OlcrnpU Havu ^t\^aa\ library 
 
Cornell University Library 
 KF8870.S82 1897 
 
 A treatise on the principles of pleading 
 
 3 1924 020 164 376 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924020164376 
 
A TREATISE 
 
 PRINCIPLES OF PLEADING 
 
 IN Civil. ACTIONS: 
 
 coMPBisnra 
 A SUMMARY VIEW OF THE WHOLE 
 
 PROCEEDINGS IN A SUIT AT LAW. 
 
 BY HBNET JOHN STEPHENS. 
 
 SBBGEAirr AT I^W. 
 
 .... Bes antiqnsB laudis et artis 
 
 Ingredlor, ssnctos ausas recludere fontes. — Vibo. 
 
 THIRD AMERICAN 
 
 PEOM THE SECOND LONDON EDITION: 
 
 WITH A PBEFACE, AN INTRODUCTION, A DISSERTATION ON PARTIES 
 TO ACTIONS, AND NOTES. 
 
 BY SAMUEL TYLER, LL.D., 
 
 rBOFISaOS in IHS law SEPASTHXHT 07 COLnHBIAH COLLEGS, WASHmSTON, S, 0., AXP 
 AUTHOB 07 TH£ UABTLAND SIU7LIF!£I> PLEADING, ETC., EIO. 
 
 WASHINGTON, D. C: 
 
 WALTER C. MOREISON, 
 
 LAW-BOOK PUBLISHEK AND 8ELLEB. 
 
 18 97. 
 
I^z^leiei scsoTding ia Acl of Congress, in cue year 1871, hj 
 
 W. H. & O. H. MORRISON, 
 
 In the Office of the Librarian of Congreaa at Washington, D. C. 
 
 OAXTON PRESS OP 
 BHIISUAH « CO., PEILADELPSr 
 
^XiTTl^ISri 
 
 Law Department of Columbian College, 
 
 THI3 EDITION OP A 'WOEK, THE STUDY Or WHICH IS SO WELL FITTED TO 
 
 BHAEPBN AND IKVIGOEATB THE MIHD OP THE LAWTEE AND IMPAET 
 
 TO IT A PEAOTICAL PACILITT, IS, WITH THE BEST WISHES 
 
 FOE THBIE PEOPESSIONAL SUCCESS, 
 
 til 
 
PREFAOIl. 
 
 Stephen on Pleading is one of the great works in English 
 law. Common-law pleading stands forth in it in its finished 
 form. It places Mr. Stephen in the foremost rank of juridical 
 thinkers. Besides its theoretic excellence, exhibiting the prin- 
 ciples of pleading cohering in a logical system, the work is ren- 
 dered eminently practical by introducing a summary and con- 
 nected account of the whole proceedings in a suit, in which the 
 end that pleading subserves in litigation, and the forms through 
 which it works, are distinctly presented. This edition of the 
 work has been prepared especially for American students of 
 law. It is, nevertheless, as will be presently seen, the best 
 edition for the practicing lawyer. 
 
 In the year 1824 Mr. Stephen published the first edition of 
 his work. In the year 1827 he published the second edition ; 
 and in the advertisement to that edition says: "This work, as 
 its title imports, is in its main design elementary and institu- 
 tional, and intended for the use rather of those who are explor- 
 ing the principles, than of those who are engaged in the prac- 
 tice of pleading. But as there is reason to believe that it has 
 proved in some measure acceptable to the latter class of read- 
 ers also, the author has endeavored to adapt it better to their 
 purposes, by introducing into this second edition some addi- 
 tional matter of a practical kind. This is contained, however, 
 for the most part, in notes at the foot of the page, and does not 
 at all derange or in any degree affect the original plan of the 
 work. 
 
 "With the same view the index has been considerably en- 
 larged and a table of cases prefixed." 
 
 In this second edition Mr. Stephen gave his matured view of 
 the system of common-law pleading, and never attempted to 
 do anything more towards making it more complete. 
 
 In the year 1828, the next year after the publication of this 
 Becond edition of Mr. Stephen's book, the British government 
 
VI PREFACE. 
 
 appointed a commiBsion of eminent lawyers, amongst whom 
 was Mr. Stephen, to inquire into the practice and proceedings 
 in the superior courts of common law. These commissioners 
 made a report in the year 1833, recommending important 
 changes in the system of pleading ; and by acts 3 and 4 Will. 
 IV, c. 42, power was given to the judges at Westminster to 
 carry into effect the recommendations of the commissioners. 
 Great changes in the forms of pleadings were accordingly ef- 
 fected by the pleading rules of Hilary Term, 1834, passed by 
 the judges. 
 
 In the next year, 1835, Mr. Stephen published a third edition 
 of his book, conformed to the requirements of the pleading 
 rules of Hilary Term, 1834 ; and other editions, conformed to 
 the same rules, were published in 1838, 1843, and 1860. And 
 all the editions published in the United States since the year 
 1831, when the second edition was published in this country, 
 are reprints of these expurgated editions, and are, and have 
 always been, inapplicable to the practice of American courts, 
 and unfit for the American student. And what detracts still 
 more from these editions is, that in the year 1850 the British 
 government appointed another commission of law reformers, 
 and upon their recommendations statutes were passed by Par- 
 liament in 1852, 1854, and 1860, called common-law-proeedure 
 acts, by which, and the rules of court made under them, much 
 more thorough changes were effected in pleading than those 
 made by the pleading rules of Hilary Term, 1834, which have 
 made all the editions of Stephen on Pleading as inapplicable to 
 the practice of the English courts as the expurgated editions 
 are to the practice of American courts, unless the seventh edi- 
 tion, by Mr. P. P. Pinder, published in 1866, which I have not 
 seen, is conformed to these later reforms. 
 
 From the foregoing statement, it is seen that all editions of 
 Stephen on Pleading, except the first and second, are, so far as 
 American courts and American lawyers are concerned, muti- 
 lated editions. Therefore it is that the second edition of the 
 book is now reprinted, it being the best manual for law stu- 
 dents, and a most efficient guide in the practice of American 
 courts. An introduction, discussing the relative characteristics 
 of the Roman civil law and the common law of England, and 
 pointing out the differences in their respective procedures, has 
 been added, and also a dissertation on parties to actions, for the 
 
PKEFACE. VII 
 
 Instruction of students of law. Little else has been added, aa 
 this second edition was so fortified by authorities collected by 
 Mr. Stephen himself, that for more than forty years the book 
 has been received as the surest of guides in pleading, both in 
 English and American courts. 
 
 The love of innovation induced the State of New York, some 
 years ago, to abrogate common-law pleading, and introduce a 
 code of procedure for the regulation of litigation in her courts; 
 and notwithstanding the lamentable confusion and uncertai«ty7~ 
 and the greatly increased expense which has thereby been 
 brought into the administration of justice in that State, other 
 States have followed in her track of barbaric empiricism. Mr. 
 Justice Grier has, from the bench of the Supreme Court of the 
 United States, rebuked the folly of abolishing common-law 
 pleading, and substituting the common-sense practice, as it may 
 be called, in its stead. "This system, (says that able judge,) 
 matured by the wisdom of ages, founded on principles of truth 
 and sound reason, has been ruthlessly abolished in many of 
 our States, who have rashly substituted in its place the sugges- 
 tions of sciolists, who invent new codes and systems of plead- 
 ing to order. But this attempt to abolish species and establish 
 a single genus is found to be beyond the power of legislative 
 omnipotence. The result of these experiments, so far as they 
 have come to our knowledge, has been to destroy the certainty 
 and simplicity of all pleadings, and to introduce on the record 
 an endless wrangle in writing, perplexing the court, delaying 
 and impeding the administration of justice." This strong con- 
 demnation is more than justified by the experience of the New 
 York courts, as may be seen in the chaos of the reports of the 
 code practice in that State. And the evil efi'ects of the code 
 on the administration of law in JSTew York has been signalized 
 in a recent letter from Mr. Charles O'Conor, published in the 
 Albany Law Journal. It is stated in that letter, as the effect of 
 the decisions of the courts, that because of the mixture of law 
 and equity by the code, a case may begin as a common-law case, 
 with a jury impanneled to try it, and if, at the close of the tes- 
 timony, a case in equity instead of a common-law ease, is proved, 
 the judge may dismiss the jury and try the case himself, aa 
 chancellor. And the confusion in practice is increased by the 
 want of logical skill in the lawyers trained in the code prac 
 rice. "All the lawyers (says Mr. O'Conor) who have been 
 
Vin ' PREFACE. 
 
 admitted to practice in this State for the last twenty years are 
 conversant with the code, and, of course, are not experts in the 
 old common-law practice and pleading. Most of them are en- 
 tirely ignorant of it, and you may imagine that the code could 
 not easily be displaced by any attempt at reaction. The courts 
 of the United States do not recognize the code, but adhere to 
 the old practice, with its settled distinction between law and 
 equity. This circumstance often leads to much confasion, as 
 you may see illustrated in some reported decisions of the Su- 
 preme Court. It is truly laughable, to one conversant with 
 both systems, to see the blunders into which lawyers of great 
 ability, who have come to the bar within the last ten or fifteen 
 years, sometimes fall in framing a declaration, plea, or subse- 
 quent pleading at common law in the circuit court of the United 
 States. 
 
 "I think the code (continues Mr. O'Conor) contains, as I best 
 recollect at this moment, only one thing which can be called 
 new in principle, and this is an attempt at an absolute impos- 
 sibility in prescribing the rule of pleading. It declares, in sub- 
 stance and effect, that you shall not plead, as in the old system, 
 the conclusions in law or in reason, from the facts of the case, 
 and at the same time it prohibits you from stating or detailing 
 the evidence merely on which you rely. You are required to 
 state the 'facts' which that evidence conduces to prove. Here, 
 under the name of ' facts,' we find some things required to be 
 stated which are neither, in the vulgar sense of the word, the 
 mere fact, or transaction, or event which did occur, and can be 
 proven by direct evidence, nor the general, rational, or legal 
 conclusions from such fact, transaction, or event. 
 
 "Now, according to my conception, it requires somebody 
 much more wise or more subtle than myself, or any special 
 pleader I have ever been acquainted with, to define or find out 
 what it is that should be stated in a regular pleading, drawn 
 in compliance with this requisite of the code. I am not aware 
 that any one has ever attempted to do it. The common prac- 
 tice in this State is, to tell your story precisely as your client 
 tells it to you; just as any old woman, in trouble for the first 
 time, would narrate her grievances ; and to annex, by way of 
 schedules, respectively marked A, B, C, &c., copies of any papers 
 or documents that you imagine would help your case. This is 
 most emphatically a fair description of all the pleadings which 
 
PKEFAOB. ix 
 
 Ci/mo from the oflSee of the chief codifier himsell". A demurret 
 to any pleading under the code is a very dangerous step, because 
 it is utterly impossible for the keenest investigator to deter- 
 mine, in most cases, what any other reader than liimself will 
 understand to be the import of the pleading, if it be demurred 
 to." 
 
 It is at this time especially important that students of law 
 be trained in common-law pleading, and be convinced of its 
 wisdom as a means of administering justice, in order that, as 
 men who influence public opinion, they may, if possible, grad- 
 ually restore common-law pleading to its former efiolciency in 
 the courts. At all events, their training in common-law plead- 
 ing will enable them, in States where it is abolished, to relieve 
 in some measure the administration of justice from the embar- 
 rassments with which it has been environed by codes. For a 
 knowledge of common-law pleading is not only of importance 
 in States whose wisdom has retained it, but also in States 
 where it has been abolished. A machinery of rules and forms 
 is indispensable for an enlightened administration of law, and 
 one familiar with those rules and forms that are applicable 
 to the exigencies of litigation is more capable than one not 
 familiar with them of efficient practice in courts where such 
 machinery is not used. 
 
 " K'or are the works of common-law pleading (says Professor 
 Cooley, in the preface to his able edition of Blackstone's Com- 
 mentaries) superseded by the new codes which have been 
 introduced in so many of the States. A careful study of those 
 works is the very best preparation for the pleader, as well 
 where a code is in force as where the old common-law forma 
 are still adhered to. Any expectation which may have exist- 
 ed that the code was to banish technicality and substitute 
 such simplicity that any man of common understanding was 
 to be competent, without legal training, to present his case 
 in due form of law, has not been realized. After a trial of 
 the code system for many years, its friends must confess that 
 there is something more than form in the old system of 
 pleading, and that the lawyer who has learned to state his 
 case in logical manner, after the rules laid down by Stephen 
 and Gould, is better prepared to draw a pleading under the 
 code which will stand the test on demurrer than the man who, 
 without that training, undertakes to tell his story to the court 
 
X PREFACE, 
 
 ae Le might tell it to a neighbor, but who, never having accus 
 tomed himself to a strict and logical presentation of the pre- 
 cise facts which constitute the legal cause of action or the 
 legal defense, is in danger of stating so much or so little, or of 
 presenting the facts so inaccurately, as to leave his rights in 
 doubt on his own showing. Let the common-law rules be 
 mastered, and the work under the code will prove easy and 
 simple, and it will speedily be seen that no time has been lost 
 or labor wasted in coming to the new practice by the old 
 road." 
 
 Common-law pleading should be simplified, but not abolished. 
 A love of subtlety and of system caused, in the course of time, 
 useless refinements to be ingrafted upon the common-law plead- 
 ing. But when the system of pleading was fully matured, 
 and what is substantial and what is only incidental could be 
 clearly discriminated from a practical point of view, a process 
 of simplifying it, by cutting off these refinements, was begun in 
 England. No less than twelve statutes, beginning in the reign 
 of Edward III, and coming down to that of George I, had 
 been passed by Parliament before we separated from England, 
 to remedy technical inconveniences. But the system, as we 
 introduced it into this country, had stiU many over-refine- 
 ments. And it is because of these mere excrescences that the 
 system became liable to criticism and, in some States, to over- 
 throw. But England, where enlightened opinion has so much 
 influence, has reformed and not destroyed what is as old as 
 her jurisprudence, and has been in all ages deemed an espec- 
 ially wise portion of her law procedure. By the common law 
 procedure acts already mentioned, and the rules of court made 
 under their provisions, pleading has been made as simple as 
 possible, and justice has been thereby administered with entire 
 satisfaction to even the sciolist, who had the vain hope that 
 every litigant could be his own lawyer. But the ancient sys • 
 tem of alternate pleadings, eliminating irrelevant facts, and 
 finally evolving the naked question, whether of fact or of law, 
 really in dispute between the parties, and presenting it to the 
 proper tribunal for determination, is retained in all its integ- 
 rity. The State of Maryland, fourteen years ago, after having 
 from colonial times used the common-law pleading in its most 
 techrical form, followed the course of England, and simplified 
 the system, until the old lawyers at first feared that theii 
 
PREFACE. XI 
 
 pleadings, ■when they had drawn them, were erroneous, be- 
 cause of their simplicity and naturalness. They could not help 
 thinking that something material was left out. It is to he 
 hoped that other States will follow the example of Maryland. 
 
 For the common-law-procedure acts, and the rules of court 
 made under their provisions, the reader is referred to Day's 
 Common-Law Acts; Smith's Action at Law, tenth edition; and 
 the 3d vol. Broom & Hadley's Commentaries on the Laws of 
 England, chap. xii. 
 
 For the Maryland Simplified Procedure and Pleading, the 
 reader is referred to Tyler's Pleading. 
 
 Washington City, January, 1871. 
 
CONTENTS. 
 
 Vage. 
 
 Introduction 1 
 
 Of parties to actions 25 
 
 CHAPTER L 
 
 OP THE PEOCEEDINaS IN AN ACTION, FBOM ITS COMMENCEMENT TO ITB TEEMINA- 
 
 TION. 
 
 Of the division of actions 39 
 
 Of the courts of superior jurisdiction, in which actions may be insti- 
 tuted 39 
 
 Of original writs and forms of action 40 
 
 Of process 55 
 
 Ancient state of practice as to appearance and pleading ... 58 
 
 Of appearance 61 
 
 Of pleading 62 
 
 Of the proceeding by bill 75 
 
 Subject of pleading resumed 82 
 
 Of making up the issue 108 
 
 Of amendment 110 
 
 Of entering the issue Ill 
 
 Of the decision of issues in law 113 
 
 Of the trial of issues in foot 114 
 
 Of judgment . . 133 
 
 Of writs of execution 141 
 
 Of writs of error ... 142 
 
 CHAPTER II. 
 
 OP THE PEINOIPAL EULES OF PLEADIN9. 
 
 Time and manner of the formation of the system of pleading . . 14V 
 
 Objects which the system contemplates 148 
 
 Distribution of the rules of pleading in reference to those objects . . 155 
 
 xiii 
 
XIV CONTENTS. 
 
 SECTION I. 
 
 Page 
 
 Op etjles ■which tend simply to the peoduotiok of an lasuB . l°" 
 
 Rule I. — Afiee the deolaeation the paeties must at each stage 
 
 BEMUB OB PLEAD BY WAY OF TEAVBESE OE BY WAY OP CONFESSION 
 
 AND AVOIDANCE . ... .... 156 
 
 I. Of demurrer . . 157 
 
 1. Of the nature and properties of a demurrer . . . 157 
 
 2. Of the effect of passing a fault by without demurrer and 
 
 pleading over . 1°2 
 
 Of the aider of faults by pleading over . . .162 
 
 Of the aider of faults by verdict 163 
 
 Of the aider of faults by the statutes of jeofails and 
 
 amendments 165 
 
 3. Of the considerations which determine the pleader in his 
 
 election to demur or plead 165 
 
 II. Of pleadings 166 
 
 1. Of the nature and properties of traverses . . . 167 
 
 Of common traverses 167 
 
 Of general issues 168 
 
 Of the traverse de injuria 1 79 
 
 Of special traverses .181 
 
 Of traverses in general 199 
 
 2. Of the nature and properties of pleadings in confessicu 
 
 and avoidance . . 205 
 
 Of pleas in justification or excuse and pleas in discharge 206 
 
 Of color 206 
 
 3. Of the nature and properties of pleadings in general, 
 
 without reference to their quality, as being by way of 
 
 traverse or confession and avoidance .... 215 
 
 Of protestation 217 
 
 Exceptions to the rule 220 
 
 In case of dilatory pleas 220 
 
 pleadings in estoppel 220 
 
 new assignments .... ... 221 
 
 Inference from the rule — that it is sufficient to demur, traverse, or 
 
 confess and avoid ... . . ■ . . 227 
 
 Exception, as to replication showing breach of award . . 227 
 
 Rule II. — Upon a ieaveese issue must be tendeeed . . 227 
 
 Different forms of tendering issue 228 
 
 Another form of the rule, viz, that upon a negative and 
 affirmative the pleading shall conclude to the country, but 
 
 otherwise with a verification 230 
 
 Exception — that when new matter is introduced, the pleading should 
 
 always conclude with a verification ...... 230 
 
CONTENTS. XV 
 
 Pago. 
 RuiE III. — Issue, wheit well tendeeed, must be accepted . , 23S 
 
 Of the similiter 233 
 
 Of the joinder in demurrer 285 
 
 SECTION II. 
 
 Of bules which tend to secure the mateeialitt op the issue . 235 
 
 Rule. — All pleadings must contain mattes peetinent and 
 
 material 235 
 
 Rules subordinate and illustrative — 
 
 1. Traverse must not be taken on an immaterial point . 236 
 
 But where there are several material allegations, it is 
 in the option of the pleader to traverse which he 
 pleases 237 
 
 2. A traverse must not be too large nor too narrow . . 238 
 
 But a party may, in general, traverse a materi?.! alle- 
 gation of title or estate to the extent to which it is 
 alleged, though it needed not to be alleged to that 
 extent 240 
 
 SECTION lU. 
 
 Of EULES which tend to produce singleness OB UNITT in THE ISSUE 242 
 
 EuiE I. — Pleadings must not be double 242 
 
 Of the nature of duplicity in general 243 
 
 Rules subordinate and illustrative — 
 
 1. A pleading will be double that contains several answers, 
 whatever be the class or quality of the answer . . . 247 
 
 2. Matter may suffice to make a pleading double, though it be 
 
 ill pleaded 247 
 
 3. But matter immaterial will not operate to make a pleading 
 double 248 
 
 4. Nor matter that is pleaded only as necessary inducement to 
 another allegation 249 
 
 5. Nor matters, however multifarious, that together constitute 
 
 but one connected proposition or entire point . . . 250 
 
 3. Nor a mere protestation 253 
 
 Of several counts 254 
 
 Of several pleas 261 
 
 EuLE II. — It is not allowable both to plead and to demue to 
 
 the same matter 267 
 
 SECTION IV. 
 
 Op rules which tend to produce certainty OE PAETIOULABIir IH 
 
 THE ISSUE . . 267 
 
XVI CONTENTS. 
 
 P a. 
 268 
 
 Rule I. — The pleawngs mttsi have oeetaihtt op place 
 Of venue — 
 
 Of the form in which the venue is to be laid . • . 26S 
 
 Of its effect upon the venire ' ^'" 
 
 Of the state of practice as to laying the venue truly . . 273 
 
 Rule II. — The PLEADiiftts must have oeetaihtt op time . . 278 
 Rule III.— The pleadings must specify quality, quantity, ahd 
 
 value 281 
 
 Rule IV. — The pleadings must specify the names op peesons . 284 
 
 Rule V. — The pleadings must show title 286 
 
 I. Of the case where a party alleges title in himself, or in an- 
 
 other, whose authority he pleads 286 
 
 1. Of alleging a title of possession .... 286 
 
 2. Of alleging title in its full and precise extent . . 290 
 
 Of the allegation of the title itself . . .290 
 Of showing its derivation .... 290-295 
 
 As to estates in fee simple .... 290 
 
 As to particular estates .... 291 
 
 Where a party claims by descent . . . 293 
 
 Where a party claims by conveyance . . 293 
 
 3. Of alleging a general freehold title .... 296 
 
 II. Of the case where a party alleges title in his adversary . 297 
 Exceptions to rule : No title need be shown where the opposite 
 
 party is estopped from denying it 300 
 
 No title need be shown in avowries for rents, &c . . . 301 
 
 Rule VI. — The pleadings must show authoeity .... 302 
 Rule VII. — In geneeal, whatever is alleged in pleading must 
 
 BE alleged with ceetainty 305 
 
 • UBOEDIHATE BULES TENDING TO LIMIT OE EESTBAIH THE DEGBBE OP CEE- 
 TAINTY. 
 
 - 1. It is not necessary, in pleading, to state that which is merely mat- 
 ter of evidence . . 310 
 
 2. It is not necessary to state matter of which the court takes notice 
 
 ex officio 312 
 
 3. It is not necessary to state matter which would come more properly 
 
 from the other side 314 
 
 4. It is not necessary to allege circumstances necessarily implied . 317 
 
 5. It is not necessary to allege what the law will presume . . 318 
 
 6. A general mode of pleading is allowed, where great prolixity is 
 
 thereby avoided 318 
 
 7. A general mode of pleading is often sufficient, where the allegation 
 
 on the other side must reduce the matter to certainty . . 320 
 
 8. No greater particularity is required than the nature of the thing 
 
 pleaded will conveniently admit 326 
 
 9. Less particularity is required when the facts lie more in the knowl- 
 
 edge of the opposite party than of the party pleading . . 328 
 
CONTENTS. xvil 
 
 Page. 
 
 10. Less particularity is necessary in the statement o! matter of in- 
 ducement or aggravation than in the main allegations . . 329 
 
 11. With respect to acta valid at common law, but regulated aa to the 
 mode of performance by statute, it is sufficient to use such cer- 
 tainty }f allegation as was sufficient before the statute . 330 
 
 SECTION V. 
 
 0* BULES WHICH TEND TO PREVENT OBSOUEITT AND CONFUSION IK PLEAD- 
 
 nra 332 
 
 EiTliE I. — Pleadings must not be insensible or repugnant . 332 
 
 EtTLB II. — Pleadings must not be ambiguous or doubtful in mean- 
 ing ; and when two different meanings present themselves, that 
 construction shall be adopted which is most unfavorable to 
 
 the party pleading 333 
 
 . 334 
 
 . 335 
 
 . 337 
 
 . 339 
 
 Of certainty to a common intent 
 
 Of negative pregnant 
 
 Rule III. — Pleadings must not be argumentative . 
 
 EuiiE IV. — Pleadings must not be in the alternative 
 
 Rule V. — Pleadings must not be by way of recital, but must be 
 
 positive in their form 340 
 
 Rule VI. — Things are to be pleaded according to their legal effect 341 
 
 Rule VII. — Pleadings should observe the known forms of expres- 
 sion, as contained in approved precedents .... 342 
 
 Rule VIII. — Pleadings should have their proper formal commence- 
 ments and conclusions 344 
 
 Rule IX. — A pleading which is bad in part, is bad altogether . 352 
 
 SECTION VI. 
 Op eules which tend to peevbnt peolixity and delay in pleading 354 
 
 Rule I.— There must be no departure in pleading .... 354 
 Rule II. — Where a plea amounts to the general issue it should be so 
 
 pleaded 360 
 
 Rule III. — Surplusage is to be avoided 364 
 
 SECTION VU. 
 
 Of ceetain miscellaneous eules 366 
 
 Rule I. — The dedaration should commence with a recital of the 
 
 original writ • • • , • • 366 
 
 Rule II. — The declaration must be conformable to the original writ 369 
 Rule III— The declaration should, in conclusion, lay damages and 
 
 allege production of suit 370 
 
 Rule IV.— Pleas must be pleaded in due order . . • .373 
 
 Rule V. — Pleas must be pleaded with defense 374 
 
 Rule VI.— Pleas in abatement must give the plaintiff a better writ 
 
 or bill 377 
 
 B 
 
XVUl CONTENTS. 
 
 Page 
 Rule VII.— Dilatory pleas must be pleaded at a preliminary stage 
 
 of the suit . 378 
 
 EnLB VIII. — All affirmative pleadings which do not conclude to the 
 
 country must conclude with a verification 378 
 
 BtiLE IX. — In all pleadings, when a deed is alleged under which the 
 
 party claims or justifies, profert of such deed must be made . 380 
 Rule X. — All pleadings must be properly entitled of the court and 
 
 term ......... . . 383 
 
 Rule XI. — All pleadings ought to be true 384 
 
 CoNCLUsma semabks npoH tee UGEiTa of the bysteu or fleasinq . 386 
 
INTRODUCTION. 
 
 OF THE CrVIL LAW AND THE COMMON LAW. 
 
 Tbere have grown up in the history of nations only two 
 great systems of law, the civil law of ancient Rome, and 
 the common law of England. All the most civilized 
 nations in the world are governed by either the one or the 
 other of these two great schemes of justice. Though the 
 civil law and the common law have much in common, yet 
 in many important particulars they are the opposites of 
 each other. In the course of his studies, the student of 
 law finds so much said, in an incidental way, about the 
 civil law, that is calculated to mislead his judgment in re- 
 gard to the true character of that scheme of justice, that it 
 is important, at the outset of his walks over the fields of 
 the common law, to give him some account of the civil 
 law, and point out in what it differs essentially from the 
 common law. This is a matter of much importance to 
 every student who aspires to a comprehensive and enlight- 
 ened knowledge of jurisprudence. 
 
 Rome is the grandest empire presented in the great 
 spectacle of the history of nations. From the limits of a 
 few square miles, on the southeast bank of the lower course 
 of the Tiber, Rome extended her territorial dominions to 
 the Pillars of Hercules on the west, to the Euphrates on 
 the east, to the German ocean and the Grampian hills on 
 the north, and to the cataracts of the Nile and the great 
 African desert on the south. Over this vast territory 
 Rome extended her government, her laws, and her lan- 
 guage. To preserve these immense territories, as the 
 natural and legitimate heritage of Rome, was the one 
 great end of Roman policy. And any of the many peo- 
 
2 INTRODUCTION. 
 
 pies subject to Roman sway, who attempted to throw olf 
 the imperial authority, were treated as rebels agaiust a 
 lawful dominion. 
 
 The law which regulated the affairs of such a vast and 
 various empire of high civilization is a wonderful scheme 
 of human justice, attracting, with uncommon interest, the 
 student of jurisprudence. { 
 
 y The political history of Rome is divided into the period\ 
 
 fof the kings, the period of the republic, and the period of 
 the emperors. Its legal history corresponds with these 
 
 I political periods. 
 
 In the period of the kings, the administration of justice 
 was in the royal hands. The law was at that epoch very 
 much a matter of the royal discretion. During the period 
 of the republic, the administration of justice was in the 
 hands of the co^nsuls, pretors, and inferior magistrates. 
 It was during the epoch of the republic that most of the 
 fundamental rules for the regulation of private rights and 
 peaceful pursuits were introduced into Roman law. The 
 law was gradually developed by the peculiar modes of ad- 
 ministering justice. In the later days of the republic the 
 praetor urbauus was the magistrate chiefly concerned in 
 the administration of justice. But neither he nor any 
 other Roman judicial magistrate ever decided directly the 
 matter brought before him. He only allowed the action 
 upon a statement made by the plaintiff, and regulated the 
 proceedings to a point in v/hich the matter in dispute was 
 reduced to a proper form for investigation and decision. 
 The case thus prepared was then referred by him, with 
 directions, to a judex, chosen by the parties themselves 
 from amongst their fellow-citizens, whose function it was 
 to investigate the facts and pronounce judgment upon the 
 issue. This judicial reference and direction by the pretor 
 to the judex was called an edict. It contained a statement, 
 in a certain formula, of the matter in dispute and the gen- 
 eral rules of law applicable to it, with a direction to the 
 judex to make his decision conform to the facts as he might 
 {ind them. The ownership of land was excepted from this 
 
INTRODUCTION. 3 
 
 mode 01' trial. It was decided by the court of one hundred 
 men. 
 
 The prsetor urbanus was elected annually. It was the 
 working of his jurisdiction that chiefly developed Roman 
 law. The old forms of action, contained in the twelve 
 tables, required every suitor to bring his case within their 
 strict terms ; else he was ■without remedy, no matter how 
 just was his complaint. These forms, so narrow and tech- 
 nical, were, in the course of progress, abolished, so as to 
 enlarge legal remedies. There was given to the praetor 
 urbanus authority to devise new rules and orders applica- 
 ble to special cases which might be brought before him. 
 If a person complained of an injury for which the old law 
 afforded no remedy, the praetor urbanus could, upon a 
 statement of facts by the party, allow him an action, and 
 put the facts, with the proper judgment upon them, into a 
 certain formula, for the direction of the judex to whom he 
 referred the matter. In this way, through the jurisdiction 
 of the praetor urbanus, new actions, enforcing claims not 
 before recognized by the law, and new rules of law appli- 
 cable to the changing wants of society, were established. 
 But the new remedies were made to take the form of those 
 which had been long observed; and thus progress was 
 made to conform to the Roman spirit of conservatism. 
 Customs, as they grew up in the various new business 
 and changing conditions of society, were allowed as law 
 in these new actions. 
 
 It was the custom for pretors, on entering upon their 
 office, to publish an edict, declaring the principles upon 
 which they intended to administer justice during the year 
 of their pretorship. This was called a continuous edict. 
 By this practice, the pretor would appear to the suitors 
 to be governed by pre-established general rules, and not 
 to be influenced by the special interests of any particular 
 case. His administration would, therefore, be felt as more 
 impartial and just. The pretor also passed special edicts, 
 as cases, not anticipated in the continuous edicts, were 
 brought before him. These continuous edicts had author- 
 
4: INTRODUCTION. 
 
 ity only during the year of the pretor who declared thorn, 
 But in time, successive pretors came to adopt, in then 
 own edicts, the rules declared by their predecessors. In 
 this way, a body of edictal law became as well established 
 and as authoritative as if it had received the express sanc- 
 tion of positive legislation. As the edicts of the pretors 
 embraced new usages and customs, as well as any special 
 rules that might occur to the minds of the respective pre- 
 tors, which grew up in the changing business of a pro- 
 gressive society like that of Rome, the edictal law was the 
 purest sort of legislation, springing from the spontaneous 
 acts and opinions of the people. Society, in the modes of 
 its working, declared the rules of its actions; and the 
 pretors gave them judicial sanction, and thereby made 
 them law. 
 
 The edictal direction to the judex was not the only mode 
 in which the pretor discharged the function of justice. 
 He also, in certain cases, passed edicts, ordering specific 
 things to be produced or restitution of them to be made. 
 And he also sometimes, by interdict, forbade certain things 
 to be done. These acts of the pretor might be final, or 
 merely preliminary to further proceedings, in which the 
 rights of the parties would be settled. 
 
 The law was still further developed, and that into a more 
 ample justice, because of the relations of Rome to foreign 
 states, especially to those with which she had formed treat- 
 ies, giving their citizens certain civil rights, such as the right 
 to acquire and hold property within the Roman dominion. 
 In order to administer justice, in cases growing out of for- 
 eign relations, a special magistrate having jurisdiction over 
 them was annually elected, called praetor peregrinus. As 
 in the cases brought before this pretor the parties were 
 never both Roman citizens, and the transactions involved 
 were hardly ever entered into with reference to Roman 
 law, the principles common to all systems of law were ap- 
 plied as dispensing, in such cases, a more adequate justice. 
 Through this liberal form of administering justice between 
 Romans and aliens, a practical acquaintance with the laws 
 
INTRODUCTION. 5 
 
 of foreign states was acquired by the Roman magistrates^ 
 and such rules as seemed common to all systems of laws 
 were recognized as a law of nations, and were made a part 
 o^ the civil law of the Romans. And thereby the law of 
 nations, because of its universal acceptance as a standard 
 of right and justice, became a part of the positive law of 
 the Romans. Under this law the rights and obligations 
 of foreigners, as well as of Roman citizens, were recognized 
 and judicially enforced. According to the teachings of 
 Roman jurists, it was from the law of nations that the law 
 of contracts, such as buying and selling, letting and hiring, 
 loans and bailments, partnership, and the law of slavery 
 so far as it gave the right of property in man, and many 
 other matters, were introduced into the Roman civil 
 law. 
 
