I. CLAIM OF CONU SANCE. by the party who originally claimed conusance, and if found for him the cause will be remanded, but if found against him, the parties go on in the superior Court from the period or stage in which the cause was at the allowance of the claim, just as if such claim had never been allowed (¿)· *And if a re-summons issue upon failure of right in a franchise the lord of [ *427 ] the franchise shall never afterwards have conusance of that plea (k). II. OF APPEARANCE AND DEFENCE, AND FORMS OF AND DE FORMS OF THEM. Before we inquire into the qualities and parts of the various pleas in II. of appersonal actions, it is advisable to consider the statement of the defend. PEARANCE ant's Appearance; of his Defence; and of Imparlances; which, when FENCE AND they occur in pleading, usually precede the statement of the subject-matter of the defence. The language of the plea and of the entry on the record of these allegations used until recently in all cases to be thus: "And The old the said C. D. (the defendant) by E. F. his attorney, comes and defends forms and practice. the wrong (or in trespass, 'force') and injury, when, &c. and craves oyer of the said writing obligatory, and it is read to him, &c., he also craves oyer of the condition of the said writing obligatory, and it is read to him in these words: The condition, &c. (setting out the condition verbatim). Which being read and heard, the said C. D. prays leave to imparl to the said declaration until next after and it is granted to him, and the same day is given to the said A. B. (the plaintiff) here, &c. At which day, to wit, on next after at Westminster aforesaid, come as well the said A. B. as the said C. D. by their respective attornies aforesaid; and the said C. D. saith that the said A. B. ought not to have or maintain his aforesaid action thereof against him, because he saith that, &c. (stating the ground of defence)” (1). The above "6 venit," was the statement on record of the defendant's appearance in Court, and was said to be necessary to make him a party to the suit, because dicit without venit might be ore tenus (m). It has however been decided, that the word venit was no part of the plea, so that if defence were made without it, it would be good, for the defendant's making defence shows him to be in Court, and makes him a party to the plea, particularly where he appears to be in custodia (n). When the defendant pleaded in a different name to that in the writ, whether in abatement or in bar, the statement of his appearance must not have been," and the said C. D. comes, &c." but should be "and C. D. (the real name) against whom the said A. B. hath exhibited his said bill by the name of E. D. by his attorney comes and defends," &c. (o). In general the appearance might be "stated to have been in person or by attorney, ac- [428] (i) 2 Wils. 411; 6 Vin. Ab. 3, 4. (k) Jenk. 34; 5 Vin. Ab. 576, 588. (See the forms, 3 Bla. Com. Appendix, No. III.; post, vol. iii. (m) Skin. 582; Gilb. C. P. 186; Bac. Ab. Pleas, D.; Com. Dig. Abatement, I. 16; Lutw. 8, 9; Co. Lit. 127 b. Stephen, (n) Salk. 544; Skin. 582; Com. Dig. (0) 5 T. R. 487; Willes, 51, n. c.; 2 Saund. 509 a, note 1; 5 Taunt. 653. † See American Editor's Preface. DEFENCE. II. APPEAR- Cording to the fact (p), but in an action against a feme covert sued alone, ANCE AND it was essential to allege that she had appeared in person (q); and an infant must always have pleaded by guardian (1), and not by attorney or prochein ami (r) (2); and this though he be sued with others in a representative character as administrator (8). Nor could common bail be filed for an infant under the statute, even when he was sued jointly with other defend ants (t). And in pleas to the jurisdiction, the appearance must be stated to have been in person (u). And though several attornies in partnership may be retained by the defendant, he can only plead by one, and not in the name of the firm (v), and therefore a plea should be in the name of that one attorney only who appeared (x). A defendant may plead in person to an information by the crown (y) (3). DEFENCE. After the statement of the appearance follows that of the Defence, which has been defined to be the denial of the truth or validity of the complaint and does not merely signify a justification. It is a general assertion that the plaintiff has no ground of