No. 2943.

Book 4, tit. 8, chap. 6, cl. 2, sec. 2, § 6.

No. 2946.

2943.-1. By certainty to a common intent, is to be understood that when the words are used which will bear a natural sense, and also an artificial one, or one to be made out by argument and inference, the natural sense shall prevail; it is simply a rule of construction, not of addition; common intent cannot add to a sentence words which were omitted.

2944.-2. Certainty to a certain intent in general, is a greater certainty than the last, and means what upon a fair and reasonable construction may be called certain, without recurring to possible facts which do not appear.(a)

2945.-3. Certainty to a certain intent in every particular, is that which precludes all argument, inference or presumption against the party pleading, and is that technical accuracy which is not liable to the most subtle and scrupulous objections, so that it is not merely a rule of construction but of addition; for when this certainty is requisite, the party must not only state the facts of the case in the most precise way, but add to them such as show that they are not to be controverted, and, as it were, anticipate the case of his adversary.(b)

§ 6.—A plea must be direct and positive, and not argumentative.

of

2946. A plea is a statement of facts, and not a statement of argument; it is therefore a rule that a plea should be direct and positive, and not by way rehearsal, reasoning or argument; for although many matters may be alleged in a declaration by way of recital, or with a quod cum, that form must never be used in a plea. And if a plea be positive and direct,

jargon of words without meaning; they have, however, long been made, and cannot altogether be departed from.

(a) Spencer v. Southwick, 9 John. 317. See 1 Saund. 49, n. 1; The King v. Lyme Regis, 1 Dougl. 159.

(b) See Oystead v. Shed, 12 Mass. 506.

No. 2917.

Book 4, tit. 8, chap. 6, cl. 2, sec. 2, § 7.

No. 2948.

in the form of its language, yet if the substance be by way of argument, it is bad; as if an action be brought for not delivering up an indenture, by which it is stated that Titius granted a manor, it is no plea that Titius did not grant the manor; for it is no answer to the declaration except by way of argument. So in an action of trespass for taking and carrying away the plaintiff's goods, the defendant pleaded the plaintiff never had any goods; this appears to be an infallible argument that the plaintiff is not guilty, and yet is no plea. (a)

2947. It is a branch of this rule against argumentativeness that two affirmatives do not make a good issue,(b) because the traverse by the second affirmative is argumentative in its nature; as if it be alleged by the defendant, that a party died seised in fee, and the plaintiff allege that he died seised in tail, this is not a good issue, because the latter allegation amounts to a denial of the seisin in fee, but denies it by inference and argument only. This doctrine that two affirmatives do not make a good issue, is not taken so strictly, however, but that, in some cases, the issue will be good if there be a sufficient negative and affirmative in effect, though in the form of words there be a double affirmative; as if the defendant plead that he was born in France, and the plaintiff, that he was born in England, this is said to be a good issue. (c)

§ 7.-The matter pleaded must be capable of trial.

2948. Every plea should be pleaded so as to be capable of trial; it must, therefore, consist of matter of fact, the existence of which may be tried by a jury on the issue; or, if it contain matter of law, its sufficiency, as a defence, may be determined by the court

(a) Doct. Pl. 41; Dyer, 43.

(6) Com. Dig. Pleader, R 3; Co. Litt. 126, a.

(c) Tomlin v. Burlace, 1 Wils. 6. See Co. Litt. 126, a.

No. 2949.

Book 4, tit. 8, chap. 6, cl. 2, sec. 3, § 1.

No. 2951.

as on demurrer; or by the record itself, if it consist of matter of record; and if, in the same plea, matter of fact be so mixed with matter of law, that they cannot be separated, to be tried by the jury or the judge, the plea will be bad.(a)

§ 8. The plea must be true.

2949. As the facts stated in the plea must be proved before the jury, when issue is taken upon them, it follows that, to be successful as a matter of defence, they must not only be true, but capable of proof; and if it appear judicially to the court, on the defendant's own showing, that he has pleaded a false plea, this is good cause of demurrer; as where an action of debt was brought upon a bond, conditioned for the performance of covenants contained in an indenture, and the defendant pleaded with a profert that there were no covenants contained in the indenture, and, upon oyer by the plaintiff, it appeared that the deed did contain divers covenants on the part of the defendant, the plea was held insufficient.(b)

SECTION 3.-OF THE CONSTRUCTION OF PLEAS IN BAR.