 This mere judicial development of the law left it in a 
 shapeless and unwieldy mass. Magistrates annually elected, 
 as the Roman pretors were, could hardly know what had 
 been decided by their predecessors. Consequently there 
 could be very little like fixed principle in the law, if 'it were 
 left to mere judicial development; especially, too, as the 
 subsequent pretor was not bound by the decisions of his 
 jiredecessors, but could exercise his judgment untrammeled 
 l)y precedent. Therefore it was that a class of men arose 
 bv the side of the administration of justice, who became 
 connected with it in a very peculiar relation, and supplied 
 the defects in the judicial system, and by their writings re- 
 duced the law into shape. These were the Roman j urists, so 
 celebrated in the history of E ur opean law. They made their 
 first appearance in the time of Cicero. Quintus Mucins 
 Scsevola was the first of them, and Servius Sulpicius was 
 the second. These jurists must not be confounded with the 
 mere practitioners of the law. The mere practicing lawyer 
 held a lower position in the legal profession than the jurist 
 The business of the mere practicing lawyer was to give 
 legal advice, and to draw up testaments, contracts, and 
 other instruments in legal form. He had nothing to do 
 with the management of causes before a court. The orator, 
 
INTRODUCTION. 
 
 thougli his great vocation was in the senate ai.d before the 
 assemblies of the people, was the advocate in criminal 
 trials and in important civil cases. The jurists, in the time 
 of Cicero, besides doing the business of practitioners of law, 
 also appeared in public, at certain times and places, to give 
 their advice orally to those who asked it, and also opened 
 their own houses for the same purpose. Young men who 
 wished to acquire a knowledge of the law were present 
 when the jurists gave their advice, and saw the mode in 
 which they transacted legal business. Cicero was a pupil 
 of Scsevola. He was admitted to the intimacies of his 
 accomplished family, and learned, as he said, elegant con- 
 versation from his refined daughters. 
 
 But it was under the empire, when the glory of the re- 
 public was gone, that the jurists attained their eminence, 
 and in fact became the architects of the great system of 
 Roman law. Though Scsevola and Sulpiciue wrote treatises 
 on the law, these treatises had no authority beyond the 
 opinions of men learned in the law. But Augustus Caesar 
 gave to a certain number of jurists the privilege of giving 
 opinions in cases which might be referred to them by a 
 judex; and if the jurists were unanimous, the judex was 
 bound by their opinion ; if they were not unanimous, the 
 judex was left to adopt what opinion seemed to him best. 
 Tiberius Caesar, during his reign, adopted the practice of 
 authenticating, under his seal, the opinions of certain 
 jurists. This class of privileged jurists, whose unanimous 
 opinion made rules of law, became an established institu- 
 tion. Some of these jurists were advisers of the emperors 
 in all matters of legislation, as well as in matters of law 
 referred to them either immediately or by appeal. As the 
 military power, which during the republic was kept in the 
 strictest subordination to the civil, could, under the empire, 
 at any time be put above the civil authority by the emperor, 
 his very title being military, Septimus Severus appointed 
 Papinian, the greatest of all the Roman jurists, pretorian 
 prefect, which placed him at the head of the army and of 
 ihe law. And Ulpian and Paulus, only a little, if at all, 
 
INTRODUCTION, 7 
 
 less eminent as jurists than Papinian, were saccessively 
 appointed prsetorian prefect by Alexander St verus. 
 
 The jurists wrote innumerable treatises on the law, which 
 came to be of as much authority as their privileged opin- 
 ions. It was these writings that exerted a paramount influ- 
 ence in developing and bringing into system Roman juris- 
 prudence. The law contained in the twelve tables, the 
 edictal law, and established usage, were the materials upon 
 which the jurists labored in their writings with great hon- 
 esty of purpose, remarkable good sense, and fine dialectical 
 skill. Oratory was no longer, as it had been duing the 
 glorious period of the republic, the great art by which men 
 rose to eminence in the state. Its voice was now silent; 
 when to speak of the rights of Roman citizens was treason. 
 Therefore, to the silent and obscure labor of building up 
 jurisprudence the greatest minds devoted themselves. The 
 writings of the jurists became in time so numerous, that, 
 in order to help the incapacity of those who administered 
 law, at a time when, amidst general degradation, the great 
 jurists had no successors, the Emperor Valentinian HI, by 
 a constitution, declared that the writings of Papinian, 
 Paulus, Gains, Ulpian, and Modestinus should have the 
 force of law when they were unanimous ; when they were 
 not unanimous, the opinion of the majority was to be fol- 
 lowed; and when they were equally divided, the opinion 
 in which Papinian concurred was to be adopted. 
 
 Thus, according to a tendency common to all systems of 
 law, the Roman, in the new application of principles re- 
 quired by the ever-changing conditions of society, gradually, 
 through the offices of the two pretors and afterwards 
 through the writings of the great jurists, emerged from the 
 narrow rules which originated in the early peculiarities of 
 Roman society, and gradually expanded itself into a more 
 ample scheme of justice, fitted for a universal dominion. 
 It became in time, allowing local difierences, the common 
 law of all the provinces. 
 
 This system of jurisprudence was closely connected with 
 the imperial theory and form of government, both by the 
 
INTRODUCTION. 
 
 manner of its growth and the political doctrines introduced 
 into it Dy the writings of the jurists. The jurists were, in 
 politics, imperialists; and they made their legal opinions 
 support the imperial authority at all points of doctrinal 
 application and administrative contact between it and the 
 law. For though the theory of the republic was forgotten, 
 and the right of revolution, so often exerted in the early 
 history of Rome, was hardly even a matter of tradition, 
 still it was deemed necessary, by the jurists, to vindicate 
 to human intelligence, by some theory of right, an au- 
 thority so stupendous as that of a Roman emperor. There- 
 fore it was that the jurists invented the fiction of the Ux 
 regia, by which it was pretended that all the authority of 
 the Roman people was irrevocably granted to the emperor. 
 And, to complete their theory of absolutism, the jurists in- 
 troduced into their writings, as a constitutional principle, 
 the dogma, Whatever pleases the prince has the force of law. 
 
 Thus the jurisprudence which had been recast in an 
 imperial mold became a part of the imperial system ; and 
 as the chief functionaries under the empire were generally 
 selected from the profession of the law, they entered upon 
 their official functions thoroughly imbued with imperial 
 ideas and trained to principles of imperial policy. The 
 administration of the law, too, was subordinate to the im- 
 perial authority, not only in theory but in practice, the 
 courts being organized accordingly. Under the republic, 
 the courts were open to the public in both civil and crim- 
 inal trials. Under the empire, open courts disappeared, 
 and an appeal lay in all cases to the emperor in his im- 
 perial court. Thus a perfect system of despotism, dis- 
 guised under forms of law, was built up on the ruins of 
 the republic. 
 
 After the -eat of the Roman empire had been transferred 
 by Constantine to the borders of Asia, and the unity of 
 the Roman dominion had been broken into a western and 
 an eastern empire, the Emperor Justinian, in the first 
 balf of the sixth century of the Christian era, had all the 
 constitutions which had been promulgated by the success- 
 
INTRODUCTION. 9 
 
 ive emperorn compiletl into a code. And aftei-wards, at 
 the suggestion of Tribonian, a distinguished lawyer who 
 had been one of the compilers of the code, a commission 
 was appointed, with Tribonian at its head, to make a selec- 
 tion from the writings of the elder jurists, which should 
 comprehend all that was most valuable in them, and should 
 be a compendious exposition of Roman law. The commis- 
 sioners, in the very short period of three years, produced 
 their compilation, called the Pandects or Digest, containing 
 literal extracts from thirty-nine jurists, those from Ulpian 
 and Paulus constituting about one half of the whole work. 
 The Pandects or Digest, besides being designed as a book 
 for the practitioner, was designed also to form a necessary 
 part of legal education in the schools of jurisprudence at 
 Constantinople and Berytus. But it was too vast a work, 
 and required for its comprehension too great a previous 
 knowledge of law, to admit of its being made an introduc- 
 tion to a course of legal study. Justinian, therefore, ap- 
 pointed Tribonian, in conjunction with Theophilus and 
 Dorotheus, respectively professors in the law schools of 
 Constantinople and Berytus, to compose an elementary 
 law book. They produced the Institutes. 
 
 The Code, the Pandects or Digest, and the Institutes 
 contain the civil law as it has come down to modern times, 
 and are the sources from which the modern jurists have 
 derived their knowledge of Roman j urisprudence. They 
 embody principles and ideas of law which were the slow 
 growth of ages, and which, beginning with the origin of 
 the Roman people, had been gradually uufolded, modified, 
 and matured. 
 
 During the progress of Roman jurisprudence the forms 
 of legal procedure had undergone an entire change. Aa 
 soon as the republic was overthrown and the empire was 
 established by Augustus, changes in the law began to be 
 contemplated; and two schools of law reformers arose, one 
 school in lavor of adhering to the strict technical forms of 
 the law under the. republic, and the other in favor of sub- 
 stituting for them simple and general forms, more accom- 
 
10 INTRODUCTION. 
 
 modated, as they said, to the larger equity, the more ample 
 justice of the jurisprudence required by the enlightened 
 spirit of the age. At the head of the republican school 
 stood Labeo, and at the head of the other stood Capito. 
 Both were eminent lawyers. But the first, though in fa- 
 vor of liberalizing the principles of the old jurisprudence, 
 was utterly averse from changing the strict technical forms 
 of procedure, as he believed they afforded the only protec- 
 tion to the rights of the citizen. Capito, on the contrary, 
 a time-serving adherent of the new order of things, main- 
 tained that the forms of legal procedure, as well as the 
 jurisprudence itself, must be changed to suit the spirit of 
 progress. The controversy between these schools of law- 
 yers lasted nearly a century, the imperial party gaining 
 ground all the time, until the Emperor Hadrian, by the 
 perpetual edict, exercised uncontrolled legislative author- 
 ity, and fixed forever the character of the imperial juris- 
 prudence. From this epoch the civil law and its procedure 
 assumed that pretorian form and spirit which were consum- 
 mated in the Code, the Pandects, and the Institutes of Jus- 
 tinian. The old forms of law procedure of the republic, 
 and the respect for precedent when the law was an emana- 
 tion from the manners and spirit of the people, gave way 
 to the more simple forms of the empire. Thus was con- 
 summated what has sometimes been considered an advance 
 in jurisprudence. But in this opinion things wholly differ- 
 ent have been confounded: the 'machinery for carrying law 
 into effect has been confounded with the law itself. There 
 can be no doubt that the law itself was so improved, under 
 the empire, as to make it almost a new creation; but there 
 should be as little doubt that the mode of procedure was 
 changed from one suited to the liberty of the citizen to one 
 suited to arbitrary power, by its enlarging the discretion 
 of judges. 
 
 If we now turn to the common law of England, we will 
 find that, as far as administrative principles and forms of 
 procedure are concerned, it is the opposite of the Roman 
 civil law as it was molded under the empire. The principle 
 
INTRODUCTION. 11 
 
 which, in the practical administration of the two s^j stems, 
 marks the primary essential distinction between them, is 
 the relative obligatory force under them of precedent or 
 former decisions. Upder the common law, former decis- 
 ions control the ootirt unconditionally. It is deemed by 
 the common law indispensable that there should be a fixed 
 rule of decision, in order that rights and property may be 
 stable and certain, and not involved in perpetual doubts 
 and controversies. Under the civil law the principle is 
 different. Former decisions have not so fixed and certain 
 an operation, but are considered as only governing the par- 
 ticular case, without establishing as a settled rule the prin- 
 ciple involved in it. When a similar case occurs, the judge 
 may decide it according to his personal views of the law, 
 or according to the opinion of some eminent jurist. The 
 civil law, as administered at the present time on the conti- 
 nent of Europe, possesses all the uncertainty and fluctua- 
 tion of doctrine that results from the little respect paid by 
 it to precedent. The commentaries of the doctors, who 
 have succeeded to the jurists, are as various as the diversity 
 of human judgment can make them. The late United 
 vStates Attorney General, Legare, who studied law in Ger- 
 many, with all his strong predilections for the civil law, 
 said, " One who was initiated in this study, as we happened 
 to be, under the old plan of the eighteenth century, with 
 Heineccius for a guide, will find himself in the schools of 
 the present day in almost another world — new doctrines, 
 new history, new methods, new text-books, and, above all, 
 new views and a new spirit." The diversity of doctrine in 
 the schools signalized by Mr. Legare descends into the 
 courts to perplex and bewilder the administration of jus- 
 tice. Let any one, who wishes to examine a specimen of 
 this perplexity in regard to a fundamental classification 
 which the civilians make of laws into personal statutes and 
 real statutes, refer to the opinion of the supreme court of 
 Louisiana, by Mr. Justice Porter, in Saul v. His Creditors, 
 in 17 Martin's Beports. After referring to the jurists of the 
 different European countries who have treated of this dis 
 
12 INTRODUCTION. 
 
 tinctioD, Justice Porter says: "The moment we attempt to 
 discover from these writers what statutes are real and what 
 personal, the most extraordinary confusion is presented. 
 Their definitions often differ; and, when they agree m their 
 definitions, they dispute as to their application." And Mr. 
 Justice Story, in his " Conflict of Laws," when speaking 
 of the civilians who have treated of the subject of his 
 book, says: "The civilians of continental Europe have ex- 
 amined the subject in many of its bearings with a more 
 comprehensive philosophy, if not with a more enlightened 
 spirit. Their works, however, abound with theoretical dis- 
 tinctions, which serve little purpose than to provoke idle 
 discussions and metaphysical subtleties, which perplex, if 
 they do not confound the inquirer. * * * Precedents, 
 too, have not, either in the courts of continental Europe or 
 in the judicial discussions of eminent jurists, the same force 
 and authority which we, who live under the influence of the 
 common law, are accustomed to attribute to them; and it 
 is unavoidable that many differences of opinion will exist 
 amongst them, even in relation to leading principles." Such 
 is the fluctuating wind of doctrine with which the judicial 
 mind is liable to veer under civil-law institutions where 
 precedents have but little force. 
 
 The common law, in broad contrast to the civil law, has 
 always wholly repudiated any thing as authority but the 
 judgments of courts deliberately given in causes argued 
 and decided. "Eor (says Lord Coke, in the preface to his 
 9th Report) it is one amongst others of the great honors of 
 the common law that cases of great difiiculty are never ad- 
 judged or resolved in tenebris or sub silentio suppressis rationi- 
 bus, but in open court; and there upon solemn and elabor- 
 ate arguments, first at the bar by the counsel learned of 
 either party, (and if the case depend in the court of com- 
 mon pleas, then by the sergeants at law only;) and after 
 at the bench by the judges, where they argue (the presid- 
 ing judge beginning firpt) seriatim, upon certain days openly 
 and purposely prefixed, delivering at large the authorities, 
 reasons, and causes of their judgments and resolutions in 
 
INTRODUCTION. 13 
 
 eveiy such particular case, [habet enim nescio qud e; ergioe 
 viva vox:) a reverend and honorable proceeding in law, a 
 grateful satisfaction to the parties, and a great instruction 
 and direction to the attentive and studious hearers." Noth- 
 ing less elaborately learned and cautiously considered than 
 such ajudgraent of a court has a legitimate place in the 
 common law. By such adjudications has that great system 
 of jurisprudence been built up. The opinion of no lawyei 
 has a place in the system of the common law. And thij 
 wise principle of the common law is never lost sight of b^ 
 those bred in its spirit. When Lord Coke wrote his conn, 
 mentaries upon certain statutes of England, from Magna 
 Charta to Henry Vm, which are called his 11 Instituteu, 
 he did not give his personal opinions of their meaning, 
 but gave the judicial interpretations of them which had 
 been made. In the conclusion of the preface to the II 
 Institutes he says: "Upon the text of the civil law there be 
 so many glosses and interpretations, and again upon those 
 so many commentaries, and all written by doctors of equal 
 degree and authority, and therein so many diversities of 
 opinions, as they rather increase than resolve doubts and 
 uncertainties, and the professors of that noble science say 
 that it is like a sea full of waves. The difference, then, between 
 those glosses and commentaries and this we publish is, that 
 their glosses and commentaries are written by doctors, 
 which be advocates, and so in a great manner private inter- 
 pretations; and our expositions or commentaries upon 
 Magna Charta and other statutes are resolutions of judges 
 in courts of justice in judicial courses of proceeding, either 
 related and reported in our books or extant in judicial 
 records, or in both, and therefore, being collected together, 
 shall (as we conceive) produce certainty, the mother and 
 nurse of repose and quietness." Such is the doctrine of 
 the common law ! Nothing butthe solemn voice of the law 
 itself, speaking through its constituted tribunals, is of any 
 judicial authority. And how august is that authority, re- 
 posing as it does upon the solemn decisions of courts which 
 have administered justice in the very same halls for nearly 
 
14 INTRODUCTION. 
 
 eight hundreil years! In vain shall we search the his 
 tory of nations for a parallel to this stability of law amidst 
 the fluctuating vicissitudes of empire. It is this stability 
 of law, ruling over the prerogative of the crown and ad- 
 ministering equal justice to the high and the low through 
 so many centuries, that vindicates the "frame and ordinary 
 course of the common law" to the consideration of the 
 present times. 
 
 It is this primary diflerence in the principles of practice, 
 under the two systems of law, which gives to the common 
 law its great superiority over the civil law, as a practical 
 jurisprudence regulating the aflairs of society. It has the 
 great advantage of producing certainty in regard to all 
 rights and obligations which are regulated by law. But, 
 above all, it excludes private interpretations and controls 
 the arbitrary discretion of judges. In the common law 
 the principles of interpretation are fixed andcertain. Rules 
 of interpretation were early adopted, and have never been 
 departed from. Other rules from time to time have been 
 adopted, but when once introduced into practice they be- 
 come precedents. 
 
 But it is far otherwise in the civil law. Different schools 
 of interpretation have existed in countries where it is ad- 
 ministered in modern times, called respectively the histori- 
 cal and the philosophical schools. And the law is subject 
 to all the fluctuation in practice which grows out of the 
 different principles of interpretation of these schools. By 
 these different principles of interpretation, and by the 
 principle that former decisions may be disregarded, much 
 certainty in the law is lost ; so that often the decision of 
 the plainest case, unless it depends upon some fundamental 
 positive rule, can hardly be confidently foretold. 
 
 This difference in the administrative principles of the 
 common law and the civil law is intimately connected with 
 their different modes of procedure and with the different 
 degree of respect paid to technical forms. Under the 
 common law, forms are as sacred as the principles they em- 
 body. They are precedents. The precise form being a 
 
INTRODUCTION. 15 
 
 precedent, the certainty of the principle which it embodiea 
 is thereby fixed. There can be no more dispute about the 
 principle than about the form which embodies it. Every 
 new case must conform to the requirements of the form; 
 and if it conforms to it, there can be no dispute about its 
 import. 
 
 The great instrument by which certainty has been given 
 to precedents in the common law is special pleading. This 
 is the mainspring and the regulative force of the whole 
 machinery of the common law as a practical jurisprudence. 
 By it every step, from the original writ to the judgment, 
 is kept in specific undeviating forms. There can be no 
 dispute about the specific import of every step in the pro- 
 cedure. And when the decision is made, no matter how 
 loosely the opinion of the court may be expressed, the 
 pleadings in the case give definiteness to the point or points 
 decided, and preserve them forever as a precedent for future 
 judges to follow. 
 
 The object of judicial proceedings is to ascertain and to 
 decide upon disputes between parties. In order to do this, 
 it is indispensable that the point or points in controversy be 
 evolved and distinctly presented for decision. The com- 
 mon law and the civil law have different modes for accom- 
 plishing this purpose. The rales of common law pleading 
 are designed to develop and present the precise point in 
 dispute upon the record itself, without requiring any action 
 on the part of the courtfor the purpose. The parties are re- 
 quired to plead alternately in writing, until their respective 
 allegations of affirmation and denial terminate in a single 
 material issue, either of law or of fact, the decision of which 
 will dispose of the cause. 
 
 By the civil law the parties are not required to plead in 
 such a way as to evolve upon the written record, by the 
 allegations of the respective parties, the point in dispute, 
 but are permitted to set forth all the facts which constitute 
 the cause of action or defense at large; the questions of law 
 not being separated from the questions of fact, as in the 
 common law pleadings, but the whole case is presented in 
 
16 INTRODUCTION. 
 
 gross to the court for its determination. Under this prac- 
 tice the court has the labor of reviewing the complex alle- 
 gations of the respective parties, and methodizing them, and 
 evolving for adjudication the material points on vehich the 
 controversy turns. 
 
 When the court of chancery in England began to take 
 cognizance of disputes between parties, it adopted the civil 
 law mode of procedure. This court assumed to eschew 
 the strict technical rules of the common law, and to pro- 
 ceed upon the broad equities x^f the case ; and, therefore, 
 naturally required the statement^of the facts at large. As 
 the trial by jury did not pertain "to this court, the incon- 
 venience of mingling questions of law and of fact was not 
 felt, as they were both decided by the court, and therefore 
 needed not to be separated on the record, as in courts of 
 law, where they are decided by different tribunals. And, 
 besides, the chancellor, from the nature of his court, can 
 take all the time required for the examination of the ques- 
 tions of law and of fact involved in the allegations of the 
 opposite parties. There is, therefore, nothing in the organi- 
 zation of the court of chancery which forbids the use of 
 the civil law mode of pleading. Indeed, the court of chan- 
 cery is, in form, a civil law tribunal. Its whole practice is 
 modeled after the edictal law of the Roman pretor. 
 
 But the civil law mode of pleading is not applicable to 
 the common law courts. In these courts questions of lav? 
 are determined by the judges, while questions of fact are 
 determined by the jury. It is therefore manifest that it is 
 at least convenient that these questions, which are to be 
 decided by different tribunals, should be separated upon 
 the written record before the case is presented for trial. 
 The material points, about which the parties are in dispute, 
 cannot be so easily evolved from the complicated mass of 
 facts in the hurry of a trial as they can be by pleadings 
 carefully framed beforehand by experienced lawyers, in 
 accordance with rules which require all issues to be single, 
 involving only one question, and to be stated upon the 
 written record itself. And certainly it facilitates the ad 
 
INTRODUCTION. 17 
 
 ministratiou of juBtice to have the record of every case dis- 
 incumbered of all extraneous matters, and of everything 
 irrelevant and immaterial, and nothing but the naked points 
 in dispute, whether of fact or of law, presented distinctly to 
 the judges and the jury, as is done by the special pleading 
 of the common law. 
 
 Nothing is more important, in the administration of jus- 
 tice, than a distinct theory and law of evidence. Without 
 it there can be no certainty in administrative justice. For 
 it matters not how clearly a system of jurisprudence may 
 define obligations and rights, if in judicial investigations 
 improper evidence is admitted, and proper evidence is 
 rejected, there can be no security. The system of com- 
 mon law pleading is framed with reference to this point, 
 making issues of fact simple, so that the relevancy of evi- 
 dence can be easily perceived. The common law is greatly 
 superior to the civil law on this point. In the loose, de- 
 tailed statements of civil law pleadings the exact point in 
 dispute will often be left in so much doubt that the evi- 
 dence will be various, latitudinous, and vague ; and many 
 topics will be introduced at the trial which have nothing 
 to do with the real questions in dispute. It has been said 
 that the whole government of England is but a contrivance 
 to bring twelve men into the jury box. Trial by jury is, 
 therefore, in connection with the court, the great end of the 
 government ; and special pleading is the great instrument 
 by which that peculiar form of judicature is made efficient. 
 It presents the precise points to be determined, and thereby 
 indicates the character of the evidence required, which is 
 all that any contrivance can accomplish. 
 
 It is thus seen how the common law pleading gives cer- 
 tainty to trials at law, making the questions to be decided 
 precise, the admission and rejection of evidence definite, 
 and retaining on the record, after the trial, precision in 
 everything, from the summons to the judgment, so that 
 it can be known what was in dispute, what was proved, 
 and what was adjudged. 
 
 It must not be inferred from what has been said that I 
 2 
 
18 INTROD POTION. 
 
 undervalue any influence which the civil law has exerted 
 in liberalizing any too narrow principles of the common 
 Law in that long sweep of ages through which they both 
 have governed the afikirs of men ; though I think that 
 this influence has been exaggerated by some of the ablest 
 writers on the common law. It is not as systems of prin- 
 ciples of justice that I have contrasted the common and 
 the civil law. It is only their respective modes of proced- 
 ure in administering justice that I have contrasted. We 
 must, in such a discussion, be careful not to confound what 
 Sir Henry Spelman calls "the course and frame of justice" 
 with the principles of justice. 
 
 In concluding the contrast between the common law and 
 the civil law, as a juridical question, it will be profitable to 
 consider the two systems of law in their political aspects. 
 
 The march which the civil law has made over the conti- 
 nental European nations has carried its forms of procedure 
 with it; and it cannot be pretended that either liberty or 
 property has been as well protected in these countries as 
 in England. The people of these countries are of the 
 same race with those of England, and had originally the 
 same institutions. "When we peruse," says Sir Francis 
 Palgrave, " the annals of the Teutonic nations, the epithet 
 Teutonic being used in its voidest sense, the first impres- 
 sion which we receive results from the identity of their 
 ancient laws and modes of government which prevailed 
 amongst them. Like their various languages, which are 
 in truth but dialects of one mother-tongue, so their laws 
 are but modifications of one primeval code. In all their 
 wanderings from their parent home the Teutons bore with 
 them that law which was their birthright and their privi- 
 lege; and even now we can mark the era when the same 
 principles and doctrines were recognized at Upsula and at 
 Toledo, in Lombardy and in England. But, descending 
 the stream of time, the tokens of relationship diminish, 
 and at length disappear. Amongst the cognate races of 
 the continent of Europe political freedom was eflaced by 
 the improvement of society. England alone has witnessed 
 
INTRODUCTION. 13 
 
 the concurrent development of liberty and civilization. 
 Prom vrhatever causes it may have originated, a beneficial 
 impulse was given by the Anglo-Saxon and Atiglo-!N"orman 
 governments to the courts of justice, which, though emanat- 
 ing from the crown, were interposed between the sover- 
 eign and his subjects in such a manner as to tend towards 
 a limited monarchy. And if this tendency had not con- 
 tinued and increased, the share of authority possessed by 
 the people or their representatives would have been as 
 feebly established here as in other countries, which, 8tart> 
 ing from the same point, proceeded in a less fortunate 
 career. Deprived of the security afforded by the institu- 
 tions which became the strongholds of liberty and the 
 stations of defense, from which the patriot could not be 
 dislodged, the Parliament of England, like the Cortes of 
 Spain or the States-General of France, would long since 
 have declined into inefficiency and extinction." 
 
 It was the civil law of imperial Rome which gradually 
 undermined the Teutonic institutions on the continent of 
 Europe. The fundamental text of that law, as we have 
 seen, is, " The will of the prince has the force of law." 
 This gradually became the fundamental doctrine of the 
 governments of continental Europe; and the juridical prin- 
 ciples and the modes of procedure made it efficient in 
 practice. The palatial courts, to which appeals lay from 
 all inferior tribunals, enabled the prince to control the 
 whole administration of justice. The prerogative of the 
 crown could not, therefore, be resisted by the courts, as it 
 has been at important junctures by the courts of England. 
 It is the law, and the law only, which can successfully re- 
 sist the encroachments of despotism. In the absence of 
 defined laws, and an independent judiciary to enforce them, 
 the only check upon arbitrary power is popular insurrec- 
 tion; and the people, after they have overthrown by force 
 one despotism, are liable, by their excesses, as all history 
 shows, to succumb to another. 
 
 In the great contest between the civil law and the Teu- 
 tonic laws and institutions, which occurred all over Europe 
 
20 INTRODUCTION. 
 
 after the fell of the Roman empire, the Teutonic, under the 
 name of Anglo-Saxon, prevailed in England. King John 
 wa8 compelled, while that contest was going on, to sign 
 Magna Charta, proclaiming the great fundamental prin- 
 ciples of the common law. Soon afterwards, under the in- 
 fluence of the spirit of the common law, the representative 
 system of government, composed of democracy, monarchy, 
 and aristocracy, was established; which has served as a 
 model for our form of government, and that of every na^ 
 tion that aspires after freedom. At that epoch Bracton 
 wrote his treatise, " On the laws and customs of England." 
 In it he asserted the supremacy of the law over the king. 
 His words are, ^^Bex non debet esse sub homine sed sub Deo et 
 lege." This work was afterwards translated into French 
 by Houard, an eminent Norman lawyer, and he avowedly 
 suppressed that passage as too inconsistent with French 
 constitutional law to be circulated in France. Such was 
 the difference, at that early period, in the principles of 
 constitutional law in England, where the common law 
 prevailed, and in France, where the civil law prevailed. 
 
 In the beginning of the reign of Edward I the found- 
 ations of the common law were laid. The clergy, who 
 favored the civil law, no longer monopolized legal 
 knowledge. A school of common law had been estab- 
 lished. Laymen had gradually formed themselves into 
 societies called "inns of court," where they devoted their 
 lives to the study of the common law. Edward selected 
 his judges from this body of professional men. Then it 
 was that the principles of the common law and the modes 
 of procedure were systematized, and the courts, as they 
 have subsisted for nearly six centuries, were framed and 
 established ; and the statutes which were passed during the 
 reign for reforming the law were framed with reference 
 to the principles of Magna Charta and the common law. 
 
 In the latter part of the fifteenth century the common 
 law received a new impulse towards development from 
 the celebrated ti-eatise of Sir John Forteseue, " In Praise 
 of the Laws of England." The work was wi-itten to in- 
 
INTKODUCTION. 21 
 
 struct the prince royal, who was afterwards Henry VI, 
 in the principles of the constitution of England as a mon 
 archy limited by law. The superiority of the common 
 law to the civil law as a scheme of liberty is thoroughly 
 vindicated, and the greater prosperity of the people of 
 England, when compared with the people of France, is 
 ascribed to the different systems of law by which the two 
 countries are respectively governed. 
 
 It was during the Elizabethan period of English history 
 that the character of English jurisprudence was fixed for- 
 ever on the basis of the common law. The great lawyers 
 who fixed the land-marks of English jurisprudence at that 
 climacteric epoch in English civilization utterly repudiated 
 the civil law as inapplicable to the English polity. "As 
 for your Majesty's laws of England," said Lord Bacon, "I 
 could say much of their dignity, and somewhat of their 
 defect, but they cannot but excel the civil law in fitness 
 for the government ; for the civil law was not made for the 
 countries which itgoverneth." Lord Coke, by his Reports 
 and his Institutes, laid that broader foundation for the 
 common law which the exigencies of society in the era 
 which was opening required. From that period to the 
 present time the common law has held on in the direction 
 then given to it. It has within itself an inherent force of 
 expansion and progressiveness. It consists of elementary 
 principles capable of indefinite development in their appli- 
 cations to the ever-varying and increasing exigencies of 
 society. There are certain fundamental maxims belong- 
 ing to it which are never departed from. These are the 
 immutable basis of the system. There are other maxims 
 which are restricted by modifications or limited by excep- 
 tions. It is pre-eminently a practical system. It has 
 broken away from the shackles of theory and technicality 
 when, in the changing conditions of society and of prop- 
 erty, justice and expediency required it. For a time the 
 ancient rules and practice may have resisted the equitable 
 demands of the new exigencies in human life; but when 
 the new exigencies have shown themselves to be perma- 
 
22 INTRODUCTION. 
 
 nent interests in society, English jurisprudence has always 
 found within its acknowledged frame of justice means of 
 providing for the new rights and obligations which have 
 sprung from the ever-widening sphere of civilization. The 
 method of its progress is simple and plain. When a case 
 is brought into a court the first question which legitimately 
 emerges from the facts is, whether there is any statute 
 which provides for it. If there is none, then it is inquired 
 whether there be any clear principle of common law which 
 fixes the rights and obligations of the parties. If the an- 
 swer be again in the negative, then springs up the inquiry, 
 whether there be any principle of the common law which, 
 by analogy or parity of reason, ought to govern. If from 
 neither of these sources a principle of adjudication for the 
 case can be educed, it is recognized as a new case, and the 
 principles of natural justice are applied to its solution. 
 But if the principles of natural justice, on account of any 
 technical or other impediment, cannot be applied to the 
 settlement of the respective rights of the parties, then, by 
 the immutable juridical principles of the common law, 
 founded upon the jealous limitation of judicial discretion, if 
 equity cannot relieve, the case must fail; and provision 
 can only be made by statute for future cases of like nature. 
 It matters not how the civil law or other foreign jurispru- 
 dence may have disposed of the question, unless, upon one 
 of the principles which have been stated, the case can be ad- 
 judged, the party must fail of relief who seeks the aid of 
 a court. " The Roman law," said Tindal, 0. J., in Acton 
 V. Blendell, "forms no rule, binding in itself, upon the 
 subjects of these realms; but in deciding a case upon 
 principle, where no direct authority can be cited from our 
 own books, it afibrds no small evidence of the soundness 
 of the conclusion at which we have arrived if it proves to 
 be supported by that law the fruit of the researches of 
 the most learned men, the collective wisdom of ages, and 
 the ground-work of the municipal law of most of the 
 countries in Europe." 
 Upon such principles has the common law based its 
 
INTRODUCTION. 23 
 
 practice and developed its science. From first to last, 
 through the courts at "Westminster, the common law haa 
 resisted the introduction of the civil law into the jurispru- 
 dence of England. At the very time that the Tudors and 
 the Stuarts were grasping at high prerogative the common 
 law was maturing its vigor in the courts. Coke, one of 
 their judges, did more to develop and organize it for pro- 
 tecting the individual against arbitrary power than any 
 man who has appeared in the progress of English society. 
 In him the professional instinct of the common law judge 
 reached its sublimest sense of human right. He saw that 
 the English constitution draws its whole life from the com- 
 mon law, and is but the frame-work of its living spirit. 
 By the common law "every man's house is called his cas- 
 tle. Why? Because it is surrounded by a moat or de- 
 fended by a wall? No! It may be a straw-built hut; the 
 wind may whistle through it, the rain may enter it, but 
 the king cannot." 
 
 In all the various revolutions, with their dark and dreary 
 scenes of violence and bloodshed, through which England 
 has passed, the people have clung to their ancient laws 
 with a devotion almost superstitious. When our forefathers 
 established governments in America they laid their founda- 
 tions on the common law. And when difficulties grew up 
 between them and the mother country, they acted as their 
 English ancestors had always acted in their political trou- 
 bles — interposed the common law as the shield against 
 arbitrary power. When the United Colonies met in Con- 
 gress, in 1774, they claimed the common law of England 
 as a branch of those "indubitable rights and liberties to 
 which the respective colonies are entitled." And the 
 common law, like a silent providence is still the preserver 
 of our liberties. 
 
OF PARTIES TO ACTIONS. 
 
 Parties to actions will be presumed to be citizens of the 
 State until the contrary appears, {a.) 
 
 Causes of action consist either of breaches of contract, 
 or of injuries to the person, or to character, or to prop- 
 erty. 
 
