PLEAD WHEN TO law on the face of the pleadings, and thus obtain the opinion of the Court SPECIALLY 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. When ad plead only tion. In some cases where a justification was to be pleaded, it was advisable visable to not also to plead the general issue. Thus in trespass quare clausum frea justifica- git, if the plaintiff's possession could not be disputed, and the defendant relied upon a right of way, it was better not to plead the general issue, because if 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 (). 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 specially. On the other hand, in an action for assault and battery, it was not advivisable not sable to plead specially, justifying the battery, if there were the least doubt to plead 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. It is also doubtful whether rumors (h) 3 Campb. 366, 361. (i) 3 C. & P. 474. (k) See Tidd, 9th edit. 979, 980, (l) 6 T. R. 562; Tidd, 9th edit. 965; see 8 Taunt. 689; 1 Moore, 420, S. C. (m) 7 T. R. 660; 7 East, 325; Tidd, 9th ed. 963; sec 9 Price, 314. (n) 4 East, 567; 21 Jac. 1, c. 16; s. 6. As to what actions for slander this statute extends to, see Tidd, 9th edit. 962. (0) Ante, 493. (1) As to costs in trespass quare clausum fregit, see Crane v. Comstock, and Jackson v. Randall 11 Johns. 404, 405. OF ESTOP or suspicions of the plaintiff's guilt can be shown even in mitigation of MATTER damages (p), which often presents an additional reason for pleading spe- PEL WHEN cially to let in such evidence. MUST BE SPECIALLY PLEADED AT COM 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 MON LAW. same cause of action as that which forms the subject of the second suit, if (2) 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 de- All defenfence of which the defendant would not be at liberty to avail himself under ces should be pleaded. the 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 afterwards be allowed to plead a plea *contrary to the merits or justice of [*510] 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 (8): 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). There are many cases in which it may be advisable to plead in one plea When it all the grounds of defence, and in which it may suffice to prove part of the will suffice allegation in the plea (v). 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. (9) 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. 337; 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 Dowl. (t) Tidd, 9th edit. 907; id. Index, tit. "Au- (u) See post, as to departure in pleading. (1) Acc. Barlow v. Todd, 3 Johns. 367; Munroe v. Allaire, 2 Caines, 320. And see Fowler v. Clark, 3 Day, 231. to prove ment by default as to part. PLEAD WHEN TO the trial, but do not include the costs of the issues found for the defendSPECIALLY 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). OF ISSUA In framing a special plea it is also necessary to consider whether the BLE PLEAS defendant 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 [*511] trial (y); on a general demurrer for some defect in substance (2) (1). A plea in abatement is not an issuable plea (a) (2), nor a plea of alien enemy (6), 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, although 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 (). Where the replication docs 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 terins extend to the subsequent pleadings, and forbid a special demurrer to the replication (1). When the defendant, being under the (r) 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 (a) 1 Burr. 59; Barnes, 263. (c) 1 Bla. Rep. 376; 2 Wils. 117; 3 Id. 33; (1) Vide Syme v. Griffin, 4 Hen. & Mun. 277. (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. () 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. (2) So, a plea of another action pending is not an issuable plea. Davis v. Grainger, 3 Johns. (3) Tomlin v. How, Gilmer, 11, contra. terms of pleading issuably, pleads a sham plea (m); or demurs for want oF ISSUAof form, or, at least in the Common Pleas, specially for want of sub- BLE PLEAS stance; judgment may be signed (n) (4). When several pleas are pleaded, one of which is not issuable, it will vitiate all the others (0), and where the defendant being under an order to plead issuably puts in a sham demurrer to some of the counts, and pleads issuably to the rest, judgment by nil nicet as to the whole may be signed (p). Where, however, it is doubtful whether the plea be issuable, the safer course in term time is to move the court to set it aside (q); and where the defendant [ *512 ] has been ruled to abide by his plea, it cannot afterwards be treated as a nullity. I. OF THE SEVERAL PLEAS.-SECONDLY, SINCE THE RECENT RULES. HAVING thus endeavored to show the practice as to pleas before the modern improvements, and to which it will continue to be essential frequently to refer, we will now state the principal of such improvements. of pre under 2 & Before the 2 & 3 W. 4, c. 71, s. 5, † although plaintiffs were allowed Statements to declare generally in actions on the case, stating that by reason of their scriptive possession of a messuage or other coporeal tenement, they were entitled to a right of common or of way, &c., without showing the origin of the plea, &c. right or any derivative title (r); yet in other pleadings, particularly in 3 W. 4. c. trespass and replevin, it was essential to justify or claim under some own- 71, s. 5 er in fee, and then to state the derivative title, however difficult and prolix (s). The above statute enacts, "that in all pleadings to actions of trespass, and in all other pleadings wherein, before the passing of that act, it would have been necessary to allege the right (scilicet of common or other profit a prendre, or of way or other easement