IV. THE CERTAIN

with certainty; as if in assumpsit on several *promises the defendant has TY, &c. pleaded infancy, and the plaintiff reply that part of the goods were for REQUISITE necessary food, and part for clothes, it is said to be insufficient if he do

V. MUST

BE SINGLE

not show what part was for the one and what for the other (y). In general also, when material to the action, time, place, and other circumstances must be stated with the same certainty and precision as in the previous pleadings; but where time or place is immaterial it should seem, with analogy to pleas in bar, that as the time and place mentioned in the declaration must when immaterial be adhered to, no repetition of either would be necessary (z). We have seen, that where extreme particularity in pleading would tend to great prolixity and inconvenience, a general allegation is allowed; on which principle it is settled, that in debt on a bond to account for all monies, &c. which the defendant or a third person receives in the course of a certain employment, it is sufficient to assign the breach generally, that divers sums of money were received from divers persons, &c., without naming from whom in particular (a). There is so much similarity between pleas and replications, in regard to the rule that a replication must not be argumentative, and must offer matter which is triable, that any further observations than those which were made upon the subject in relation to pleas (b) will be unnecessary.

5thly. The replication must not be double, or in other words, contain two answers to the same plea (c) (1). For the plaintiff ought not to perplex the Court with two matters, to attempt to inveigle their judgment, and if two issues were permitted to be joined upon two several traverses on the plaintiff's replication, and one should be found for the plaintiff and the other for the defendant, the Court would not know for whom to give judgment, whether for the plaintiff or the defendant (d). And the Court will not give leave to reply double (2), under the statute 4 & 5 Ann. c. 16 (e); though under that statute the plaintiff in replevin may, with leave of the Court, plead several pleas in bar to an avowry or cognizance (ƒ) (3).

(y) Lutw. 241; Com. Dig. Pleader, F. 4; ante, 496, 497.

(=) See 2 Hen. Bla. 161; I Saund. 8 a; ante, 522.

(a) 8 T. R. 463; 1 B. & P. 640; 1 Price, 109; 7 B. & C. 809; ante, 235, 395.

(b) Ante, 539 and 540. See an instance of an argumentative traverse of a plea of a custom or liberty to dig for coal, &c. 10 East,

139.

So

(1) Downer v. Rowell, 26 Vermont, 397. (2) See Hazard v. Smith, 1 J. J. Marsh, 66; Little v. Blunt, 13 Pick. 473; Pickering v. Pickering, 19 N. Hamp. 389.

(3) The doctrine of duplicity in pleading has been somewhat vague and unsettled. The plaintiff cannot reply two distinct replications to the defendant's plea. This cannot be done at common law; and under the statute (2 R. S. 356, s. 27) can be done only by leave of court (4 Wend. 211). The court, however, permitted the replications to stand, on payment of costs, Frisbie v. Riley, 12 Wend. 249. The objection to pleading for duplicity is an objection of form and not of substance, and can only be taken advantage of on special demurrer. If the plaintif reply that the promise was made by the defendant and a third person, and that a release was executed to such third person, denying both the joint promise and the release, it is bad for du plicity. Tubbs r. Caswell, 8 Tb. 129.

The rule that on demurrer judgment shall be given against the party who commits the first fault. applies not to a case where the pleading is bad merely in form. There is a class of case in tort where the defendant sets up matter merely by way of excuse, in which the plaintiff may reply that the defendant of his own wrong, and without the cause by him alleged in his plea,

BE SINGLE.