 Every person seeking redress at law must seek it in 
 regard to a breach of contract, or to an injury to the per- 
 son, or to character, or to property. It must always be con- 
 cerning some one of these causes of action that the profes- 
 sional advice of a lawyer is sought. And the question will 
 at once ai'ise, whether the right claimed, or the redress 
 sought, if any, be in one person or in more than one. If 
 it be in one, the action, if brought, must be in the name 
 of that person alone. But if it be in more than one, the 
 action must be brought in the name of all, (p.) So, on the 
 other hand, if the obligation or liability be upon one per- 
 son only, the action must be brought against that person 
 alone. But if the obligation or liability be upon more than 
 one person, the action must be brought against all the 
 persons bound or liable, (c.) And if the obligation or lia- 
 bility be both joint and several, either a joint or a several 
 action may be brought, (d.) 
 
 Two incorporated companies may join in an action of 
 assumpsit, to recover money deposited in a bank in their 
 joint names, (e.) 
 
 Actions founded upon breaches of contract are techni- 
 
 (a.) Lester v. Wright, 2 Hill, 320. 
 {6.) 1 Chitty Plead., 8 
 
 (c.) 1 Chitty Plead., 41; 1 Saund., 2916, note 4. 
 (d) 1 Chitty Plead., 43. 
 
 (e.) New York and Sharon Canal Company v. Fulton Bank, 7 Wend., 412, 
 
 25 
 
26 OF PARTIES TO ACTIONS. 
 
 cally called actions ex contractu. Actions for injuries to 
 character, or person, or property, are technically called 
 actions ex delicto. 
 
 The rules relative to the number of plaintiffs in actions 
 will be stated first. 
 
 1. If too many persons are made plaintiffs in an action, 
 either ex contractu or ex delicto, the objection is fatal at 
 any stage of the proceedings, by motion in arrest of judg- 
 ment, if the objection appears on the face of the pleadings, 
 or at the trial as a ground of nonsuit. 
 
 2. If too few persons are made plaintiffs in an action 
 ex contractu, the objection, if appearing on the face of the 
 pleadings, is fatal in like manner at any stage of the pro- 
 ceedings, (/.) But in an action ex delicto, where there are 
 too few plaintiffs, the plea in abatement is the only rem- 
 edy, or sometimes an apportionment of damages at the trial. 
 
 The rules relative to the number of defendants in actions 
 will be next stated. 
 
 1. In actions ex contractu, if too many persons are made 
 defendants, the objection, if appearing on the face of the 
 pleadings, is fatal on demurrer, or in arrest of judgment, 
 or on nonsuit at the trial, (g.) In actions ex delicto, if too 
 many persons are made defendants, the objection will not 
 be fatal at the trial; the plaintiff may either enter nonsuit 
 as to one and take a verdict as to another, or one may be 
 acquitted by the jury and a verdict for damages be ren- 
 dered against the others, (h.) 
 
 There are, however, some torts or injuries which are 
 incapable of being committed jointly, as spoken slander. 
 In such case the defendants may demur; or if a joint ver- 
 dict be taken against them, they may move in arrest of 
 judgment. But even in this case the plaintiff may remedy 
 the defect by nonsuit as to all except one, against whom 
 he mAy claim a verdict. 
 
 2. In actions ex contractu, if too few persons are made 
 
 {/.) 1 Chitty Plead., 13. 
 (jr.) 1 Chitty Plead., 44. 
 (A.) 1 Chitty Plead., 86-87. 
 
OF PARTIES TO ACTIONS 27 
 
 defendants, advantage can only be taken of it by plea in 
 abatement. Hence, if there be any doubt as to the num- 
 ber of persons liable, the plaintiff should first sue only those 
 certainly liable, running the risk of the plea in abatement, 
 which must, at an early stage in the proceedings, furnish 
 him a better writ, and will operate as an estoppel to pre- 
 vent a denial of the contract being joint, (i.) In actions ex 
 delicto, the plaintiff is not compelled to sue all the persons 
 jointly liable. A tort is in its nature the separate act of 
 each person committing it, and the plaintiff may, at his 
 discretion, join all of them in an action, or he may sue any 
 one or more of them, {j.) But if he brings a separate suit 
 against each cotrespasser, the one to the subsequent action 
 may plead the first action in abatement, and a recovery 
 against one will be a bar to an action against another. 
 This doctrine is, however, controverted by some authorities, 
 which maintain that separate actions may be sustained 
 against each cotrespasser. If, however, the action ex delicto 
 be against one for matters affecting real property held in 
 common, the party sued may plead in abatement the non- 
 joinder of his cotenant. 
 
 An outline of the doctrine and the consequences of 
 making too many or too few persons parties, either as 
 plaintiffs or defendants, to actions, has now been presented. 
 
 Attention will next be directed to the doctrine relative 
 to the interest which a person must have in a cause of ac- 
 tion to authorize him to maintain an action at law. 
 
 The person who brings the suit must be the party with 
 whom the contract on which it is brought was made, or 
 in whom his legal interest is vested. And in actions ex 
 delicto the person who brings the suit must be the party 
 whose legal rights have been affected by the injury. This 
 rule excludes persons who have only equitable rights from 
 becoming plaintiffs in actions at law, (A;.) As where a bond 
 is given to A, to pay him a sum of money for the benefit of 
 
 (t.) 1 Chitty Flead., 46. 
 
 0'.) 1 Chitty Plead., 86-87. 
 
 (i.) 1 Chitty Plead., 1, note a; ib., 2 and note 2. 
 
28 OF PARTIES TO ACTIONS.!. 
 
 B, the action must be brought by A, and tot by B; so, if 
 injury is done to land of which A is trustee and B is cestui 
 que trust, the action must be brought in the name of the 
 trustee. So, also, a mere agent cannot bring suit, but it 
 must be brought in the name of the principal; as, where 
 a person contracted to pay to the treasurer of a board of 
 commissioners a certain sum of money, it was held that the 
 board, and not the person who happened to be treasurer, 
 was the proper party to sue, (I.) "Where, however, the agent 
 has a beneficial interest in the contract, as a factor, or has 
 a special property in the thing which renders him liable 
 over to his principal, as a common carrier, he may sue, un- 
 less the principal elect to sue in his own name. So, if an 
 agent or servant appear to be the principal, and act as such, 
 so as to become personally liable on the contract, he may 
 sue; for his responsibility gives him an interest in the 
 transaction. And the agent may do this, even where he 
 purchases goods for a principal and by his authority, but 
 in his own name, and although he state at the same time 
 to the vendor that he has an unnamed vendee, (m.) 
 
 In suing on a joint contract made by several persons, all 
 the contractors must join in the action. And where the 
 contract is several, each party must bring a separate action. 
 But some causes of action are both joint and several; and 
 they may be treated as either joint or several, at the discre- 
 tion of the plaintiff. But the plaintiff must treat them in 
 his action either as entirely several or as entirely joint. 
 He cannot treat them as joint in regard to two or more 
 persons and several as to others. Thus, tenants in com- 
 mon may join or sever in contracts relating to the common 
 estate. So, in a covenant with four, to pay each of them a 
 sum of money, all may join or each may sue separately. 
 And where three persons contract jointly and severally to 
 pay a debt, all may be sued for the whole. Or each one sep- 
 arately. But one action cannot be brought against two of 
 
 i}.) Pigott V. Thompson, 3, B. & P.; 1 Chitty Plead., 7. 
 (?n.') Thort and others v. Spackman, 2, B. & Ad., 962. 
 
OP PARTIES TO ACTIONS. 29 
 
 them aud another action against the third obligor. Tliere 
 is, however, an exception to this rule. Dormant partners 
 i^^y join in an action with their copartners, or their names 
 may be omitted from the action. And in actions against 
 the firm, the plaintiff may sue the dormant partners or omit 
 their names, at his election, (n) 
 
 At common law no one could bring a suit but the party 
 with whom the contract was made, or to whom the injury 
 was done. An assignee could not sue, the doctrine of the 
 common law being that choses in action are not assignable. 
 The common law grew up in feudal times, when land was 
 the only property worthy of consideration. All its rules, 
 therefore, were framed with special reference to land and 
 the feudal policy. The whole spirit of the common law, 
 with its technical doctrines and strict forms, is, therefore, 
 directly opposed to the easy transfer of property, and in 
 open hostility to the spirit of commerce, which requires the 
 transfer of property to be as easy as possible. When, there- 
 fore, commerce began to be a great interest in England, the 
 courts, with judges trained in the technical subtilties of the 
 common law, endeavored to schackle its transactions with 
 the technicalities of the common law. As it had been 
 adjudged in the Year Books that "a chose in action can- 
 not be transferred because livery of seizin cannot be given 
 of it, as of land," the principle of the adjudication was ap- 
 plied to bills of exchange and promissory notes when they 
 began to be used by merchants to facilitate their transac- 
 tions. Lord Holt rescued bills of exchange and promis- 
 sory notes from the trammels of the common law, and 
 established the doctrine of negotiable securities as it now 
 prevails. It was settled that indorsees could sue in their 
 own names, (o,) The principle being thus established that 
 certain choses in action are assignable, the principle has 
 been extended in modern times, and especially in this coun- 
 try, by legislation, so far as to enable assignees of bonds, 
 
 (ra.) 1 Chitty Plead., 43. 
 (o.) 1 Chitty Plead., 15, 16. 
 
30 OF PARTIES TO ACTIONS. 
 
 legacies, distributive shares of estates, accounts curreni, 
 and other choses in action for the payment of money, in 
 many of the States of our Union, to sue in their own 
 name. 
 
 As early as the 32 Henry Vm, by statute, ch. 34, the as- 
 signee of a reversion of land might sue on the covenants 
 running with the land. And wherever there has been an 
 assignment by operation of law, as in cases of bankruptcy 
 and insolvency, the assignee may sue in his own name. 
 
 In actions ex delicto there can be no assignment of the 
 cause of action. For injuries to property the assignee by 
 operation of law may sue. 
 
 As all persons who have causes of action and all per- 
 sons liable to be sued may die, the law has made" provision 
 for this constantly occurring contingency. 
 
 1. In the case of the death of a person jointly interested 
 with others, the right of action accrues to the survivors ; 
 and in the case of the defendants, the responsibility rests 
 upon the survivors. The executors of deceased joint 
 plaintift's or defendants have no concern at law with the 
 cause of action. In equity, however, their ulterior rights 
 and liabilities are preserved, (p.) 
 
 2. In actions ex contractu, upon the death of either plain- 
 tiif or defendant, or of the last survivor when the cause of 
 action was joint, the cause of action survives to and against 
 the executor or administrator of each. But in actions ex 
 delicto, at common law the cause of action was entirely gone. 
 This rule was, however, altered by the statute 4 Edward 
 in, ch. 7. ; under a liberal construction of which it is now 
 held, that all actions for injury to personal property may be 
 brought by the personal representatives. But it does not 
 provide for actions against the representatives of the wrong- 
 doers. The principle of this statute has been so extended 
 by legislation in almost all the States of our Union, that 
 it may be assumed, as a general rule, that in actions ex 
 delicto, whether for injuries to real or to personal property, 
 
 (p.) 1 cutty Plead., 19. 
 
OF PARTIES TO ACTIONS. 31 
 
 the right of action survives for and against personal repre- 
 sentatives. But with regard to injuries to the person, or 
 to reputation, as assaults, slanders, malicious prosecutions, 
 and other such wrongs, the common law, in its noble char- 
 ity, covered the wrongs with the oblivion of the grave, 
 and would not suffer actions for them to be brought by or 
 against an executor or administrator. The modern law 
 has not disturbed this rule of the common law. 
 
 Owing to the changed conditions of modern life, with 
 its contingencies of injury, legislation has, within a few 
 years, granted a remedy where the common law gave no 
 redress. An action of damages has been given to a hus- 
 band, or wife, or parent, or child, in those cases where 
 death has been occasioned by the carelessness or negli- 
 gence of another, under such circumstances as that, if 
 death had not ensued, the party injured would have had 
 an action. In such cases the jury will give the pecuniary 
 value of the life destroyed to the party entitled to sue, as 
 nearly as it can be estimated. In cases of death by railroad 
 collisions and like accidents, the remedy is now very com- 
 mon, and the damages are generally liberal. 
 
 In the case of a contract under seal or of record, the 
 heir of the contracting party may be sued after his death, 
 provided he be named in the contract and have assets by 
 descent. And by virtue of the statute 3 and 4 William and 
 Mary, chapter 14, devisees may be sued together with the 
 heir in an action of debt; but not in an action of cove- 
 nant for a violation of the contract in the life of the testa- 
 tor, {q.) 
 
 Another of the great contingencies of life which change 
 the relations of persons to causes of action is marriage. 
 
 Where the husband is civilly dead, as where he has left 
 the country and has deserted his wife, or where he is con- 
 fined in the penitentiary for an infamous crime, the wife 
 may, m general, contract and sue and be sued as a single 
 woman. Where a contract has been made with a female 
 
 (g.) 1 Chitty Plead,, 68-69. 
 
82 OF PARTIES TO ACTIONS. 
 
 before marriage, or a wrong has been done to her person 
 or property, she must join her husband as plaintiff, and she 
 cannot sue alone, (r.) And where an action is brought 
 against her, upon any contract made by her before mar- 
 riage, or any wrong committed by her before or after mar- 
 riage, the husband must be joined in the action. And a 
 husband cannot sue alone upon contracts made by a third 
 person with his wife before her marriage, nor for injuries 
 to her person or to her personal or real property; because 
 in all such cases, she being the meritorious cause of action, 
 the right would survive to her upon his death. The hus- 
 band may sue alone for an injury to the person of his wife 
 during marriage; but in such case he can recover only for 
 his own loss and not for her personal sufferings. An action 
 of this sort is very rare; for when husband and wife join 
 in action, the injuries sustained by both are estimated and 
 allowed by the jury in one verdict with very liberal com- 
 pensation. If the wife survive the husband, she may be 
 sued upon all personal wrongs committed by her before or 
 during marriage. If the husband survive the wife, he can- 
 not be sued for her wrongs or contracts personally; but if 
 she has left personal property not reduced into possession 
 by her husband, he may be sued upon her contracts, and 
 held responsible, to the extent of such choses in action, in 
 the character of administrator of his wife. 
 
 The objection that a wife has sued or had been sued with- 
 out her husband, is only matter of abatement and not matter 
 in bar of the action, in those cases where she is the meri- 
 torious cause of action ; or she may have writ of coram nobis 
 to correct the error. But if the husband sue alone, where 
 she ought to join, or joins her in the action where he ought 
 to sue alone, it is fatal on demurrer, or as ground of non- 
 suit. 
 
 Infancy is another consideration which affects the doc- 
 trine and practice relative to parties to actions at law, (s.) 
 
 (t.) 1 Chitty Plead., 28-33; ib., 73-75. 
 (».) 1 Chitty Plead., 428. 
 
OP PARTIES TO ACTIONS. 33 
 
 Where infants are concerned as plaintiffs, they must ap- 
 pear and sue by guardian or next friend. And where they 
 are made defendants, they must appear and plead by guard- 
 ian. It requires, in such cases, a motion to the court for 
 leave to appear or compel him to a[>pear by guardian. If 
 an infant defendant appear and plead by attorney, though 
 judgment be entered against him in the action, he may, 
 after he comes of age, have writ of error corram nobis, to cor- 
 rect the error and reverse the judgment, (/.) 
 
 I have spoken of the right of action surviving, in certain 
 cases, to the executor or administrator, heir and devisee, 
 and against them. 
 
 We must, however, distinguish the right of action from 
 the particular action which may have been brought and 
 was pending at the time of the death of either plaintiff 
 or defendant. While the right of action in the cases men- 
 tioned survives, the particular action itself, if any had been 
 brought,^ceased; and the parties succeeding to the right 
 were compelled, at an early period in the history of the law 
 of actions, to bring a new action, all the steps taken in the 
 previous action being of no avail. But a remedy for this 
 evil was provided in England by the statute 9 William 
 m, eh. 2, § 7, which enacted that where there were two or 
 more plaintiffs and defendants, the death of one or more 
 should not abate the action if the cause of action survived, 
 but, upon suggesting the death upon the record, the sui* 
 should proceed between survivors. But the statute went 
 no further than the particular case, and the case of death 
 after interlocutory and before final judgment for the plain- 
 tiff or defendant. The principle of the statute of William 
 HI has been extended to all other cases where the right 
 survives; and now, instead of bringing a new suit, the 
 party, whether plaintiff or defendant, may suggest, upor 
 the record, the death of his adversary, whereupon a sum- 
 mons issues to bring in his proper representatives, and 
 upon their appearance the cause is said to revive, and pro- 
 
 (e.) 11 Johnson, 460, DeWit v. Post. 
 
 3 
 
34 OF PARTIES TO ACTIONS. 
 
 ceeds from the point at which it wa8 ariested as if no death 
 had interposed. The opposite party is allowed such new 
 and further pleas touching the sufficiency of assets, &e., as 
 the altered circumstances require, (m.) 
 
 As the misjoinder or nonjoinder of parties is the chief 
 evil to be avoided in bringing actions at law, and the means 
 by which advantage is to be taken of it is important, I will 
 propound the doctrine on the subject, (v.) 
 
 The means especially established in pleading for taking 
 advantage of the misjoinder and nonjoinder of parties is 
 the plea in abatement. The object of a plea in abatement 
 is not to defeat the right of action. That can only be done 
 by a plea in bar. Its purpose is to give a better writ. In 
 arcase of nonjoinder of defendants, the persons sued by a 
 jplea in abatement pray judgment of the writ and declara- 
 Sion; and then allege, as a ground, that the instrument of 
 [writing in the declaration mentioned was made by theni- 
 ! selves jointly, with others, whom they must describe by 
 their christian and surnames as in a declaration, in order 
 that the plaintiff may do the same in his new writ. The 
 plea must allege that the cocontractors are still living. 
 Where one of the co-obligors in a common bond is dead, 
 it is not necessary, in a plea in abatement, to state the fact; 
 %'ecause it is only necessary to name those who can be sued 
 in the new writ. But where a suit is brought on a recog- 
 nizance, it is necessary to allege the death of deceased ob- 
 ligors; and in a plea in abatement to an action upon a 
 recognizance for nonjoinder of a living party, perhaps it 
 would be proper also to allege the death of any deceased 
 obligor, if the mention of the fact had been omitted in the 
 writ and declaration. In an action on a common bond it 
 is not necessary to mention the death of a deceased obligor. 
 It is not noticed. Hence, the difference in pleas in abate- 
 ment to actions on the two kinds of instruments for a non- 
 joinder. It is a rule of law, that in general a person is 
 
 (u.) 1 Chitty Plead., 19. 
 
 (v.) 1 Chitty Plead., 13, 16, 45, 66, 443, 452, 467, 468, 703. 
 
OP PARTIES TO ACTIONS. 36 
 
 presumed to be living until he is proved to be dead, unless 
 seven years have elapsed since he was heard of; and it 
 might be inferred from this rule that in suing on a bond 
 it would be necessary to allege the death of a co-obligor. 
 The rule is a rule of evidence and not a rule of pleading. 
 Hence, there is no necessity for such allegation of death. 
 
 It is important ft)r a pleader to look well ahead to the 
 consequences of the failure of a plea in abatement before 
 he adopts it. The failure of a plea in abatement is the same 
 in effect as a judgment by default. The plea admits the 
 cause of action. In a case of damages, all is admitted but 
 the amount; that may be contested. But nominal dam- 
 ages is, at all events, admitted. And as the allegations in a 
 plea in abatement must be strictly proved as in a declara- 
 tion, a failure in any material particular will be fatal. 
 When the plea is successfal, as the writ must be quashed 
 and cannot be amended, that particular action fails. But 
 in the new action the defendant is estopped by the plea in 
 abatement from denying that there was once a good cause 
 of action, though he may offer in defense any proper mat- 
 ter which has occurred since the plea was pleaded. 
 
THE PRINCIPLES OF PLEADING. 
 
 &0., &0., &0. 
 
 In the course of administering justice between litigating 
 parties there are two successive objects: to ascertain tne 
 subject for decision, and to decide. It is evident that, 
 towards the attainment of the first of these results, there 
 is, in a general point of view, only one satisfactory mode 
 of proceeding} and that this consists in making each of 
 the parties state his own case, and collecting, from the 
 opposition of their statements, the points of the legal 
 controversy. Thus far, therefore, the course of every sys- 
 tem of judicature is the same. It is common to them all to 
 require,on behalf of each contending party, before the decis- 
 ion of the cause, a statement of his case. But from this 
 point the coincidence naturally ceases. In the style of the 
 contending 8tatements,(called in forensic language the plead- 
 ings,) the principles on which they are framed, the manner 
 in which they govern or affect the subsequent course of 
 the cause, and the degree of attention paid to their con- 
 struction, each different code of law exhibits some material 
 difference of practice. The present disquisition relates 
 only to that peculiar system of statement estabUshed in 
 the common law of England. 
 
 This system, known by the name of Pleading, (a,) of 
 remote antiquity in its origin, has been gradually molded 
 into its present form by the wisdom of successive ages. 
 Its great and extensive importance in legal practice has 
 long recommended it to the early and assiduous attention 
 of every professional student. Nor is this its only claim 
 
 (a.) See Ajipendix, note 1. 
 
 37 
 
88 THE PRINCIPLES OF PLEADING. 
 
 to notice; for, when properly understood and appreciated, 
 it appears to be an instrument so well adapted to the ends 
 of distributive justice, so simple and striking in its funda- 
 mental principles, so ingenious and elaborate in its details, 
 as fairly to be entitled to the character of a fine juridical 
 mvention. 
 
 It is proposed in this work to collect and arrange the prin- 
 cipal rules of pleading, and to explain their scope and tendency 
 as parts of an entire system. But, for the sake of greater 
 clearness and comprehensiveness of view, it will be neces- 
 sary, first, to give some idea of the general form and man- 
 ner of pleading, and of its connection with other parts of 
 the suit. The following chapter shall, therefore, be devoted 
 to a summary and connected account of the whole proceed- 
 ings m an actum. 
 
CHAPTER I. 
 
 OF THE PROCEEDINGS IN AN ACTION, FROM ITS COMMENCEMENT 
 TO ITS TERMINATION. 
 
 Actions are divided into real, personal, and mixed,[b.) 
 Real actions are those brought for specific recovery of 
 lands, tenements, or hereditaments. Personal, are those 
 brought for specific recovery of goods and chattels, or for 
 damages, or other redress, for breach of contract, or other 
 injuries, of whatever description, the specific recovery of 
 lands, tenements, and hereditaments only excepted. Mixed 
 actions are such as appertain in some degree to both the 
 former classes, and therefore are properly reducible to 
 neither of them, being brought both for specific recovery 
 of lands, tenements, or hereditaments, and for damages 
 for injury sustained in respect of such property. Again, 
 in real actions there is a division between those founded 
 on the seizin or possession, and those founded on the property 
 or riffhi, (c.) 
 
 There are three superior courts {d) of the common law, 
 in each of which actions may be brought. These are the 
 king's bench, the common pleas, and the exchequer, 
 each consisting at present of four judges. The original 
 distribution of business among them, upon their firstestab- 
 lishment, was as follows : The cognizance of crime, and of 
 such matters of litigation in general as directly concerned 
 
 (6.) Bract., 101., b.; Fleta, lib. 1, c. 1 ; 3 Bl. Com., 117. 
 
 (c.) Placita de recto — placita super seisinis, Glan., lib. 13, c. 1. Earum quse 
 Bunt in rem, quaedam proditse sunt super ipsa possessions, et qusdam super ipsa 
 proprietate; estenim possessioTei,6tproprietas. (Bract., 103, a.) Est jus ^os- 
 $essionis et JTm proprietatis. (Fleta, lib. 4, c. 1.) 
 
 {d.) This term is here used to express the courts of general as opposed to 
 those of local and peculiar jurisdiction. But there is another sense of the 
 term which includes certain other courts besides those mentioned in the text. 
 (See Peacock v. Bell, 1 Saund., 73.) 
 
40 OF THE PROCEEDINGS 
 
 the crovm, (those relating to the revenue excepted,) was 
 exclusively appropriate to the court of king's bench; civil 
 suits between subject and subject, (called communm placiia,) 
 to the common pleas; and matters relating to the royal 
 revenue, to the exchequer, (e.) In course of time consid- 
 erable violations of this arrangement took place, usurpation 
 on the province of the common pleas being made by each 
 of the other courts. Of these changes the general result 
 is as follows: The king's bench has now jurisdiction, not 
 only in those matters which belonged to it by its original 
 constitution, but in all personal actions whatever. The case 
 is the same with the exchequer ; but both these courts are 
 still excluded from the cognizance of actions real and 
 mixed, {/.) The common pleas retains its original prov- 
 ince, and therefore entertains all actions whatever between 
 subject and subject, whether of the real, mixed, or personal 
 class. 
 
 An action is commenced in the king's bench or com- 
 mon pleas either by original writ or by bill; in the excheq- 
 uer, by bill only. Of these methods of proceeding, the 
 former is the regular and ancient one, and the latter is in 
 the nature of an exception to it. The proceeding by oriff- 
 inal writ consequently claims the first notice. 
 
 An original writ {breve originale) is a mandatory letter 
 issuing out of the court of chancery, under the great 
 seal, and, in the king's name, directed to the sheriff of the 
 county where the injury is alleged to have been commit- 
 ted, (^,) containing a summary statement of the cause of 
 complaint, and requiring him, in most cases, to command 
 the defendant (/i) to satisfy the claim; and, on his failure 
 
 (e.) Introd. to Sellon's Prao., sec. xxiv ; 3 Bl. Com., 44. 
 
 (/.) Hale's Disc, of the K. B. and C. P., (in Harg. Law Tracts,) c. 4. With 
 respect, however, to the K. B., this author excepts the following mixed actions ■ 
 Assize, ejectio firmoB, and ejectio custodce. And a qiuxre impedit at suit of the 
 king may be either in the 0. P. or K. B. (1 Arch., 435 ; F. N. B., 32 E.) 
 
 {g.) An original writ cannot be issued into a county palatine. For the mode 
 of practice pursued to obviate this difficulty, see 1 Tidd's Praot., p. 100, 8th 
 edit. 
 
 (A.) It may be observed here that in a personal action the parties are called 
 
IN AN ACTION. 41 
 
 to complj, then to summon him to appear in one of the 
 Boperior courts of common law, there to account for his 
 non-compliance. In some cases, however, it omits the 
 former alternative, and requires the sheriff simply to en- 
 force the appearance. 
 
 One object of the original writ, therefore, is to compel 
 the appearance of the defendant in court; but it is also 
 necessary, as authority for the institution of the suit; for it is 
 a principle, (subject only to the exception introduced by 
 the practice of proceeding by bill,) that no action can be 
 maintained in any superior court without the sanction of 
 the king's original writ; the effect of which is, to give 
 cognizance of the cause to the court in which it directs the 
 defendant to appear, («.) To sue out an original writ is, 
 consequently, the first step taken in the suit. It is the 
 business of the plaintiff to sue it out, and he obtains it as 
 a matter of course, upon payment, however, to the king 
 of a, fine proportionate to the amount of the demand in the 
 action, [k.) 
 
 The original writs differ from each other in their tenor, 
 according to the nature of the plaintiff's complaint, and 
 are conceived in fixed and certain forms. Many of these 
 forms are of a remote and undefined antiquity, but others 
 are of later origin, and their history is as follows : The 
 most ancient writs had provided for the most obvious kinds 
 of wrong; but in the progress of society cases of injury 
 arose, new in their circumstances, so as not to be reached 
 by any of the writs then known in practice ; and it seems 
 that either the clerks of the chancery (whose duty it was 
 to prepare the original writ for the suitor) had no author- 
 
 plaintiff and defendant; in a real action, more properly demandant and ten- 
 ant. The former terms, however, are applicable in actions of every descrip- 
 tion, and are those commonly employed when a suit is mentioned generally, 
 without reference to its particular nature. 
 
 (i.) Non potest quis sine brevi agere. (Bract., 413 b. ; Gilb. Hist. 0. P., 2 ; 
 3 Bl. Com., 273.) 
 
 {k.) See the table of fines payable on original writs, Tidd's Appendix, p. 24, 
 6th edit. ; and see the subject of these fines fully explained in the Introduction 
 to Sellon's Practice, xl-xliv. 
 
42 OP THE PROCEEDINGS 
 
 ity to devise new forms to meet the exigency of such new 
 cases, or their authority was doubtful, or they were remiss 
 in its exercise, (l.) Therefore by the statute Westminster 
 2, 13 Edward I, chapter 24, it was provided, "That as 
 often as it shall happen in the chancery that in one case 
 a writ is found, and in a like case, {in consimili casu,) falling 
 under the same right, and requiring like remedy, no writ 
 is to be found, the clerks of the chancery shall agree in 
 making a writ, or adjourn the complaint till the next Par- 
 liament, and write the cases in which they cannot agree, 
 and refer them to the next Parliament," &c. This statute, 
 it will be observed, while it gives to the officers of the 
 chancery the power of framing new writs in consimili casu 
 with those that formerly existed, and enjoins the exercise 
 of that power, does not give or recognize any right to frame 
 such instruments for cases entirely new. It seems, therefore, 
 that for any case of that description no writ can be law- 
 fully issued except by authority of Parliament. But on 
 the other hand, new writs were copiously produced, (m,) 
 according to the principle sanctioned by this act, i. e., in 
 consimili casu, or upon the analogy of actions previously 
 existing; and other writs also being added from time to 
 time, by express authority of the legislature, large acces- 
 sions were thus, on the whole, made to the ancient stock 
 of brevia originalia. 
 
 All forms of writs once issued were entered from time 
 to time and preserved, in the court of chancery, in a book 
 called the Register of Writs, (n,) which in the reign of Henry 
 VIII was first committed to print and published, (p.) 
 This book is still in authority, as containing, in general, 
 an accurate transcript of the forms of all writs as then 
 framed, and as they ought still to be framed in modern 
 practice. It seems, however, that a variation from the 
 register is not conclusive against the propriety of a form, 
 
 {I.) Vide 2 Reeves, 203; 3 Bl. Com., 50; 8 Rep., 48, 49. 
 (7n.) 3 Bl. Com., 51; 3 Woodd., 168 ; 4 Reeves, 430. 
 (71.) 3 Bl., 183 ; 4 Reeves, 426 ; Gilb. Hist. C. P., 4. 
 (o.t 4 Reeves, 426, 433. 
 
IN AN ACTION. 4? 
 
 if Other sufficient authority can be adduced to prove ita 
 correctness, [p.) 
 
 An original writ, as already stated, is essential to "the 
 due institution of the suit, (q.) These instruments have 
 consequently had the effect of limiting and defining the 
 right of action itself; and no cases are considered as within 
 the scope of judicial remedy, in the English law, but those 
 to which the language of some known writ is found to 
 apply, or for which some new writ, framed on the analogy 
 of those already existing, may, under the provision of the 
 statute of Westminster 2, be lawfully devised. The enu- 
 meration of writs, and that of actions, have become, in 
 this manner, identical, (r.) 
 
 The law of actions, comprising their more particular divis- 
 ions, (s,) and the rules as to their respective competency 
 in different cases, the proper parties to the suit, and the 
 power of joining different claims or demands in the same 
 writ, is a subject which it is not necessary here to discuss, 
 the object of this work being only to treat of those gen- 
 eral and fundamental rules of pleading which are appli- 
 cable to all actions without distinction. In order, however, 
 to the subsequent illustration of these rules, it will be 
 proper to present the reader with examples of such of the 
 forms of original writs as most frequently occur in modern 
 practice. 
 
 The real and mixed actions which in modern times have 
 perhaps come most frequently into use are those of a writ 
 
 OF RIGHT, FORMEDON, DOWER, and QUARB IMPBDIT. 
 
 The WRIT OF RIGHT is the remedy appropriate to the case 
 where a party claims the specific recovery of corporeal 
 hereditaments in fee simple; founding his title on the 
 right of property, or mere right, arising either from his 
 
 (p.) Bac. Ab., Abatement, H ; 4 Reeves, 432. 
 (j.) Supra, 41. 
 (r.) See Appendix, note 2. 
 
 (s.) See a Table of Actions, Com. Dig., Action D, 2 ; and another, in Bosoo* 
 »n Actions, &c., p. 3. 
 
44 OF THE PKOCEBDINGS 
 
 own seizin, or the seizin of his ancestor or piodecessor, (<.) 
 Its form is as follows : 
 
 WEII OP EIGHT. 
 
 Oeorgt the Fourth, by the grace of Qod, of the United Kingdom of Great Brit- 
 ain and Ireland Zing, Defender of the Faith, and so forth, to the sheriff of 
 
 greeting: 
 
 Command 0. T.. that justly and without delay he render unto A. B. foul 
 measuagea, four gardens, and four acres of land, with the appurtenances, in the 
 
 parish of , in the county of , which he claims to be his right and 
 
 inheritance, and whereof he complains that the aforesaid C. D. unjustly de- 
 forces him. And unless he shall so do, and if the said A. B. shall give you 
 security of prosecuting his claim, then summon, by good summoners, the said 
 C. D., that he be before our justices at Westminster, («,) in ei,ght days of Saint 
 Hilary, to show wherefore he hath not done it; and have you there the sum- 
 moners and this writ. 
 
 Witness ourself at Westminster, on the day of , in the y«ar 
 
 of our reign, (x.) 
 
 The WRIT OF FOKMBDON lies where a party claims the 
 specific recovery of lands and tenements, as issue in tail ; 
 or as remainderman, or reversioner, upon the determina- 
 tion of an estate tail, {y.) Its form is as follows, (2.-) 
 
 WEIT OF EOEMEDON. 
 
 George the Fourth, <Scc., (a,) to the Sheriff of greeting: 
 
 Command C. D., that justly and without delay he render unto A. B. the 
 manor of N., with the appurtenances, which E. F. gave to G. B. and the heira 
 
 (i.) F. N. B., 1 B. ; 3 Bl. Com., 191. As to the " right of property, or mere 
 right," vide supra, p. 39. The writ here mentioned is the writ of right qaia 
 dominus remisit auria/m, which is the principal and most usual species. Ab io 
 this and the other species of the writ of right, see 1 Arch., 402, 418 ; 3 Chitty, 
 635. 
 
 {u.) By "our justices at Westminster," or "our justices of the bench at 
 Westminster," is intended, in writs, the court of common pleas, where, as al- 
 ready remarked, all real actions must be brought. 
 
