110

think necessary for his defence." But the statute does not appear to aid duplicity in the same plea.

When several pleas are pleaded in virtue of the statute, in bar to one and the same thing or demand, each of them operates and is treated as if it were pleaded alone; each must stand or fall by itself; no one of them can have the effect of dispensing with the proof of what is denied by another.

Duplicity must be objected to by special demurrer, and the particular duplicity must be particularly pointed out, and if the plaintiff do not demur, he must reply to both material parts of the plea.112

2942. By certainty in pleading is meant a clear and distinct statement of the facts which constitute the cause of action or ground of defence, so that they can be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the court who are to give the judgment. Lord Coke states certainty to be of three sorts: certainty to a common intent, certainty to a certain intent in general, and certainty to a certain intent in particular.113

2943. 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. 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.1

114

2945. Certainty to a certain intent in 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.115

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 of 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 in the form of its lan

110 Chitty, Pl. 512; 1 Saund. 337, a; Bacon, Abr. Pleas, K, 1; Comyn, Dig. Pleader, E, 2, 5; C, 41; Gould, Pl. c. 8, part 1, 18, 25. The modern codes which have followed the New York system do not allow inconsistent pleas. Derby v. Gallup, 5 Minn. 119; Coble v. McDaniel, 33 Mo. 363.

Grills v. Mannell, Willes, 380; Kirk v. Nowell, 1 Term, 125; Rogers v. Old, 5 Serg. & R. Penn. 411.

112 State v. Brown, 34 Miss. 688; State v. Mississippi R. R., 20 Ark. 495; Prenatt v. Runyon, 12 Ind. 174. A plea is not double which denies a part and justifies the rest. Parker v. Parker, 17 Pick. Mass. 236. The plea is double only when the defendant pleads several matters each of which constitutes a full defence. He may plead different defences to different parts, or he may plead several facts, all of which are necessary to make up one defence. If the failure of any one of the matters pleaded invalidates the defence, the plea is single. And if one of several defences is not well pleaded, the plea will not be held double. Thompson v. Oskamp, 19 Ind. 399.

113 In the case of Dovaston v. Payne, 2 H. Blackst. 530, Buller, J., said he remembered to have heard Mr. Justice Aston treat these distinctions as a jargon of words without meaning; they have, however, long been made, and cannot altogether be departed from. Spencer v. Southwick, 9 Johns. N. Y. 317. See 1 Saund. 49, n. 1; The King v. Lyme Regis, 1 Dougl. 159.

114

115 See Oystead v. Shed, 12 Mass. 506.

guage, 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.116

2947. It is a branch of this rule against argumentativeness that two affirmatives do not make a good issue," 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.118

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 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.119

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.120

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

2951. The defendant is bound so to state his plea that it will be clearly understood; and, as he is presumed 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

116 Doct. Pl. 41; Dy. 43. An argumentative answer is not demurrable; the remedy is by a motion to strike it out and cause a simple denial to be substituted. Williams v. Port, 14 Ind. 569. Formerly it was ground for special demurrer. Hurt v. Purvis, 5 Blackf. Ind. 557.

117 Comyn, Dig. Pleader, R, 3; Coke, Litt. 126, a.

118 Tomlin v. Burlace, 1 Wils. 6. See Coke, Litt. 126, a.

119 The case of the Abbot of Strata Marcella, 9 Coke, 25; Lawes, Pl. 138; Gould, Pl. c. 6,297; 1 Chitty, Pl. 520.

120 Smith v. Ye Yeomans, 1 Saund. 316. See Coxe v. Higbee, 6 Halst. N. J. 695; Tucker v. Ladd, 4 Cow. N. Y. 47; Brewster v. Bostwick, 6 id. 34; Oakley v. Devoe, 12 Wend. N. Y. 196; Henderson v. Reed, 1 Blackf. Ind. 347.

appointed for the payment if it do not aver it to be otherwise; but this intendment does not obtain if inconsistent with some other part of the plea.121

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.122 So if several persons join in a plea, and it is bad as to one, it will not avail for the others.123

2953. Surplusage in pleading is a superfluous 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.124

When, by an unnecessary allegation, the plaintiff shows that he has no cause of action, or the defendant that he has no defence, the opposite party may demur. But as the parties, both plaintiff and defendant, are bound to state their cases formally, if the surplusage be not gramatically 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. 125

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." 126

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.127

2955. A plea may be considered under six principal divisions or parts. These refer to the title of the court, the title of the term, the names of the parties, the commencement, the body or substance of the plea, and the conclusion.