a replication or traverse should be in the disjunctive and not conjunctive, V. MUST when if a part of the plea be true the action would not be tenable; as, if to an action by an attorney for fees the defendant plead that the action was brought for fees at law and in equity and that plaintiff had not a month before action brought delivered a signed bill; a replication that the bill was not for fees at law and in equity is bad, for it should have been in the [ *650 ] disjunctive (g). But a replication may frequently put in issue several facts where they amount to only one connected proposition or answer to the plea (h) (1). And, as we have already seen, a replication may contain several distinct answers to different parts of a plea divisible in its nature (); as where infancy has been pleaded to a declaration consisting of several counts, the plaintiff may reply as to part of the demand that it was for necessaries, to other part that the defendant was of full age at the time the contract was made, and to other part that he confirmed it after he came of age (k) (2). So, if an executor or administrator plead several judgments outstanding and no assets ultra, the plaintiff may reply as to one of the judgments nul tiel record, and to another that it was obtained and kept on foot by fraud (1). In trespass de bonis asportatis of several articles, a plea justifying the removal quia damage feasant enures as a several plea in respect of each article, and the plaintiff may reply severally; thus he may traverse the justification as to one article, and as to another reply excess (m). So if a plea justify the removal of goods of similar description enumerated in different counts, if the identity of the goods in the different counts be not alleged, the plaintiff may rely severally in respect of the articles in each count (n); and the insufficiency of one of such sectional replications demurred to for duplicity, in putting in issue the whole plea by a traverse absque tali causa, where, in respect of matter of title disclosed by the defendant, the plaintiff should have put in issue a portion only of the plea, by traversing absque residuo causa, does not affect the validity of the other replications to the same plea (n). In an action of debt on bond, conditioned for the performance of covenants, the plaintiff may, and indeed ought, by the statute 8 & 9 W. 8, c. 11, s. 8, to assign as many breaches in his replication as he intends to rely upon at the trial, if such breaches be not assigned in the declaration; and it need not be shown that this is done by virtue of t statute (o). And to a plea of set-off, consisting of several demands upon judgment of recognizance of record, and simple contract, the plaintiff in his replication should give several answers, viz. as to the judgment of recognizance nul tiel record, and as to the simple contract, that he was not indebted (p); or he may reply as to

committed the injury complained of in the declaration, and by this general traverse, he may put in issue every material allegation in the plea; but this manner of replying appears to be confined to cases of tort where the defence is by way of excuse merely, and is not allowed where the defendant by his plea insists upon a full and adequate right. Ib. Lytle v. Lee, 5 Johns. 112; Plumb v. McCrea, 12 ib. 491.

(1) Russell v. Rogers, 15 Wend. 351.

(2) Vide Sevey v. Blacklin, 2 Mass. 542.

V. MUST part, to statute of limitations (q.) Duplicity in a replication is aided, BE SINGLE unless the defendant demur specially, pointing out the particular defect (r) (1).

(q) Post, vol. iii.; ante, 582, 583.

1 Saund. 337 b, n. 3; Doc. Pl. 147; 10 East,

(r) 27 Eliz. c. 5; 4 & 5 Anne, c. 16, s. 1; 79.

(1) If the replication contains two distinct matters in avoidance of the plea, the defendant is not bound to demur for duplicity or to answer both matters, but may take issue upon either of the matters set up in avoidance. If such issue be found for the defendant, the plaintiff will be enti tled to judgment non obstante veredicto; and other matters set-forth in the replication being ad mitted as they were not answered. Gould v. Ray, 13 Wend. 633.

*CHAPTER IX.

Of Rejoinders and the subsequent Pleadings; of Issues, Repleaders, Judgments non obstante veredicto, and Pleas puis darrein continuance, or of Maller pending action; and of Demurrers, and Joinders in De

murrers.

A REJOINDER is the defendant's answer to the replication (a), and is in OF REJOINgeneral governed by the same rules as those which effect pleas (b); with DERS (1). this additional quality, that it must support and not depart from the plea (c). If there be several defendants, and they joined in the plea, they cannot sever in the rejoinder (d). It must also be single; and the Court cannot give leave to the defendant to rejoin several matters, for the statute of Anne does not extend to rejoinders (e) (2). Hence it may suffice to refer to the preceding pages, and to the forms that are given in the third volume, without taking further notice of the rejoinder with regard to its general construction and qualities (3).

REQUISITES OF.