 (x.) Arch., 404; 3 Chitty, 635, 1st edit.; Tyssen v. Clarke, 3 Wils., 558; 
 Glan., lib. 1, c. 6. 
 
 (y.) Co. Litt.. 326 b ; Booth, 139, 151, 154. 
 
 (2.) The form here given is that of formedon in descender, viz, that brought 
 by the issue in tail; when the action is at suit of the remainderman or rever. 
 sioner, it is called a formedon in the remainder or in reverter, and the form 
 of the writ varies accordingly. 
 
 (a.) The king's title is set forth in this and all the following writs in the 
 same form as in the writ of right. (Supra, 44.) 
 
IK AN ACTION. 45 
 
 of his body isBuing, and which, after the death of the said Cf. B., onght to de- 
 scend to the said A. B., the son and heir of the said O. B., by form of the gift 
 aforesaid, as it is said. And unless he shall so do, and if the said A. B. shall 
 give you security of prosecuting his claim, then summon, by good summoners, 
 the said C. D., that he be before our justices at Westminster, in eight days of 
 Saint Hilary, to showwherefore he hath aotdone it; and have you there the 
 summoners and this writ. 
 
 Witness ourself at Westminster, on the day of , in the year 
 
 of our reign, (b.) 
 
 The WRIT OF BOWER lies for a widow claiming the specific 
 recovery of her dower, no part of it having been yet assigned 
 to her, (c.) Its form is as follows : 
 
 WEIT OF DOWEE. 
 
 Crtorge the Fourth, &c., to the sheriff of greeting: 
 
 Command Q. D., that justly and without delay he render to A. B., widow, 
 who was the wife of E. B., now deceased, the reasonable dower which falleth 
 to her of the freehold, which was of the said E. B., her late husband, in the 
 
 parish of , whereof she hath nothing, as she says, and whereof she 
 
 complains that the said 0. D. deforces her. And unless he shall so do, and 
 if the said A. B. shall give you security of prosecuting her claim, then sum- 
 mon, by good summoners, the said 0. D., that he be before our justices of the 
 bench at Westminster, in eight days of Saint Hilary, to show wherefore hs 
 hath not done it ; and have you there the summoners and this writ. 
 
 Witness ourself at Westminster, the day of , in the year 
 
 of our reign, {d.) 
 
 The WRIT OF QUARE IMPEDIT is the remedy by which, where 
 the right of a party to a benefice is obstructed, he recovers 
 the presentation ; and is the form of action now constantly 
 adopted to try a disputed title to an advowson, (e.) Its 
 form is as follows : 
 
 WEIT OF QUAEE IMPEDIT. 
 
 George the Fourth, &c., to the sheriff of greeting: 
 
 Command T., bishop of , and G. D., esquire, and E. F., clerk, that 
 
 (6.) Booth, 141. 
 
 (c.) The writ here mentioned is the writ of dower unde nil hdbet, which is 
 the principal species, and the only one known in practice. There is another, 
 called a writ of right of dower, which applies to the particular case where tha 
 widow has received part of her dower from the tenant himself, and of lan(] 
 lying in the same town in which she claims the residue. (Booth, 166; GIul, 
 lib. 6, c. 4, 5.) 
 
 (d.) 3 Chitty, 593, 1st edit.; Booth, 166; Glau., lib. 6, c. 16. 
 
 («.) Booth, 223; 1 Arch., 434. 
 
46 OF TEE PEOCEEDINQS 
 
 justly and without delay they permit A.. B., widow, to present a fit peison ta 
 
 the church of , which is vacant and belongs to her presentation, as she 
 
 eaith, and whereof she oomplaineth that the said bishop and C. D. and E. F 
 unjustly hinder her. And unless they shall so do, and if the said A. B. shall 
 give you security of prosecuting her suit, then summon, by good summoners, 
 the said bishop and C. D. and K F., that they be before our justices at West- 
 minster, ia eight days of Saint Hilary, to show wherefore they will not do it; 
 and have you there the names of the summoners and this writ. 
 
 Witness ourself at WeatmiuBter, the day of , in the year 
 
 of our reign, (/.) 
 
 Oi personal actions the most common are the following: 
 Debt, covenant, detinue, trespass, trespass on the case, 
 and REPLEVIN. 
 
 The WRIT OF DEBT lies where a party claims the recovery 
 of a debt, L e., a liquidated or certain sum of money alleged 
 to be due to him, {g.) Its form is as follows: 
 
 WKIT OF DEBT 
 
 George the Fourth, dee., to the sheriff of greeting: 
 
 Command C. D., late of , gentleman, that justly and without delay 
 
 he render to A. B. the sum of pounds, of good and lawful money of Great 
 
 Britain, which he owes to and unjustly detains from him, as it is said. And 
 unless he shall do so, and if the said A. B. shall make you secure of prosecut- 
 ing his claim, then summon, by good summoners, the said 0. D., that he be be- 
 fore us, in eight days of Saint Hilary, wheresoever we shall then be in England, 
 (h,) to show wherefore he hath not done it ; and have you there the names of 
 the summoners and this writ. 
 
 Witness ourself at Westminster, the day of , in the year 
 
 of our reign, (i.) 
 
 The WRIT OF COVENANT lies where a party claims damages 
 for breach of covenant, i. e., of a promise under seal. Its form 
 is as follows ; 
 
 (/.) Booth, 225; 3 Chitty, 583, 1st edit.; 1 Arch., 435. 
 
 (gf.) This is debt in the debet, which is the principal and only common form. 
 There is another species mentioned in the books , called debt in the detinet, which 
 lies for the specific recovery of goods, under a contract to deliver them. (1 Chitty, 
 101, 1st edit.) 
 
 (h.) " Before us, wheresoever we shall then be in England," expresses in 
 writs the court of king's bench, where the action in this and the following 
 examples is supposed to be brought. 
 
 (i.) Tidd's Appendix, 6th edit. ; see the most ancient form of this writ, Qlan., 
 lib. 10, 0. 2. 
 
IN AN ACTION. 47 
 
 WEIT OF OOVENAHI. 
 
 Qeorge the Fourth. &c., to the sheriff of greeting: 
 
 Command C. D., late of , gentleman, that justly and without delay 
 
 he keep with A. B. the covenant made by the said G. D. with the said A. B., 
 according to the force, form, and effect of a certain indenture {k) in that be- 
 half made between them, as it is said. And unless he shall so do, and if the 
 said A. B. shall make you secure of prosecuting his claim, then summon, by 
 good summoners, the said C. D., that he be before us, in eight days of Saint 
 Hilary, wheresoever we shall then be in England, to show wherefore he hath 
 not done it ; and have you there the names of the summoners and this writ. 
 
 Witness ourself at Westminster, the day of , in the yew 
 
 of our reign, (J,.) 
 
 The WEiT OF DETINUE lies where a party claims the spe- 
 cific recovery of goods and chattels or deed and writings 
 detained from him. This remedy is in somewhat less fre- 
 quent use than any of the other personal actions above 
 enumerated. The form of the writ is as follows : 
 
 WEIT OF DEIINUE. 
 
 George the Fourth, &o., to the sheriff of greeting: 
 
 Command C. D., late of , yeoman, that justly and without delay he 
 
 render to A. B. certain goods and chattels (m) of the value of pounds, 
 
 of lawful money of Great Britain, which he unjustly detains from him, as it 
 is said. And unless he shall do so, and if the said A. B. shall make you secure 
 of prosecuting his claim, then summon, by good summoners, the said C. D., 
 that he be before us, in eight days of Saint Hilary, wheresoever we shall then 
 be in England, to show wherefore he hath not done it; and have you there 
 the names of the summoners and this writ. 
 
 Witness ourself at Westminster, the day of , in the year 
 
 of our reign, (ra.) 
 
 The WRIT OP TRESPASS lies where a party claims damages 
 for a trespass committed against him. A trespass is an 
 injury committed with violence, and this violence may be 
 either actual or implied; and the law will imply violence, 
 though none is actually used, where the injury is of a direct 
 and immediate kind, and committed on the person or tangible 
 and corporeal property of the plaintifi". Of actttal violence, 
 
 (A.) Or " a certain deed-poll," or " certain articles of agreement," as the case 
 may be. 
 
 (I.) Tidd's Appendix, 6th edit. ; see the most ancient form of this writ, Qlan., 
 Ub. 8, c. 4. 
 
 (m.) Or "deeds and writings,'' aaiording to the nature of the case. 
 
 (n.) Imjey, C. P., 772. 
 
48 OF THE PROCEEDINGS 
 
 an assault and battery is an instance; otimplied, a peaceable 
 but wrongful entry upon the plaintiff's land. The form 
 of the writ is as follows: 
 
 WEII OF TEESPASS. 
 
 For an assault and battery. 
 George the Fourth, dec, to the sheriff of greeting: 
 
 If A. B. shall make you secure of prosecuting his claim, then put by gages 
 
 and safe pledges 0. D., late of , yeoman, that he be before us on the 
 
 morrow of All Souls, wheresoever we shall then be in England, to show 
 
 wherefore, with force and arms, at aforesaid, he made an assault upon 
 
 the said A. B., and beat, wounded, and ill-treated him, so that his life wsjs 
 despaired of, and other wrongs to him there did, to the damage of the said 
 A- B. and against our peace; and have you there the names of the pledges 
 and this writ. 
 
 Witness ourself at Westminster, the day of , in the year 
 
 of our reign. 
 
 WEIT OF TEESPASS. 
 
 Quare clausum /regit. 
 
 George the Fourth, &c., to the sheriff of greeting: 
 
 If A. B. shall make you secure of prosecuting his claim, then put by gag«e 
 
 and safe pledges C. D., late of , yeoman, that he be before us on the 
 
 morrow of All Souls, wheresoever we shall then be in England, to show 
 wherefore, with force and arms, he broke and entered the close of the said A. 
 
 B., situate and being in the parish of , in the county of , and 
 
 with his feet, in walking, trod down, trampled upon, consumed, and spoiled 
 the grass and herbage of the said A. B. there growing and being of great 
 value, and other wrongs to the said A. B. there did, to the damage of the said 
 A. B. and against our peace ; and have you there the names of the pledges 
 and this writ. 
 
 Witness ourself at Westminster, the day of , in the year 
 
 of our reign. 
 
 The WRIT OF TRESPASS UPON THE CASE lies where a party 
 sues for damages for any wrong or cause of complaint to 
 which covenant or trespass will not apply, (o.) This action 
 originates in the power given by the statute of Westmin- 
 ster 2 to the clerks of the chancery to frame new writs in 
 eonsimili casu with writs already known, {p.) Under this 
 
 (o.) It is not easy to give a short and sufficiently comprehensive description 
 of the scope of this action. That which is here attempted is perhaps new, and 
 is believed to be accurate. A definition somewhat similar is given in 3 Woodd.. 
 167. 
 
 {p.) Supra, 42. 
 
IN AN ACTION. 49 
 
 power they constructed many writs for different injuries 
 whicli were considered as in consimili cam with, that is, to 
 bear a certain analogy to, a trespass. The new writs in- 
 vented for the cases supposed to bear such analogy have 
 received, accordingly, the appellation of writs of trespass 
 on the case {previa de transgressione super casum) as being 
 founded upon the particular circumstances of the case thus 
 requiring a remedy, and to distinguish them from the old 
 writ of trespass, (q;) and the injuries themselves, which 
 are the subject of such writs, are not called trespasses, but 
 have the general names of torts, wrongs, or grievances. The 
 writs of trespass on the case, though invented thus pro re 
 nata, in various forms, according to the nature of the dif- 
 ferent wrongs which respectively called them forth, began, 
 nevertheless, to be viewed as constituting collectively a 
 new individual /orm of action; and this new genus took its 
 place, by the name of trespass on the case, among the 
 more ancient actions of debt, covenant, trespass, &c. Such 
 being the nature of this action, it comprises, of course, 
 many different species. There are two, however, of more 
 frequent use than any other species of trespass on the case^ 
 or perhaps than any other form of action whatever. These 
 are, assumpsit and trover. 
 
 The action of assumpsit lies where a party claims dam- 
 ages for breach of simple contract, i. e., a promise not under 
 seal. Such promises may be express or implied; and the 
 law always implies a promise to do that which a party is 
 legally liable to perform. This remedy is consequently ol 
 very large and extensive application. The action of trover 
 is that usually adopted (by preference to that of detinue) 
 to try a disputed question of property in goods and chat- 
 tels. In form it claims damages; and is founded on a sug- 
 gestion in the writ, (which in general is a mere fiction,) 
 that the defendant found the goods in question, being the 
 property of the plaintiff, and proceeds to allege that he 
 
 (a.) 3 Reeves, 89, 243, 391. The first example in the books of this kind 
 «f action (viz, trespass on the case) that has been noticed by Mr. Reevea 
 occurs in the reign of Edward III, 22 Ass., 41. 
 
 4 
 
50 OF THE PROCEEDINGS 
 
 converted them to his own use. Specimens shall here be 
 given of the original writ in assumpsit, in trover, and iu 
 another species of frequent occurrence, namely, an action 
 on the case for lihel. 
 
 WEIT OP TEE3PABS ON THE CASE. 
 
 In assumpsit— for goods sold and delivered. 
 
 George the Fourth, &c., to the sheriff of greeting: 
 
 If A. B. shall make you secure of prosecuting his claim, then put by gages 
 
 and safe pledges C. D., late of , gentleman, that he he before us in eight 
 
 days of Saint Hilary, wheresoever we shall then be in England, to show for 
 
 that, whereas the said C. D. heretofore, to wit, on the day of , in 
 
 the year of our Lord , at , in the county of , was indebted 
 
 to the said A. B. in the sum of pounds, of lawful money of Great 
 
 Britain, for divers goods, wares, and merchandises by the said A. B. before 
 that time sold and delivered to the said C. D., at his special instance and 
 request ; and being so indebted, he, the said C. D., in consideration thereof, 
 
 afterwards, to wit, on the day and year aforesaid, at aforesaid, in the 
 
 county aforesaid, undertook and faithfully promised the said A. B- to pay 
 him the said sum of money when he the said C. D. should be thereto after- 
 wards requested ; yet the said C. D., not regarding his said promise and un- 
 dertaking, but contriving and fraudulently intending, craftily and subtilly, to 
 deceive and defraud the said A. B. in this behalf, hath not yet paid the said 
 sum of money, or any part thereof, to the said A. B., (although oftentimes 
 afterwards requested ;) but the said C. D., to pay the same, or any part thereof, 
 hath hitherto wholly refused, and still refuses, to the damage of the said A. 
 
 B. of pounds, as it is said ; and have you there the names of the pledges 
 
 and this writ. 
 
 Witness ourself at Westminster, the day of , in the — -//je^ 
 
 of our reign. / 
 
 WEIT OF TEESPASS OK THE CASE. / 
 
 In trover. 
 
 George the Fourth, &c., to the sheriff of greeting: 
 
 If A. B. shall make you secure of prosecuting his claim, then put by gages 
 
 and safe pledges G. D., late of , gentleman, that he be before us in eighi 
 
 days of Saint Hilary, wheresoever we shall then be ip. England, to show for 
 
 that, whereas the said A. B. heretofore, to wit, onthe day of , in 
 
 the year of our Lord , at , in the qounty of , was lawfully 
 
 possessed, as of his own property, of certain gdods and chattels, to wit, twenty 
 
 tables and twenty chairs of great value, to wit, of the value of pounds, 
 
 of lawful money of Great Britain ; and b^g so possessed thereof, he, the said 
 
 A. B-, afterwards, to wit, on the dav^^tnd year aforesaid, at aforesaid, 
 
 in the county aforesaid, casually l^t the said goods and chattels out of his 
 possession ; and the same afterwards, to wit, on the day and year aforesaid, at 
 aforesaid, in the county aforesaid, came to the possession of the said 
 
 C. D. ly finding ; yet the said G. D. , well knowing the said goods and chattels 
 
IN AS ACTION. 5 J 
 
 to be the properly cf the said A. B., and of right to belong and appertain to 
 bim, but contriving and fraudulently intending, craftily and subtilly, to de- 
 ceive and defraud the said A. B. in this hehalf, hath not as yet delivered the 
 said goods and chattels, or any part thereof, to the said^. B., (although often 
 requested so to do;) hut so to do hath hitherto wholly refused, and still re- 
 fuses ; and afterwards, to wit, on the day of , in the year , at 
 
 aforesaid, in the county aforesaid, converted and disposed of the said 
 
 goods and chattels to his, the said Q. D.'s, own use, to the damage of the said 
 
 A. B. of pounds, as it is said ; and have you there the names of the 
 
 pledges and this writ. 
 
 Witness ourself at Westminster, the day of , in the year 
 
 of our reign. 
 
 WEIT OP TEESPASS ON THE OASB. 
 
 For a libel. 
 
 George the Fourth, dec, to the sheriff of , greeting: 
 
 If A. B. shall make you secure of prosecuting his claim, then put by gages 
 
 and safe pledges Q. JO., late of , gentleman, that he be before us in 
 
 eight days of Saint Hilary, wheresoever we shall then be in England, to show 
 for that whereas the said A. B. now is a good, true, and honest subject of this 
 realm, and as such hath always conducted himself; and, until the commit- 
 ting of the grievance hereinafter mentioned, was always reputed to be a 
 person of good fame and credit, and hath never been guilty, nor, until the 
 committing of the said grievance, been suspected to have been guilty, of per- 
 jury, or any other such crime ; by means of which said premises he, the said 
 A. B., hefore the committing of the said grievance, had deservedly ohtained 
 the good opinion of all his neighbors and of all other persons to whom he 
 
 was known, to wit, at , in the county of . And whereas, before 
 
 the committing of the said grievance, a certain action had been depending in 
 our court hefore us at Westminster, in the county of Middlesex, wherein one 
 E F. was the plaintiff and one Q. H. was the defendant, which said action 
 
 had been then lately tried at the assizes in and for the county of ; and 
 
 on such trial the said A. B. had been examined on oath, and had given his 
 
 evidence as a witness on the part of the said E. F., to wit, at aforesaid, 
 
 in the county last aforesaid; yet the said C. D., well knowing the premises, 
 but greatly envying the happy condition of the said A. B., and contriving 
 and wickedly and maliciously intending to injure the said A. B. in his good 
 fame and credit, and to bring him into public scandal, infamy, and disgrace, 
 and to cause it to he suspected and helieved that he, the said A. B., had been 
 
 guilty of perjury, heretofore, to wit, on the day of ; — , in the year 
 
 of our Lord , at aforesaid, in the county last aforesaid, falsely, 
 
 wickedly, and maliciously did compose and publish, and cause and procure to 
 be published, of and concerning the said action, and the evidence so given by 
 the said A. B., a certain false, scandalous, malicious, and defamatory libel, 
 containing, among other things, the false, scandalous, defamatory, and libel- 
 lous matter following, of and concerning the said A. B., and of and concern- 
 ing the said action, and the evidence so given by the said A. 5., that is to 
 say : He (meaning the said A. B.) was forsworn on the trial, (meaning the 
 
52 OF THE PROCEEDINGS 
 
 gaid trial, and thereby then and there meaning that he, the said A.B., in 
 giving his evidence as" aforesaid, had committed willful and corrupt perjury.) 
 By means of the committing of which grievance he, the said A. B., hath been 
 and is greatly injured in his said good fame and credit, and brought mto 
 public scandal, infamy, and disgrace, insomuch that divers good and worthy 
 subjects of this realm have, by reason of the committing of the said grievance, 
 suspected and believed, and still do suspect and believe, the said A. B. to have 
 been guilty of perjury; and have, by reason of the committing of the said 
 grievance, from thenceforth hitherto refused to have any transaction o»- ac- 
 quaintance with the said A. 3.. as they otherwise would have had, to the 
 
 damage of the said A. B. of pounds, as it is said; and have you there 
 
 the names of the pledges and this writ. 
 
 Witness ourself at Westminster, the day of , in the year 
 
 of our reign. 
 
 In the action of replevin (which is the last of those 
 above enumerated) there is no original writ, (r,) this action 
 not being commenced in the superior courts. It is, however, 
 enteriained there, by virtue of an authority which the supe- 
 rior courts exercise of removing suits, in certain cases, from 
 an inferior jurisdiction, and transferring them to their own 
 cognizance. Where goods have been distrained, a party 
 making plaint to the sheriff may have them replevied, that 
 is, redelivered to him, upon giving security to prosecute an 
 action against the distrainer, for the purpose of trying the 
 legality of the distress; and, if the right be determined 
 in favor of the latter, to return the goods. - The action so 
 prosecuted is called an action of replevin, and is com- 
 menced in the county court. From thence it is removed 
 into one of the superior courts by a writ either of recordari 
 facias loquelam, or accedas ad curiam, (s.) In form it is an 
 action for damages for the illegal taking and detaining of the 
 goods and chattels. It is held that a replevin may be had 
 
 (r.) The action of replevin here mentioned is that by plaint, which is the 
 only kind known in practice. There was anciently in use another species of 
 replevin, in which a writ issued out of the court of chancery, directed to the 
 sheriff. For the learning on this subject, consult F. N. B., 69, 70; Boot. PL 
 313, 314; 2 Inst., 139; Dalt. Sh., 273; Moor v. Watts, Ld. Ray., 617; 2 Sel- 
 wyn, 1053. 
 
 (8.) These writs vary slightly in their form. The former is in use when 
 the replevin was commenced in the county court ; the latter, when commenced 
 in the court of a lord. (2 Selwyn, 1063.) 
 
IN AN ACTION. 53 
 
 and aa action of replevin brought upon other kinds of 
 illegal taking, besides that by way of a distress, {t;) but 
 in no other case is the proceeding now known in prac- 
 tice. 
 
 The reader has now seen the form of the writs in the 
 most usual actions, as well those real and mixed, as per- 
 sonal; but it is proper, before proceeding further, to explain 
 that even those more common real and mixed actions are 
 incomparably less frequent than the ordinary actions of 
 the personal class, and may be said to be of rare occur- 
 rence. At a very early period indeed, that is, soon after 
 the reign of Edward III, (m,) two former kinds of remedy 
 began gradually to fall into neglect, in consequence of their 
 being more dilatory and intricate in their forms of pro- 
 ceeding than personal actions, and of their being cogniza- 
 ble only in the court of common pleas. In lieu of them 
 recourse was had to certain personal actions, which, though 
 they did not claim the specific recovery of land, (like 
 those of the real and mixed class,) were yet attended with 
 incidents that indirectly produced that benefit. Of these 
 the principal, (x,) and that which is alone retained in mod- 
 ern practice, was the action of ejectment, {ejectio Jirmce,) a 
 ppecies of the personal action of trespass, (y,) in which 
 damages were claimed by a tenant for a term of years, 
 complaining of forcible ejection or ouster from the land 
 demised, (z.) In favor of this mode of remedy the courts 
 determined that the plaiutifi^ was entitled not only to re- 
 cover the damages claimed by the action, but should also, 
 by way of collateral and additional relief, recover possession 
 
 («.) 2 Selwyn, 1053; 1 Chitty, 159, 1st edit. 
 
 (u.) See Hale's Hist, of Com. Law, 176. 
 
 (a;.) It was, however, not the only one. The action ot forcible entry, given 
 by the stat. 8 Henry VI, had been applied to this purpose before the recovery 
 of possession by ejectment came into practice, (Hale, Hist. Com. Law, p. 173.) 
 
 (y.) See Appendix, note 3. 
 
 (z.) This action is said ])y Mr. Serjeant Adams to have been invented in the 
 reign of Edward II, or in the early part of that of Edward III. (Adams on 
 Ejectment, ch. i, p. 7.) 
 
54 OF THE PROCEEDINGS 
 
 of the land itself for the terra of years of which he had been 
 ousted, {a.) 
 
 In consequence of the establishment of this doctrine, 
 which gave an ejectment an effect similar to that of a real 
 or mixed action, claimants of land were led to have recourse 
 to it in lieu of those inconvenient remedies. Regularly, 
 indeed, none could resort to this form of suit but those 
 who had sustained ouster from a term of years, such being 
 the shape of the complaint; but it was rendered much 
 more extensive in its application by the invention of 2k fic- 
 titious system of proceeding, which enabled claimants of 
 land, in almost every instance, upon whatever title they 
 relied, (whether term of years or freehold,) to bring their 
 cases ostensibly within the scope of this remedy. This 
 fictitious method, being favored and protected by the 
 courts, passed into regular practice; and the consequence 
 is, that ejectment has long been the usual remedy for the 
 specific recovery of real property, (6.) There are cases, 
 however, in which the writ of right, the writ of dower, 
 and other real and mixed actions are still necessary, and 
 to which the proceeding by ejectment is held inapplicable; 
 and it may be laid down generally, on this subject, that 
 whenever the case is such that the claimant has not in him 
 *he right of entry, (c,) the fiction on which an ejectment 
 rests ceases to be allowable, and recourse must consequently 
 be had to a real or mixed action. 
 
 The different forms of original writs and actions having 
 been now in some measure explained, it is time to consider 
 ^he course of proceeding upon the original writ. 
 
 Supposing it to be duly issued and executed on the 
 Jefendant, it is next to be returned. 
 
 (a.) This is said to iave been determined at some time between 1455 and 
 1499. (See Adams on Ejectment, ch. i, p. 9.) Hale says it was not till the 
 end of the reign of Edward IV. (Hist. Com. Law, p. 175.) 
 
 (6.) See the whole course of proceeding in an ejectment, perspicuously 
 •tated, in 3 Bl. Com., 199. 
 
 (c.) See, as to this point, 3 Bl. Com., 174; Adams on Ejectment, ch. i p 
 S4. 
 
LN AN ACTION. 55 
 
 It will be seen, on inspection of the tenor of thtse instru- 
 ments, that the sheriff is commanded to have the writ itself 
 in court on a certain day, viz, the day on which the defend- 
 ant is directed to appear there. On that day the writ is 
 said to be returnable, and it is called the return-day of the 
 writ. In each of the terms, except Easter, there are four 
 stated days, called general return-days; in that term, five; 
 and on one or other of these general return-days an orig- 
 inal writ must be always made returnable. On the return- 
 day it is the duty of the sheriff to remit the writ into the 
 superior court of common law, with his return; that is, a 
 short account in writing of the manner in which he has 
 executed it. 
 
 If the defendant does not appear in obedience to the 
 original writ, there issue, when the time for appearance is 
 past, other writs, also returnable on some general return- 
 day in the term, called writs of 'process, enforcing the 
 appearance of the defendant, either by attachment, or dis- 
 tress of his property, or arrest of his person, according to 
 the nature of the case. These differ from the original 
 writ in the following principal particulars : They issue not 
 out of chancery, but out of the court of common law, into 
 which the original is returnable, and accordingly are not 
 under the great seal, but the private seal of the court; 
 and they bear teste (that is, conclude with an attesting 
 t;lause) in the name of the chief justice of that court, and 
 lot in the name of the king himself. It may also be ob- 
 served that, in common with all other writs issuing from 
 tihe court of common law during the progress of the suit, 
 Ihey are described as judicial writs, by way of distinction 
 Tom the original one obtained from the chancery, {d.) 
 
 On these writs of process it is not necessary here to 
 enlarge, (e;) but there is one of them which will require 
 some specific notice. That is called a capias ad responden- 
 
 (d.) Bract., 413, b. 3; Bl. Co-n., 282. 
 
 (e.) Full information on this subject, with respect to personal actions, ■will 
 be found in 1 Tidd, 105-142, &c., 8th edit; 1 Sellon, 64-102. (As to the proc- 
 S6S in real actions, see Booth, 4-23.) 
 
56 OP THE PROCEEDINGS 
 
 dum. This writ directs the sheriff to enforce the appear, 
 ance of the defendant by arrest of his person; and it lies in 
 all the most usual personal actions. It is connected with 
 the following important relaxation of practice relative to 
 the original writ: The capias, being only process, is of 
 course regularly issuable only after an original writ has 
 been first sued out and returned ; but to save time and 
 expense, (/,) it has become the general practice, in all cases 
 where it lies, to resort to it in the first insianee, and to suspend 
 the issuing of the original writ, or even to neglect it alto- 
 gether, unless its omission should afterwards be objected 
 by the defendant. Thus the usual practical mode of com- 
 mencing a personal action by original writ is to begin 
 by issuing not an original, but a capias. It will be con- 
 venient, however, to explain more particularly the manner 
 in which this is done. In the king's bench the plaintiff's 
 attorney commences the suit by preparing a draft (called 
 a prcecipe) [g) of the original writ, appropriate to the pro- 
 posed action, iia such form as is thought most proper and 
 conformable to precedent. This he brings to the filacer, 
 (an officer of the court of common law, whose duty it is 
 to issue the capias and other process on original writs,) to 
 serve as instructions for the preparation both of the orig- 
 inal and the capias. To prepare or issue the original, 
 indeed, is not the duty of the filacer, but of the eursitor, 
 (an officer of the court of chancery ;) but the filacer re- 
 ceives the praecipe for the purpose of transmitting it after- 
 wards to the eursitor, as instructions for the latter officer 
 to prepare an original, if it should become necessary to 
 issue that writ, (A;) and, accordingly, he also receives from 
 the plaintiff's attorney, on behalf of the eursitor, the fine 
 which is payable to the king on obtaining an original, (i.) 
 
 (/.) 3 Bl. Com , 281. 
 
 (g.) The praecipe differs from the writ itself only in omitting some formular 
 words at the commencement and conclusion. (See the form of it in Tidd's 
 A.ppendix, p. 23, 6th edit.) 
 
 {h.) 1 Tidd, 100, 8th edit.; 1 Sellon, 212. 
 
 (i.) Attorn. Pract. Epit., 46. 
 
IN AJSr ACTION. 57 
 
 In the mean time, and witliout waiting for the intended 
 original, the filacer issues the capias in the form marked 
 out by the praecipe; and after this, the plaintiff having no 
 actual use for the original, it is seldom, in fact, taken out 
 from the cursitor's office. In the common pleas the com- 
 mon course of proceeding is similar, but with this differ- 
 ence : that the praecipe is framed, and the capias made out, 
 in a form not varying, (as in the king's bench,) according 
 to the form of an action really intended to be brought, 
 but always in that particular form of action called trespass, 
 a fictitious method, pursued in a view to cheapness and 
 expedition, [k.) In this action of trespass no fine is pay- 
 able on obtaining the original writ, and consequently the 
 filacer receives none from the plaintiff upon issuing the 
 capias. 
 
 Such is the usual practical mode of commencing per- 
 sonal actions by original writ; but it is not the invariable 
 course ; for in some cases, both in the king's bench and 
 common pleas, the praecipe is taken to the cursitor, and 
 the original writ regularly made out and issued, (?;) and in 
 all real and mixed actions, and also in personal ones, when 
 the capias does not lie, the same regular method must be 
 pursued. And even when the action actually commences 
 with a capias, in the manner above described, it is to be 
 observed, that the existence and issuing of an original is 
 still, in point of law, always supposed; that instrument 
 being, in principle, required, both as authority for the insti- 
 tution of the suit itself, and for the issuing of the process. 
 Accordingly it is in the power of a defendant, in some 
 cases, to object, at a proper period of the suit, that Jo 
 original writ has issued; and upon such objection the 
 
 (k.) 3 Bl. Com., 281. "A clausum /regit is the ancient process of the C. P., 
 and very useful to the subject, in saving the fines due upon the original, 
 which they never sue if there is a verdict in the cause, but after a demurrer 
 they sue it." Per Powell, J., Brown v. Babbingtou, Ld. Ray., 883. (See this 
 subject further explained in the introduction to Sellon's Practice, xliii.) 
 
 (I.) E. g., in proceeding to outlawry, 1 Tidd, 100, 8th edit.: Attorn. Pract 
 Elpit,, 87. 
 
58 OF THE PROCEEDINGS 
 
 plaintiff will he obliged, retrospectively, to supply the de- 
 fect by obtaining it in proper form from the cursitor's 
 office, (m.) 
 
 Under the capias or other process the defendant is 
 compelled to appear, either by force of actml arrest, (where 
 the law authorizes that proceeding,) or by other methods 
 of practice, which may be here passed over as belonging 
 to the law of process, (w.) This appearance shall now be 
 supposed to take place. At the same time the plaintiff 
 also appears, and the pleadings commence. The next sub- 
 ject for consideration, therefore, shall be the manner in 
 which the parties appear and plead. 
 
 Of this subject it is impossible to obtain a clear and 
 correct idea, without some preliminary consideration of 
 the method of appearance and pleading anciently in use. It 
 will be necessary, therefore, here to give a short account 
 of that method. 
 
 As now, so formerly, the defendant was made to appear 
 by original writs and process founded upon them. These, 
 as now, were returnable in term time; and it may be here 
 observed, that as these writs were returnable always in 
 term, so the appearance of the parties, the pleading, and all 
 proceedings whatever in open court took place in term 
 +ime only, and never in vacation. 
 
 The appearance of the parties might be either in person 
 or by attorney; but actual and personal appearance in open 
 •,ourt, either by the attorney or his principal, was requisite, 
 
 '0.) 
 
 Upon such appearance followed the allegations of fact, 
 Tiutually made on either side, by which the court received 
 .flformation of the nature of the controversy. These, 
 described at first by the rude terra of loquela, have been, 
 in more modern times, denominated the pleading or plead- 
 ings. 
 
 (m.) 1 Sellon, 69, Introd., zliv; see Appendix, note 4. 
 («.) On this subject the reader -will find the necessary informatitn in 1 8bV 
 ton's Praot., oh. iii. iv. ; Booth 4-23. 
 (o.) See Appendix, note 5. 
 
TN AN ACTION. 59 
 
 As the appearance was an actual one, so the pleading 
 was an oral altercation, in open court, in presence of the 
 judges, (p.) This method of pleading viva voce, universally 
 in use among the early European judicatures, (q,) and in- 
 deed the natural practice of all countries where the arts of 
 civilization have made little progress, certainly prevailed 
 in the English courts in the reign of Henry III, (r,) and is 
 generally supposed to have been retained there to a much 
 later era, (s.) 
 
 These oral pleadings were delivered either by the party 
 himself or his pleader, -Jialled narrator and advocatus, (i,) 
 and it seems that the rule was then already established, 
 that none but a regular advocate (or, according to the more 
 modern term, barrister) could be a pleader in a cause not 
 his own, (w.) 
 
