2967. When new matter is introduced on either side, the plea must conclude with a verification or averment, in order that the other party may have an opportunity of answering it.139 The usual verification of a plea containing matter of fact is in these words: "And this he is ready to verify," etc.140 In one instance, however, new matter need not conclude with a verification, and then the pleader may pray judgment without it; for example, when the matter pleaded is a negative. The reason of this is evident: a negative requires no proof, and it would therefore be impertinent and nugatory for the pleader who pleads a negative matter to declare his readiness to prove it.

When the special plea contains a verification it is usual for the defendant at the conclusion to pray judgment if the plaintiff ought to have or maintain his action against the defendant, which is called the demand or petition of the plea. General issues and such like pleas are not concluded with prayer of judgment, but generally conclude by the defendant's putting himself upon the country. However, this rule is not without exception. When an action is founded on matter of record, in which case the general issue is nul tiel record, that there is no such record, the plea must not conclude to the country like other general issues, but with an offer to verify the plea by the record, which, being

fact asserted by his pleading be or be not as he has affirmed it; whereas, if the conclusion is, 'and this he is ready to verify,' he in terms declares to his opponent that he will prove his assertion, provided he is willing to stake the issue of the cause upon the single question, whether it be true or false; in the one case, he leaves his antagonist an option, in the other, he does not. Now, whenever the one party may admit the truth of his adversary's affirmation, and disclose another fact that destroys the effect and conclusiveness which it would otherwise produce, it is obvious that the adversary cannot place the issue of the cause upon the single question of its truth or falsehood, and in such case, therefore, he cannot conclude his pleading to the country. Whilst, on the other hand, if no answer can be given to the affirmation; if it cannot be confessed and avoided; but if the merits of the cause necessarily rest upon and are involved in its truth or falsehood,-such conclusion will be, under the limitations hereafter mentioned, the appropriate form.

"To illustrate this: suppose the defendant pleads infancy to a declaration in assumpsit for money lent; if he has promised to pay the amount since he came of age, the plaintiff may reply the fact, and thereby cut down the defence. Now, if the plea is concluded to the country, the cause must be decided in favor of the one party or the other, as the defendant happens to have been an infant or an adult at the time the original contract was concluded, and the plaintiff is thereby prevented disclosing the fact upon which the real merits of the case depend; hence the plea of infancy must conclude with a verification. But suppose, for the sake of argument, that a promise given by an infant to repay a loan is void; a plea of infancy to an action thereon might, for any thing that has yet appeared, conclude to the jury, because the defence cannot, in any way, be gotten rid of; and as the conclusion subjects the plaintiff to no inconvenience, he has no ground of objection. There is, however, a formal rule of pleading, that two negatives or two affirmatives cannot make an issue, but only an affirmative and a negative combined; because in the two former cases, the averment of the one party does not contradict that of the other in direct and positive terms, but only in an argumentative way; therefore, the plea of infancy in the case last supposed should conclude with a verification; not to give the plaintiff an opportunity of avoiding its effect, but that the issue between him and the defendant may, for form's sake, be taken by a direct traverse, hence comes the maxim, that all general issues must conclude to the country, because, in the first place, their effect cannot be avoided, and in the second, they directly negative the facts affirmed by the declaration.

"Upon the whole, therefore, the rule, applicable alike to all cases, will be this: where a pleading cannot be avoided, but the merits of the cause necessarily rest upon and are involved in the truth or falsehood of the facts therein disclosed, it will conclude to the country, provided it is a negative when the pleading which it answers is an affirmative, and an affirmative when the latter is a negative; if either of these essentials is wanting, the pleading will conclude with a verification." Hammond, Nisi P. 97.

139 Hayman v. Gerrard, 1 Saund. 103, n. 1; Comyn, Dig. Pleader, E; Curry v. Stephenson, Carth. 337; Cowper v. Towers, 1 Lutw. 101; Filewood v. Popplewell, 2 Wils. 66; Chandler v. Roberts, Dougl. 60; Henderson v. Withy, 2 Term, 576.

