defendant, and all those whose estate he then had, and his landlord, from time &c. had common of pasture in respect of the demised premises; it was held upon demurrer that the plea was bad (c). An entry by authority of law without process; as that the locus in quo was an inn (d); or that the defendant entered to demand payment of his debt (e) (1); or to prevent murder (ƒ); or to abate a nuisance to a watercourse (g); or by virtue of process (h), criminal or civil, of a superior (¿) or inferior Court (k); under mesne process, as a latitat, &c. (1), or under final process, as a fi. fa. (2), elegit, &c. ; must be specially pleaded. In all actions of trespass, whether to the person, personal or real property, matters in discharge, or in confession and avoidance of the action, must be specially pleaded (m); as accord and satisfaction (n), arbitrament, release (o), former recovery (p), or to an action for an assault, a magistrate's certificate of acquittal of the assault (4), or tender of sufficient amends (r). So the statute of limitations, which in trespass to persons is, that the defendant was not guilty within four years, and in trespass to personal or real property within six years (s) (3), must be specially pleaded. IN TRESPASS. To realty. in actions In an action against justices of the peace, mayors, constables and other When the general ispeace officers, or any others acting in their aid or assistance, or by their sue authocommand (t), for anything done by them by virtue or by reason of their rized by offices; or against persons for anything done in pursuance of the bankrupt statute, as act (u); the general issue may be pleaded, and the special matter given in against evidence. And if the lord chancellor be sued for committing a person to justices, &c. 21 Jac. 1, prison he may plead the general issue (x). There is a similar provision in the highway (y), turnpike (2), militia, and assessed tax acts, building act, [507 ] and in various other statutes, in protection of persons acting in the execution of their office, or others in aid of them (a) (4). In these cases, as well before as since the pleading rule Hil. T. 4 W. 4, the plea of not guilty suffices, and all the special matters may be given in issue under that plea (b). (c) 3 Young. and Jerv. 93. (d) Com. Dig. Pleader, 3 M. 35. (e) Id.; Cro. Eliz. 876. (f) 2 B. & P. 260. P. 478. As to when individual acting in (g) Raikes v. Townsend, 2 Smith's Rep 9. usual to plead this latter defence, 1 Montag. (h) 1 Saund. 298, n. 1. (i) 3 B. & P. 223. (1) 3 B. & P. 223 (k) 7 T. R. 665; Lutw. 914. (m) 3 Burr. 1353; 1 Bla. Rep. 388; 1 Wils. 45; ante, 500, 501. (n) 3 Burr. 1353; 4 Taunt. 459. (0) 3 Burr. 1353. p) Id.; see ante, 478 note (c). Former recovery against co-trespassers, ante, 88, 89. Form of plea, 3 C. & P. 485, note (a). (2) Harding v. King, 6 Car. & P. 427. (7) 21 Jac. 1, c. 16; Com. Dig. Pleader, 3 M. 36; Vin. Ab. Trespass, S. a, 542; 3 Lev. 37. (s) 21 Jac. 1. c. 52; 6 East, 390. (t) 21 Jac. 1, c. 12, s. 5; Co. Lit. 283; Vaugh. 111; see 3 Campb. 257; Holt, C. N (1) Van Buskirk v. Irving, 7 Cow. 35. (2) Carson v. Wilson, 6 Halst. 43. Bank. Law, 410; see pleas, post, vol. iii.; (2) Dicas v. Lord Brougham, 6 Car. & P. 215. (z) 3 Geo. 4, c. 126, s. 147. (a) See particularly the statutes 43 Eliz. c. 2, s. 19; 7 Jac. 1, c. 5; 11 Geo. 2, c. 19, s. 21; 23 Geo. 3, c. 70, s. 34; 24 Geo. 3, sess. 2, c. 47, s. 35, 39; 28 Geo. 3, c. 37, s. 23; 42 Geo. 2, c. 85, s. 6; and the 43 Geo. 3, c. 99, s. 70; under larceny acts, &c. 7 & 8 Geo. 4, c. 4, s. 155; c. 29, s. 75; c. 30, s. 41; 9 Geo. 4, c. 4. s. 155. (b) Wells v. Ody, 2 Crom. M. & Ros. 128. But observe the suggestion of Alderson, B. (3) As to Pennsylvania, see Act of 27th March, 1713, 1 Sm. Laws, 76; and to New York, 2 Rev. Stat. 295, 296, s. 18, 19. (4) The party at whose instance process, either civil or criminal, issued, if he voluntarily assisted the officer in executing it, may protect himself under the general issue. Nathan c. 12. IN It is also a general rule at common law, that matters in mitigation of TRESPASS. damages, &c. which cannot be specially pleaded, may be given in evidence under the general issue (c). In Eject ment. In ejectment, a defendant when he appears is compelled to enter into the consent rule and to plead the general issue; consequently in that action no special plea can be adopted(1). We have seen, however, that the Courts have in some cases on special application permitted the defendant to plead to the jurisdiction (d). WHEN IT IS TO PLEAD THE GENER AL ISSUE. The various instances in which the general issue was sufficient, and in ADVISABLE which a special plea was necessary before the late rules, have been pointed SPECIALLY out, and may be collected from our observations on the pleas peculiar to OR ONLY each form of action. The important rule that a plea in bar must either deny, or must confess and avoid the plaintiff's allegation, and the consequent doctrine that a plea in confession and avoidance must give express or implied color, and that a special plea which amounts to the general issue is bad, will be considered hereafter (e). We may collect, that in general it was always essential to plead specially, 1st, Where new matter was brought forward by way of defence, and the defendant admitted all the plaintiff's allegations, but denied or avoided their operation; subject however to the extensive innovations upon that rule in modern times in assumpsit, debt on simple contract, and in case: 2dly, whenever the defence arises after the commencement of the action (f). There are, it will be remembered, many instances, in which there was, before the Reg. Gen. Hil. T. 4. W. 4,† the option of pleading the matter specially, or setting it up as a defence under the general issue, it being matter which confessed and avoided the cause of action, or gave the plaintiff [568] implied color (g). The pleas of infancy in "assumpsit, and liberum tenementum in trespass, were of this kind. In cases of this nature it was often expedient to plead specially, in order either to compel the plaintiff in his replication to admit some of the facts stated in the plea, and thereby to narrow the defendant's evidence, or to compel the plaintiff to disclose his title or answer to the defence, and thereby narrow the ground on which he might rest his case on the trial. Thus, in his replication to the plea of infancy, the plaintiff must omit or deny the infancy; if he admit it he must obviate its effect by showing that the debt arose for necessaries supplied, or must allege a ratification after the defendant attained his full age. Under the general issue all or any of these answers to the defence might be set up. So liberum tenementum would often compel the plaintiff to new assign, giving an exact description of the locus in quo, &c.; or would oblige him to show his specific title, as a demise from the defendant, &c., and thereby admit that the defendant was the freeholder. And sometimes a special plea was (c) Co. Lit. 283 a ; 2 B. & P. 225. (e) Post. (f) Ante, 479; post. (g) See ante, 480, post; 4 B. & C. 547; 1 M. & P. 308. v. Cohen, 3 Campb. 257. But if he merely delivered it to the officer and directed him to arrest the plaintiff, he must plead the special matter as in other cases. Herrick v. Manly, 1 Caines, 252. (1) In Pennsylvania, by the Act of the 13th April, 1807, (4 Sm. Laws, 476,) “the plea in Ejectment shall be, not guilty" See Crandall v. Gallup, 12 Conn. 365. 6 + See American Editor's Preface. PLEAD proper in order to raise a question of law on the face of the pleadings, and WHEN TO thus obtain the opinion of the Court upon a demurrer, without the intervention of a jury. It would be beyond the limits of this treatise to attempt to enumerate all the various instances in which it might be advisable or not to plead specially. SPECIALLY. visable to In some cases where a justification was to be pleaded, it was advisable When adnot also to plead the general issue. Thus in trespass quare clausum fregit, plead only if the plaintiff's possession could not be disputed, and the defendant relied a justificaupon a right of way, it was better not to plead the general issue, because if tion. only the right of way was pleaded and traversed then the defendant's counsel had a right to begin at the trial, and thereby, in case the plaintiff should examine any witness in chief, the defendant's counsel would have the advantage of the reply (h). And this course was sometimes advisedly adopted in actions for a libel, where the publication of the libel as described in the declaration was to be admitted (i). And in actions against executors and administrators, upon causes of action which accrued against the deceased, it was often impolitic in reference to costs to plead the general issue, and thereby drive the plaintiff to trial to prove the debt, in cases in which there was no reasonable ground to dispute it (k). When ad On the other hand, in an action for assault and battery, it was not