 It was the office of the judges to superintend or, accord- 
 ing to the allusion of a learned writer, {x,) moderate the 
 oral contention thus conducted before them. In doing 
 this, their general aim was to compel the pleaders so to 
 manage their alternate allegations as at length to arrive at 
 some spedjic point or matter affirmed on the one side and de- 
 nied on the other. "When this matter was attained, if it 
 proved to be a point of law, it fell of course to the decis- 
 ion of the judges themselves, to whom alone the adjudica- 
 *;ion of all legal questions belonged, (?/;) but if a point 
 of fact, the parties then, by mutual agreement, referred it 
 to one of the various methods of trial then practiced, or 
 to such trial as the court should think proper. This result 
 Seing attained, the parties were said to be at issue, {ad 
 
 (p.) See Appendix, note 6. 
 
 (q.) See Appendix, note 7. 
 
 (r.) Vide Bract, 372 b. 
 
 (g.) The practice is said to have been abandoned about the middle of the 
 Mign of Edward III. (Gilbert's Origin of King's Bench, v; 3 ; Eeeves, 95.) 
 
 (t.) Bract., 412 a; 372 b. 
 
 (u.) See Appendix, note 8. 
 
 (x.) Mr. Eeeves, vol. ii, 344, where some cnrious specimens from the Yea* 
 Books are given of the manner of the viva voce pleading. 
 
 (y.) See Appendix, note 9. 
 
oO OF THE PEOOBBDINGS 
 
 exitum— that is, at the end of their pleading;) the question 
 BO set apart for decision was itself called thb issdb, and 
 was designated, according to its nature, either as an issue 
 in fact or an issue in law, [z.) The whole proceeding then 
 closed, in ease of an issue in fact, by an award or order 
 of the court, directing the institution, at a given time, 
 of the mode of trial fixed upon; or, in case of an issue 
 in law, by an adjournment of the parties to a given day, 
 when the judges should be prepared to pronounce their 
 decision. 
 
 During this oral altercation a contemporaneous official 
 minute, in writing, was drawn up by one of the officers of 
 the court on a parchment roll, containing a transcript of 
 all the different allegations of fact to the issue, inclusive. 
 And, in addition to this, it comprised a short notice of the 
 nature of the action, the time of the appearance of the 
 parties in court, and the acts of the court itself during the 
 progress of the pleading. These chiefly consisted of 
 what were called the "continuances" of the proceeding!!, 
 the nature of which was as follows : There were certain 
 purposes for which the law allowed the proceedings to be 
 adjourned, or continued over, from one term to another, 
 or from one day to another in the same term; and, when 
 this happened, an entry of such adjournment to a given 
 day, and of its cause, was made on the parchment roll; 
 and by that entry the parties were also appointed to re- 
 appear at the giving day in court. Such adjournment was 
 called a continuance. Thus the award of the mode of trial 
 on an issue in fact, and also the adjournment of the parties 
 to a certain day to hear the decision of the court on an issue 
 in law, were each of them continuances, and were entered as 
 such on the roll. And if any interval or interruption took 
 place without such an adjournment duly obtained and 
 entered, the chasm thus occasioned in the progress of the 
 suit was called a discontinuance, and the cause was consid- 
 ered as out of court by the interruption, and was not allowed 
 
 (s.) See Appendix, note 10. 
 
US AN ACTION. 61 
 
 afterwards to proceed, (a.) The official minute of the 
 pleading and other proceedings thus made on the parch- 
 ment roll waa called the record. As the suit proceeded 
 similar entries of the remaining incidents in the cause 
 were, from time to time, continually made upon it; and 
 when complete, it was preserved as a perpetual, intrinsic, 
 and exclusively admissible testimony of all the judicial trans- 
 actions which it comprised. From the beginning of the 
 reign of Richard I (6) commences a still extant series of 
 records, down to the present day; and such, as far back 
 as can be traced, has always been the stable and authentic 
 quality of these documents in contemplation of law, (c.) 
 
 To return to the modern practice. 
 
 The appearance of the parties is no longer (as formerly^ 
 by the actual presence in court either of themselves or their 
 attorneys. It is to be observed, however, that an appear- 
 ance of this kind is still supposed, and exists in fiction or 
 contemplation of law. But, in fact, appearance is effected 
 on the part of the defendant (where he is not arrested) by 
 making certain formal entries in the proper office of the 
 court, expressing his appearance, (d,) or, in case of arrest, 
 it may be considered as effected by giving bail to the ac- 
 tion. On the part of the plaintiff no formality expressive 
 of appearance is observed; but upon appearance of the 
 
 (a.) See 3 Bl. Com., 316; 2 Hawk., 298. 
 
 (6.) 1 Reeves, 218. " In the king's bench the rolls are preserved in the 
 treasury (of that court) from the beginning of the reign of Henry IV ; in 
 the C. P., from that of Henry VIII. The earlier rolls, from the year 1195 to 
 the end of the reign of Henry V, in the former court; and in the latter, from 
 1199 to the year 1509, are deposited in the chapter-house of Westminster 
 Abbey." (2 Tidd's Pract., 790; 8th edit, cites Jones's Index to Records, 
 Preface, xzii.) 
 
 (c.) Co. Litt., 290 a; Ramsbottom v. Buckhurst, 2 M. & S., 565. (See some 
 remarks on the general subject of Records, Appendix, note 11.) And for 
 a particular account of the rolls and records of the different courts, consult 2 
 Tidd's Pract., 785, 8th edit., and the Report to the Honse of Commons on 
 the Public Records, ordered to De printed July, 1800, pp. 112, 119, 233, 
 334. 
 
 (cf.) Impey, C. P., 216; 1 Tidd, 238, 8th edit. 
 
62 OF THE PROCEEDINGS 
 
 defendant, effected in the manner above described, both 
 parties are considered as in court, (e.) 
 
 The appearance of either party may in general purport 
 to be either in his own person or that of his attorney, (/;) 
 but, when he appears by attorney, there ought regularly, 
 and there is always supposed, to be a warrant in writing 
 executed by him for that purpose, [g.) 
 
 The appearance, in common with all other subsequent 
 proceedings supposed to take place in court, should (in 
 accordance with the state of the ancient practice) purport 
 to be in term time. It is to be observed, however, that 
 though the proceedings are expressed as if occurring in 
 the term, yet much business is now in fact done during 
 the periods of vacation. 
 
 On appearance of the parties the pleadings commence, (A.) 
 
 These have long since ceased to be delivered orally or in 
 open court. The present practice is to draw them up, in the 
 first instance, on paper, and the attorneys of the opposite 
 parties either mutually deliver them to each other out of 
 court, or (according to the course of practice in the partic- 
 ular case) file them in the office of the proper officer of the 
 court, from whence a copy of each pleading is furnished 
 to the party by whom it is to be answered, (i.) These pa- 
 per pleadings, at a subsequent period, are entered on record 
 (according to a course of practice that will be afterwards 
 stated) by transcribing them on a parchment roll. 
 
 At what exact period and by what gradations these alter- 
 ations of the ancient system took place has not been accu- 
 
 (e.) Impey, C. P., 215. 
 
 (/.) See Appendix, note 12. 
 
 (jr.) 1 Tidd, 88, 8th edit. 
 
 (A.) See Appendix, note 13. 
 
 (i.) 1 Sellon, 231, 294; 1 Arcli. Prac, 110, 121, Ist edit.; 1 Tidd, 724, 8th 
 edit., where it ia explained in what cases they should be filed and in what 
 delivered. They are filed in the common pleas, in the office of the prothono- 
 taries. In the king's bench the declarations are filed with the clerk of the 
 declarations, and the other pleadings with the clerk of the papers. (1 Sellon, 
 823, 295 ; 1 Tidd, 455, 724, 8th edit. ; Impey, C. P., 69, 297.) As to the Ex- 
 iUequer, see 1 Manning's Prac, 283, 285. 
 
IN AN ACTION. 63 
 
 rately determined. The most probable opinion seems to 
 be, that the mode of departure from the old practice of 
 making verbal statements in open court and entering them 
 contemporaneously on record was, that the pleader (through 
 an allowed relaxation of that proceeding) began to discon- 
 tinue the oral delivery, and in lieu of it entered his state- 
 ment, in the first instance, upon the parchment roll on 
 which the record used to be drawn up; that the pleader 
 of the other party had access to this roll, in order to con- 
 cert his answer, which he afterwards entered in the same 
 manner, and that the roll thus formed both the primary 
 statement and the record; that this method being attended 
 with some inconveniences, the expedient was at length 
 adopted of putting the pleadings first on paper, delivering 
 them in that form to either party, or filing them in the 
 proper office of the court, and deferring the entry of them 
 on record till a subsequent stage of the cause, {k.) It is 
 supposed that the mode of entering in the first instance 
 on the roll continued at least as late as the reign of Edward 
 rV, {I.) "When it began, that is, when the oral pleading was 
 first abandoned, is a point of some uncertainty ; but the 
 probability seems to be that it took place in the middle of 
 the reign of Edward III, (m.) 
 
 If the method of written pleading was introduced in 
 the manner here described, a satisfactory explanation is 
 thus afibrded of a circumstance which it would be other- 
 wise difficult to account for, viz, that the paper pleadings 
 thus fled or delivered between the parties pursue the style in 
 which the record itself was drawn up. Like it, they are ex- 
 pressed in the third person : "A. B. complains," " C D. 
 comes and defends," &c., and state the form of action, the 
 appearance of the parties, and sometimes the continuances 
 and other acts and proceedings in court, (w.) They are 
 framed, in short, as if they were extracts from the record, 
 
 (A.) 3 Beevea, 427. 
 
 il.) lb. 
 
 (m.) Ih., 95. 
 
 (n.) As to the form in which the record was drawn up, vidt swpra, p. 60. 
 
64: OF THE PKOCBBDINGS 
 
 though the record is, by the present practice, not drawn up 
 till a subsequent period, and is then a transcript from them. 
 Important effects belong to this peculiarity of style. Being 
 conceived as copies from the record, the pleadings conse- 
 quently imply previous statements by legal fiction, supposed 
 to be still verbally made in open court and contemporaneously 
 recorded, according to the ancient practice. The effect of 
 this is, that they are framed upon the same principles as 
 those which belonged to the method of oral allegation. 
 The parties are made to come to issue exactly in the same 
 manner as when really opposed to each other in verbal 
 altercation at the bar of the court; and all the rules 
 which the judges of former times prescribed to the actual 
 disputants before them are, as far as possible, still enforced 
 with respect to these paper pleadings, (o.) 
 
 As the oral pleading could formerly be delivered by 
 none but regular advocates, so at the present day it is 
 necessary that each paper pleading should be signed by a 
 barrister, (some few of the most ordinary and simple kind 
 and all declarations excepted;) and in the common pleas 
 no barrister can sign a pleading but one who has attained 
 the degree of sergeant; but in the other courts there is no 
 such restriction. On this head it may be further observed, 
 that the pleadings, though thus signed, and sometimes, in 
 fact, drawn by barristers, are also often drawn by the attor- 
 neys or by persons of learning who have not been admit- 
 ted to the degree of barrister, but are employed by the 
 attorneys in that department of practice exclusively, and 
 are known by the name of special pleaders. 
 
 After these preliminary explanations as to the general 
 practical form of the modern pleadings, it is time to con- 
 sider their individual construction. 
 
 The pleading begins with the declaratmi or count, which 
 is a statement on the part of the plaintiff of his cause of 
 action, {j>.) In a real action it is most properly called the 
 
 (o.) See Appendix, note 14. 
 (p.) See Appendix, note 15. 
 
IN AN ACTION. 65 
 
 count; in a personal one, the declaratio.t, (q.) The fatter, 
 however, is now the general term, being that commonly 
 used when referring to real and personal actions without 
 distinction. In the declaration the plaintiff states the na- 
 ture and quality of his case in general more fully than in 
 the writ, but still in strict conformity with the teuor of 
 that instrument; any substantial variance between them 
 being a ground of objection. It will be convenient here 
 to exhibit examples of the declaration, in the form which 
 it wears in those more frequent actions, of which the orig 
 ioal writs have already been laid before the reader. 
 
 COTJNT ON A. WEIT OP EIGHT, (r.) 
 
 In the Common Pleas, Term, in the year of the reign of King Oeorge 
 
 the Fourth. 
 
 , to wit, A. B., by K F., his attorney, demands against C. D. foot 
 
 messuages, four gardens, and four acres of land, with the appurtenances, in 
 
 the parish of , in the county of , as his right and inheritance, 
 
 by writ of the lord, the king of right. And thereupon he saith that G. £., 
 father of him, the said A. B., was seized of the tenements aforesaid, with the 
 appurtenances in his demesne, as of fee and right in the time of peace, in the 
 time of the lord George the Third, late king of Great Britain, to wit, with- 
 in sixty years now last past, by taking the esplees thereof to the value, Ac. 
 And from the said G. B. the right descended to the said A. B., who now de- 
 mands, as son and heir of the said G. B., his father. And that such is his 
 right he offers, &c., (s.) 
 
 COTJIfT IS FOEMEDON, (t.) 
 
 In the Common Pleas, Term, in the year of the reign of King 
 
 George the Fourth. 
 
 , to wit, A. B. demands against C. D. the manor of N., with the 
 
 appurtenances, which E. F. gave to G. B. and the heirs of his body issuing, 
 and which, after the death of the said O. B., ought to descend to the said A. B., 
 the son and heir of the said G. B., by form of the gift aforesaid, as it is said. 
 And thereupon he saith that E. F. gave the said manor, with the appurten- 
 ances, to the said G. B., and the heirs of his body issuing, in form aforesaid. 
 By virtue of which gift, the said G. B. was seized of the said manor, with the 
 
 (j.) Eeg. Plac, 2, cites F. N. B., 16 a, 60 d. 
 
 (r.) See the original writ, supra, p. 44. N. B. In this and all the follow- 
 ing examples, except where notice to the contrary is given, the declaration is 
 purposely adapted to the preceding writ, so that, upon originals in the form 
 above exhibited, declarations in the forma here supposed would be con ect. 
 
 (s.) Tyssen v. Clarke, 3 Wils., 561 ; 3 Chitty, 640, 1st edit. 
 
 if.) See the original writ, supra, p. 44. 
 5 
 
66 OF THE PROCEEDINGS 
 
 appurtenances, in his demesne, as of fee and right, by form of the gift afore- 
 said, in the time of peace, in the time of our lord the now king, by taking 
 the esplees thereof to the value of ten pounds. And from the said Q. B. the 
 right to the said manor, with the appurtenances, descended, by form of the 
 gift aforesaid, to the said A, B., who now demands the same, as son and heir 
 of the said O. B., his father. And which, after the death, &c.; and therefore 
 he brings his suit, &o. (u.) 
 
 COUNT IJT DOWEE, (x.) 
 
 In the Common Pleas, Term,, in the year of the reign of Zing 
 
 George the Fourth. 
 
 , to wit. A- B., widow, who was the wife of E. B., deceased, by , 
 
 her attorney, demands against G. D. the third part of ten messuages, ten 
 barns, ten stables, four gardens, four orchards, two thousand acres of meadow, 
 two thousand acres of pasture, and two thousand acres of other land, with 
 
 the appurtenances, in the parish of , in the county of , as the 
 
 dower of the said A. B., of the endowment of E. B., deceased, heretofore her 
 husband, whereof she hath nothing, &c., {y.) 
 
 DEOLAEATIOir IH dUAEE IMPEDIT, (z.) 
 
 In the Common Pleat, Term, in the year of the reign of King 
 
 George the Fourth. 
 
 , to wit, T, bishop of , C. D., esquire, and E. F., cl«rk, were 
 
 summoned to answer A. B., widow, of a plea (a) that they permit the said 
 
 A. B. to present a fit person to the rectory of the parish church of , in 
 
 the county of .which is vacant, add belongs to her presentation. And 
 
 thereupon the said A. B., by , her attorney, complains that whereaa 
 
 one Sir J. D., baronet, now deceased, in his lifetime, to wit, on the day 
 
 of , in the year , was seized of the manor of K., with its appurten- 
 ances, to which manor the advowson of the said rectory, with its appurten- 
 ances, then belonged, in his demesne as of fee. And being so seized thereof, 
 
 as aforesaid, he, the said Sir /. D. , afterwards, to wit, on the day of , 
 
 in the year , at , in the county of , presented to the said 
 
 church, being then vacant, one E. O., his clerk, who, on the presentation of 
 the said Sir /. D., was admitted, instituted, and inducted into the same, in the 
 time of peace, in the time of our sovereign lord George the Third, late king 
 of Great Britain. And he, the said Sir /. D., being so seized of the said 
 manor and the said advowson belonging thereto as aforesaid, afterwards, to 
 
 wit, on the day of , in the year — , at , aforesaid, in the 
 
 county aforesaid, died so seized of such estate therein ; upon whose death the 
 
 (it.) Booth, 144; see an ancient precedent, 2 edit., 3, 1. 
 
 (ai.) See the original writ, iwpra, p. 45. 
 
 (y.) 3 Chitty, 597, 1st edit.; Booth, 166; East. Ent., 234 b. 
 
 («.) See the original writ, supra, p. 45. 
 
 (a.) "Plea," in this and many other instances, is still used in its ancient 
 lense of mit or action, vide Appendix, note 1. This, however, aa will be seen 
 hereafter, is not now its usual or ordinary meaning. 
 
IN AN ACTION. 67 
 
 eaid manor, with the said advowson bo belonging thereto, dascended to the 
 eaii A. £., as daughter and heiress of the said Sir /. D., whereby she became 
 and was seized of the said manor, with the said advowson so belonging 
 thereto, in her demesne as of fee. And being so seized, the said church after- 
 wards, to wit, on the day of , at , aforesaid, in the county 
 
 aforesaid, became vacant by the death of the said E. O., whereby it then 
 and there belonged, and now belongs, to the said A.B,to present a fit per- 
 son to the said church, so being vacant as aforesaid ; but the said bishop, 
 CD., and JE. J., will not permit her, but unjustly hinder her;* wherefore she 
 the said A. B., saith that she is injured and hath sustained damage to the 
 value of pounds. And therefore she brings her suit, &c., (J.) 
 
 DEOLAEATIOIf IN DEBT, (c.) 
 
 On a bond. 
 
 In the Sing's Bench, Term, in the year of the rdgn of King George 
 
 the Fourth. 
 
 , to wit, C D. was summoned to answer A. B. of a plea, that he render 
 
 to the said A. B. the sum of pounds, of good and lawful monfey of Great 
 
 Britain, which he owes to and unjustly detains from him. And thereupon 
 
 the said A. B., hj , his attorney, complains; For that whereas the 
 
 said 0. D. heretofore, to wit, on the day of , in the year of our 
 
 Lord , at , in the county of , by his certain writing obliga- 
 tory, sealed with his seal and now shown to the court here, (the date where- 
 of is the day and year aforesaid,) acknowledged himself to be held and firmly 
 
 bound to the said A. B. in the sum of pounds, above demanded, to be 
 
 paid to the said A. B. Yet the said C. B. (although often requested) hath 
 
 not as yet paid the said sum of pounds above demanded, or any part 
 
 thereof, to the said A. B.; but so to do hath hitherto wholly refused, and 
 
 still refuses, to the damage of the said A. B. of pounds ; and therefore 
 
 he brings his suit, &c. 
 
 DEOLAEATION IN DEBT, (d.) 
 
 On simple contract. 
 In thf, King's Bench, Term, in the year of the reign of King 
 
 George the Fourth. 
 
 , to wit, O. D. was summoned to answer A. B. of a plea that he render 
 
 to the said A. B. the sum of pounds, of good and lawful money of Great 
 
 Britain, which he owes to and unjustly detains from him. And thereupon the 
 said A. B., by , his attorney, complains: For that whereas the said O. 
 
 (6.) 3 Chitty, 586, Ist edit.; 1 Arch., 438; 16 Went., 67. 
 
 (c.) See the original writ, supra, p. 46. 
 
 {d.) See the original writ, supra, p. 46. That writ, it will be observed, is 
 so general as to apply to all causes of action sufficient to constitute a debt in 
 point of law. There is, accordingly, but one form of original writ in debt, 
 though the form of the declaration will vary according to the nature of th» 
 cause of action, as in this and the preceding example. 
 
68 OF THE PROCEEDINGS 
 
 J), heretofore, to wit, on the day of , in the year of our Lord — — 
 
 ftt , in the county of , was indebted to the said A. B. in the sum 
 
 of pounds, of lawful money of Great Britain, for divers goods, wares, and 
 
 merchandise by the said A. B. before that time sold and delivered to the said 
 C. D., at his special instance and request, to be paid by the C. D. to the said 
 A. B. when he, the said 0. D., should be thereto afterwards requested ; where- 
 by, and by reason of the said last-mentioned sum of money being and remain- 
 ing wholly unpaid, an action hath accrued to the said A. B. to demand and 
 have of and from the said C. D. the said sum of pounds above demand- 
 ed. Yet the said C. D. (although often requested) hath not aa yet paid the 
 
 said sum of pounds above demanded, or any part thereof, to the said A, 
 
 B.; but so to do hath hitherto wholly refused, and still refuses, to the damage 
 of the said A. B. of pounds ; and therefore he brings his suit, &c. 
 
 DECLAEATION IN COVENANT, (e.) 
 
 On an indemiwi of lease for not repairing. 
 
 In the King's Bench, Term, in the year of the reign of King 
 
 ♦ George the Fourth. 
 
 , to wit, C. D. was summoned to answer A. B. of a plea, that he keep 
 
 with him the covenant made by the said 0. D. with the said A.B., according to 
 the force, form, and effect of a certain indenture in that behalf made between 
 
 them. Andthereuponthesaidji. 5., by , his attorney, complains : For 
 
 that whereas heretofore, to wit, on the day of , in the year of our 
 
 Lord , at , in the county of , by a certain indenture then and 
 
 tiiere made between the said A. B. of the one part, and the said C. D. of the 
 other part, (one part of which said indenture, sealed with the seal of the said 
 C. D., the said A. B. now brings here into court, the date whereof is the day 
 and year aforesaid,) the said A. B., for the consideration therein mentioned, 
 did demise, lease, set, and to farm let, unto the said 0. D., a certain messuage 
 or tenement and other premises in the said indenture particularly specified, 
 to hold the same, with the appurtenances, to the said 0. D., his executors, ad- 
 ministrators, and assigns, from the twenty-fifth day of March next ensuing 
 the date of the said indenture for and during and unto the full end and term 
 of seven years from thence next ensuing, and fully to be complete and ended, 
 at a certain rent, payable by the said G. D. to the said A. B., as in the said 
 indenture is mentioned. And the said C. D., for himself, his executors, admin- 
 istrators, and assigns, did thereby covenant, promise, and agree, to and with 
 the said A. B., his heirs and assigns, (amongst other things,) that he, the said 
 C. D., his executors, administrators, and assigns, should and would, at all 
 times during the continuance of the said demise, at his and their own costs 
 and charges, support, uphold, maintain, and keep the said messuage or tene- 
 ment and premises in good and tenantable repair, order, and condition ; and 
 the same messuage or tenement and premises, and every part thereof, should 
 and would leave in such good repair, order, and condition, at the end or other 
 sooner determination of the said term ; as by the said indenture, reference 
 being thereunto had, will, among other things, fully appear. By virtue of 
 
 (e.) See the original writ, supra, p. 47. 
 
IN AN ACTION. 69 
 
 whicli said indenture the said C. D. afterwards, to wit, on the twenty-fifth 
 day of March, in the year aforesaid, entered into the said premises, with tha 
 appurtenances, and hecame and was possessed thereof, and so continued until 
 the end of the said term. And although the said A. B. hath always, from 
 the time of the making of the said indenture, hitherto done, performed, and 
 fulfilled all things in the said indenture contained on his part to he performed 
 and fulfilled, yet protesting that the said C. D. hath not performed and fulfilled 
 any thing in the said indenture contained on his part and behalf to be per- 
 formed and fulfilled. In fact, the said A. B. saith that the said C. D. did not, 
 during the continuance of the said demise, support, uphold, maintain, and 
 keep the said messuage or tenement and premises in good and tenantable re- 
 pair, order, and condition, and leave the same in such repair, order, and con- 
 dition at- the end of the said term; but for a long time, to wit, for the last 
 three years of the said term, did permit all the windows of the said messuage 
 or tenement to be, and the same during all that time were, in every part 
 thereof, ruinous, in decay, and out of repair, for want of necessary reparation 
 and amendment. And the said C. D. left the same, being so ruinous, in decay, 
 and out of repair as aforesaid, at the end of the said term, contrary to the 
 form and effect of the said covenant so made as aforesaid. And so the said 
 
 A. B. saith that the said C. D. (although often requested) hath not kept the 
 said covenant so by him made as aforesaid, but hath broken the same, and 
 to keep the same with the said A. B. hath hitherto wholly refused, and still 
 
 refuses, to the damage of the said A. B. of pounds ; and therefore he 
 
 brings his suit, &c. 
 
 DEOLAEATION IN DETINUE, (/.) 
 
 In the King's Bench, Term, in the year of the reign of King 
 
 George the Fourth. 
 
 , to wit, C. D. was summoned to answer A. B. of a plea, that he render 
 
 to the said A. B. certain goods and chattels, of the value of pounds, of 
 
 lawful money of Great Britain, which he unjustly detains from him. And 
 
 thereupon the sai(L4. B., by , his attorney, complains : For that whereas 
 
 the said A. B. heretofore, to wit, on the day of , in the year of our 
 
 Lord , at , in the county of , delivered to the said C. D. cer- 
 tain goods and chattels, to wit, forty bushels of wheat, of the said A. B., of 
 great value, to wit, the value of pounds, of lawful money of Great Brit- 
 ain, to be redelivered by the said C. D. to the said A. B. when he, the said 
 C. D., should be thereto afterwards requested. Yet the said C. D., although 
 
 he was afterwards, to wit, on the day of , in the year aforesaid, 
 
 at aforesaid, in the county aforesaid, requested by the said A. B. so to 
 
 do, hath not as yet delivered the said goods and chattels, or any of them, or 
 any part thereof, to the said A. B., but so to do hath hitherto wholly refused, 
 and still refuses, and still unjustly detains the same from the said A. B., to 
 ^t^ at aforesaid, in the county aforesaid, to the dajnage of the said A. 
 
 B. of pounds; and therefore he brings his suit, &c:i{g}j _ , 
 
 {/.) See the original writ, sitpra, p. 47. 
 (p.) 2 Chitty, 235, 1st edit. 
 
70 OP THE PROCEEDINGS 
 
 DEOLABATION IN TRESPASS, (A.) 
 
 Jbr an assault and battery. 
 In the ^ng's Bench, Term, in the year of the reign of King 
 
 George the Fourth. 
 
 , to wit, 0. D. was attached to answer A. B. of a plea, wherefore he, 
 
 Bie said Q. D., with force and arms, at , in the county of , made 
 
 an assault upon the said A. B., and beat, wounded, and ill-treated him, so 
 that his life was despaired of, and other wrongs to him there did, to the dam- 
 age of the said A. S. and against the peace of our lord the now king. And 
 
 thereupon the said A. B., by . his attorney, complains : For that the 
 
 said 0. D. heretofore, to wit, on the day of , in the year of our 
 
 Lord , with force and arms, at aforesaid, in the county aforesaid, 
 
 made an assault upon the said A. B., and then and there beat, wounded and 
 ill-treated him, so that his life was despaired of, and other wrongs to the said 
 A. B. then and there did, against the peace of our said lord the king, and to 
 
 the damage of the said A. B. of pounds ; and therefore he brings his 
 
 suit, &c. 
 
 DEOLAEATION IN TBESPASS, (i.) 
 
 Qaare clausiwm fregit. 
 
 In the King's Bench, Term, in the year of the reign of King George 
 
 the Fourth. 
 
 , to wit, C. D. was attached to answer A. B. of a plea, wherefore 
 
 he, the said C. D., with force and arms broke and entered the close of the said 
 
 A. B., situate and being in the parish of , in the county of , 
 
 and with his feet, in walking, trod down, trampled upon, consumed, and 
 spoiled the grass and herbage of the said A. B. there growing, and being of 
 great value, and other wrongs to the said A. B. there did, to the damage of 
 said A. B. and against the peace of our lord the now king. And thereupon, 
 
 the said A. B., by , his attorney, complains; For that the said C. D. 
 
 heretofore, to wit, on the day of , in the year of our Lord , 
 
 with force and arms, broke and entered the close of the said A. B., that is to 
 
 say, a certain close called , situate and being in the parish aforesaid, 
 
 in the county aforesaid, and with his feet, in walking, trod down, trampled 
 upon, consumed, and spoiled the grass and herbage of the said A. B. then and 
 
 there growing, and being of great value, to wit, of the value of pounds 
 
 of lawful money of Great Britain, and other wrongs to the said A. B. then 
 and there did, against the peace of our said lord the king, and to the damage 
 of the said A. B. of pounds; and therefore he brings his suit, &o. 
 
 In a former place (k) some mention was made of the 
 action of ejectment, and it was stated to be a species of the 
 action of trespass. From the great importance and fre- 
 
 (Ji.) See the original writ, supra, p. 48. 
 (i.) See the original writ, supra, p. 48. 
 (A.) Supra, p. 53. 
 
IN AN ACTION. 71 
 
 queney of this form of suit, which, as before observed, has 
 nearly supplanted in practice the whole system of real 
 and mixed actions, and is the almost universal remedy for 
 the recovery of land, it will be proper now to present the 
 reader with an example of the declaration in ejectment. 
 The original writ, if drawn out, would of course vaiy in 
 some degree in form from those in the two preceding spe- 
 cies of trespass. In ejectment, however, though the pro- 
 ceeding is nominally by original or by bill, as in other 
 actions, no original or -writ of process is, in fact, ever used. 
 The whole method of proceeding is anomalous, and de- 
 pends on fictions invented and upheld by the courts for 
 the convenience of justice. An ejectment commences by 
 delivering to the tenant in possession of the premises a 
 declaration framed as against a fictitious defendant, (for 
 example, Eichard Roe,) at the suit of a fictitious plaintiff, 
 (for example, John Doe.) This declaration, when the 
 action is brought as by original, is framed as if it had been 
 preceded by original writ against Richard Roe, but is, in 
 fact, the first step in the cause. Subscribed to this declarar 
 tion is a notice in the form of a letter (l) from the fictitious 
 defendant to the tenant in possession, apprizing the latter 
 of the nature and object of the proceeding, and advising 
 him to appear in court in the next term to defend his 
 possession. Accordingly, in the next term the tenant in 
 possession obtains a rule of court, allowing him to be made 
 defendant instead of Richard Roe, upon certain terms 
 prescribed by the court for the convenient trial of the title, 
 among others, his appearing and receiving, without writ 
 or process, a new declaration, like the first, but with his 
 own name inserted as defendant, and pleading thereto. 
 The form of such new declaration is as follows: 
 
 BEOLABATION IN EJECTMENT. 
 
 Jn the King's Bench, Term, in the year of the reign of King George 
 
 the Fourth. 
 , to wit, C. D. was attached to answer John Doe of a plea, wherefore 
 he, the said C. D., with force and arms, entered into five messuages, five sta- 
 
 (?.) See the form of it, 2 Chittj, 397, 1st edit. 
 
12 OF THE PROCEEDINGS 
 
 bles, five coach- houses, five yards, and fii 9 gardens, situa-te and being in the 
 
 parish of , in the county of , which A. B. (m) had demised to 
 
 the said John Doe for a term which is not yet expired, and ejected him from 
 his said farm, and other wrongs to the said John Doe there did, to the damage 
 of the said John Doe, and against the peace of our said lord the now king; 
 
 and thereupon the said John Doe, by , his attorney, complains : For 
 
 that whereas the said A. B. heretofore, to wit, on the day of , 
 
 in the year of our Lord , in the parish aforesaid, in the county aforesaid, 
 
 had demised the said tenements, with the said appurtenances, to the said John 
 Doe, to have and to hold the same to the said John Doe and his assigns, from 
 
 the day of , in the year aforesaid, for and during and unto the 
 
 full end and term of years from thence next ensuing, and fully to be 
 
 complete and ended. By virtue of which said demise the said John Doe 
 entered into the said tenements, with the appurtenances, and became and was 
 thereof possessed for the said term so to him thereof granted as aforesaid. 
 And the said John Doe being so thereof possessed, the said C. D., afterwards, 
 
 to wit, on the day of , in the year aforesaid, with force and arms, 
 
 entered into the said tenements, with the appurtenances, in which the said 
 John Doe was so interested, in manner and for the term aforesaid, which is 
 not expired, and ejected him, the said John Doe, out of bis said farm, and 
 other wrongs to the said John Doe then and there did against the peace of 
 
 our said lord the king, and to the damage of the said John Doe of 
 
 pounds ; and therefore he brings his suit, &c. 
 
 DEOLAEATIOir IS TEESPASS OIT THE CASE, (n.) 
 
 In assmnpsH—for goods sold and delivered. 
 
 In the Sing's Bench, ■ Term, in the year of the reign of King 
 
 George the Fourth. 
 I to wit, C. D. was attached to answer A. B. of a plea of trespass on 
 
 the case ; and thereupon the said A. B., by , his attorney, complains: 
 
 For that whereas the said C. D. heretofore, to wit, on the day of , 
 
 in the year of our Lord , at , in the county of , was indebted 
 
 to the said A. B. in the sum of pounds, of lawful money of Great 
 
 Britain, for divers goods, wares, and merchandises, by the said A. B. before 
 that time sold and delivered to the said Q. D., at his special instance and re- 
 quest; and, being so indebted, he, the said CD., in consideration thereof, 
 
 afterwards, to wit, on the day and year aforesaid, at aforesaid, in the 
 
 county aforesaid, undertook and faithfully promised the said A. B. to pay 
 him the said sum of money when he, the said C. D., should be thereto after- 
 wards requested. Yet the said G. D., not regarding his said promise and 
 undertaking, but contriving and fraudulently intending craftily and subtOly 
 to deceive and defraud the said A. B. in this behalf, hath not yet paid the 
 
 (i».) This is the name of the party who really institutes the suit, called the 
 " lessor of the plaintiff," and so distinguished from the nominal plaintiff, John 
 Doe. 
 
 (n.) See the original writ, mpra, p. 50. 
 
IN AN ACTION. 73 
 
 Baid sum of iLoney, or any part thereof, to the said A. £., (although often- 
 times afterwards requested;) but the said C. D., to pay the same, or any 
 part thereof, hath hitherto wholly refused, and still refuses, to the damage of 
 the said A. B. of pounds; and therefore he brings his suit, &o. 
 
 DE0LAEA.TION IK TEESPAS3 ON THE CASE, (o.) ' 
 
 In trover. 
 