or the use of lights,) to have existed from time immemorial, it shall be sufficient to allege the enjoyment thereof as of right by the occupiers of the tenement in respect whereof the same is claimed for and during such of the periods mentioned in that act as may be applicable to the case, and without claiming in the name or right of the owner in fee, as was before usually done; and if the other party shall intend to rely on any proviso, exception, incapacity, disability, contract, agreement, or matter therein before mentioned, or any cause or matter of fact or of law not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence ⚫on any general traverse or denial of such allegation." This enactment has introduced a more concise mode of claiming rights of this nature. (t) W. 4. But by far the most important modern improvements are those intro- Reg. Gen. duced by the Reg. Gen. Hil. T. 4, W. 4, † which puts an end to the mis-il. T. 4 application and abuse of the general issue, and compels a defendant in Pleadings terms to deny particular parts of the declaration, and to plead. specially in particu lar actions. [ *513 ] SUMPSIT. I. IN AS- every matter of defence not merely consisting of denial of the allegations in the declaration. The most convenient course will be, to print the rules verbatim in the context, and to state the decision in notes (u). Reg. Gen. Hil. T. 4 W. 4. pleadings in particular actions (x). 1. Plea of non-as sumpsit to put in issue only ex "I. In all actions of assumpsit, (except on bills of exchange and promissory notes,) the plea of non assumpsit shall operate only as denial in fact of the express contract or promise alleged (y), or *the matters of the facts fact from which the contract or promise alleged may be implied by law press contract or from which contract implied, and not, &c. (u) See also the precedents of Pleas and notes in 3 Chitty on Pleading, 6th edit. per tot. [*514] (x) See further as to the cases when or not the general issue is pleadable, 3 Chit. Gen. Prac. 723 to 737, and Mr. Roscoe's Occasional Tracts, No. 1, as to the General Issue, a summary writing with the perspicuity observable in all the works of that able author. (y) Non Assumpsit.-This plea naturally puts in issue the contract or promise as stated in the declaration, and enables a defendant to insist that he never in fact contracted at all and also that he did not contract in the manner stated in the declaration, and thus to take advantage of any material variance, Neale v. M'Kenzie, 2 Crom. M. & Ros. 67; also of the nonjoinder of a-person who ought to have been a co-plaintiff, which is a ground of nonsuit in respect of the variance. under non assumpsit, the defendant may show that the contract was conditional, and part not performed by plaintiff, where he had declared on the contract as having been absolute. exander v. Gardner; 5 Moore & Scott, 281; 1 Bing. N. S. 671; 3 Dowl. 146, S. C. So Al So, although a plea of non assumpsit in terins seems merely to deny the promise and not the debt in respect of which the promise to pay was actually made or implied; yet by the terms of the above rule the plea in the case of an indebitatus count puts in issue all the facts essential to establish a present debt; although in case of a special count it would be otherwise. In the latest case, Cousen v. Patton, 2 Crom. & Ros. 547, it was held that under non assumpsit to an indebitatus assumpsit count for goods sold and delivered or for work and labor done, the defendant may prove that the goods delivered were not such as were contracted for, or that. the work was done in an unworkmanlike manner, although there was a special contract to pay for the goods or work at a certain price, and the plaintiff can recover only on the quantum meruit; and see further as to work done, Cooper r. Whitehouse, 6 Car. & P. 545; Roffey v. Smith, id. 547, 662; Turban v. Warren, 1 Tyr. & Gr. 153. In Bradley v. Milnes, 1 Bing. N. C. 644, to indebitatus assumpsit for work and labor and materials defendant pleaded specially that the work and materials should be to the satisfaction of the defendant or his surveyor; and that the building had not been completed to the satisfaction of defendant or his surveyor; and a replication unnecessarily in the conjunctive was proved by evidence that defendant was satisfied. And when to indebitatus assumpsit for work and labor, the defendant pleaded that the work was done in endeavoring to prevent a chimney from smoking and on the terms that the plaintiff should not be paid unless he prevented it from smoking, and that he had not prevented it, the plea was held bad on special demurrer, as amounting to the general issue. Heyselden v. Staff, 5 A. & E. 153. In an action by an attorney for work and labor, the defendant, under a plea of the general issue to the whole demand except a certain sum paid into court, inay prove that the business in respect of which the action was brought, was done in a cause, upon the terms that in the event of failure in the cause, the plaintiff should make no charge except costs out of pocket, and that these did not exceed the amount paid into court. Jones v. Reade,⚫ 5 A. & E. 529; 1 N. & P. 12; 5 Dowl. 216, S. C. The defendant may in an action for work shew that it was done in an unworkmanlike manner; Cousins v. Paddock, 2 Cr. M. & R. 547. Which although it may not defeat the plaintiff's claim altogether, will only entitle him to recover the real value of his labors, Chapel ». Hicks, 2 C. & M. 214. And the same rule applies to an action for the value of personal services as a clerk, &c., Bailey v. Kell, 4 Bing. N. C. 638. Negligence by an attorney is an admissible defence under nonassumpsit to an action on his bill, provided the work becomes wholly useless in consequence of that negligence; Bracey v. Carter, 12 A. & E. 373; Randall v. Ikey, 4 Dowl. 682; |