When a replication, or a plea in bar in replevin, concludes to the coun- FORM AND try, the defendant can only demur; or add the common similiter, which is, "And the defendant doth the like." And it is material that the defendant should take care that the similiter be added, for otherwise he cannot move for judgment as in case of a nonsuit (ƒ). And where there are several replications, particularly when some. conclude to the country, and others with a verification, it may be, "And the defendant as to the said replications of the plaintiff, to the said second and third pleas of him the defendant, and which the plaintiff hath prayed may be inquired of by the country, doth the like" (g). In the King's Bench, if the replication conclude to the country, the plaintiff is at liberty to add the similiter for the defendant, it being a rule in that Court that in all special pleadings, when the plaintiff takes issues upon the defendant's pleading, or traverses the same, or demurs, so that the defendant is not at liberty to allege any new matter, the plaintiff may add the similiter or joinder in demurrer, and make up the paper book without giving a rule to rejoin (h); but otherwise

(a) Com. Dig. Pleader, H.

(b) Ante, 521, 545; Co. Lit. 303, b.

(c) See ante, 644; 2 Saund. 189, 170; Com.

Dig. Pleader, F. 6 to F. 11.

(d) 4 B. & C. 704.

(e) Stra. 908; see ante, 226, 532, 649.

(f) Seabrook v. Cave, 3 Dowl. 691.

(g) See forms, post, vol. iii.

(h) Rule, Trin. 1 Geo. 2, n. a; Tidd, 9th edit. 717, 718.

(1) See Fowler v. Clark, 3 Day, 231; Tarleton v. Wells, 2 N. Hamp. 306; Boston Hat Manuf. Co. v. Messenger, 2 Pick. 223; Warren v. Powers, 5 Conn. 373; Tuttle v. Smith, 10 Wend.

386.

(2) Slocumb v. Holmes, 1 Howard (Miss.) 139; Neff v. Powell, 6 Blackf. 421. (3) See, however, Nadenbousch v. M'Rea. Gilm. 228.

Where several facts constituting but one defence are pleaded by a party, each fact cannot be traversed by the other side; the latter is confined to a denial of the facts alleged, if such denial, verified by proof, will bar the claim, or defeat the defence. Tuttle v. Smith, 10 Wend. 388. Gould's Pl. 407.

REQUI

SITES OF.

FORM AND a rule must be given, unless the defendant be bound by a judge's order to rejoin gratis. In the Common Pleas, *where the replication concludes to the country, it is usual for the plaintiff to add the similiter, and make up and deliver the issue with notice of trial; but unless under terms of rejoining gratis, it seems that in the latter Court the defendant may insist upon having a rule to rejoin; and that if the plaintiff add the similiter, the defendant may strike it out, and demur to the replication, which is the usual course when the defendant has no merits, and wishes to obtain time (i). The consequences of a defect in or omission of a similiter, have already been considered (k).

SURRE

&c.

When the replication concludes with a verification, the rejoinder usually denies it, and concludes to the country, "and of this he the defendant puts himself upon the country, &c." But when the rejoinder introduces any new matter, it must, as in the case of a plea or replication, conclude with a verification, in order that the plaintiff may have an opportunity of answering it (). If the defendant deny several matters alleged in the replication, the rejoinder may conclude to the country, without put ting the matters in issue severally and distinctly; thus, if to a plea of infancy, the plaintiff has replied that a part of the goods were necessary clothing, and the residue necessary food, a general denial in the rejoinder concluding to the country, will suffice (m).

Surrejoinders (1), rebutters, and surrebutters, seldom occur in pleading JOINDERS, (n). It may suffice to observe that they are governed by the same rules as those to which the previous pleading of the party adopting them is subject, and the forms which most frequently occur in practice, are given in the third volume (o).

OF ISSUES

[ *653 ]

From the preceding observations on the different parts of pleading, particularly those relating to traverses (p), we may collect what points may in general be put in issue. As however, the parties respectively may be disinclined to demur, or otherwise to object to their opponent's pleading, it may be advisable to consider on what issue the parties may venture to proceed to trial, so as to obtain the judgment of the Court, and to avoid the necessity of a repleader, on account of the issue having been upon immaterial matter.

*An issue is defined to be a single, certain, and material point, issuing out of the allegations or pleadings of the plaintiff and defendant (q);

(1) Potter v. Titcomb, 1 Fairf. 53; Dawes v. Winship, 16 Mass. 291; Williams v. Whitmore, Kirby, 249; Kay v. Goodwin, 16 Mass. 1; Oakley v. Romeyn, 6 Wend. 521.