advi- visable not to plead sable to plead specially, justifying the battery, if there were the least doubt specially. of establishing the justification, for where a battery is not admitted by the [ *509] plea the judge must certify to give the plaintiff his full costs, if he obtain a verdict for damages less than 408. ; but where the defendant by his plea admits a battery, and it is found against him, no certificate is necessary (1). So in trespass quare clausum fregit, if the defendant plead a license or other justification (which does not make title to the land,) to the whole of the trespasses, and it be found against him, the plaintiff is entitled to full costs without a certificate, though he do not recover 40s. damages (m) (1); and the special plea should therefore in these cases be confined merely to such trespasses as the defendant can certainly justify. However, in case for slander, though the defendant justify, and it be found against him, yet if the damages be under 40s. the plaintiff cannot recover more costs than damages (n); in the latter action, therefore, there is no objection to a special plea on the ground of costs, though it is not advisable to justify on the ground that the words are true, unless the plea can be supported by indisputable evidence, because such a justification when ineffectual will in general materially enhance the damages. But there are however some decisions that under the general issue, in case for slanderous matter, the truth cannot be proved even in mitigation of damages (o); and therefore a special plea is often necessary with a view to reduce the damages, although the proofs fall short of substantiating the exact truth of all the slander stated. (h) 3 Campb. 366, 368. (i) 3 C. & P. 474. (k) See Tidd, 9th edit. 979, 980. (1) 6 T. R. 562; Tidd, 9th edit. 965; see 8 Taunt. 689; 1 Moore, 420, S. C. edit. 963; see 9 Price, 314. (n) 4 East, 567; 21 Jac. 1, c. 16, s. 6. (1) As to costs in trespass quare clausum fregit, sce Crane v. Comstock, and Jackson v. Randall, 11 Johns. 404, 405. MATTER OF It is also doubtful whether rumors or suspicions of the plaintiff's guilt can ESTOPPEL be shown even in mitigation of damages (p), which often presents an additional reason for pleading specially to let in such evidence. WHEN MUST BE SPECIALLY PLEADED AT COMMON LAW (7). All defen Matter of estoppel should be specially pleaded as such. Thus, if the defendant obtained a verdict against the plaintiff in a former action upon the same cause of action as that which forms the subject of the second suit, if the verdict be not pleaded as an estoppel the defendant refers the merits to the second jury, and the verdict is merely argument, and is not conclusive in his favor (r). Care should be taken to plead in the first instance every matter of defence ces should of which the defendant would not be at liberty to avail himself under the be pleaded. general issue. For, though the Court will in general give the defendant leave to add or alter a plea where the justice of the case requires it, yet this will be only on payment of the costs incurred by his mistake: and if the defendant be obliged to ask indulgence, as time to plead, he will not after[510] wards be allowed to plead a plea "contrary to the merits or justice of the case: thus to a declaration by an attorney on his bill of costs, a defendant, after obtaining time, was not allowed to plead that the plaintiff had not delivered his signed bill a month before action brought (s); and if the cause should proceed to trial and be found against the defendant on account of the omission of one or more grounds of defence, he will in general be precluded for ever from taking advantage thereof, unless in some cases by audita querela or error in fact coram nobis, &c. (t). And as it is a rule of pleading that a departure will not be allowed, the defendant cannot in general rectify the omission of a ground of defence by his rejoinder. In debt on an arbitration bond, if the defendant merely plead no award, and the plaintiff reply setting out an award, the defendant cannot rejoin that he performed it, &c. (u) (1). When it will suffice to There are many cases in which it may be advisable to plead in one plea all the grounds of defence, and in which it may suffice to prove part of the prove part allegation in the plea (v). of the ground of defence. Of suffer ing judgment by default as to part. It is sometimes advisable not to plead either the general issue or a special plea to the