140 See Lawes, Pl. 144; 1 Chitty, Pl. 537, 616; Willes, 5; 3 Sharswood, Blackst. Comm. 309.

141 Harvey v. Stokes, Willes, 5.

matter of law, ought to be produced or proved, not before the jury, but the judge.142

Every plea ought to conclude in the manner in which it is to be tried, for this reason: a plea to the writ should conclude with reference to the writ, a common plea in bar, to the action; and in a plea of matter of estoppel the defendant ought to conclude with relying upon the estoppel, et sic de similibus.1

143

142 Lawes, Pl. 148.

143

Coke, Litt. 303, b. A plea, concluding to the country, when it should conclude with a verification, is defective in form merely; and such a defect, under the statute of amendments in Rhode Island, will not warrant a judgment upon demurrer against the defendants, but the court will order the conclusion to be amended. Brown v. Foster, 6 R. I. 156

564.

CHAPTER VIII.

THE REPLICATION AND SUBSEQENT PLEADINGS.

2968-2996. Replications.

2969. General nature of replications. 2970-2989. The form of the replication.

2971. The title of the court and term.

2972-2989. Replication to a plea containing new matter.

2973. The commencement of the replication.

2974-2988. The body of the replication.

2975. Replication by matter of estoppel.

2976–2986. The denial of the plea.

2977. Denial of the whole plea, or de injurið.

2978-2985. Denial of part of the plea.

2979. What facts ought to be traversed or denied.

2980-2985. The modes of special denial.

2981. The nature and kinds of protestations.

2984. The nature of a traverse.

2985. The kinds of traverses.

2986. Denying the effect of the plea and showing a particular breach.

2987. Replication by confession and avoidance.

2988. A new assignment.

2989. The conclusion of the replication.

2990-2996. The qualities of a replication.

2991. It must answer the plea.

2992. It must conform to the declaration.

2995. It must be certain.

2996. It must be single.

2997. Subsequent pleadings.

2998. Rejoinders.

2999. Sur-rejoinders, rebutters, and sur-rebutters.

3000-3015. Issues.

3001-3004. The qualities of issues.

3002. They must be upon an affirmative and negative.

3003. They must be on a single and certain point.

3004. They must be on a material point.

3005-3014. The kinds of issues.

3006. Material issues.

3007. Immaterial issues.

3008. Issues in law.

3009. Issues in fact.

3011. Formal and informal issue.

3013. Actual issues.

3014. Feigned issues.

3015. How issues are procured.

3016. Repleaders.

3017. Judgment non obstante verdicto.

3018-3022. Pleas puis darrein continuance. 3019. When allowed.

3020. When they must be pleaded.

3021. Effect of pleas puis darrein coutinuance. 3022. Form of a plea puis darrein continuance. 3023-3030. Demurrers.

3024-3026. The form of demurrers.

3025. General demurrers.

3026. Special demurrers.

3027. What pleadings are demurrable.

3028. The effect of a demurrer.

3029. The judgment on a demurrer.

3031. A case stated.

3031, n. Modern codes of pleading.

2968. Having considered the nature, form, and qualities of pleas in bar, the next matter to be discussed is the nature, form, and qualities of replications. A replication is the plaintiff's answer to the defendant's plea.

2969. When the defendant has pleaded and exhibited his defence, the plaintiff should consider whether it is or is not sufficient in law to defeat the action. If he believes that he cannot support his action, he should either obtain leave to discontinue, or he may enter a nolle prosequi as to the whole or a part of the cause of action, unless there has been a demurrer for a misjoinder; if, on the contrary, he finds he can maintain his action, he must reply to the plea of the defendant.1

The replication is in general governed by the plea. When the latter concludes to the country, the plaintiff must in general reply by adding a similiter ; that is, he must also submit the matter to be tried by a jury, without adding any new matter to it, and must stand or fall by his declaration.2 In such case he merely replies that as the defendant has put himself upon the country, he, the plaintiff, does so likewise, or the like. Hence this sort of replication is called the similiter, that having been the effective word when the proceedings were in Latin.3

When the defendant's plea does not conclude to the country, nor with a verification, as, when the plaintiff declares on a judgment or other matter of record, and the defendant pleads nul tiel record, as that plea does not conclude to the country, though it contains a direct denial of the matter contained in the declaration, the plaintiff in his replication affirms the existence of the record, and concludes by praying an inspection of it, if it be a record remaining in the said court in which the action is brought; or by giving a day to produce it, if it be a record of a different court.