action, and which assertion is afterwards extended and maintained in the body of the plea (z). This was so essential in pleading, that formerly if no defence were stated in the commencement of the plea, though the plea were in other respects sufficient, judgment was given against the defendant (a). In scire facias, however, no defence used to be stated (b); and it was necessary in a plea of ancient demesne (c), or in a plea to the jurisdiction of an inferior Court having no jurisdiction of the matter, though it was otherwise when the plea related rather to the person than to the subject matter of the action (d). Where, however, an attorney of the Common Pleas was sued in the King's Bench, and pleaded his privilege without any commencement of defence, (z) 3 Bla. Com. 296; Co. Lit. 127 b; Yelv. 210. This denial is mere matter of form, for it is used, although the plea in the body of it, so far from denying the matters alleged in the declaration, confesses and avoids them. See Stephen, 2d edit. 480. The word "defends" in this place means denies the supposed wrong or injury. As to defence in general, see the same references, and Bac. Ab. Pleas, D. and 8 T. R. 631; Steph. 2d ed. 478. (a) Co. Lit. 127 b; 3 Lev. 240; Bac. Ab. (c) Id.; Ld. Raym. 117. (1) Vide Mockey v. Grey, 2 Johns. 192; Cook v. Totton, 6 Dana, 108; Smith v. Bradley, 6 Smedes & Marsh. 485. And if an infant defend by attorney, he may bring a writ of error coram vobis to reverse the judgment. Dewitt v. Post, 11 Johns. 460. See Moore t. M'Ewen, 5 Serg. & Rawle, 373; Silver v. Shelback, 1 Dall. 165. (2) A person non compos mentis, not an idiot from nativity, may appear by attorney, and the court will, on motion, appoint an attorney for him. Faulkner v. M'Clure, 18 Johns. 135. A plea of non compos, by attorney, will be set aside, and a guardian, ad litem appointed, who may plead anew. Mitchell v. Kingman, 5 Pick. 431. (3) If a party have not legal notice of the suit, his appearances for the purpose of taking the exception, by plea in abatement, or otherwise, is not a waiver of the ground of exception. Tingley v. Bateman, 10 Mass. 343; Gardner v. Barker, 12 Mass. 36; Bernard v. Brewer, 2 Wash. 76; Wheeler v. Lampman, 14 Johns. 481; Malcolm v. Rogers, 1 Cowen. 1. An appearance by attorney cures a defect in the service of process. Anon. 1 Hayw. 405; Knox v. Summers, 3 Cranch. 496. ANC AND is was held sufficient (e). Defence was of two descriptions, first, half de- 11. APPEARfence, which was as follows, "venit et defendit vim et injuriam et dicit, &c." or secondly, full defence, " venit et defendit vim et injuriam quan do, &c." (meaning quando et ubi curia consiedravit," or when and where it shall behove "him)," et damna et quicquid quod ipse defendere debet et [ *429 ] dicit," &c. (f). It was a maxim that the words "quando, &c." ought not to be added when only half defence was to be made, and that after the words "venit et defendit vim et injuriam," the subject-matter of the plea should immediately be stated (g). It had however of late become the practice in all cases whether half or full defence were intended, to state it as follows: "and the said C. D. by his attorney, comes and defends the wrong (or in trespass, 'force,') and injury, when &c. and saith, that," &c. which would be considered as half defence in cases where such a defence should be made, but as full defence when the latter was necessary (h). If full defence were made expressly by the words, "when and where it shall behove him," and "the damages and whatever else he ought to defend," the defendant would be precluded to the jurisdiction or in abatement, for by defending when and where it shall behove him, the defendant acknowledges the jurisdiction of the Court, and by defending the damages he waives all exceptions to the persons of the plaintiff (i). Want of defence being only matter of form, the omission was aided on a general demurrer (k). Rule Hil. forms and The Reg. Gen. Hil. Term, 4 W. 4, reg. 10, ordered that no formal The recent defence shall be required in a plea, and it shall be commenced as follows: Pleading "The said defendant by his attorney (or in person,' &c.) says T. 4. W. 4, that, &c., so that the venit or comes is to be omitted. And it has been r. 10, and observed that by this clause the distinction between whole defence and half present defence is abolished (1), although