sufficient in law." Perhaps these are two of the best instances of what con- FORMS ciseness may suffice in pleading. DEMUR- ог Hil. T. 4 The Reg. Gen. Hil. T. 4 W. 4, reg. 2,† contains a further excellent regu- Reg. Gen. lation requiring an explicit statement in the margin of the demurrer of at W. 4, reg. least one prima facie well founded objection. It orders that " In the margin 2, requires of every demurrer, before it is signed by counsel, some matter of law intended one well founded obto be argued shall be stated, and if any demurrer shall be delivered without jection to such statement, or with a frivolous slatement, it may be set aside as irregular be stated in margin. by the Court or a judge, and leave may be given to sign judgment as for want of a plea. Provided that the party demurring may at the time of the argument insist upon any further matters of law, of which notice shall have been given to the Court in the usual way." (i) Court will give judg A party should not demur unless he be certain that his own previous plead- When the ing is substantially correct, for it is an established rule that upon the argument of a demurrer, the Court will, notwithstanding the defect of the plead- ment ing demurred to, give judgment against the party whose pleading was first against defective in substance (1096); as if the plea which is demurred to be bad, the (i)_Jervis's Rules, 87, note b; Reg. Gen. Hil. T. 4 W. 4, reg. 3, orders that "No rule for joinder in demurrer shall be required, but the party demurring may demand a joinder in demurrer, and the opposite party shall be bound within four days after such demand to deliver the same, otherwise judgment. Reg. 4. "To a joinder in demurrer no signature of a serjeant or other counsel shall be necessary, nor any fee allowed in respect thereof. Reg. 5. "The issue or demurrer book shall on all occasions be made up by the suitor, his attorney or agent, as the case may be, and not as heretofore by any officer of the Court. Reg. 6. "No motion or rule for a concilium shall be required; but demurrers, as well as all special cases and special verdicts, shall be set down for argument, at the request of either party, with the clerk of the rules in the King's Bench and Exchequer, and a secondary in the Common Pleas, up on payment of a fee of one shilling, and Reg. 7. "Four clear days before the day (1096) { Murdock v. Winter's Adm'r, 1 Harr. & Giu, 471. Allen v. Crofoot, 7 Cow. Rep. 46. } Vide Hord's Executors v. Dishman, 2 Hen. & Mun. 652. Smith v. Walker, 1 Wash. 135. Stephens v. Taliaferro, 1 Wash. 155. Patcher v. Sprague, 2 Johns. Rep. 465. Bennet v. Irwin, 3 Johns. Rep. 366. United States v. Arthen, 5 Cranch, 257. Smith v. Wilson, 8 East's R. 442. Barruso v. Madan, 2 Johns. Rep. 149. Gelston v. Burr, 11 Johns. Rep. 482. Spencer v. Southwick, Id. 583, 587. {Hallett v. Holmes, 18 Johns. Rep. 30. Wyman v. Mitchell, I Cowen's Rep. 316. See, however, Keay v. Goodwin, 16 Mass. Rep. 3. If the declaration contain two counts, one good and one bad, and the defendant plead a plea which goes to the whole cause of action, to which the plaintiff demurs, the latter is, notwithstanding his having committed the first fault in pleading, entitled to judgment on the count which is good. Ward v. Sackrider, 3 Caines' Rep. 263. Tubbs v. Caswell et al., 8 Wend. R 129. Spring v. The Bank of Mount Pleasant, 10 Pet., S. C. 257, where it was held, that although the pleading demurred to may be defective, the court will give judgment against the party whose pleading was first defective in matter of substance. † See American Editor's Preface. the first defective pleading. WHEN THE COURT JUDGMENT &c. defendant may avail himself of a substantial defect in the declaration (k)(1097), unless such defect has been aided by pleading over (1); and if the first fault WILL GIVE would constitute error the Court will decide upon it though it be not noticed in margin of demurrer book (m); for on demurrer the Court will consider the whole record, and give judgment for the party who thereon appears to be entitled to it (n) (1098). But the rule that the Court will view the whole record on demurrer does not enable either party to call in aid other parts of the pleadings in the cause, which are expressly withdrawn from the consideration of the Court upon demurrer, and have become the subject of an issue in fact` between the parties. If, therefore, the Court consider the pleading of a party is defective, they will give judgment against him, although it appear from, and is admitted upon other parts of the pleadings on the record, not demurred to, that his opponent has become a bankrupt, and that his assignees have the right, &c. for the Court can, in giving judgment upon demurrer, look only to that part of the record upon which the demurrer arises, and not to other collateral parts of the record not connected with it (o). And although on the whole record the right may appear to be with the plaintiff, the Court will not adjudge in favor of such right, unless the plaintiff have himself put his action upon that ground. Thus, where