2956. At the head of the plea it is usual to state in what court it is pleaded; as, "in the supreme court," or "in the court of common pleas."

2957. Pleas to the jurisdiction, or in abatement, must in general be entitled of the same term as the declaration; and though pleas in bar are also entitled

121 Beach v. Bay State Co., 30 Barb. N. Y. 433; Green v. Covillaud, 10 Cal. 317; Covington v. Powell, 2 Metc. Ky. 227; Bartlett v. Prescott, 41 N. H. 493.

122 Webb v. Martin, 1 Lev. 48.

123 1 Saund. 28, n. 1; Morton v. Morton, 10 Iowa, 58.

124 Hall v. Spaulding, 42 N. H. 259; Green v. Palmer, 15 Cal. 411; Goodpaster v. Porter, 11 Iowa, 161; Westcott v. Brown, 13 Ind. 83; Kottwitz v. Bagby, 16 Tex. 656.

125 Gilbert, Civ. Act. 132; Lawes, Pl. 64.

126 Dy. 365; Stephen, Pl. 261; 2 Saund. 206, a, n. 22; 1 Smith, Lead. Cas. 328, note; 1 Greenleaf, Ev. 51: 1 Chitty, Pl. 524; Boyce v. Cheshire R. R., 42 N. H. 97.

127 Wood v. Harrell, 14 La. Ann. 61; State v. Mississippi R. R., 20 Ark. 495.

of the same term, yet they may be entitled of the term of which they are pleaded; and when the matter of defence has arisen since the first day of the term, the plea should be entitled specially of a subsequent day.

2958. The names of the parties in the margin are not indispensable to a plea; the surnames only are commonly inserted, and that of the defendant is the first stated, as "Roe ats. Doe." These usually correspond with the names in the declaration; or if the defendant plead by another name than that in the declaration, the difference should be shown in the margin; as, "C D, sued by the name of E F, ats. A B."

2959. The commencement of the plea contains the name of the defendant, the appearance, the defence, and the actio non.

2960. When the defendant pleads a misnomer, care must be taken that he do not by his plea admit that he was sued by his right name; as, "and the said John, sued by the name of James," for by using the word said he admits he is the person sued by the name of James. The plea should have commenced as follows: "and John, sued by the name of James."

2961. After the names of the parties, the appearance and defence should be stated; comes and defends, (venit et defendit vim et injuriam.) We have seen when the defendant must appear in person and when he may appear by attorney; 128 this may be so stated in the plea.

2962. The defence, it has already been stated, is full defence or half defence, and its form has been explained. Every plea in bar should begin with a defence; and when the plaintiff pleads only to part, and confesses the residue, the defence should be confined to the part intended to be pleaded to, and it ought not to cover the whole charge in the declaration.129

2963. After stating the appearance and defence, a special plea in bar should begin with this allegation, "that the said plaintiff ought not to have and maintain his aforesaid action thereof against him," actionem non habere debet. This is technically termed the actio non. 130 It always alludes to the time of the commencement of the action, and not to the time of the plea.131

When the defendant admits that there was once a good cause of action, which he avoids by matter of discharge, ex post facto, he should say actionem non; but when the matter of the plea shows that there never was a good cause of action, the defendant should say he ought not to be charged, or, onerari non debet. When the matter of defence arose before the commencement of the action, actio non, etc., is in general the proper commencement; but no matter of defence arising after suit brought can be pleaded generally, but ought to be pleaded in bar of the further maintenance of the suit; and if such matter arise after issue joined, it must be pleaded puis darrein continuance; and if after trial, an audita querela is the only remedy."