2950. The general rules which prevail in the construction of pleas in bar are, 1, that they be most strongly construed against the defendant; 2, that a general plea, when bad in part, is bad for the whole; and, 3, that surplusage will not in general vitiate.

§ 1.—When a plea is construed against the pleader. 2951. The defendant is bound so to state his plea that it will be clearly understood, and as he is pre

(a) The case of the Abbot of Strata Marcella, 9 Co. 25; Lawes on Pl. 138; Gould on Pl. c. 6, § 97; 1 Chit. Pl. 520.

(b) Smith v. Yeomans. 1 Saund. 316. See Coxe v. Higbee, 6 Halst. 695; Tucker v. Ladd, 4 Cow. 47; Brewster v. Bostwick, 6 Cowen, 34; Oakley v. Devoe, 12 Wend. 196; Henderson v. Reed, 1 Blackf. 347.

No. 2952.

Book 4, tit. 8, chap. 6, cl. 2, sec. 3, § 2, 3.

No. 2953.

sumed to state it as favorably for himself as possible, when it has two intendments, it is construed against the pleader by adopting that which is most against his interest; as if, to an action on a bond, the defendant plead payment, it shall be intended to have been made after the day appointed for payment, if it do not aver to be otherwise; but this intendment does not obtain if inconsistent with some other part of the plea.

§ 2. When a plea bad in part is bad for the whole.

2952. When a plea is entire, it is a unit; if bad in part, it is of course insufficient for the whole as when there are several counts to a declaration, and the defendant pleads the act of limitation to the whole, and it is bad in part, the plea will be insufficient as to the residue. (a) So if several persons join in a plea, and it is bad as to one, it will not avail for the others.(b)

§ 3. Of surplusage and repugnancy.

2953. Surplusage in pleading is a surperfluous and useless statement of matter, wholly foreign and impertinent to the cause. In general surplusagium non nocet, according to the maxim utile per inutile non vitiatur; therefore, if a man in his declaration, plea, etc., make mention of a thing which need not be stated, but the matter set forth is grammatically right, and perfectly sensible, no advantage can be taken on demurrer. In such case the unnecessary matter will be rejected by the court, and the pleadings will be considered as if it were struck out, or had never been inserted.

When, by an unnecessary allegation, the plaintiff shows he has no cause of action, or the defendant no defence, the opposite party may demur. But as the parties, both plaintiff and defendant, are bound to

(a) Webb v. Martin, 1 Lev. 48.

(b) 1 Saund. 28, n. 1.

No. 2954.

Book 4, tit. 8, chap. 6, cl. 2, sec. 4.

No. 2955.

state their cases formally, if the surplusage be not grammatically right, or it be absurd in sense, or so unintelligible that no sense can be given to it, the adversary may take advantage of the defect on special demurrer. (a)

If the party allege a material matter, with an unnecessary detail of circumstances, and the essential and non-essential parts of a statement are, in their nature, so as to be incapable of separation, the opposite party may include in his traverse the whole matter alleged; and as it is an established rule that the evidence must correspond with the allegations, it follows that the party who has pleaded such unnecessary matter will be required to prove it, and thus he is required to sustain an increased burden of proof, and incurs greater danger of failure at the trial. For example, if in justifying the taking of cattle damage feasant, in which case it is sufficient to allege that they were doing damage to his freehold, he should state a seisin in fee, which is traversed, he must prove a seisin in fee.(b)

2954. Repugnancy is where the material facts stated in a declaration, or other pleading, are inconsistent one with another. When the repugnancy relates to a material point, it may be taken advantage of by general demurrer; but when it is on some immaterial matter, it is a fault of form only, and no advantage can be taken of the defect but by special demurrer.

SECTION 4.-OF THE FORMS AND PARTS OF PLEAS.

2955. A plea may be considered under six principal divisions or parts. These refer to, 1, the title of the court; 2, the title of the term; 3, the names of the parties; 4, the commencement; 5, the body or substance of the plea; 6, the conclusion.

(a) Gilb. C. P. 132; Lawes on Pl. 64.

(b) Dyer, 365; Steph. Pl. 261; 2 Saund. 206, a. n. 22; 1 Smith's Lead. Cas. 328, note; 1 Greenl. Ev. § 51; 1 Chit. Pl. 524.