 In the Sing's Bench, Term, in the year of the reign of King 
 
 George the Fourth: ' 
 
 , to wit, 0. D. was attached to-atfswer A. B. of a plea of trespass on 
 
 the case; and thereupon the Baid.A:B., by , his attorney, complains: 
 
 Tor that whereas the said 4. B. heretofore, to wit, on the day of , 
 
 in the year of our Lord , at , in the county of , was law- 
 fully possessed, as of his own property, of certain goods and chattels, to wit, 
 
 twenty tables and twenty chairs, of great value, to wit, of the value of 
 
 pounds, of lawful money of Great Britain ; and, being so possessed thereof, 
 he, the said A. £., afterwards, to wit, on the day and year aforesaid, at — — ^ 
 aforesaid, in the county aforesaid, casually lost the said goods and chattels 
 out of his possession ; and the same afterwards, to wit, on the day and year 
 
 aforesaid, at aforesaid, in the county aforesaid, came to the possession 
 
 of the said 0. D. by finding ; yet the said G. D., well knowing the said goods 
 and chattels to be the property of the said A. B., and of right to belong and 
 appertain to him, but contriving and fraudulently intending craftily and 
 Bubtilly to deceive and defraud the said A. B. in this behalf, hath not as yet 
 delivered the said goods and chattels, or any part thereof, to the said A. B., 
 (although often requested so to do ;) but so to do hath hitherto wholly refused, 
 
 and still refuses ; and afterwards, to wit, on the day of , in the 
 
 year, at aforesaid, in the county aforesaid, converted and dis- 
 posed of the said goods and chattels to his, the said G. D.'s, own use, to the 
 damage of the said A. B. of pounds ; and therefore he brings his suit, ko. 
 
 DECLABATION IN TEESPASS ON THE CASE, (p.) 
 
 For a libel. 
 
 In the King's Bench, , Term, in the year of the reign of King 
 
 George the Fourth. 
 
 , to wit, G. D. was attached to answer A. B. of a plea of trespass on 
 
 the case; and thereupon the said A. B., by , his attorney, complains; 
 
 For that whereas the said A. B. now is a good, true, and honest subject of this 
 realm, and as such hath always conducted himself; and, until the committing 
 of the grievance hereinafter mentioned, was always reputed to be a person 
 of good fame and credit, and hath never been guilty, nor, until the committing 
 of the said grievance, been suspected to have been guilty of perjury, or any 
 other such crime ; by means of which said premises he, the said A. B., before 
 the committing of the said grievance, had deservedly obtained the good opin- 
 
 (o.) See the original writ, supra, p. 50. 
 (p.) See the originak writ, supra, p. 51. 
 
74 OP THE PROCEEDINGS 
 
 ion of all his neighbors and of all other persons to whom he was know n, t* 
 
 wit, at , in the county of ; and whereas, before the committing 
 
 of the said grievance, a certain action had been depending in the court of our 
 lord the now king, before the king himself, at Westminster, in the county of 
 Middlesex, wherein one £. F. was the plaintiff and one O. H. was the defend- 
 ant ; which said action had been then lately tried at the assizes in and for th« 
 
 county of ; and on such trial the said A. B. had been examined on 
 
 oath, and had given his evidence as a witness on the part of the said E. F., 
 
 to wit, at aforesaid, in the county last aforesaid ; yet the said C. J)., 
 
 well knowing the premises, but greatly envying the happy condition of the 
 said A. £., and contriving and wickedly and maliciously intending to injure 
 the said A. B. in his good fame and credit and to bring him into public scan- 
 dal, infamy, and disgrace, and to cause it to be suspected and believed that 
 
 the said A. B. had been guilty of perjury, heretofore, to wit, on the day 
 
 of , in the year of our Lord , at aforesaid, in the county 
 
 last aforesaid, falsely, wickedly, and maliciously did compose and publish, and 
 cause and procure to be published, of and concerning the said A. B., and of and 
 concerning the said action, and the evidence so given by the said A. B., a cer- 
 tain false, scandalous, malicious, and defamatory libel, containing (among 
 other things) the false, scandalous, defamatory, and libellous matter follow- 
 ing, of and concerning the said A. B., and of and concerning the said action, 
 and the evidence so given by the said A. B., that is to say, he (meaning the 
 said A. B.) was forsworn on the trial, (meaning the said trial, and thereby 
 then and there meaning that the said A. B., in giving his evidence as afore- 
 said, had committed willful and corrupt perjury;) by means of the commit- 
 ting of which grievances he, the said A. B., hath been and is greatly injured 
 in his said good fame and credit and brought into public scandal, infamy, and 
 disgrace, insomuch that divers good and worthy subjects of this realm have, 
 by reason of the committing of the said grievance, suspected and believed, and 
 and still do suspect and believe, the said A. B. to have been guilty of perjury ; 
 and have, by reason of the committing of the said grievance, from henceforth 
 hitherto wholly refused to have any transaction or acquaintance with the said 
 A. B., as they otherwise would have had, to the damage of the said A. B. of 
 pounds ; and therefore he brings his suit, &c. 
 
 With respect to replevin, we have already seen {q) that 
 it is not commenced in the superior courts, and conse- 
 quently that no original writ is sued out. The form of the 
 declaration is as follows : 
 
 DBOLAEAIION IN EEPLEVIN. 
 
 In the King's Bench, Term, in the year of the reign of King 
 
 Qeorge the Fourth. 
 
 -. , to wit, C. L. was summoned to answer A. B. of a plea, wherefore 
 
 he took the cattle of the said A. B., and unjustly detained the same, against 
 
 (j,) Supra, p. 52. 
 
IN AN ACTION. 75 
 
 sureties and pic Iges until, &c. And thereupon the said j1.£., by ^-,hia 
 
 attorney, complains: For that the said C. D. heretofore, to wit, on the 
 
 day of , in the year of our Lord , at , in the county of , 
 
 in a certain place there called , took the cattle, to wit, one mare of the 
 
 said A. £., of great value, to wit, of the value of pounds, and unjustly 
 
 detained the same, against sureties and pledges, until, &o. ; wherefore the aaid 
 
 A. B. saith that he is injured and hath sustained damage to the value of 
 
 pounds ; and therefore he brings his suit, &c., (r.) 
 
 The nature and form of the declaration having heen now 
 considered, the opportunity has arrived for adverting to a 
 method of proceeding mentioned at the commencement 
 of the work, but not in its nature capable of satisfactory 
 explanation till this period, viz, the proceeding by bill in 
 lieu oi original vmt. This subject, therefore, at the expense 
 of some digression, will, for a short time, demand the 
 reader's attention. 
 
 Under this head two different species of proceeding pre- 
 sent themselves for consideration. There is a proceeding 
 by bill, more commonly so called, which is founded on 
 privilege on the part of the defendant; and there is another 
 proceeding, also without original writ, and in the nature 
 of a proceeding by bill, though not usually so denomi- 
 nated, which is founded on privilege on the pari of the plaint- 
 
 1. Of the proceeding by bill, founded on privilege in the 
 defendant. 
 
 By practice of very ancient date, in all personal suits, 
 where an officer (i) or prisoner of the king's bench, or an 
 officer of the common pleas (m) is defendant, the course has 
 
 (r.) 8 Went., 24 ; see an ancient precedent, 10 Edward III, 24. 
 
 (g.) Hale, of the king's bench and common pleas, (among Hargrave's Law 
 Tracts,) ch. vi. Hale mentions another privilege, viz, that ex parte curiae; 
 but observes, that it is resolvable into that ex parte defendentis. 
 
 (t.) The term officer in this case includes an attorney of the court, but it 
 does not include eergeants or barristers. (Vin. Abr. Writ A, 25, cites Br. Bille 
 pi. 31.) And it is said that sergeants and their clerks, and the clerks of the 
 judges and prothonotaries, are privileged to be sued in the G. P. by original 
 writ, and not by bill. (1 Tidd., 76, 8th edit.) 
 
 («.) But in the 0. P. where defendant is prisoner, the course is, not to de- 
 clare against him, as in custodia guardiomi de la Fleet, but the proceeding ii 
 
76 OF THE PEOCBEBINGS 
 
 been to prooeed against such defendant in the court in 
 which he is officer or prisoner by exhibiting, i. e., filing, 'x,) 
 a bill against him, among the records of the court, without 
 suing out any original writ. For when the defendant \t 
 in either of the privileged characters above mentioned, the 
 two great purposes of the original writ are superseded. 
 As he is actually present in court, or considered as being 
 so, no original, of course, is requisite to enforce his appear- 
 ance; and as he is already within the jurisdiction of the 
 court, as its officer or prisoner, an instrument of that kind 
 is not deemed necessary to give authority for the institution of 
 the suit. This practice, however, is confined to personal 
 actions, and it does not appear that actions real or mixed (y) 
 have ever been allowed to be thus commenced. The bill 
 filed in such eases is exactly equivalent to a declaration in 
 a proceeding by original; the original writ and process, 
 which are necessary preliminaries, according to one form of 
 of proceeding, being conveniently passed by in the other; 
 and the plaintiff" arriving, without these ceremonies, at the 
 statement of his cause of action, immediately and in the first 
 instance. Accordingly, the bill states the complaint exact- 
 ly in the same terms as would be used in a declaration in 
 a parallel case, by original writ, and is therefore considered 
 as belonging to a certain form of action as strictly as if an 
 original writ had issued to determine the form. Thus, if 
 the cause of action be a debt or breach of covenant, the 
 plaintiff", in his bill, pursues the same form that a declara- 
 tion by original would pursue, founded on a writ in debt 
 or covenant, and is accordingly said to proceed or bring 
 his action in debt or covenant in the one case as well as in 
 
 by original, proper to the action. Per Holt, C. J., Brown v. Babbington, Ld. 
 Bay., 882.) 
 
 (x.) ExMbiting seems, in its original meaning, to bave imported showing to 
 the court; but the bill is not now actually shown to the court, but, in the 
 king's bench, filed with the clerk of the declarations in the king's bench; in 
 the common pleas, entered with the prothonotary. (1 Tidd., 454, 8th edit; 2 
 Sellon, 74.) 
 
 Cy.) An ejectment, it is true, may be brought by bill, but in this work an 
 *;«ctment is not considered as a mixed action. 
 
IN AN ACTION. 77 
 
 the other. The bill differs, in short, from the declaration 
 only in some slight variation of form at the commence, 
 ment and conclusion. 
 
 As in the king's bench and common pleas, so in the 
 exchequer, the like practice obtains of filing bills in personal 
 suits against officers and prisoners, {z;) and such bill may 
 also be filed in this court against accountants; that is, per- 
 sons who have entered into account with the king in tha 
 court of exchequer, (a.) In this court, as was observed @A 
 the commencement of the work, there is no proceeding bj 
 original ; but the practice of filing bills in personal suita 
 against persons of the descriptions above mentioned haa 
 been from very ancient time allowed for similar reasona 
 as in the king's bench and common pleas. 
 
 Such is the strict and primary application of the pro- 
 ceeding by bill, founded on privilege in the defendant; 
 and to this extent only does it obtain in the practice of the 
 common pleas and the exchequer, being confined in those 
 courts to cases of actual privilege, as officer, prisoner, or 
 accountant. But in the king^s bench it has, for a great 
 length of time past, been irregularly extended much be- 
 yond these its ancient limits, and been applied to defendants 
 of almost every description, whether actually privileged or 
 not. This has been the effect of a contrivance anciently 
 devised by the practitioners of this court for the extension 
 of its jurisdiction, the nature of which was as follows: 
 
 When an action was contemplated against a person not 
 already privileged as officer or prisoner, the course was for 
 the plaintiff to cause him to be arrested upon a fictitious 
 charge (foreign to the proposed action) of a trespass; and 
 this was effected by virtue of certain judicial writs which 
 the court had power to issue in such cases, called hill 
 of Middlesex and latitat, {b.) Upon such arrest the defend- 
 
 (z.) Hale, w6i supra; 1 Manning, 9, 143, 149; Appendix, p. 91. 
 
 (a.) Hale, uU iwpra; 1 Manning, 9, 143. 
 
 (6.) A trespass, being alleged to be committed "witb force and arms," was 
 considered as partly of a crmiwil nature, and on that ground fell within tha 
 jurisdiction of t^'is court; 3 Bl. Com., 43, 285, -where the nature of the bill 
 
78 OF TEE PEOCEBDINGS 
 
 ant, unless he gave bail, was committed to the prison of 
 the court, or, according to the legal phrase, the custody of the 
 marshal of the marshalsea; and the plaintiff then commenced 
 the action by filing a bill against him, which, as he had 
 become prisoner, was authorized, as has been shown, by 
 the regular practice of the court. If, instead of being 
 committed to actual custody, he gave bail, this was con- 
 sidered as of equal effect for the purpose of founding the 
 jurisdiction, and he was still considered as being in the 
 custody of the marshal (c) and liable to have a bill filed 
 against him. 
 
 This method, having silently crept into usage, at length 
 established itself as an avowed and regular course of pro- 
 ceeding, (d,) and continues in force to the present day, sub- 
 ject, however, to the following important modification, that 
 the defendant is not now actually arrested by virtue of the fic- 
 titious charge in the bill of Middlesex or latitat, unless the 
 nature of the case be such as in itself authorizes the plaint- 
 iff' to take his person. If the case be not of that descrip- 
 tion, no arrest takes place, and the defendant is committed 
 to the custody of the marshal of the marshalsea only by 
 fiction or intendment of law. Thus, by the aid of the bill of 
 Middlesex and latitat, the king's bench is enabled to enter- 
 tain personal actions by bill against unprivileged as well 
 as privileged persons; for those who are not already officers 
 or prisoners may be invested with the latter character by 
 virtue of the real or supposed arrest and committal to the 
 custody of the marshal, (e.) And accordingly the proceed- 
 ing by bill has long been in this court one of the regular 
 and ordinary modes of commencing a personal action, co- 
 
 of Middlesex and latitat la more fully explained. (See the forma of these 
 writs, Tidd'a Appendix, 62, 63, 64, 65, 6th edit.) 
 
 (c.) 3 Reeves, 387. 
 
 (d.) See Brown v. Babbington, Ld. Eay., 882, 883. 
 
 (e.) However, the proceeding by bill of Middlesex and latitat does not ap- 
 ply to parties not legally capable of arrest in a civil suit; and, consequently, 
 not to peers of the realm, corporations, hundredors, or members of the house of 
 tommons. (1 Tidd., 143, 8th edit.) 
 
IN AN ACTION. 79 
 
 ordinate with that by original. Each method has its par- 
 ticular recommendations, which lead the practitioner, 
 according to the nature of the case, to its adoption. 
 
 Such being the origin and nature of the proceeding by 
 bill in the king's bench, the following is a summary account 
 of its practical course : If the defenda-nt be already privi- 
 leged, no writ to compel appearance, as already explained, 
 is requisite, but the suit is begun at once by filing the bill. 
 On the other hand, where the defendant is not already an 
 officer or prisoner, the plaintiff begins his proceedings by 
 suing out a bill of Middlesex or latitat. These writs com- 
 mand the sheriff to arrest the defendant's person, and to 
 have him in court on a certain day in term; and, like 
 an original writ, are themselves to be returned into court 
 on that day. However, their return differs in this respect 
 from that of an original writ, that it is not necessarily to 
 be made on a general return-day, but may fall on any day of 
 the term, Sundays and certain feast days excepted. Under 
 these writs, either the defendant is arrested, if the cause 
 of action authorize that proceeding, or, if not, his appear- 
 ance to the writ is otherwise enforced in such manner as 
 the practice of the court prescribes, (/.) The appearance 
 to these writs, when effected, is expressed by a formal 
 entry, if there have been no actual arrest, of fictitious bail, 
 in the proper office of the court, (which is called jilmg com- 
 mon bail to the action,) or, in case of actual arrest, by giving 
 actual bail. Upon this the plaintiff exhibits his bOl; but 
 it is to be observed, that where the defendant is not actu- 
 ally an officer or prisoner at the time of the bill exhibited, 
 but merely in supposed custody, by virtue of the bill of 
 Middlesex or latitat, though the plaintiff is, in strict legal 
 language, said in this, as in other cases, to exhibit Ms bill, 
 the instrument is in practice generally called, not a bill, but 
 a declaration; nor is it always actually exhibited, i. e., filed, 
 but in some cases filed, in others delivered, according to the 
 
 (/.) For informal on on this subject, consult 1 Tidd., 163, 170, 238,8th edit; 
 1 Sel., ch. ii, iii, iv 
 
80 OP THE PEOCBEDINaS 
 
 course of practice formerly explained in treating of the 
 manner of pleading in general, (g.) 
 
 Of the bill or declaration in the king's bench against a 
 prisoner, whether real or supposed, the following is an 
 
 example : 
 
 BILL — (against an actual prisoner.) 
 
 Or, 
 
 LECLAEATION — [against a supposed prisoner.) 
 
 [In debt>-on a bond.] 
 
 Ellehboeotjgh and Maekham. 
 
 Term, in the year of the reign of King George the Fourth. 
 
 Middlesex, to wit, A. B. complains of C. D. being in the custody of the 
 
 marshal of the marshalsea of our lord the now king, before the king himself, 
 
 of a plea that he render to the said A. B. the sum of pounds, of good and 
 
 lawful money of Great Britain, which he owes to and unjustly detains from 
 
 him. And thereupon the said A. B., by K R, his attorney, complains : For 
 
 that whereas the said C. D. heretofore, to wit, on the day of , in 
 
 the year of our Lord , at Westminster, in the county of Middlesex, by 
 
 his certain writing obligatory, sealed with his seal and now shown to the 
 
 court here, (the date whereof is the day and year aforesaid,) acknowledged 
 
 himself to be held and firmly bound to the said A. B. in the sum of 
 
 pounds, above demanded to be paid to the said A. B. Yet the said C. D., 
 
 although often requested, hath not as yet paid the said sum of pounds 
 
 above demanded, or any part thereof, to the said A. B., but so to do hath 
 
 hitherto wholly refused, and still refuses, to the damage of the said A. B. of 
 
 ten pounds. And therefore he brings his suit, &c. 
 
 T>, J , , f John Doe and 
 
 Pledges to prosecute, | Riohaed EoE. 
 
 2. The proceeding by bill, founded on privilege in ike 
 plaintiff, is apparently of the same antiquity as that founded 
 on privilege in the defendant, and seems to rest on an anal- 
 ogous principle. In the king's bench and common pleas, 
 in all personal suits where an officer of the court is plaintiff, 
 he is allowed to file or deliver a declaration, (for it is in this 
 case usuallj' called by that name, and not by that of bill,) with- 
 out having previously obtained an original writ; the defend- 
 ant's appearance being first enforced by a writ of the judicial 
 kind, returnable in the same manner as a bill of Middlesex 
 or latitat, (/i,) and called an attachment of privilege, (i.) 
 
 (jr.) Sapra, pp. 61, 62. 
 (A.) Vide supra, p. 79. 
 
 (i.) "An atlachment of privilege is but as a latitat, and not as an original." 
 Per Holt, C. J., Eudd v. Berkenhead, 1 Show., 376. 
 
IN AN ACTION. 81 
 
 So, in the exchequer, an officer of the court, when plaiutiiF, 
 is allowed, in any personal action, to enforce the defend- 
 ant's appearance by judicial writs, returnable on any day 
 in the term, (Sundays and certain feast days excepted,) and 
 called venire facias ad respondendum and capias of privilege, 
 (k,) and then to file or deliver a declaration against him; 
 and in this court the king's accountant or debtor has a similar 
 privilege, appearance at his suit being enforced by similar 
 writs, though the capias is in that case commonly called 
 a quo minus, (I.) And this was formerly the whole exv 
 tent of this court's jurisdiction in respect of privilege in 
 the plaintiff; but an irregular method was in course of 
 time devised for its extension, analogous to that of the bill 
 of Middlesex and latitat in the king's bench. The con- 
 trivance was simply that of suing out a venire facias or quo 
 minus, containing a fictitious suggestion that the plaintiff 
 was debtor to the king. In the character of such debtor 
 he would be entitled, as already shown, to institute that 
 method of proceeding; and the fiction by which he assumed 
 the character was allowed to pass without scrutiny, (m.) 
 The proceeding by venire and quo minus was thus surrep- 
 titiously extended to plaintiffs of every description ; and 
 the effect therefore is that, by means of those writs, a per- 
 sonal action may be, and is constantly brought in the 
 exchequer at the suit of any plaintiff, whether really priv- 
 ileged or not ; the course of proceeding being, first, to sue 
 out a venire or quo minus, to compel appearance, contain- 
 ing either a true or a fictitious suggestion of the kind above 
 mentioned, and, upon appearance, to file or deliver a decla- 
 ration, the instrument being usually called, in practice, by 
 that name, but, in more strict legal phrase, a bill. 
 
 (i.) Manning's Exchequer, 14, 58, 142. In strictness, however, these writs 
 are not independent of each other ; but the capias is supposed to issue on a 
 precedent vemre. (1 Manning, 58.) 
 
 (l.) 1 Manning, 58. It is so called from its containing, in this case, a 
 clause of oito rm/n/as luffidens exietit; alleging that the plaintiff, in conse- 
 quence of the injury committed by the defendant, ia less able to pay his debt 
 to the king. 
 
 (in.) Vide Appendix, note 16. 
 6 
 
82 OF THE PROCEEDINGS 
 
 The subject of proceeding by bill being now sufficiently 
 discussed, it is time to resume the consideration of the 
 manner of pleading. And it is to be understood that what 
 follows is equally applicable to an action by original and 
 by bill; for, from the period of the bill or declaration, the 
 subsequent course of the suit is the same in either method 
 of proceeding, some slight and occasional variations of 
 form only excepted. 
 
 The plaintiff having declared, {i. e., filed or delivered his 
 declaration,) it is for the defendant to concert the manner 
 of his defense. For this purpose he considers whether, 
 on the face of the declaration, and supposing the facts to 
 be true, the plaintiff appears to be entitled, in point of law, 
 to the redress he seeks, and in the form of action which 
 he has chosen. If he appears to be not so entitled in point 
 of law, and this by defect either in the substance or the 
 form of the declaration, i. e,, as disclosing a case insufficient 
 on the merits or as framed in violation of any of the rules 
 of pleading, the defendant is entitled to except to the 
 declaration on such ground. In so doing he is said to 
 demur; and this kind of objection is called a demurrer, (n.) 
 
 A demurrer, (from the Latin demorari, or French demor- 
 rer, to " wait, or stay,") imports, according to its etymology, 
 that the objecting party will not proceed with the pleading, 
 because no sufficient statement has been made on the other 
 side, but will wait the judgment of the court whether he 
 is bound to answer. The form of a demurrer to a declara- 
 tion will appear by the following examples : 
 
 DEMUEEEE TO THE DEOLAEATIOIir. 
 
 For matter of substance. 
 
 [In debt] 
 
 Jn the King's Bench, —— Term, in the year of the rdgn of King 
 
 George the Fourth. 
 
 C 2). 1 -^^^ ^^^ ^^i"^ ^- -^■> ^y > ^i^ attorney, comes and defends the 
 
 ats V wrong and injury, when, &o. ; and says that the said declaration and 
 4. S. ) tiie matters therein contained, in manner and form as the same are 
 above stated and set forth, are not sufficient in law for the said A. B. to have 
 or maintain his aforesaid action against him, the said C. D.; and that he, the 
 
 (n.) See Appendix note IV. 
 
IN AN ACTION. 83 
 
 said O. B. , is not bound by the law of tlie land to answer the same. And this 
 he is ready to verify. Wherefore, for want of a sufficient declaration in this 
 behalf, the said C. B. prays judgment, and that the said A. B. may be barred 
 from having or maintaining his aforesaid action against him, &o. 
 
 DEMUBREE TO THE DECLAEATION. 
 
 For matter of form. 
 
 [In debt.] 
 
 In the ^ng's Bench, Term, in the year of the reign of King 
 
 George the Fourth. 
 
 g_ 2). ■) And the said 0. B., by , his attorney, comes and defends the 
 
 ats l wrong and injury, when, &c.; and says that the said declaration and 
 •4' -o. J the matters therein contained, in manner and form as the same are 
 above stated and set forth, are not sufficient in law for the said A. B. to have 
 or maintain his aforesaid action against the said C. B.; and that he, the said 
 C. B., is not bound by the law of the land to answer the same. And this he 
 is ready to verify. Wherefore, for want of a sufficient declaration in this be- 
 half, the said Q. B. prays judgment, and that the said A. B. may be barred 
 from having or maintaining his aforesaid action against him, Ac. And the 
 said C B., according to the form of the statute in such case made and pro- 
 vided, states and shows to the court here the following causes of demurrer to 
 the said declaration ; that is to say, that no day or time is alleged in the said 
 declaration at which the said causes of action, or any of them, are supposed 
 to have accrued. And also that the said declaration is in other respects uncer- 
 tain, informal, and insufficient. 
 
 If the defendant does not demur, his only alternative 
 method of defense is to oppose or answer the declaration 
 by matter of fact. In so doing he is said to plead, (o,) (by 
 way of distinction from demurring,) and the answer of fact 
 so made is called the plea. 
 
 Pleas are divided into pleas dilatory and peremptory; 
 and this is the most general division to which they are sub- 
 ject, (p.) 
 
 Subordinate to this is another division. Pleas are either 
 to the jurisdiction of the court, in suspension of the action, in 
 ahatemmt of the writ, or in bar of the action; the three first of 
 which belong to the dilatory class; the last is of the per- 
 emptory kind, {q.) 
 
 (o.) See Appendix, note 18. 
 (p.) See Appendix, note 19. 
 (j.) See Appendix, note 20. 
 
84 OF THE PROCEEDINGS 
 
 A plea to the jurisdieiion is one by which the defendsuit 
 excepts to the jurisdiction of the court to entertain the 
 action. The following is an example : 
 
 PLEA TO THE JUEI3DI0TI0N. 
 
 In an action of ejeetTnent for lands sitiMte vdthin a county palatine. 
 
 In tlie King's Bench, Term, in the year of the reign of King 
 
 George the Fourth. 
 Q_ J) ■) And the said G. D., in his proper person, comes and defends the force 
 ats I and injury, and says that the said county of Chester is, and, from time 
 A. B. ) -vrhereof the memory of man is not to the contrary, hath been a county 
 palatine; and there now are and for all time- aforesaid have been justices 
 there; and that all and singular pleas for the recovery of manors, messuages, 
 and tenements, lying and being within the said county, have been for all the 
 time aforesaid, and still are, pleaded and pleadable within the said county of 
 Chester, before the justices there for the time being, and not here in the court 
 of our lord the king, before the king himself. And this he is ready to verify. 
 Wherefore, since the plea aforesaid ia brought for recovery of the possession 
 of the manors, messuages, lands, and hereditaments aforesaid, within the said 
 county palatine, the said C. D. prays judgment, if the court of our lord the 
 king here will or ought to have further cognizance of the plea aforesaid, (r.) 
 
 A plea in suspension of the action is one which shows 
 some ground for not proceeding in the suit at the present 
 period, and prays that the pleading may be stayed until 
 that ground be removed. The number of these pleas is 
 small. Among them is that which is founded on the non- 
 age of one of the parties, and is termed parol demurrer, (s.) 
 Its form is as follows : 
 
 PAEOL DEMUEEEE. 
 
 By an heir sued on the bond of his ancestor. 
 
 [In debt.:| 
 
 In the King's Bench, Term, in the year of the reign of King 
 
 George the Fourth. 
 
 C 2). ) And the said C. D., by F. F, who ia admitted by the court of our 
 
 ats >-said lord the king here as guardian of the said G. D., to defend for the 
 
 ■A. B. ) aaiii (1 2)., who is an infant, under the age of twenty-one years, comes 
 
 and defends the wrong and injury, when, &c. ; and saith that he, the said 
 
 C. D; is within the age of twenty -one years, to wit, of the age of years, 
 
 to wit, at aforesaid, in the county aforesaid. And this he is ready to 
 
 rerify. Wherefore he does not conceive, that during his minority he ought 
 
 (r.) 1 Went., 49. 
 
 (s.) See Appendix, note 21. 
 
IN AN ACTION. 85 
 
 to answer the said A. B. in his said plea. And he prays that the parol may 
 demur (t) until the full age of him the said 0. D., (a.) 
 
 A plea in abatement of the writ is one which shows some 
 ground for abating or quashing the original writ, and makes 
 prayer to that effect, (x.) 
 
 The grounds for so abating the writ are any matters of 
 fact tending to impeach the correctness of that instrument, 
 i. e., to show that it is improperly framed or sued out, 
 without, at the same time, tending to deny the right of 
 action itself. Thus, if there be variance between the 
 declaration and the writ, this shows that the writ was not 
 properly adapted to the action, and is, therefore, a ground 
 for abating it. So, if the writ appear to have been sued 
 out pending another action already brought for the same 
 cause, if it name only one person as defendant, when it 
 should have named several, or if it appear to have been 
 defaced in a material part, it is for any of these reasons 
 abatable, (y.) 
 
 Pleas in abatement relate either to the person of the 
 plaintifi", to the person of the defendant, to the count or 
 declaration, or to the writ, (2:.) 
 
 A plea in abatement, to the person of the plaintifi* or 
 defendant, is such as shows some personal disability in one 
 of these parties to sue or be sued, as that the plaintifi^ is 
 an alien enemy. "With respect to these pleas to the person, 
 it is to be observed, that they do not fall strictly within 
 the definition of pleas in abatement, as above given ; for 
 they do not pray "that the writ be quashed," but pray 
 judgment "if the plaintiff" ought to be answered." How- 
 ever, as such pleas offer an objection of form rather than 
 
 (t.) Parol is the French word for loquela, which was the most ancient ap- 
 pellation of ^^ pleading; vide swpra, 58. Demur is from demorrer, "to stay." 
 That the parol may demur, means, therefore, that the pleading may be stayed. 
 
 («.) 2 Chitty, 472, 1st edit. ; Flasket v. Beeby, 4 East., 485. 
 
 (a.) See Appendix, note 22. 
 
 (y.) The different grounds or subjects of pleas in abatement will be found 
 enumerated. Com. Dig., Abatement, E, H, 56. 
 
 («.) 1 Chitty, 435, 1st e-'lit. ; Com. Dig., Abatement, 0. 
 
86 OF THE PROCEEDINaS 
 
 substance, and do not deny the right of action itself, thej 
 are considered as in the nature of pleas in abatement, and 
 classed among them, (a.) A plea in abatement to the count 
 or declaration is such as is founded on some objection ap- 
 plying immediately to the declaration, and only by conse- 
 quence, affecting the writ. The only frequent case in 
 which this kind of plea has occurred is where the objec- 
 tion is that of a variance in the declaration from the writ, 
 which was always a fatal fault, (6.) Even in this case, 
 however, the plea is now out of use, in consequence of a 
 change of practice relative to the original writ that will 
 be presently explained. A plea in abatement to the writ 
 is such as is founded on some objection that applies to 
 the writ itself; for example, that in an action on a joint 
 contract it does not name as defendants all the joint con- 
 tractors, but omits one or more of them. Pleas of this 
 latter kind have been very anciently divided into such as 
 relate to the form of the writ and such as relate to the action 
 of the writ; and those relating to its form have been again 
 subdivided into such as are founded on ohjectiona apparent 
 on the writ itself, and such as are founded on matter extrane- 
 OfUS, (c.) 
 The following are examples of pleas in abatement: 
 
 PLEA IN ABATEMENT OF THE WRIT. 
 
 To the person of the plaintiff. 
 
 [In debt.] 
 
 In the King's Bench, Term, in the year of the reign of King 
 
 George the Fourth. 
 
 Q_ J) 1 And the said G. D., by , his attorney, comes and defends the 
 
 ats J- wrong and injury, when, &o.; and says that the said A. B. ought not 
 
 ■"■ ■"• ) to be answered to his writ and declaration aforesaid, because, he says, 
 
 that the said A. B. is an alien, born, to wit, at Calais, in tbe kingdom of 
 
 France, in parts beyond the seas, under the allegiance of tbe king of France, 
 
 (a.) See Appendix, note 23. 
 
 (fc.) There were, however, other instances in which this kind of plea was 
 used. See Co. Litt., 303, b., where it is said that "any imperfection in the 
 count doth abate the writ." See also Com. Dig., Abatement, G 7, G 8. 
 
 (e.) 1 Chitty, 435; Com. Dig., Abatement, C. These divisions of pleas in 
 abatement to the writ seem to be more subtle than useful, and do not in moa- 
 «ni practice often come under ccnsideration. 
 
IN AN ACTION. 87 
 
 ai. enemy of our lord the now king, born of father &nd mother adhering to 
 the said enemy; and that the said A. B. entered this kingdom without the 
 safe conduct of our said lord the king ; and this the said G. D. is ready to 
 Terify. Wherefore he prays judgment, if the said A B. ought to be answered 
 to his writ and declaration aforesaid, {d,) &o. 
 
 PLEA IN ABATEMENT OF THE WEIT. 
 
 To the writ. 
 
 [In assumpsit.] 
 
 In the King's Bench, Term, in the year of the reign of King 
 
 George the Fourth. 
 
 0. D. ■) -^id the said C. D., by , his attorney, comes and defends the 
 
 ats y wrong and injury, when, &c.; and prays judgment of the said writ 
 ^- B. ) and declaration, because, he says, that the said several supposed prom- 
 ises and undertakings in the said declaration mentioned (if any such were 
 
 made) were made jointly with one O. E., who is still living, to wit, at , 
 
 and not by the said 0. D. alone ; and this the said 0. B. is ready to verify. 
 Wherefore, inasmuch as the said (?. S. is not named in the said writ together 
 with the said C. D., he, the said 0. D., prays judgment of the said writ and 
 declaration, and that the same may be quashed, (e.) 
 
 The effect of all pleas in abatement, if successful, is, that 
 the particular action is defeated. But, on the other hand, 
 the right of suit itself is not gone; and the plaintiff, on 
 obtaining a better form of writ, may maintain a new action 
 if the objection were founded on matter of abatement; or, 
 if the objection were to the disability of the person, he may 
 bring a new action when that disability is removed. 
 
 Such is, in its principle, the doctrine of pleas in abate- 
 ment; but the actual power of using these pleas has been 
 much abridged, and the whole law of original writs conse- 
 quently rendered of less prominent importance than for- 
 merly by a rule of practice laid down in modern times. 
 
 (d) Lil. Ent., 1; Mod. Ent., 9; 1 Went., 42, 29. 
 [(d.) Fleas in abatement must be verified by affidavit. 1 Chitty Plead., 462. 
 
 Form of the Affidavit. 
 In the King's Bench. 
 