When the plea of the defendant does not amount to an issue or direct contradiction of the declaration, but is collateral to it, the plaintiff may plead again and reply to the defendant's plea, either by taking issue upon a special traverse taken in the plea, or by directly denying or traversing the plea, or by alleging some new matter in contradiction of the matter contained in it, or by confessing and avoiding it by some new circumstance or distinction consistent with the declaration, or by concluding the defendant from pleading the matter contained in the plea by some matter of estoppel.*

1 A replication to a plea waives a demurrer, and a replication which does not rely on an estoppel waives it. Warner v. Bledsoe, 4 Dan. Ky. 73.

2 In some states, as in Pennsylvania, the plaintiff may add new counts to his declaration, even on trial; but this is allowed by statute.

31 Chitty, Pl. 549; Archbold, Civ. Pl. 250.

Under the new codes adopted in many of the states the replication remains in name though its function is somewhat altered. In general a replication is needed only where new matter is pleaded in the answer. If the answer only operates as a traverse of the

2970. Having considered in the last section the general nature of a replication to a plea concluding to the country, and to a plea of nul tiel record, there remain now to be discussed the general rules with regard to the form of a replication.

2971. It is usual to entitle a replication in the court and of the term of which it is pleaded, and the names of the parties are stated in the margin thus: "A B against CD." When new matter is stated in the replication which occurred pending the suit, as the death of one of several plaintiffs or defendants between the plea and replication, it should be suggested and a special imparlance may be stated in the replication.

2972. The replication to a plea containing new matter and a verification may be considered with reference to the commencement, to the body or substance of the replication, and to the conclusion.

2973. The commencement of the replication to a defendant's plea concluding with a verification contains a general denial of the effect of the defendant's plea, and begins with an allegation technically termed the precludi non. It is usually in the following form: "And the said A B, as to the plea of the said CD, by him first above pleaded, says, that he the said A B, by reason of any thing by the said C D in that plea alleged, ought not to be barred from having and maintaining the aforesaid action thereof against the said C D, because he says that," etc.

The rule that a plea in the commencement should be confined to that part which is intended to be answered equally applies to a replication. When the body of the replication, therefore, contains an answer only to a part of the plea, the commencement should recite that part intended to be answered; for should the commencement assume to answer the whole plea, and the body contain an answer only to part, the whole replication will be insufficient, and so vice verså.5

2974. The body of the replication contains matter of estoppel, a denial of the plea, a confession and avoidance of the plea, or a new assignment.

2975. When the plaintiff can reply matter of estoppel, and such matter does not appear in the declaration or any anterior pleading, the replication should set it forth, and for this purpose care must be observed to have the proper commencement and conclusion. If the matter appear in the pleadings, the plaintiff may demur to the plea."

2976. The replication may directly deny or traverse the truth of the plea, either in whole or in part, when it neither concludes the defendant by matter of estoppel nor confesses and avoids the plea. The denial is either to the whole plea, or de injuria, etc.; to part of the plea; or to the effect of the plea, and showing a particular breach.

2977. When the action is founded on a contract and in replevin, the replication denies the facts, or one of the facts alleged in the plea, in express words. A replication de injuria, which will be explained directly, till lately could not be replied in such cases.7

facts stated in the declaration, no replication is needed, but issue is joined, the plaintiff maintaining the facts set up in his declaration, and the defendant denying them. And new matter may be set up which operates only as a traverse. In such case no replication is tiled. But if new matter is set up, which operates by way of confession and avoidance, then the plaintiff must reply and join issue on such new matter. Fristh v. Caler, 21 Cal. 71.

5 Manchester v. Vale, 1 Saund. 28, n. 3.

If a replication has the substance, but not the peculiar commencement and conclusion of a pleading by way of estoppel, it will be held good on general demurrer. Cecil v. Early, 10 Gratt. Va. 198.