case or trover, the replications will resemble those in assumpsit (u). PLEAS IN BAR IN RE PLEVIN. It has been supposed that in Replevin de injuria never occurs (a)(1019); but this is not so; and to an avowry under a distress for an arrear of a poorrate a general plea in bar de injuria is sufficient (y); but by the statute (z) he may in general, with leave of the Court, plead several pleas in bar. If the defendant has pleaded cepit in alio loco, with an avowry or cognizance for a return, the plaintiff cannot traverse any matter in the avowry or cognizance, but must take issue on the traverse of the place or amend his declaration; but if the defendant had them in the place mentioned in the declaration, though he took them elsewhere, the plaintiff may safely take issue (a); and to any cognizance the plaintiff may traverse that the defendant was bailiff, concluding to the country (b). To an avowry or cognizance for rent, the plaintiff may in one plea in bar deny the demise or tenancy (c), and in another, that any part of the rent was in arrear (d) (1020), concluding each to the country (e); or he may plead payment of rent to a ground landlord, or prior incumbrancer, or of land or property tax in respect of the premises, though he cannot avail himself of any other set-off (f). So a party may plead a former distress and satisfaction note 1; Com. Dig. Pleader, 3 K. 11 to 29. (b)_Post, vol. iii.; Ld. Raym. 641; Com. Dig. Pleader, K. 14. (c) Post, vol. iii.; Com. Dig. Pleader, 3 K. 16, 20 b. (d) Post, vol. iii.; Com. Dig. Pleader, 3 K. 16, 20. (e) Ld. Raym. 641; I Saund. 103 b. (f) 4 T. R. 511; 6 Taunt. 524; Dougl. 624, 625; 2 Chit. Rep. 531; 2 Bing. 94, And as to pleas of payment of ground rent, see 1 B. & B. 37; 3 Moore, 287, S C.; see 3 B. & Ald. 516; As to property-tax, 1 B. & Ald. 123; post, vol. iii. (1019) Vide Hopkins v. Hopkins, 10 Johns. Rep. 369. But if pleaded, it can only be taken advantage of by demurrer. Ibid. Lytle v. Lee and Ruggles, 5 Johns. Rep. 112. (1020) Middleton's Ex. v. Quigley, 7 Halst. Rep. 352. A plea of no rent in arrear is an admission of the demise and of the title of the defendant, as laid in the avowry. Alex. ander v. Harris, 4 Cranch, 299. Hill v. Wright, 2 Esp. Rep. 669. Hill v. Miller, 5 Serg. & Rawle, 255. Hence the advantage of also pleading non dimisit. The general princi ple is, that any thing may be given in evidence under the general issue, which shows that no right of action ever existed; and in some cases facts may be shown which prove that no right of action existed at the commencement of the suit. In debt for rent, the defendant, under the plea of nil debet, may show an eviction by the plaintiff. But in covenant, an eviction cannot be proved, unless pleaded. Riens in arrere is the general issue to an avow. ry for rent; and under it an eviction may be shown. Lewis et al. v. Payn, 4 Wend. Rep. 423. If the lord or lessor disseises or ousts the tenant or lessee of any part, the whole rent is suspended. (9 Coke, 135.) This principle was recognized and adopted in Dyett v. Pendleton, 8 Cowen, 728. In that case it was said that such defence could be given in evidence under a plea of eviction only; that, however, was an action of covenant, in which there is no general issue. In the case of Watts v. Coffin, 11 Johns. Rep. 499, it was said by VAN NESS, Justice, that an eviction to produce an apportionment or a suspension of the rent, must be of part or the whole of the thing demised." |