on a covenant to perform an award, and not [*708] to prevent the arbitrators from making *an award, the plaintiff declared in covenant, and assigned as a breach that the defendant would not pay the sum awarded, and the defendant pleaded that before the award made, he revoked by deed the authority of the arbitrators, to which the plaintiff demurred; the Court held the plea good, as being a sufficient answer to the breach alleged and therefore gave judgment for the defendant; although they also were of opinion that the matter stated in the plea would have entitled the plaintiff to maintain his action, if he had alleged by way of breach that the defendant prevented the arbitrators from making their award (p). And the rule that the Court will decide upon demurrer against the party who has committed the first fault in pleading, does not apply where the objection to the preceding pleading is merely a defect in form, and such as would be aided, on a general demurrer, by the statute of Elizabeth or Anne, or at common law (q). By pleading over, many defects in form are aided (r); and we have seen, that upon a demurrer to a plea in abatement, no objection can be taken to the form of the declaration (s). Joinder in If the plaintiff or the defendant join in demurrer, the joinder concisely condemurrer, tradicts the demurrer, by stating that the declaration, (or the plea, &c.) "and the matters therein contained, in manner and form as stated, are sufficient in (k) 1 Saund. 119, note 7; 285, n. 5; Hob. 56; Willes, 476; 2 Wils. 150; 4 East, 502. (1) Darling v. Gurney, 2 Cr. & M. 226; 2 Dowl. 101; post, 710. (m) 2 Dowl. 104, 105. (p) Marsh v. Bulteel, 5 B. & Ald. 507. (q) 2 Vent. 222; Stephen, 2d edit. 177. (r) Post, 710; 1 Ld. Raym. 369, 370; 3 Wils. 297; Willes, 476; 5 Burr. 2588; Cro. Eliz. 825; Com. Dig. Pleader, E. 37. (s) Lutw. 1592, 1667, 1604; Salk. 212; (n) See n. (k) supra; Steph. 2d ed. 176. Steph. 2d. edit. 176. (o) 6 B. & C. 216. (1097) The rule is the same whether the demurrer be general or special. Cooke v. Graham's Administrators, 3 Cranch, 235. (1098) Inglehart v. The State, &c., 2 Gill & Johns. Rep. 236. IN DE MURRER. law to bar the action," if the demurrer be to a declaration, or "to quash the JOINDER bill" or "writ," if in abatement, or "to preclude the plaintiff from maintaining his action," if to a plea in bar; and usually offers to verify the declaration, or plea, and concludes with a prayer of judgment, though the latter seems unnecessary (t). A joinder in demurrer to a replication to a plea in abatement, should not conclude with praying judgment for debt and damages, for to conclude in chief in such case would be a discontinuance, and the plaintiff should pray judgment that the defendant may answer over (u); but if the defendant has demurred to a declaration, and concluded his demurrer as in abatement, the plaintiff may *join in bar, and shall have judgment accordingly (x). The [*709] points relating to amendments have already been partially considered, and are so fully treated of in the books of practice (y) that any further observations upon them in this treatise are unnecessary. under 3 & The 3 & 4 W. 4, c. 42, sect. 34, enacts, that where judgment shall be giv- Costs on en either for or against a plaintiff or demandant, or for or against a defendant demurrer or tenant, upon any demurrer joined in any action whatever, the party in whose 4 W. 4, c. favor such judgment shall be given shall also have judgment to recover his 42, sect. costs in that behalf (z). But in a new case it is sometimes the practice to direct that the costs shall abide the event of the action (a). (t) Co. Lit. 71 b; 2 Wils. 74. See forms, the trial of variances in setting out written post, vol. iii. (u) 2 Saund. 210 g. (x) 3 Lev. 23. (y) Tidd, 9th ed. 696. Amendment at instruments, ante, 348. (z) See the use and operation of this enactment, Jervis's Rules, 207, note (x). (a) 2 Dowl. 681; 1 Crom. M. & Ros. 369. 34. DEFECTS WHEN AIDED. 1st. By pleading over (b). [*711] *CHAPTER X. Defects in pleading, when and how aided. THERE are several different methods by which defects in pleading are aided or cured, without any actual amendment, viz. 1st, By pleading over; 2dly, By intendment or presumption after verdict; and 3dly, By the Statutes of Jeofails (a). A defect in pleading is aided, if the adverse party plead over to, or answer the defective pleading in such a manner that an omission or informality therein is expressly or impliedly supplied, or rendered formal or intelligible (c) (1099). The following are a few instances of an express aider. In an action of debt on a bond, where the declaration specified no place at which the bond was made, it was held that a plea of duress " apud B.” supplied the omission in the declaration; as such a plea contained a distinct admission that the bond was made at the place where the alleged duress was (d). In an action for slander, where the declaration averred that the plaintiff was forsworn, without showing how, it was determined that this defect was aided by a plea of justification, which