formerly, and indeed in modern times, practice. that distinction was much insisted upon. It has been observed that although this recent pleading rule orders that every plea shall commence in the prescribed form, still that a slight variation, or the adoption of the action full formal defence, would not be any ground of demurrer, but at most would be the ground of summons or motion to strike out the part objected to as an unnecessary prolixity with costs (m). III. OF OYER. Oyer is a prayer or petition recited or entered in pleading (n), that the II. OVER, party may hear read to him the deed, &c. stated in the pleadings of the (m). (e) 1 Salk. 30; Bac. Ab. Pleas, D. (f) Co. Lit. 127 b; Bac. Ab. Pleas, D; Rast. Ent. 652; Willes, 41; Gilb. C. P. 188; 8 T. R. 633. See the forms, 3 Bla. Com. Appendix. No. III; post, vol. iii. (g) Gilb. C. P. 188; 8 T. R. 632; 3 B. & P. 9, n. a. (h) 8 T. R. 633; Willes, 41; 3 B. & P. 9; 2 Saund. 209 b, n. 1; Stephen on Pleading, 2d ed. 481. (i) 2 Saund. 209 c. ; 3 Bl. Com. 297, 293; Co. Lit. 127 b; Bac. Ab. Pleas, D. (k) 3 Salk. 271. (m) As to demanding oyer and form of demand, see 3 Chitty's Gen. Prac. 618. (n) See the form, ante, 427. At the present day oyer is demanded before the party pleads, by a note in writing addressed to the attorney of the party on the other side; and it is given by providing the party requiring it with a copy of the deed, &c. at his expense, showing him the original if desired. (1) Bosanquet on Rules of Pleading, 37. Tidd, 9th ed. 586; Stephen, 5th ed. 93, 94. It has been considered that this rule extends III. OVER. opposite party, and which deed is by intendment of law in Court when it is pleaded with a profert (o) (1). The statement of the prayer of oyer, and that the deed has been read to the defendant, (setting it out) used to follow the defence, and precede the entry of the imparlance, if any (p). But now it is to be stated immediately after the statement of the appear In what case de ance. It is a principle of pleading, that a party relying upon a deed, &c. either as the foundation of a cause of action, or as a gronnd of defence or answer to the pleading of his opponent, shall make a profert of the instrument, that is, produce it (nominally) in Court (p). But in alleging the deed the plaintiff need not in his pleading show more of it than answers his own immediate purpose; and even that part which he states may be set forth according to its legal purport or in substance. The obtaining oyer therefore becomes frequently important, especially on the part of the defendant, not only to ascertain the authenticity of the instrument, but also for the purpose of rendering available other parts of the deed which may restrict or explain that portion of the instrument which is shown in the adverse pleading. It is demurrable by either party, whether plaintiff or defendant, and in every action, whether real, personal, or mixed. If the plaintiff in his declaration, or the defendant in his plea, have mandable. necessarily made a profert of any deed, probate, letters of administration, or other instrument under seal, the other party may pray oyer, which cannot in such case be refused by the Court (r) (2). If the deed be lost or destroyed, the party, instead of making a profert thereof, should state the excuse for omitting it; and then the opponent, though he may traverse the truth of the excuse alleged, will be precluded form praying oyer (8) (3). But if a profert be unnecessarily made, the defendant must plead without [431]oyer (t); though if it be craved and given, he has a right to make use of it (u). The defendant cannot "crave oyer except where profert has been made (4). Oyer was formerly allowed of the original writ, in order to demur or plea in abatement for any insufficiency or variance between the writ and declaration; but that practice was altered by rule of court, and if the defendant demand oyer of the writ, the plaintiff may proceed as if no such demand had been made (x)(5). Oyer is not demandable of a record (y) (0) 3 Bla. Com. 299; 3 Salk. 119; 12 Mod. 598; Bac. Ab. Pleas, I. 12, 13; 1 Sid. 308, acc.; Lutw. 1644, contra. The practice relative to the demand of oyer has been so fully considered in the works referred to in this note that it will be sufficient here to confine our attention to such points as relate to pleading. Tidd, 9th ed. 536; 1 Sel. 261, 285 to 291; 1 Saund. 