132

In pleading matters in estoppel, it is usual for the defendant at the beginning of his plea to say that the plaintiff ought not to be admitted to allege the fact or facts on which he relies, and which he is precluded from asserting or proving by reason of his having done some act inconsistent with them, instead of saying actionem non, or onerari non.

128 Before, 2814.

129 Comyn, Dig. Pleader, E, 27.

133

130 1 Chitty, Pl. 531; Stephen, Pl. 394. This formal assertion is unnecessary. Stafford v. Anders, 8 Fla. 34.

131 It is reported in Dougl. 112 that Lord Mansfield said actionem non in every case goes to the time of pleading, and not to the commencement of the action; the doctrine has since been overruled. Evans v. Prosser, 3 Term, 186; Le Bret v. Papillon, 4 East, 502. 132 But it is now usual to grant relief on motion. See Bouvier, Law Dict. Audita querela: beyond, 3318, n.

133 Lawes, Pl. 140, 141.

VOL. II.-U

153

2964. The body or substance of the plea consists of the inducement, the protestation, the ground of defence, quæ est eadem, and the traverse.

When examining the nature of a declaration we considered the use and form of an inducement; and the qualities as to certainty of time, place, and other circumstances have been the subject of our consideration in this chapter. The protestando and traverse will be postponed until the subject of replication comes to be discussed.

The ground of defence, or body of the plea, which states the substance of such defence must necessarily depend upon the circumstances of each case; these should be stated with clearness, certainty, and by appropriate words, a quality which in pleading is called neatness.134

When, in point of form, in trespass or other actions, the plea necessarily states the trespass to have been committed at some other time and place than that laid in the declaration, it is proper immediately preceding the conclusion of the plea to allege that the supposed trespasses mentioned in the plea are the same as those of which the plaintiff has complained. This allegation is usually termed quae est eadem transgressio, and in that case the plea concludes with a traverse of having been guilty at any other time or place, or the plaintiff may demur. The form is as follows: "Which are the same assaulting, beating, and ill-treating, the said John in the said declaration mentioned, and whereof the said John hath above thereof complained against the said James." 135

2965. A plea in bar should have a proper conclusion; this may be either to the country or with a verification.

136

2966. When the plea of the defendant tenders an issue to be tried, the formula is called a conclusion to the country. The conclusion is in the following words when the issue is tendered by the defendant: "And the said CD puts himself upon the country." When it is tendered by the plaintiff the formula is as follows: "And this the said A B prays may be inquired of by the country." It is held, however, there is no material difference between these two modes of expression.137

The plea should conclude to the country when there is a complete issue between the parties; as, where the general issue is pleaded, or where the defendant simply denies some of the material facts alleged in the declaration. When there is an affirmative on one side and a negative on the other, the conclusion should be to the country; and so it is though the affirmative and negative be not in express words, but only tantamount thereto.138

134 Lawes, Pl. 62.

135 See 1 Saund. 208, n. 2; 2 Saund. 5, a, n. 3; Gould, Pl. c. 3, 79; Archbold, Civ.

Pl. 219.

136 That is, upon trial by jury of the country, of or concerning the matter which is put in issue.

137 10 Mod. 166. A plea concluding with a verification, which ought to conclude to the country, will be struck out on motion. Copperthwait v. Dummer, 3 Harr. Del. 258.

138 Everitt v. Bartlett, 1 Spenc. N. J. 117; Carthrae v. Clarke, 5 Leigh, Va. 268; 2 Saund. 189; Coke, Litt. 126, a; 1 Saund. 103; 1 Chitty, Pl. 592. There is "much contradiction to be met with in the books, respecting the solution of the general question, When shall a pleading conclude to the country and when with a verification?" says Mr. Hammond; "it may not be unsuitable to bestow a few reflections on it, in this place, and examine, with some minuteness, the principles upon which the adoption of either form is founded. "When a fact is asserted in an action, and the question whether it be true or false submitted to the jury, their answer terminates the cause, in favor of the one party or the other; so that the whole merits of both the plaintiff's and the defendant's case are bound up in the truth or falsehood of the affirmation. Again: when a party concludes his pleading with a form of words, and of this he puts himself upon the country,' or, and this he prays may be inquired of by the country,' he puts the question to the jury, whether the