alleged that the plaintiff, who was stated in the declaration to be a constable, had taken a false oath at the sessions (e). And again in an action of trespass for taking a hook, where the plaintiff omitted to state that it was his hook, or that it was in his possession; and the defendant, in his plea, justified the taking the hook out of the plaintiff's hand, the Court held, on motion in arrest of judgment, that the omission in the declaration was supplied by the plea (ƒ). *Many instances are to be found in the older reports and writers, of certain defects being aided by an implied admission in the subsequent pleading of the adverse party. Thus, where in an action by an administrator durante minore ætate, it was not averred that the executor was within the age of sev (a) It is unnecessary to refer to the law of amendment as it is fully noticed in the books of practice. See Tidd, 9th edit. Index "Amendment ;" and 1 Petersdorff's Abridgment, "Amendment." See, as to amendment at the trial in case of variances in setting out written instruments, ante, 348; and amendments during a trial, see 3 & 4 W. 4, c. 42, sec. 23, 24. As to the distinction between the doctrine of amendment and the doctrine of defects being aided or cured by the above means, without amendment, see post, 711, 712, 725; Chit. Coll. Stat. 14, note (a). Tidd, 9th edit. 928. (b) See recent instances, Darling v. Gurney, 2 Cr. & Mees. 226, 230; 2 Dowl. 235, S. C.; Peacock v. Day, 3 Dowl. 291. (c) Com. Dig. Pleader, C. 85, E. 37; Co. Lit. 303 b; 1 B. & C. 29; 3 Id. 192; Steph. 2d edit. 178. (d) Dyer, 15 a; Com. Dig. Pleader, C. 85; 2 Ld. Raym. 1039; 3 T. R. 387; ante, 310. Omission of venue in transitory action cured by judgment by default, &c. ante, 310. (e) Cro. Car. 288; Com. Dig. ut. sup. (f) Sid. 184; Bac. Ab. Trespass, 603; see another instance, post, 719. (1099) A writ of inquiry of damages may be tested and made returnable after the second week in term; for it is not a process within the meaning of the statute. Cook v. Tuttle, 2 Wend. R. 289. WHEN 1st. By pleading enteen years, it was held that by pleading to the merits of the action, the de- DEFECTS fect was aided, since the defendant thereby admitted that the plaintiff had authority to sue (g). There are many cases in which it has been held that where a particular fact has been informally alleged, and the opposite party, in pleading over, admits the particular fact, either by pleading to some other over. matter alleged in the defective pleading (h); or by pleading in confession and avoidance of the matter so informally alleged (i); the defect will be aided by the admission resulting and to be collected from such subsequent pleading.. If in debt on bond to make an estate to A., the defendant plead that he enfeoffed another to the use of A., (without showing that A. was a party, or had the deed), yet if the plaintiff reply that "the defendant did not enfeoff," this aids the plea (k). So, if the defendant plead an award, without sufficient certainty, and the plaintiff's replication import that the award was made, the uncertainty of the plea in stating that the award was made is aided (l). It is, however, unnecessary to make any further mention of those cases which have been decided with reference to the aider of mere formal defects by pleading over; for we have already seen, that, at the present day, by virtue of the statutes relative to demurrer, in all cases where any pleading is defective, and the adverse party demurs generally, he will be entirely precluded from availing himself afterwards of any formal defects in such previous pleading, by the mere effect of his having omitted to point out such defects upon a special demurrer (m). And we shall see hereafter, in treating of the effect of the statutes of jeofails, that according to the construction now put upon these enactments, after verdict or judgment by default, all formal defects are entirely aided (n). *With regard to a defect in substance, it seems that it cannot be impliedly [*712] cured by the mere effect of pleading over thereto (o). Therefore, if the defendant plead accord, and do not show satisfaction (p), and the replication merely deny the agreement, this traverse cannot cure the fault in the plea, namely, the omission to show a satisfaction to the plaintiff in regard to the cause of action (q). If, however, the adverse pleading expressly admit the fact which ought to have been stated in the defective pleading, and which is substantially incorrect in omitting it, the error becomes, it seems, immaterial; as in the instance before put of a declaration in trespass for taking goods, omitting to show any title to or possession of the goods, and the plea admitting the defendant's possession (r). And we have seen that if a declaration incorrectly set forth a deed, the variance is aided if the defendant set out the deed on oyer, and plead non est factum (s). The second mode by which defects in pleading may be, in some cases, aided, is by intendment after verdict. The doctrine upon this subject is found 2dly. By intend ment after verdict. |