9, and notes; Com. Dig. Pleader, P.; Steph. 2d ed. 92. (p) Ante, 427. But see instances of oyer after imparlance, 1 Saund. 3, 289. (1) See as to the profert, ante, 365 and notes. (r) 2 Stra. 1186; 3 T. R. 151; Tidd, 9th (1) Where oyer of a deed pleaded with profert, is not prayed, no part of the deed will be noticed by the Court, but that which the plaintiff has declared on; Bender v. Fromberger, 4 Dall. 131; Wristor v. Lacy, 7 J. J. Marsh. 219; and the writing, must be taken as set forth in the declaration. Pollard v. Zoder, 2 A. K. Marsh. 264. (2) Brown v. Jones, 10 Gill & Johns. 334. (3) See Paddock v. Higgins, 2 Root, 482; Respublica v. Coates, 1 Yeates, 2; Powers v. Ware, 2 Pick. 451. (4) Story v. Kimball, 6 Vermont, 541; Bettle v. Wilson, 14 Ohio, 257. (5) See Renner v. Reed, 3 Pike, 339. (1) nor of recognizance (z); nor of a private act of parliament (a); nor of HI. OYER. letters patent, though pleaded with a profert (b); nor of a writ of re-summons (c); nor of the precept or warrant of a justice of the peace (d). And oyer cannot be craved of an agreement, a note, or other instrument not under seal (e) (2), nor of a demise to a stranger, where the party pleading it was neither party nor privy to it (f). As it cannot be granted of any deed, &c. which is not presumed to have been brought into Court (g), the defendant cannot, in an action upon a bond conditioned for the performance of covenants in another deed, crave oyer of such deed, but he, and not the plaintiff, must show it or the counterpart with a profert or an excuse for the omission; but it seems that the Court will compel the plaintiff to give the defendant a copy to enable him to plead, by granting the defendant time to plead until the copy be provided, or the defendant making an affidavit that he has no copy (h). In scire facias on a judgment on a deed, the defendant cannot demand oyer of the deed, for the scire facias is founded not on the deed, but on the judgment; if, however, oyer be improperly craved and granted, and the deed be stated upon it, the defect in the plea will be aided on a general demurrer (¿). demanded. Though a party be entitled to crave oyer yet he is not in general bound When it to do so (k). But in some cases it must be craved. Thus, if the defence should be be founded upon any objection to the form of the bond, as where a bail bond has been given to the sheriff, but not by his name of office, and the defect do not appear upon the face of the declaration, oyer must be craved, and after setting forth the bond, the defendant may demur (7) (3). And in an action at the suit of an administrator, the defendant should crave oyer, and set out the letters of administration, if he wish to avail himself of any variance in "the statement of them in the declararton (m). The instances [432] in which oyer should be demanded, if the defendant's contract be not truly stated in the declaration, will be hereafter considered (n). In pleading (z) Poph. 202. (a) Dougl. 476, 477; Tidd, 9th ed. 588, but Godb. 186, is contra. (b) 1 T. R. 149; Archb. 164. (c) 3 Hen. 6, 56. (d) 21 Hen. 5, 6; Bro. Oyer, 13. (e) Salk. 215. But the Courts or judges, by analogy to the doctrine of oyer, will in most cases order that the party have an inspection and copy of the instrument, see Tidd, 9th ed. 589, &c. (f) 3 Hen. 6, 46. (1) Oyer must be craved and had to put a record before the court, but oyer of the officer's return to the process is unnecessary. Commonwealth v. Roby, 12 Pick. 496; Guild v. Richardson, 6 Pick. 364; Slayton v. Chester, 4 Mass. 478. Where a judgment is declared on without a profert, no oyer can be had. Hall v. Williams, 8 Greenl. 434. Oyer must be given of the record of the Superior Court, in Connecticut, if required. Williams v. Perry, 2 Root, 462. In Copp v. Gilman, Blackf. 46, it was held, that in an action on a judgment, profert of the record is unnecessary. (2) See ante, 466 and note, and Tuggle v. Adams, 3 A. K. Marsh. 429; Anderson v. Barro, 2 J. J. Marsh. 265. (3) So, in debt on award, if it be mis-stated in the declaration, the defendent cannot take advantage of the error by pleading no award, but must crave oyer and demur. James v. Walruth, 8 Johns. 410. Ut semble. Sed quære; for an award under seal need not be pleaded with profert, and the insertion of a profert will not entitle to oyer. |