whole declaration, but to suffer judgment by default to certain parts of the declaration, which the plaintiff can indisputably establish. Thus, where the plaintiff's demand is altogether denied by the pleas, and at the trial the plaintiff obtain a verdict for part of his demand, and the defendant obtain a verdict as to the other part, the plaintiff is entitled to the costs of the issues found for him, which include the general costs of (p) Id. ibid. (1) See further as to pleas of estoppel, post; and see Index, Estoppel, and Reg. Gen. Hil. T. 4 W. 4, r. 9. (r) 2 B. & Ald. 668; 2 Bing. 377; and see M'Clel. & Y. 509. (s) Neale v. M'Kenzie, 1 Crom. M. & Ros. 61; 2 Dowl. 702; 4 Tyr. 670, S. C.; Beck and Mordaunt, 2 Bing. N. C. 140; 3 (t) Tidd, 9th edit. 907; id. Index, tit. (1) Acc. Barlow v. Todd, 3 Johns. 367; Munroe v. Allaire, 2 Caines, 320. And see Fowler v. Clark, 3 Day, 231. PLEAD SPECIALLY. the trial, but do not include the costs of the issues found for the defend- WHEN TO ant; and on which last-mentioned issues the defendant was not formerly entitled to claim any costs from the plaintiff. But where the defendant suffered judgment by default as to part of the plaintiff's demand, and pleaded only to the other part, and the plaintiff took issue on the pleas, and at the trial all the issues were found for the defendant, then the defendant was entitled to the costs of the issues found for him, and the plaintiff was entitled only to the costs of the judgment by default, and what he would have been entitled to on executing a writ of inquiry (x). BLE PLEAS. In framing a special plea it is also necessary to consider whether the OF ISsuadefendant is under terms of pleading issuably. An issuable plea is a plea in chief to the merits, upon which the plaintiff may take issue and go to trial (y); on a general demurrer for some defect in "substance (2) (1). A [ 511] plea in abatement is not an issuable plea (a) (2), nor a plea of alien enemy (b), nor an untrue plea of judgment recovered (c); nor can a special demurrer be pleaded if the defendant be bound to plead issuably, although the causes assigned be well founded, and, it seems, althongh they be matter of substance (d). But a true plea that a bail bond was taken for ease and favor (e), and a tender (f), and the statute of limitations (g) (3), are issuable pleas. So, where the defendant in an action on a recognizance of bail under a judge's order to plead issuably, pleaded nul tiel record, and that no ca. sa. was issued against the principal, the court of C. P. held that such pleas might be considered issuable, and that the plaintiff could not sign judgment as for want of a plea (h). And if a plea be in substance a fair issuable plea to the merits, the mere circumstance of its being informal will not render it a nullity (i). Where the replication does not tender a fair issue, but affords reasonable and good cause of demurrer, the defendant, though under terms of pleading issuably, may, it seems, in the Common Pleas, demur even specially to such replication; for a reasonable and fair demurrer to the replication, even for want of form only, is not in that Court a contravention of the terms of pleading issuably (k). But it seems that the court of King's Bench considers that these terms extend to the subsequent pleadings, and forbid a special demurrer to the replication (7). When the defendant, being under the terms of pleading issuably, pleads a (x) Tidd, 9th ed. 973, 874. (y) 7 T. R. 530; 2 Burr. 782; Tidd, 9th ed. 471. The defendant is usually put upon terms of pleading issuably when he obtains time to plead. (z) 3 Burr. 1788; 2 B. & P. 446; Tidd, 9th ed. 472; 8 Moore, 379; 1 Chit. R. 711. Where the defendant was advised he had a substantial ground of demurrer, the court set aside the judgment signed for want of a plea, upon terms, 7 T. R. 530; 1 East. 414, a, S. C. (a) 1 Burr. 59; Barnes, 263. (b) 8 T. R. 71. (c) 1 Bla. Rep. 376; 2 Wils 117; 3 Id. 33; 1 Moore, 431; 2 Chit Rep. 292. Nor any other plea which does not go to the mer (h) 1 Moore, 430. (i) Rep. Temp. Hardw. 179; 5 T. R. 152. (k) 4 Bing. 267; Betts v. Applegarth, C. P. Trinity Term, 1822; Gude, attorney for the plaintiff; MS.; see further, Gisborne v. Wyatt, 3 Dowl. 505. (1) 5 D. & R. 620; sed vide Tidd, 6th ed. 472; 2 Stra. 1185, 1186; 3 Burr. 1789; 2 Bla. Rep. 923; 3 Dowl. 505, S. P. (1) Vide Syme v. Griffin, 4 Hen. & Mun. 277. (2) So, a plea of another action pending is not an issuable plea. Davis v. Grainger, 3 Johns. 259. |