 ( A, £., plaintiff, 
 
 Between ■< and 
 
 [_C. D., sued by the name of E. D., defendant. 
 
 C. D., of, 4o.,-— — , the defendant in this case, makes oath, and saj« that the plea 
 hereunto annezea is true in substance and in fact. C D. 
 
 a worn, *o. [3 Chitty Plead., 901.]] 
 |e.) 2 Ohitty, 415, 1st edit. 
 
88 OP THE PROCEEDINGS 
 
 With respect to such pleas in abatement as were founded 
 on facts that could only he ascertained hy examination of the writ 
 itself, as, for example, variance between the writ and dec- 
 laration, or erasure of the writ, it was always held a 
 necessary matter of form, preparatory to pleading them, 
 to demand oyer of the writ, (/,) that is, to demand to hear 
 it read; which, in the days of oral pleading, was complied 
 with by reading it aloud in open court, and, after the es- 
 tablishment of written pleadings, by exhibiting and (if 
 required) delivering a copy of the instrument to the party 
 who makes the demand. The court of common pleas, 
 however, in the 11 and 12 George 11, and the king's bench, 
 in the 19 George m, (^,) thought fit to establish it as a 
 rule, that thenceforth oyer should not be granted of the 
 original writ; and the indirect efiect of this has con- 
 sequently been to abolish in practice all pleas in abate- 
 ment founded on objections of the kind here stated. But 
 there are pleas in abatement which do not require any 
 examination of the writ itself. For example, if in the dec- 
 laration one only of two joint contractors is named de- 
 fendant, this is sufficient to show that the same non-joinder 
 exists in the writ; for, as a variance between the writ and 
 declaration is a fault, Qi,) the defendant is entitled to assume 
 that they agree with each other; and he may, consequently, 
 without production of the writ, plead this non-joinder as 
 certainly existing in the latter instrument. So the plea 
 that the writ was sued out pending another action, or pleas 
 to the person of the plaintifi" or defendant, require no ex- 
 amination of the writ itself; and there are many others to 
 which the same remark applies. In all such cases no oyer 
 is necessary; and, therefore, pleas of this latter description 
 may be and are, in fact, still pleaded, notwithstanding the 
 rule of practice which denies oyer of the writ. 
 
 (/.) Com. Dig., Pleader, P 2 ; 1 Saund., 318, note 3 ; Bragg v. Digby, Salk., 
 fl58. See precedents of oyer of the writ, Walford v. Savil, Lutw., 8 ; Simp' 
 ion V. Garside, Lutw., 1642. 
 
 ig.) Boats v. Edwards, Dong., 227 ; 1 Saund., 318, note 3. 
 
 (A.) HtZe siipjo, p. 65. 
 
IN AN ACTION, 89 
 
 In this explanation of pleas in abatement the case of a 
 proceeding by original writ has been hitherto exclusively 
 supposed; the law relating to these plea? having been de- 
 vised and originally applied at a period when proceedings 
 by bill wore either unknown or not in common use, and 
 therefore having a more immediate and strict reference to 
 proceedings by original. It is, however, to be understood 
 that there are pleas in abatement of the bill also, by analogy 
 to those in abatement of the writ. In form they differ from 
 pleas in abatement of the writ only in praying judgment, 
 if the plaintiff ought to be answered "to his hill" or "that 
 the hill be quashed," instead of making the like prayer with 
 respect to ^^writ and declaration" (i.) 
 
 A plea in har of the action may be defined as one which 
 shows some ground for barring or defeating the action, 
 and makes prayer to that effect, {k.) A plea in bar is, 
 therefore, distinguished from all pleas of the dilatory class, 
 as impugning the right of action altogether, instead of 
 merely tending to divert the proceedings to another juris- 
 diction, or suspend them, or abate the particular writ. It 
 is, in short, a substantial and conclusive answer to the 
 action, {I.) It follows from this property, that, in general, 
 it must either deny all or some essential part of the aver- 
 ments of fact in the declaration; or, admitting them to be 
 true, allege new facts, which obviate or repel their legal 
 effect. In the first case, the defendant is said, in the lan- 
 guage of pleading, to traverse (m) the matter of the declara- 
 tion ; in the latter, to confess and avoid it. Pleas in bar are 
 consequently divided into pleas hy way of traverse, and pleas 
 hy way of confession and avoidance. 
 
 Of pleas in bar, of each of these descriptions, the fol- 
 lowing are examples : 
 
 (i.) See Appendix, note 24. 
 \h.) lb., note 25.) 
 
 (Z.) The different grounds or subjects of pleas in bar, in each different forin 
 of action, will be found enumerated. Com. Dig., Pleader, 2 A ; 3 0, 19. 
 (to.) See Appendix, note 26. 
 
90 OF THE PROCEEDINGS 
 
 PLEA IH BAE, BY VAT OF TBAVEESE. 
 
 In covenant, on indenture of lease, for not repairing, (n.) 
 
 In the King's Bench, Term, in the year of the reign of King 
 
 George the Fourth, 
 
 g x)_ ■» And the said C. D., by , his attorney, comes and defends the 
 
 ats > wrong and injury when, &o. ; and says that the said A. B. ought not 
 •4. -B. ) to have or maintain his aforesaid action against him, the said C. D., 
 because, he says, that the windows of the said messuage or tenement were not 
 in any part thereof ruinous, in decay, or out of repair, in manner and form 
 as the said A. B. hath above complained against him, the said O. D- And of 
 this he puts himself upon the country. 
 
 PLEA IN BAR, BY WAT OP CONFESSION AND AVOIDANCE. 
 
 In a like action. 
 
 In the King's Bench, Term, in the year of the reign of King 
 
 George the Fourth. 
 
 C J) ) And the said C. D., by , his attorney, comes and defends the 
 
 ats > wrong and injury, when, &o. ; and says that the said A. B. ought not 
 A. B. ) to have or maintain his aforesaid action against him, the said C. D., 
 because, he says, that after the said breach of covenant, and before the com- 
 mencement of this suit, to wit, on the day of , in the year of our 
 
 Lord , at aforesaid, in the county aforesaid, the said A. B., by 
 
 his certain deed of release, sealed with his seal and now shown to the court 
 here, (the date whereof is the day and year last aforesaid,) did remise, release, 
 and forever quit-claim to the said 0. D., his heirs, executors, and administra- 
 tors, all damages, cause and causes of action, breaches of covenant, debts, and 
 demands whatsoever, which had then accrued to the said A. B., or which the 
 said A. B. then had against the said C. D., as by the said deed of release, 
 reference being thereto had, will fully appear. And this the said G. D. is 
 ready to verify. Wherefore he prays judgment if the said A. B. ought to 
 have or maintain his aforesaid action against him. 
 
 The nature of a demurrer to the declaratiou and of plea, 
 and the diflPerent kinds of plea, being now explained, we 
 will continue our examination of the process of pleading; 
 and will first suppose that the defendant takes the course 
 of pleading to the declaration in bar by way of traverse. 
 In this case, it is evident that a question is at once raised 
 between the parties; and it is a question of fact, viz, 
 whether the facts in the declaration, which the traverse 
 denies, be true. A question being thus raised, or, in other 
 words, the parties having arrived at a specific point or 
 
 (n.) See the declaration, supra, p. 68. 
 
IN AN ACTION. 91 
 
 matter, affirmed on the one side, and denied on tte other, 
 the defendant, as the party traversing, is, conformably to 
 the ancient practice, (o,) in general obliged to offer to refer 
 this question to some mode of trial, and does this by annex- 
 ing to the traverse an appropriate formula, proposing either 
 a trial by the country, i. e., by a jury, as in the example, (p. 
 90,) or such other method of decision as by law belongs to 
 the particular point. K this be accepted by his adversary, 
 the parties are then, conformably to the language of the 
 ancient pleading, {jp,) said to be at issue, and the question 
 itself is called the issue. Consequently, a party who thus 
 traverses, annexing such formula, is said to tender issue; 
 and the issue so tendered is called an issue in fact. Thus, 
 in the example at page 90, the defendant, by his plea, ten- 
 ders an issue in fact on the want of repair. 
 
 If it be next supposed that, instead of traversing, the 
 defendant chooses to demur, it is obvious that a question is 
 in this case also raised between the parties; and it is a 
 question of law, viz, whether the declaration be sufficient, 
 in point of law, to maintain the action. The defendant, 
 therefore, as the party demurring, by analogy to the mode 
 observed with respect to an issue in fact, uses a formula 
 referring that question to the proper mode of decision, 
 viz, the judgment of the court, as in the example, (p. 82;) 
 and as upon a traverse he tenders an issue in fact, so he is 
 said, in this case, to tender an issue in law. Thus, in the 
 same example, the defendant, by his demurrer, tenders an 
 issue in law on the sufficiency of the declaration. And 
 here it is to be observed, that while upon a traverse a par- 
 ty is in general obliged to tender issue, upon a demurrer he 
 always necessarily does so, for the only known form of a 
 demurrer contains an appeal to the judgment of the court; 
 but, on the other hand, as will appear in a subsequent part 
 of the work, a party may sometimes traverse or deny 
 without offering any mode of trial. 
 
 (o.) Vide supra, p. 59. 
 {p.) Vide swpra, p, 59. 
 
92 OF THE PROCEEDINGS 
 
 The issue, whether in fact or law, being thas tendered, it 
 is necessary, before the issue is complete, that it be accepted. 
 And this subject shall be considered, first, as it respects the 
 issue in law. 
 
 The tender of the issue in law is necessarily accepted by 
 the plaintiff; for he has no ground of objecting either to 
 the question itself or the proposed mode of decision. A ques- 
 tion on the legal sufficiency of the declaration he cannot, 
 of course, without abandoning his own form of proceed- 
 ing, decline; and with respect to the mode of decision, 
 viz, the judgment of the court, there is in matters of law no 
 alternative method. He is, therefore, obliged to accept or 
 join in the issue in law, and does so by a set form of words 
 cdM^di joinder in demurrer, of which the following is an ex- 
 ample: 
 
 JOINDEB TS DEM0KEEK. 
 
 Upon the demurrer, {p. 82.) 
 
 7?!. the King's Bench, Term, in the year of the reign of King 
 
 George the Fourth. 
 ^ S ) ^^^ *^^ ^^'"^ ■^- •^- ^^J^> ^^^^ *^^ ^^^^ declaration and the matters 
 V. > therein contained, in manner and form as the same are above pleaded 
 C. D- ) and set forth, are sufficient in law for him, the said A. B. , to have and 
 maintain his aforesaid action against him, the said C. D. ; and the said A. B. 
 is ready to verify and prove the same as the court here shall direct and award. 
 Wherefore, inasmuch as the said C. D. hath not answered the said declaration, 
 nor hitherto in any manner denied the same, the said A. B. prays judgment, 
 and his debt aforesaid, together with his damages by him sustained by reason 
 of the detention thereof, to be adjudged to him. 
 
 But the tender of the issue in fact is n^t necessarily ac- 
 cepted by the plaintiff; for, first, he may consider the 
 traverse itself as insufficient in law. It will be recollected, 
 that by the traverse the defendant may deny either the 
 whole or apart of the declaration; and, in the latter case, 
 the traverse may, in the opinion of the plaintiff, be so 
 framed as to involve a part immaterial or insufficient to decide 
 the action. Again, he may consider the traverse as defective 
 in point of form, and object to its sufficiency in law on that 
 ground. So, iu his opinion, the mode of trial proposed may, 
 in point of law, be inapplicable to the particular kind of 
 issue. On such grounds, therefore, he has an option to 
 
IN AS ACTION. 93 
 
 demur to the tra'^ erbe as insufficient in law. The eflect of 
 this demurrer, however, would only be to postpone the 
 acceptance of issue by a single stage, for by the demurrer 
 he tenders an issue in law ; and his adversary, according 
 to the principle already laid down, [q,) would be oblige.d 
 to join in demurrer; that is, to accept the issue in law in 
 the next pleading. On the other hand, supposing a demur- 
 rer not to be adopted, the alternative course will be to 
 accept the tendered issue of fact and also the mode ol 
 trial which the traverse proposes ; and this is done, in cas« 
 of trial by jury, by a set form of words, called a joinder in 
 issue, or a similiter, in the following form : 
 
 JOINDEE IN ISSTIE; Or, SIMILITEB. 
 
 Upon the traverse, (in p. 90.) 
 
 In the ^ng's Bench, Term, in the year of the reign of Sing 
 
 George the Fourth. 
 I And the said A. B., as to the plea of the said 0. D. above pleaded, 
 
 ^b.h 
 
 (J J) \ and whereof he hath put himself upon the country, doth the like. 
 
 The issue in law or fact being thus tendered, and accepted 
 on the other side, the parties are at issue, and the pleading 
 is at an end. 
 
 Hitherto it has been supposed that the defendant either 
 pleads in bar, by way of traverse, or demurs to the declara- 
 tion; but we will now suppose him to plead either one of 
 the kinds of dilatory plea, or a plea in bar, by way of confes- 
 sion and avoidance. In either case the plaintiff has the option 
 of demurring to the plea, as being, in substance or form, an 
 insufficient answer, in point of law, to the declaration, or 
 of pleading to it by way of traverse, or by way of confession 
 and avoidance of its allegations. Such pleading, (r,) on the 
 part of the plaintiff, is called the replication. 
 
 If the replication be by way of traverse, it is in general 
 necessary (as in the case of the plea) that it should tender 
 issue. So, if the -plaintiS demur, an issue in law is necessar 
 rily tendered; and in either case the result is a joinder in 
 
 (g.) Supra, p. 92. 
 
 (? ) See Appendix, note 27. 
 
94 OF THE PROCEEDINGS 
 
 issue, upon the same principles as atove explained with re- 
 spect to the plea. But if the replication be in confession and 
 avoidance, the defendant may then, in his turn, either demur, 
 or, by a pleading, traverse or confess and avoid its allegations. 
 If such pleading take place, it is called the rejoinder. 
 
 In the same manner and subject to the same law of pro- 
 ceeding, viz, that of demurring or traversing or pleading in 
 confession and avoidance, is conducted all the subsequent al- 
 tercation to which the nature of the case may lead; and 
 the order and denominations of the alternate allegations of 
 fact or pleadings throughout the whole series are as follows : 
 Declaration, plea, replication, rejoinder, sur-rejoinder, rebutter, 
 and sur-rebuiter. After the sur-rebutter the pleadings have 
 no distinctive names, for beyond that stage they are very sel- 
 dom found to extend, (s.) 
 
 To whatever length of series the pleadings may happen 
 to lead, it is obvious that, by adherence to the plan here de- 
 scribed, one of the parties must, at some period of the pro- 
 cess more or less remote, be brought either to demur or to 
 traverse; for, as no case can involve an inexhaustible store 
 of new relevant matter, there must be somewhere a limit 
 to pleading in the way of confession and avoidance. Exam- 
 ples have already been given of the demurrer and traverse 
 occurring at the second stage of the pleading, viz, in the 
 plea. In those which here follow they are not produced till 
 after a longer series. 
 
 Let the plaintiff be supposed to declare in assumpsit, (as 
 in p. 72,) and the defendant to plead in abatement; for ex- 
 ample, the non-joinder of a joint contractor, (as in p. 87.) 
 The plaintiff may then be supposed to reply thus : 
 
 EEPLIOATION, BY 'WAY OP TEAVEBSE. 
 
 Upon theplea, {p. 87.) 
 
 In the King's Bench, Term, in the year of the reign of King 
 
 George the Fourth. 
 
 ^. _g_ 1 And the said A. B. says that his said writ and declaration, by reason 
 
 V. \ of anything in the said plea alleged, ought not to be quashed, because, 
 
 C. U. J jje says, that the said promises and undertakings were made by the said 
 
 (?,) bee Appendix, note 28. 
 
IN AN ACTION. 95 
 
 C D. alone, in manner and form as tlie said A. B. liath above complained, and 
 not by the said 0. B. jointly with the said Q. 3., in manner and form as the 
 said C. D. hath above in his said plea alleged. And this the said A. B. prays 
 may be inquired of by the country. 
 
 Again, let the plaintiff be supposed to declare in cove- 
 nant on an indenture of lease, (as in p. 68,) and the defend- 
 ant to plead in bar by way of confession and avoidance, 
 (for example, a release, as in p. 90;) the plaintiff may then 
 be supposed to reply thus : 
 
 EEPLICATIOir, BY WAT OP CONFESSIOIT AND AVOIDANCE. 
 
 Upon the plea, (p. 90 > 
 
 In the King's Bench, Term, in the year of the reign of King 
 
 George the Fourth. 
 _4_ £ 1 And the said A. B. says that, by reason of anything in the said plea 
 V. > alleged, he ought not to be barred from having and maintaining his 
 ^- -O- J aforesaid action against the said C. D., because, he says, that he, the 
 said A. B., at the time of the making of the said supposed deed of release, waa 
 unlawfully imprisoned and detained in prison by the said C. D., until, by force 
 and duress of that imprisonment, he, the said A. B., made the said supposed 
 deed of release, as in the said plea mentioned ; and this the said A. B. is 
 ready to verify. Wherefore he prays judgment and his damages by him sus 
 tained by reason of the said breach of covenant to be adjudged to him, (i.) 
 
 To this the defendant may be supposed to rejoin, as fol- 
 lows: 
 
 EEJOINDEE, BY WAY OF TEAVEESE. 
 
 Upon the above replication. 
 
 In the King's Bench, Term, in the year of the reign of King 
 
 George the Fourth. 
 Q ^ ■> And the said C. D. saith that, by reason of anything in the said 
 ats i- replication alleged, the said A. B. ought not to have or maintain his 
 A. B. ) aforesaid action against him, the said C. D., because, he says, that the 
 said A. B. freely and voluntarily made the said deed of release, and not by 
 force and duress of imprisonment, in manner and form as oy the said replica- 
 tion alleged. And of this the said Q. D. puts himself upon the country, (u.) 
 
 In these examples the parties ultimately arrive at a 
 traverse; but it may happen that in any part of the series 
 a demurrer, instead of a traverse, may take place. Thus, 
 if the defendant, in the last example, choose to dispute the 
 sufficiency, in point of law, of the substance of the matter 
 
 («.) See a similar replication, 2 Rich. K. B., p. 60 ; 8 Edward III, s. pi., 20. 
 (u.) See a similar rejoinder, 2 Eich. K. B., p. 60. 
 
96 OF THE PBOCBBDINGS 
 
 in the replication, he would, instead of a rejoinder, demur 
 to the replication, thus: 
 
 DBMUBEEE. 
 
 To the replication, {in p. 95.) 
 
 In the King's Bench, Term, in the ; year of the reign of Exng 
 
 George the Fourth. 
 Q 2). ■) And the said 0. D. says that the said replication of the said A. B. 
 ats Uo the said plea of him, the said C. B., and the matters therein con- 
 ■4. B. ) tained, in manner and form as the same are above pleaded and set 
 forth, are not sufficient in law for the said A. B. to have or maintain hia 
 aforesaid action against the said C. D.; and that he, the said C. D., is not 
 bound by the law of the land to answer the same ; and this the said C. D. 
 is ready to verify. Wherefore, for want of a sufficient replication in this be- 
 half, the said O. D. prays judgment if the said A. B. ought to have or main- 
 tain his aforesaid action against him. 
 
 As the parties will at length arrive at demurrer or 
 traverse, so, whenever a traverse is at length produced, it 
 comprises in general a tender of issue, (as in the above ex- 
 amples;) and a demurrer necessarily involves a tender of 
 issue, the consequence of which is, in either case, a joinder 
 in issue, exactly upon the same principle as above explain- 
 ed with respect to the plea; so that the parties arrive at 
 issue, after a long series of pleading, precisely in the same 
 manner as when the process terminates at the earliest pos- 
 sible stage. Such is, in a general view, the nature of the 
 process of pleading and the manner of coming to issue, {x.) 
 
 And here we may take occasion to notice an important 
 corollary or inference, resulting from the preceding expla- 
 nations, as to the nature of demurring and of pleading, 
 viz, that a demurrer is never founded on matter collateral 
 to the pleading which it opposes, but arises on the face of 
 the statement itself; a pleading is always founded on mat- 
 ter collateral. This consideration will serve as a guide to 
 determine whether a given objection should be brought 
 forward by way of pleading or of demurrer. Thus, if the 
 declaration omit to name the plaintiff, it is an objection to 
 which that statement, on the face of it, is subject, and 
 which should, consequently, be taken by way of demurrer; 
 
 (i.) See Appendix, note 29. 
 
IN AN ACTION. 97 
 
 but if lie is improperly named in the declaratior. as Wil- 
 liam, instead of John, the fact that his name is John is 
 one of a collateral nature, not disclosed by the declaration 
 itself, and must be brought forward, therefore, by way of 
 plea, viz, a plea in abatement. 
 
 The pleading has been hitherto supposed to take its di- 
 rect and simple course. There are, however, some pleas 
 and incidents of occasional occurrence by which its progress 
 is sometimes broken or varied; and of these it will now be 
 proper to give some account. 
 
 The pleas here referred to are called pleas puis darreign 
 continuance. 
 
 It will be remembered (y) that under the ancient law there 
 were continuances, i. e., adjournments of the proceedings, 
 for certain purposes, from one day or one term to another; 
 and that, in such cases, there was an entry made on the 
 record, expressing the ground of the adjournment, and 
 appointing the parties to reappear at the given day. In 
 the intervals between such continuances and the day ap- 
 pointed the parties were of course out of court, and con- 
 sequently not in a situation to plead. But it somtimes 
 happened that, after a plea had been pleaded and while the 
 parties were out of court in consequence of such a contin- 
 uance, a new matter of defense arose which did not exist, 
 and which the defendant had consequently no opportunity 
 to plead before the last continuance. This new defense he 
 was therefore entitled, at the day given for his reappear- 
 ance, to plead as a matter that had happened after the last 
 continuance, {puis darreign continuance — post ultimam con- 
 tinuationem.) In the same cases as occasioned a continu- 
 ance in the ancient law, but in no other, a continuance still 
 takes place. At the time, indeed, when the pleadings are 
 filed and delivered, no record actually exists, and there is 
 therefore no entry at that time made on record of the 
 award of a continuance; but the parties are, from the day 
 when, by the ancient practice, a continuance would have 
 
 (y.) Supra, p. 60. 
 
 7 
 
98 OF THE PROCEEDINGS 
 
 been entered, supposed to be out of court, and the plead, 
 ing is suspended till the day arrives to which, by the 
 ancient practice, the continuance would extend. At that 
 day the defendant is entitled, if any new matter of defense 
 has arisen in the interval, to plead it according to the 
 ancient plan, puis darreign continuaiice. The following is 
 an example of the form : 
 
 PLEA PUIS DARBEIGN OONTIHUAHCE. 
 
 In the Zing's Bench, next after , in Term, in the 
 
 year of the reign of King/ George the Fourth. 
 
 Q 2). ■) And now at this day, that is to say, on next after , 
 
 ats \ in tWa same term, until which day the plea aforesaid was last con- 
 ■^- B. ) tinned, come as well the said A. B. as the said G. D., by their respect- 
 ive attorneys aforesaid ; and the said C. D. says that the said A. B. ought 
 not further to have or maintain his/aforesaid action against him, because, he 
 
 says, that after the last oontinuantfe of this cause, that is to say, next 
 
 after , in this same term, from which day this cause was last continued, 
 
 and before this day, to wit, on the day of , in the year of our 
 
 Lord , at aforesaid, in the county aforesaid, the said 4. B.,\>y his 
 
 certain deed of release, sealed with his seal [the release may be here stated, 
 as mpra, p. 90 ;] and this the said C. D. is ready to verify. Wherefore he 
 prays judgment if the said A. B. ought further to have or maintain his afore- 
 said action against him, &c. , (z.) 
 
 A plea jmis darreign continuance is always pleaded by way 
 of substitution for the former plea, on which no proceed- 
 ing is afterwards had. It may be either in bar or abate- 
 ment, (a;) and is followed, like other pleas, by a replica- 
 tion and other pleadings, till issue is attained upon it, (b.) 
 
 Of the incidents of occasional occurrence, by which the 
 progress of the pleading is sometimes varied, some of the 
 principal shall here be noticed; and, first, 
 
 1. The demand of view. 
 
 In most real and mixed actions, in order to ascertain 
 the identity of the land claimed with that in the tenant's 
 possession, the tenant is allowed, after the demandant has 
 counted, to demand a view of the land in question; or, if 
 the subject of claim be a rent, a right of advowson, a right 
 
 (z.) 2 Chitty, 676, 1st edit.; 1 Arch., 323. 
 
 (a.) Com. Dig., Abatement, I, 24. 
 
 (6.) See an example in Lyttleton v. Cross, 3 Bam. & Cres&„ 317. 
 
IN AN ACTION. 99 
 
 of common, or the like, a view of the land out of which 
 it issues, (c.) This, however, is confineci to real or mixed 
 actions. For in actions personal, the view does not lie, {d.) 
 In the action of dower, unde nihil habet, it has been much 
 questioned whether the view be demandable or not, (e;) 
 and there are other real and mixed actions in which it is 
 not allowed. 
 
 The view being granted, the course of proceeding is to 
 issue a writ, commanding the sheriff to cause the defend- 
 ant to have view of the land. It being the interest of the 
 demandant to expedite the proceedings, the duty of suing 
 out the writ lies upon him, and not upon the tenant, {/;) 
 and when, in obedience to its exigency, the sheriff causes 
 view to be made, the demandant is to show to the tenant, 
 in all ways possible, the thing in demand, with its metes 
 and bounds, {g.) 
 
 On the return of the writ into the court, the demandant 
 must count de novo, that is, declare again, (h,) and the 
 pleading proceeds to issue, {i.) 
 
 2. Another incident that deserves notice is voucher to 
 warranty. 
 
 A warranty is a covenant real, annexed to lands and 
 tenements, whereby a man is bound to defend such lands 
 and tenements for another person; and in case of eviction 
 by title paramount, to give him lands of equal value, {L) 
 Voucher to warranty (vocatio ad warrantizandum) is the call- 
 
 (c.) Vin. Ab., View.; Com. Dig., (View;) Booth, 37; 2 Saund., 44, 45, d, u. 
 4: 1 Reeves, 433. 
 
 {d) 1 Beeves, 435. 
 
 (e.) The better opinion seems to be that it ia not demandable, 2 Saund., 
 44, n. 4. 
 
 (/.) Booth, 40. 
 
 {g.) 1 Beeves, 436. 
 
 (h.) Com. Dig., Pleader, 2 Y, 3 ; Booth, iiU supra. 
 
 (i.) Both this proceeding of demanding a view, and the voucher to warranty, 
 aftenrards mentioned, are, in the present rarity of real actions, unknown in 
 practice. Thej- seem, however, to deserve notice, as illustrating the principle 
 of pleading. 
 
 (Ji.) Ho Litt., 365; Com. Dig., Guaranty, A. 
 
100 OF THE PROCEEDINGS 
 
 ing of such warrantor into court by the part/ warranted, 
 (when tenant in a real action, brought for recovery of such 
 lands,) to defend the suit for him, (1;) and the time of such 
 voucher is after the defendant has counted. It lies in most 
 real and mixed actions, but not in personal, (wi.) 
 
 Where the voucher has been made and allowed by the 
 court, the vouchee either voluntarily appears, or there is- 
 sues a judicial writ, called a summons ad warraniizandum, 
 commanding the sheriff to summon him. 
 
 "When he, either voluntarily or in obedience to this wi'it, 
 appears, and offers to warrant the land to the tenant, it is 
 called entering into the loarranty; after which he is considered 
 as tenant in the action, in the place of the original tenant. 
 The demandant then counts against him de novo, {n,) the 
 vouchee pleads to the new count, and the cause proceeds 
 to issue. 
 
 3. A party in pleading may also have occasion to make 
 demand of oyer, (o.) 
 
 Where either party alleges any deed, he is in general 
 obliged, by a rule of pleading that will be afterwards con- 
 sidered in its proper place, to make proferi of such deed, 
 that is, to produce it in court simultaneously with the 
 pleading in which it is alleged. This, in the days of oral 
 pleading, was of course an actual production in court. 
 Since then it consists of a formal allegation that he shows 
 the deed in court, it being, in fact, retained in his own 
 custody. An example of this allegation will be found in 
 the declaration of debt on a bond, as above given, (^.) 
 
 Where profert is thus made by one of the parties, the 
 other, before he pleads in answer, is entitled to demand oyer, 
 that is, to hear it read. For it is to be observed that the 
 
 {I.) Co. Litt., 101 b ; Com. Dig.,Voncher, A 1 ; Booth, 43 ; 2 Saund., 32. n. 1. 
 
 {»!,) Com. Dig., Voucher, A 1; 2 Saund., 32, n. 1. 
 
 (n.) 2 Inst., 241 a; 2 Saund., 32, ».;• Booth, 46. 
 
 (o.) See t-he whole law and practioe of oyer stated, 1 Sellon, 261 ; 1 Tidd, 
 635, 8th edit ; 1 Chitty, 414, Ist edit. I Arch., 164 ; 2 Arch. Pract., let edit., 
 194, 196. 
 
 (p.) Supra, p. 67 
 
IN AN ACTION. 101 
 
 forma of pleading do not in general require that the whole 
 of any instrument which there is occasion to allege should 
 be set forth. So much only is stated as is material to the 
 purpose, of which the example last cited will also serve 
 for illustration. The other party, however, may reasonably 
 desire to hear the whole, and this either for the purpose of 
 enabling him to ascertain the genuineness of the alleged 
 deed, or of founding on some part of its contents, not set 
 forth by the adverse pleader, some matter of answer. He 
 is therefore allowed this privilege of hearing the deed read 
 verbatim. 
 
 When the jprofert was actually made in open court, the 
 demand of oyer, and the oyer given upon it, took place in 
 the same manner, and the course was, that on demand by 
 one of the pleaders the deed was read aloud by the plead- 
 er on the other side, {q.) By the present practice, the 
 attorney for the party by whom it is demanded, before he 
 answers the pleading in which the profert is made, sends 
 a note to the attorney pn the other side, containing a de- 
 mand of oyer, on which the latter is bound to carry to 
 him the deed, and deliver to him a copy of it, if required, 
 at the expense of the party demanding; and this is consid- 
 ered as oyer, or an actual reading of the deed in court, (r.) 
 
 Oyer is demandable in all actions, real, personal, and 
 mixed. 
 
 Oyer is said to have been formerly demandable not only 
 of deeds, but of records (s) alleged in pleading, and (as has 
 
 (gr.) Semb. Com. Dig., Pleader, P 1 ; Simpson v. Garsido, Lutw., 1644. In 
 Jevons V. Harridge, 1 Sid., 308, the reading of the deed is said to be the act 
 of the court; but the true doctrine is probably that laid down in Lutwyche. 
 The rule seems to have been, that writs were read by the court, but deeds by 
 the pleader. (See Com. Dig., Pleader, P 1.) 
 
 (r.) Page v. Divine, 2 T. E., 40; 1 Tidd., 635, 8th edit.; 1 Sol., 264. And 
 the party demanding is entitled to a copy of the attestation and names of the 
 witnesses. (1 Saund., 9 b, n. e.) There is no settled time for the plaintiff to 
 give oyer. The defendant must give it in two days exclusive after the de- 
 mand. (1 Tidd., 637, 638, 8th edit.) 
 
 (s.) Com. Dig., Pleader, P 2; Ward v. Griffith, Ld. Bay., 83 ; see, however, the 
 remark in this subject in 1 Arch. , 164 ; and see The King v. Amerj, 1 T. R., 149. 
 
102 OF THE PROCEEDINGS 
 
 beeu before stated in this work) of the original writ also, (<;) 
 but, by the present practice, it is not now granted either 
 of a record or an original writ, (m,) and can be had only 
 in the cases of deeds, probates, and Utters of administration, 
 &(i., of which profert is made on the other side; of private 
 writings not under seal, oyer has never been demandable, [x.) 
 
 Oyer can be demanded only where profert is made, {y.) 
 In all cases where profert is necessary, and where it is also, 
 in fact, made, the opposite party has a right, if he pleases, 
 to demand oyer; but if it be unnecessarily made, this 
 does not entitle to oyer; and so, if profert be omitted when 
 it ought to have been made, the adversary cannot have 
 oyer, but must demur, {z.) 
 
 When a deed is pleaded with profert, it is supposed to 
 remain in court during all the term in which it is pleaded, 
 but no longer, unless the opposite party, during that term, 
 plead in denial of the deed, in which case it is supposed 
 to remain in court till the action is determined. Hence 
 it is a rule, that oyer cannot be demanded in a subsequent 
 term to that in which profert is made, {a.) 
 
 A party having a right to demand oyer is yet not obliged. 
 
 (<.) Vide supra, p. 88. 
 
 (u.) As to the original writ, vide supra, p. 88. As to records, see The Eing 
 V. Amery, 1 T. B., 150. But if a judgment or other matter on record in the 
 same court be pleaded, the party pleading it must give a note in writing of 
 the term and number roll on which it is entered and filed, or his plea will not 
 be received. (1 Tidd., 636, 8th edit.) 
 
 (a.) But where an action is founded on a written instrument not under seal 
 though the defendant cannot pray oyer, yet the court will in some cases make 
 an order for delivery of a copy of it to the defendant or his attorney, and 
 that all proceedings in the meantime be stayed. (1 Tidd., 639, 8th edit. ; 1 
 Saund., 9 d. n., g.) It seems that oyer is not demandable of an act of Par- 
 liament, (1 Tidd., 637 ;) nor of letters patent, (1 Arch., 164 ;) nor of a recogni- 
 zance, {Ibid.) But it is demandable of a deed enrolled, or of the exemplifica- 
 tion of the enrollment, according to the terms of the profert. {Ibid.) 
 
 (y.) Therefore in an action on a bond conditioned for performance of the 
 covenant in another deed, the defendant cannot crave oyer of such deed, but 
 must himself plead it with a profert. (1 Chitty, 415, Ist edit.) 
 
 (z.) Arch., 164; 1 Saund., 9 a, n. d. 
 
 (o.) 1 Tidd, 6,^6, 8th edit.; 1 Chitty, 418, 1st edit. 
 
IN AN ACTION. 103 
 
 in all cases, to exercise that right, (b,) nor is he obliged, in 
 all cases, after demanding it, to notice it in the pleading 
 that he afterwards files or delivers, (c.) Sometimes, how- 
 ever, he is obliged to do both, viz, where he has occasion 
 to found his answer upon any matter contained in the deed 
 of which profert is made, and not set forth by his adver- 
 sary. In these cases the only admissible method of mak- 
 ing such matter appear to the court is to demand oyer, 
 and from the copy given set forth the whole deed verbatim 
 in his pleading, (d.) The following is an example of the 
 manner in which the demand of oyer is thus entered and 
 the deed set forth in the pleading. 
 
 PLEA IN BAE. 
 
 To debt on bond, (e.) 
 
 In the King's Bench, Term, in the year of the reign of King 
 
 George the Fourth. 
 
 C. B. ") -^""^ ^^ ^^i'i ^- -O-' ^1 > I'is attorney, comes and defends the 
 
 ats !• wrong and injury when, &o., and craves oyer of the said writing 
 •4- B. ) obligatory, and it is read to him, &c. He also craves oyer of the con- 
 dition of the said writing obligatory, and it is read to him in these words : 
 "Whereas," (here the condition of the bond, which shall be supposed to be 
 for payment of one hundred pounds on a certain day, is set forth verbatim;) 
 which, being read and heard, the said C. D. says that the said A. B. ought not 
 to have or maintain his aforesaid action against him, because, he says, that he, 
 
 the said 0. D., on the said day of , in the year aforesaid, in the 
 
 said writing obligatory mentioned, paid to the said A. B. the said sum of one 
 hundred pounds in the said condition mentioned, together with all interest 
 then due thereon, according to the form and effect of the said condition, to 
 wit, at aforesaid, in the county aforesaid ; and this, the said C. D. is 
 
 (J.) Arch., 164, 165. 
 
 (c.) 1 Tidd, 638, 8th edit. Where it is said that if the defendant omits to 
 set forth the oyer in his plea, the plaintiff, in C. P., may insert it for him at 
 the head of his plea in making up the issue ; but, in K. B., can only avail him- 
 self of the deed by praying that it be enrolled at the head of his own repli- 
 cation. And see Com. Dig., Pleader, p. 1. 
 
 (i.) Com. Dig., Pleader, 2 V, 4; 2 Saund., 410, d. 2; 1 Saund., 9 b, n. 1, 
 Stibbs V. Clough, 1 Stra., 227 ; Ball v. Squarry, Fort., 354 ; Colton v. Goodridge, 
 2 Black, 1108. If he does not set forth the whole deed, or misrecites it, plaint- 
 iff may either sign judgment for want of a plea, or by his replication may 
 pray that the deed be enrolled. (Jevons v. Harridge, 1 Saund., 9 b ; and se« 
 Com. Dig., p. 1.) 
 
 (e.) See the declaration, supra, p. 67. 
 
104 OF THE PROCEEDINGS 
 
 ready to verify. Wherefore he prays judgment, if the said A. B. ought to 
 have or maintain his aforesaid action against i\im, (^.) 
 
 "When oyer is demanded and the deed set forth, as above 
 explained, the eflFect is as if it had been set forth in the 
 first Instance by the opposite party, and the tenor of the 
 deed as it appears upon oyer, is consequently considered 
 as forming a part of the precedent pleading. Therefore, 
 if the deed, when so set forth by the plea, be found to con- 
 tain in itself matter of objection or answer to the plaintiff's 
 case, as stated in the declaration, the defendant's course is 
 to demur, as for matter apparent on the face of the declar- 
 ation, {g;) and it would be improper to make the objection 
 the subject of ■pka. 
 
 4. The last of these incidents that need be mentioned 
 is the prayer of an imparlance. 
 
 By the ancient practice, if a party found himself un- 
 prepared to answer the last pleading of his adversary 
 immediately, his course was to pray the court to allow him 
 a further day for that purpose; which was accordingly 
 granted by the court to any day that, in their discretion, 
 they might award, either in the same or the next succeeding 
 term, (A.) The party was, in this case, said to pray, and 
 the court to grant, an imparlance, [inierlocuiio, or interlo- 
 queh,,) a term derived from the supposition that in this 
 interval the parties might talk together and amicably settle 
 their controversy, {i.) 
 
 An imparlauce, when granted, was one of the cases of 
 continuance; of which general doctrine some explanation 
 has been before given, (A.) 
 
 It was grantable in almost all actions, real, personal, and 
 mixed, (l.) 
 
 The prayer of imparlance, when made by the defendant 
 
 (/.) 2 Chitty, 473, 1st edit. 
 
 (jr.) Jeffrey v. White, Boug., 475; Snell v. Snell, 4 Barn & Cres^ 741. 
 
 (h.) Booth, 36; Com. Dig., Pleader, D 1. 
 
 (i.) 8 Bl. Com., 299. 
 
 [L) Supra, p. 60. 
 
 (l.) Cam. Dig., Pleader, D 2. 
 
IN AN ACTION. 105 
 
 prior to his plea, was either general or special. The first 
 was simply a prayer for leave to imparl. Of such general 
 imparlance it was a consequence that the defendant was 
 afterwards precluded from certain proceedings of a dilatory 
 tendency, which might before have been competent to him. 
 Thus he could not, after a general imparlance, demand 
 oyer, (m,) nor (according to some authorities) a view, (n,) 
 nor could he plead a plea to the jurisdiction or in abatement, 
 (p.) Accordingly, if he wished to preserve his right to 
 these advantages, he varied the form of his prayer, and 
 made it with a reservation of such right. If his object 
 was to preserve the right of pleading in abatement, he prayed 
 what is called a special imparlance. The nature of the 
 imparlance, general and special, will more fully appear by 
 examples of the style in which this kind of continuance 
 was entered on the record. 
 
 ENTET OF GENERAL IMPARLANCE TO THE DECLAJSATION. 
 
 (In the king's bench, by original.) 
 [After the entry of the declaration, the record proceeds thus:] 
 
 And the said 0. O., by , Ms attorney, comes and defends the wrong 
 
 and injury when, &c., and prays a day thereupon to imparl to the said dec- 
 laration of the said A. B., and it is granted to him, &c. And upon this a day 
 is given to the parties aforesaid, before our lord the king, until the morrow 
 of All Souls, wheresoever, &c., that is to say, for the said C. D. to imparl to 
 the declaration aforesaid, and then to answer the same, {p.) 
 
 ENTET OF SPEOLAL IMPABLANOE TO THE DECLARATION. 
 
 {In the kind's bench, by original.') 
 [After the entry of the declaration, the record proceeds thiLsi] 
 And the said C. D., in his proper person, comes, and, saving to himself all 
 advantages and exceptions, as well to the writ as to the declaration afore- 
 said, prays leave to imparl thereunto here until, &o. And it is granted io 
 him, &c. The same day is given to the said A. B. here, &c., {q.) 
 
 (to.) 2 Saund., 2, n. 2. 
 
 \n.) 2 Saund., 45 b; Booth, 39. 
 
 (o.) Com, Dig., Abatement, I 20; 2 Saund., 2, u. 2. 
 
 {p.) 2 Chitty, 405, 1st edit. (See the form in common pleas, Booth, 36.) 
 In proceedings by bill in king's bench there was no formal entry of a prayer, 
 but a short notice on the record retrospectively that an imparlance had been 
 granted. (Chitty, ib) 
 
 (g.) 2 Chitty, 407, 1st edit. (See the form in procfteding by bill in king's 
 bench, Lib. P'ac, 2, pi. 15; 2 Saund., S,, n. 2.) 
 
106 OF THE PROCEEDINGS 
 
 The latter form would entitle the party to plead in abate- 
 ment afterwards, but not to the jurisdiction, and therefore 
 if he wished to preserve the power of doing this also, he 
 resorted to another kind of special imparlance, differing 
 from the former only in this : that it contained a saving of 
 "aZi advantages and exceptions whatsoever," (r.) This is 
 called in the books a general special imparlance; and it would 
 seem that the effect of an imparlance of this description is 
 to preserve the power not only of pleading all dilatory 
 pleas, but of demanding oyer and a view, (s.) 
 
 The law and practice on the subject of imparlance still 
 remains in the same state as here described, subject to the 
 following remarks : 
 
 By the practice of the present day, a party is either 
 obliged to answer the last antecedent pleading in the same 
 term, or is entitled as of course to an imparlance to the 
 next term, according to the period of the existing term at 
 which it becomes his turn to plead, and the course of the 
 previous proceedings. The rules on this subject are too 
 various and merely practical to be here stated. An impar- 
 lance, when not grantable as of course, may yet be obtained 
 upon application for some particular cause, at the discretion 
 of the court. 
 
 When an imparlance is grantable as of course, and a 
 general imparlance will suffice, no actual prayer or appli- 
 cation for it is now made, but the party entitled takes the 
 imparlance for himself by suspending his pleading till the 
 next term. And on a general imparlance, no notice of the 
 proceeding is usually taken in the pleadings filed and deliv- 
 ered between the parties, {t.) But if the defendant, being 
 entitled as of course to an imparlance, wishes at the same 
 time to preserve his right of pleading dilatory pleas and 
 taking other advantages, and consequently to obtain a spe- 
 cial or general special imparlance, he must make an actual 
 
 (r.) 2 Saund., 2, n. 2. 
 
 (8.) Vide 1 Chitty, 418, 1st edit. 
 
 («.) 1 Chitty, 421, 1st edit. 
 
IN AN ACTION. 107 
 
 application tc the court (u) for this purpose; and where a 
 special or general special imparlance is thus obtained, the 
 defendant makes an entry of it in his plea filed or deliv- 
 ered, (x.) This is done exactly in the form of the ancient 
 entry on record, (?/,) and it stands as a commencement to 
 his plea. 
 
 These, and other incidents of a similar kind, may occur 
 in pleading. If they take their course without opposition, 
 they do not, as we have seen, long interrupt the main series 
 of the allegations. But, with respect to most of them, the 
 opposite party has a right, if he pleases, to oppose the 
 prayer made on the other side; and for this purpose he 
 was entitled, in the ancient practice of pleading, to demur 
 or plead to it, as if it were a statement of fact made in the 
 direct course of the pleading. Thus, if a party demanded 
 oyer in a case where, upon the face of the pleading, his 
 adversary conceived it to be not demandable, the latter 
 might demur, {z;) or, if he had any matter of fact to allege 
 as a ground why the oyer could not be demanded, he might 
 ■plead such matter, {a.) If he pleaded, the allegation was 
 called a counterplea to the oyer. So the demandant might 
 have occasion, in the same manner, to counterplead the 
 voucher or counterplead the vieio; all pleadings of this inci- 
 dental kind diverging from the main series of the allega- 
 tions being termed counterpleas, {b.) And in the latter 
 instances, as well as upon oyer, it would seem there might 
 be demurrer instead of counterplea, if the objection ap- 
 peared on the face of the proceedings. Again, on the 
 counterplea, in all these cases, there might happen to be a 
 replication and other subsequent pleadings; and so the 
 parties might come to issue in law or in fact on this collat- 
 
 (m.) But the special imparlance in the common pleas may be granted by th« 
 ;»rothonotary. (2 Saund., 2, n. 2; 1 Tidd, 467, 8th edit.) 
 (x) 2 Chitty, 423, 1st edit.; 2 Saund., 2, n. 2. 
 (y.) As in the example, fupra, p. 105. 
 (z.) 1 Saund., 9 b., n. 1. 
 (a.) 76. 
 <i.) In Reg. Plac, 118, counterplea is defined to be " a kind of replication. ' 
 
108 OF THE PROCEEDINGS 
 
 eral subject, in the same manner as upon the principal mat- 
 ters in controversy, (c.) It is to be observed, however, that 
 these collateral or incidental pleadings, though according 
 to the principle of the science they may occur, {d,) have 
 now fallen into complete disuse in point of practice. 
 
 Supposing the cause to be at issue, the next proceeding 
 is to make a transcript upon paper of the whole pleadings 
 that have been filed or delivered between the parties. This 
 transcript, when the issue joined is an issue of law, is called 
 the demurrer-book; when an issue in fact, it is called, in the 
 king's bench, in some cases, the issue, (e,) in others the 
 paper-book, and in the common pleas the issue. It contains 
 not only the pleadings, but also entries, according to the 
 ancient forms used in recording, (/,) of the appearance of 
 the parties, the continuances, and other acts supposed to 
 be done in court up to the period of issue joined, even 
 though such entries have not formed part of the pleadings 
 as filed or delivered; and it concludes with an entry of an 
 award by the court of the mode of decision tendered and 
 accepted by the pleadings. The making of this transcript 
 upon an issue in law is called making up the demurrer-book; 
 upon an issue in fact, making up the issue or paper-book. The 
 demurrer-book, issue, or paper-book, when made up, (g,) is 
 delivered to the defendant's attorney, who, if it contains 
 
 (c.) See an example of an issue upon counterplea to the voucher in Forme- 
 don, Bro. Ent., 174. 
 
 (d.) With respect to oyer, it is stated to be still the regular course, where oyer 
 is refused, that the party insisting upon it should move the court to have the 
 prayer of oyer entered upon record; and the other party is then at liberty 
 either to counterplead it or strike out the rest of the pleading, and demur; 
 upon which the judgment of the court is, either that his adversary have oyer, 
 or answer without it. On the latter judgment a writ of error may be brought, 
 but not on the former. (1 Tidd, 637, 8th edit.) 
 
 (e.) Viz, when the general issue only has been pleaded, or where the plead- 
 ings have been delivered, not filed. (1 Arch. Pract,, 131, 1st edit.) 
 
 (/.) Vide supra, p. 60. 
 
 {g.) In what cases the paper-book or issue is made up by the attorneys, and 
 in what oases by the clerk of the papers, is explained in 2 Ti id, 774, 8th edit. 
 It is in general the duty of the plaintiff to get it made up. (1 Arch. Pract. 
 131, let edit.) 
 
IN AN ACTION. 109 
 
 what he admits to be a correct transcript, ieturni it unal. 
 tered, {h;) but, if it varies from the pleadings that were 
 filed or delivered, he makes application to the court to 
 have it set right, {i.) Before dismissing the subject of this 
 transcript, it will be proper to notice the following point 
 of practice with respect to the manner in which the de- 
 murrer-book, issue, or paper-book, is made up and deliv 
 ered. Whenever the defendant demurs, or traverses witli 
 a conclusion to -the country (that is, with an offer of trial 63 
 Jury,) instead of returning a regular joinder in demurrei 
 or similiter on the part of the plaintiff, before making ujj 
 the demurrer-book, issue, or paper-book, in the mannei 
 formerly described, (k,) the usual course, (in a view to ex. 
 pedite the proceedings,) is to make up and deliver to tho 
 defendant the demurrer-book, issue, or paper-book at once ; 
 inserting in it, however, a joinder in demurrer, or a simi- 
 liter, for the plaintiff, (l.) And this, in the case of an issue 
 in fact, is done, not in the full and regular form of a joinder 
 in issue, as formerly given, (?w,) but in the following abbre- 
 viated style, viz: "And the said A. B. does the like." 
 Again, whenever the plaintiff demurs or traverses, con- 
 cluding to the country, the demurrer-book, issue, or paper- 
 book is in like manner made up at once and delivered 
 to the defendant, with a joinder in demurrer or similiter 
 inserted for him, the similiter being in the same abbreviated 
 form, "And the said G. D. does the like." The defendant, 
 however, having an option, as above explained, (n,) with 
 respect to the acceptance of an issue in fact, is of course 
 entitled, if he pleases, to strike out the similiter, and 
 demur. 
 
 (h.) The issite in the K. B. is merely accepted and retained by the defend 
 ant's attorney. It is only the paper-book or demurrer- book which ia re- 
 turned. (1 Arch. Pradt., 132, 1st edit. 1 
 
 (i.) Shepley v. Marsh, Str., 1131. 
 
 (i.) Supra, pp. 92, 93. 
 
 Q.) 1 Arch. Pract., 131, let edit. 
 
 (m.) Supra, p. 93. 
 
 (w.) Supra, p. 92. 
 
110 OF THE PROCEBDINaS 
 
 During the course of the pleading, if either party per- 
 ceives any mistake to have been committed in the manner 
 of his allegation, or if, after issue joined on demurrer for 
 matter of form, he should think the issue likely to be de- 
 cided against him, he ought to apply, without delay, for 
 leave to amend. It is proper, therefore, now to take some 
 notice of the law of amendment. 
 
 Under the ancient system, the parties were allowed to 
 correct and adjust their pleadings during the oral alterca- 
 tion, and were not held to the form of statement that they 
 might first advance, (o.) So, at the present day, until the 
 judgment is signed, {p,) in the manner to be afterwards 
 mentioned, either party is, in general, at liberty to amend 
 his pleading as at common law; the leave to do which is 
 granted, as of course, {q,) upon proper and reasonable 
 terms, including the payment of the costs of the applica- 
 tion, and sometimes the whole costs of the cause up to 
 that time. And, even after the judgment is signed, and 
 up to the latest period of the action, amendment is, in 
 most cases, allowable at the discretion of the court, under 
 certain statutes passed for allowing amendments of the 
 record; and in late times the judges have been much 
 more liberal than formerly in the exercise of this discre- 
 tion, (r.) Amendments are, however, always limited by 
 due consideration of the rights of the opposite party; and 
 where, by the amendment, he would be prejudiced or ex- 
 posed to unreasonable delay, it is not allowed, (s.) 
 
 (o.) 2 Eeeves, 349; Rush v. Seymour, 10 Mod., 88. 
 
 Ip.) 2 Arch. Praot., 231, 1st edit. ; 2 Tidd, 767, Sth edit. 
 
 Iq.) Eush V. Seymour, 10 Mod., 88; 2 Tidd, 767, 8tli edit. But not as of 
 course in a real action ; and, in general, the court will not allow an amend- 
 ment in an action of that class. (2 Tidd, 755, 8th edit. ; Dumaday v. Hughes, 
 
 3 Bos. & Pul., 453; Ch&rlwood v. Morgan, 1 N. R., 64, 233; Hull v. Blake, 
 
 4 Taunt., 572.) Nor wili an amendment be allowed of a plea in abatement. 
 (The King v. Cooke, 2 Barn. & Ores., 871 ; 1 Manning, Ezcheq., 257.) 
 
 (r.) They -vfiJ even allow an amendment in some cases after a demurrer 
 Aas been argued; but, in general, amendments are not allowed after argu- 
 ment. (Carr v. Hiuchliff, 3 Barn. & Ores., 547.) 
 
 (s.) For the practice as t8 amendment, consult 2 Tidd, 753, 8th edit, 
 
IN AN ACTION. IH 
 
 To return to the main course of proceeding. The plead- 
 ings and issue being adjusted by the making up, delivery, 
 and return of the demurrer-book, issue, or paper-book, the 
 next step is to enter the issue on record. It will be remem- 
 bered that the pleadings are framed as if they were copied 
 from a roll of the oral pleadings. Such a roll, as has been 
 shown, {t,) did, in the time of oral pleading, exist, and still 
 exists in contemplation of law; but no roll is now actually 
 prepared or record made till after issue joined and made 
 up, in manner above described. At that period, however, 
 a record is drawn up on a parchment roll. This proceed- 
 ing is called entering the issue, (u;) and the roll on which 
 the entry is made is called the issue roll. The issue roll 
 contains an entry of the term, of which the demurrer-book, 
 issue, or paper-book is entitled, {x;) and (in the king's 
 bench) the warrants of attorney supposed to have been given 
 by the parties at the commencement of the cause, author- 
 izing thejr attorneys to appear for them respectively, [y ;) 
 and then proceeds with a transcript of the declaration and 
 subsequent pleadings, continuances, and award of the 
 mode of decision, as contained in the demurrer-book, issue, 
 or paper-book. When drawn up, it is filed in the proper 
 office of the court, (2:.) Of the manner of thus entering 
 the issue on record, the following are examples: 
 
 (i.) Supra, pp. 59, 60; et vide Sel. Introd., Ixiv. 
 
 (u.) The issue is generally entered by the plaintiff. (1 Arch. Praot., 133, 
 1st edit.) 
 
 (x.) That is, the term in which issue is joined. (2 Tidd, 775, 779, 791, 792, 
 8th edit.) 
 
 (iy.) 2 Tidd, 792, 8th edit. ; Impey, C. P., 363, and vide supra, p. 62. 
 
 (z.) 2 Tidd, 785, 8th edit. ; 1 Sel., 335, 403. Such is the course of proceed- 
 ing, when strictly and formally pursued. But the statement is not quite 
 practically true, it being the general practice not to complete the issue roll, 
 by transcribing the whole of the proceedings into it, hut to enter only what 
 is called an incipitur; that is, the mere commencement or initial words of the 
 issue, paper-book, or demurrer-book. (2 Arch. Pract., 34, 1st edit.; Tidd, 792, 
 8th edit. ; Impey, C. P., 403 ; Dickinson v. Plaisted, 7 T. E., 494.) It did not 
 seem worth while to embarrass the statement in the text by noticing this 
 cjTCumstance. 
 
112 OF THE PBOCEBDINGS 
 
 ENTET OP ISSUE ON DBMUEKER, WITH AK IMPAELAHOB. 
 
 In the king's bench, by original. In an action of covenant. 
 
 As yet of Term, in the year of the reign of Mng George the Fourth. 
 
 WitnesB Sir Charles Abbott, knight. 
 
 , to wit, A. B. puts in his place E. F., his attorney,, against C. D., 
 
 in a plea of breach of covenant. 
 
 , to wit, C. D. puts in his place 0. E., his attorney, at the suit of ths 
 
 said A. B., in the plea aforesaid. 
 
 , to wit, G. D. was summoned to answer, (as in the declaration, sivpra, 
 
 p. 68.) 
 
 And the said C. D., by , his attorney, comes and defends the wrong 
 and injury when, &o., and prays a day thereupon to imparl to the said declara- 
 tion of the said A. B. ; and it is granted to him, &c. And upon this a day is 
 given to the parties aforesaid, before our lord the king, until , where- 
 soever, &c., that is to say, for the said G. D. to imparl to the declaration 
 aforesaid, and then to answer the same. At which day, before our said lord 
 the king, at Westminster, come the parties aforesaid, by their attorneys afore- 
 said ; and the said G. D. says that the said A. B. ought not to have or main- 
 tain, &c., (as in the plea, supra, p. 90.) 
 
 And the said A. B. says that, by reason of anything in the said ploa 
 alleged, he ought not to be barred, &c., (as in the replication, supra, p. 95.) 
 
 And the said C. D. says that the said replication of the said A. B. to the 
 said plea of him, the said G. D., and the matters therein contained, in manner 
 and form as the same are above pleaded and set forth, are not sufficient in 
 law, &o., (as in the demurrer, supra, p. 96.) 
 
 And the said A. B. says that the said replication, and the matters therein 
 contained, in manner and form as the same are above pleaded and set forth, 
 are sufficient in law for him, the said A. B., to have and maintain his aforesaid 
 action against the said 0. D. ; and the said A. B. is ready to verify and prov« 
 the same as the court here shall direct and award. Wherefore, inasmuch as 
 the said C. D. hath not answered the said replication, nor hitherto in any 
 manner denied the same, the said A. B. prays judgment and his damages by 
 him sustained by reason of the said breach of covenant, to be adjudged to 
 him. But because the court of our said lord the king, now here, are not yet 
 advised (a) what judgment to give of and upon the premises, a day is given 
 
 to the parties aforesaid before our lord the king, on , wheresoever, &c., 
 
 to hear judgment thereon, for that the said court of our said lord the king, 
 now here, are not yet advised thereof, (6.) 
 
 (a.) This concluding part of the entry, beginning, But because, &c., is called 
 an entry of curia advisare vuU, which were the words used when the record 
 was in Latin. It is an award of the mode of decision, viz, that by the judg- 
 ment of the court. This, as well as the imparlance, is one of the kinds of 
 continuance, as to which, vide supra, p. 60. 
 
 (&.) For the form of entering the issue, as above given, see Tidd's Appen- 
 dix, ch. XXX, 6th edit. ; 1 Arch. Pract., 134, Ist edit. 
 
IN AN ACTION. 113 
 
 BIHTEY OF ISS0B OH AS ISSTJE IN FACT, TO BE TEIBD BY A JUEY -WITHOUT 
 
 AN IMPAELANOE. 
 
 In the king's bench, hy original. In an action of covenant. 
 
 As yet of Term, in the year of the reign of King George the Fourth : 
 
 Witness Sir Charles Abbott, knight. 
 
 . to '"^it. -4. £. puts in hia place K F., his attorney, against G. B., 
 
 in a plea of breach of covenant. 
 
 . to wit, C. B. puts in his place (?. jff., his attorney, at the suit of 
 
 the said A. B., in the plea aforesaid. 
 
 , to wit, G. B. was summoned to answer, (os m the declaration, su- 
 pra, p. 68.) 
 
 And the said G. B., by , his attorney, comes and defends the wrong 
 
 and injury when, &c., and says, (as in the plea, supra, p. 90.) 
 
 And the said A. B. says that, by reason of anything in the said plea alleged, 
 he ought not to be barred from having and maintaining his aforesaid action 
 against the said 0. B., because, he says, (os in the replication, supra, p. 95.) 
 
 And the said G. B. saith that, by reason of anything in the said replication 
 alleged, the said A. B. ought not to have or maintain his aforesaid action 
 against him, the said G. B., because, he says, (as in the rejoinder, supra, p. 95.) 
 
 And the said A. B. does the like, (c.) Therefore it is commanded to the 
 sheriff (d) that he cause to come before our lord the king, on , whereso- 
 ever our said lord the king shall then be in England, twelve, &c., by whom, 
 &e., and who neither, &c., to recognize, &c., because as well, &c. The same 
 day is given to the parties aforesaid, &c, (e.) 
 
 The action being now Drought to that stage at which the 
 issue is recorded, the next subject for consideration is the 
 manner in which the issue is decided. 
 
 The decision of issues in law is vested, as it always has 
 been, (/,) exclusively in the judges of the court. There- 
 fore, when, upon a demurrer, the issue in law has been 
 entered on record in the manner above described, the next 
 step is to move for a concilium; that is, to move to have a day 
 appointed on which the court will hear the counsel of the 
 
 (c.) As to this abbreviated form of the similiter, see supra, p. 109. 
 
 {d.) The concluding clause, beginning, Therefore it is commanded, dec, is an 
 entry of the award of the mode of decision. Where this is by jury, the award 
 is that of a writ of veni-e facias to summon a jury ; to which the language of 
 the above entry refers. 
 
 (e.) For the form of entering the issue, as above given, see Tidd's Appendix, 
 ch. xxxi, 6th edit ; 1 Arch. Praot., 134, 1st edit. 
 
 (/.) Supra, p. 59. 
 
 8 
 
114 OF THE PEOCBBDINGS 
 
 parties argue the demurrer, (g.) And such day beiug ap- 
 pointed, the cause is then entered for argument accordingly, 
 (h.) On that day, or as soon afterwards as the business of 
 the court will permit, it is accordingly argued viva voce in 
 court by the respective counsel for the parties; and the 
 judges, in the same manner and place, pronounce their 
 decision according to the majority of voices. 
 
 The manner of deciding issues in fad will require expla- 
 nation at greater length. 
 
 The decision of the issue in fact is caUed the trial, (L) 
 The different methods of trial now in force are the follow- 
 ing: The trial hjjury, by the grand assize, by the record, by 
 certificate, by witnesses, by inspection, and by wager of laio, (k.) 
 
 These occur, however, in very different degrees of fre- 
 quency in practice. Every mode of trial, except that by 
 jury, is of rare admissibility, being not only confined to a 
 few questions of a certain nature, but in general also, if not 
 universally, to such questions when arising in a certain 
 form of issue, (l.) And to all issues not thus specially pro- 
 vided for, the trial by jury applies, as the ordinary and only 
 legitimate method, (m.) On the other hand, however, it 
 
 (g.) This motion may be made by either party, (2 Tidd, 794, 8th edit.; 2 
 Arch. Pract., 35, 1st edit;) and is a motion of course requiring only counsel's 
 signature. (2 Tidd, 796; 1 Arch., 35.) 
 
 (h.) It is entered for argument in the K. B. with the clerk of the papers. 
 (2 Tidd, 796 ; 1 Arch., 35.) In the C. P. it is set down for argument by one 
 of the secondaries in the court book. (2 Tidd, 797.) 
 
 (i.) See Appendix, note 30. 
 
 (i.) Vide 3 Bl. Com. , 330, where the enumeration is the same, with only 
 the nominal difference that the grand assize is there classed as a species of 
 trial by jury. The wager of battsl, included in this enumeration, is not now 
 in force, being abolished by the stat. 59 George III, c. 46. 
 
 (l.) Thus, whether certain persons have been accoupled in lawful matrimony, 
 (accouple en loial matrimonie, ) is triable by certificate of the ordinary ; but if 
 the issue be whether the plaintiff married the defendant's daughter rite et legit- 
 ime, this shall be tried by jury. So, whether a church is full or not full, ia 
 triable by certificate ; but void or not void, by jury. (See Fletcher v. Pynsett, 
 Cro. Jac, 102; Machell i;. Garret,3Salk., 64; 12 Mod., 976; S. G. Vin. Trial, 
 O. 6, 7, where the last of these distinctions is said to have been adjudged, and 
 the year-books are cited. ) 
 
 (ro.) Ilderton v. Ilderton, 2 H. Bl., 156. 
 
IN AN ACTION. 11& 
 
 is to he obseiTed, with respect to these occasional modes 
 of trial, that, when competent, they are iu general exclusively 
 appropriate; so that the party by whom they are proposed 
 in the pleading, has a right to insist on their being applied, 
 to the exclusion of the trial by jury. 
 
 First shall be considered the ordinary method, or trial 
 by jury, (n.) 
 
 It will be remembered, that when the parties have mu- 
 tually referred the issue to decision by jury, or (as it is 
 technically termed) have put themselves upon the country, 
 there is entered upon the roll (as in all other cases) the 
 award of the mode of decision so adopted. In the case of 
 the trial by jury, that award directs the issuing of the writ 
 of venire facias, commanding the sheriff of the county 
 where the facts are alleged by the pleading to have occur- 
 red to summon a jury to try the issue, (o;) and such writ 
 is accordingly sued out. The following is an example of 
 its modern form : 
 
 TBNIEE FACIAS, IN KINO's BENCH. 
 
 Upon the issue, {supra,p. 113.) 
 George the Third, dec, to the sheriff of greeting: 
 
 We command you that you cause to come before us, on , wheresoever 
 
 we shall then be in England, twelve good and lawful men of the body of your 
 county, qualified according to law, by whom the truth of the matter may be 
 better known, and who are in no wise of kin either to A. B., the plaintiff, or 
 
 to C D., late of , esquire, the defendant, to make a certain jury of the 
 
 country between the parties aforesaid of a plea of breach of covenant, be- 
 cause as well the said C. D. as the said A. B., between whom the matter in 
 variance is, have put themselves upon that jury; and have there the names of 
 the jurors and this writ. 
 
 Witness Sir Charles Abbott, knight, at Westminster, the day of , 
 
 in the year of our reign, [p.) 
 
 The venire facias, it will be observed, directs the jury to 
 be summoned to appear in the superior court. This is be- 
 cause the trial was, iu fact, anciently had there. But, except 
 
 (n.) The whole law relative to jurors and juries has been consolidated and 
 amended under a recent act of Parliament. (6 Geo, IV, c. 50.) 
 
 (o.) Vide the form of this award, supra, p. 113. 
 
 (p.) See Tidd's Appendix, 316, 6th edit., and 6 G*.). IV, c. 50, sec. 13, which 
 now regulates the form of this writ. 
 
116 OF THE PROCEEDINftS 
 
 in some few cases, to be presently noticed, the trial by jury 
 no longer takes place before the superior court. It is now 
 asually conducted in the county where the facts are alleged, 
 itL pleading, to have occurred, and into which the venire 
 facias issues, and before certain judges called the justices of 
 assize and nisiprius. The trial is, in such cases, said to be 
 had at nisiprius, {q;) and when it is to be so had the course 
 of proceeding is, after an issue to be tried by jury has 
 been entered on record on the issue roll, to sue out the 
 venire facias, together with another writ, for compelling the 
 attendance of the jury, called the distringas in the king's 
 bench; in the common pleas the habeas corpora, (r.) The 
 next step is to make up and pass, at the proper offices, 
 another record, on a parchment roll, called the record of nisi 
 prius, which is a transcription from the issue roll, (s,) and 
 contains a copy of the pleadings and issue. This nisiprius 
 record is then delivered to the judges of assize and nisi 
 prius, and serves for their guidance as to the nature of the 
 issue to be tried. The trials at nisi prius now take place, 
 in London and Middlesex, several times in the course of 
 each term, and also during a considerable part of each 
 vacation; in every other county they are held twice a year, 
 and always in time of vacation. The justices of assize and 
 nisi prius, for trials in London and Middlesex, consist of the 
 chief justices of the three courts respectively, each trying 
 only the issues from his own court. For trials in the oth- 
 er counties, they consist of such persons as are appointed 
 for the purpose by temporary commission from the crown, 
 among whom are usually, for each circuit, two of the judges 
 of the superior courts, the whole kingdom being divided 
 into six circuits for the purpose. 
 
 Though the trial by jury is thus, in general, had at nisi 
 Tprius, this is not universally the case; for in causes of great 
 
 (2.) See Appendix, note 31, 
 
 (r.) As to these writs and the whole subject of the jury process, see 2 Tidd, 
 ch. zzzv, 8th edit., and the recent statate for consolidating and amending th« 
 low relative to jurors and juries. (6 Geo. IV, c. 50.) 
 
 {».) 2 Tidd, 867, 8th edit. 
 
IN AN ACTION. 117 
 
 difficulty and consequence these inquests are allowed to 
 be taken before the four judges in the superior court in 
 which the pleading took place, as in the ancient practice. 
 The proceeding is then technically said to be a trial &. bar, 
 by way of distinction from the trial at nisi prius. 
 
 After these explanations as to the time and place of trial 
 by jury, the next subject for consideration is the course of 
 the proceeding itself. 
 
 The whole proceeding of trial by jury takes place under 
 the superintendence of the presiding judge or judges, 
 who usually decide all points as to the admissibility of evi- 
 dence, and direct the jury on all such points of law arising 
 yn the evidence as is necessary for their guidance in ap- 
 preciating its legal effect, and drawing the correct conclu- 
 sion in their verdict. 
 
 After hearing the evidence of the witnesses, the ad- 
 dresses of counsel, and the charge of the judge, the jury 
 pronounce their verdict, -whidh. the law requires to be unani- 
 mously given. The verdict is usually in general terms, 
 "for the plaintiff'," or "for the defendant;" finding, at the 
 same time, (in case of verdict for the plaintiff, and where 
 damages are claimed by the action,) the amount of damages 
 to which they think him entitled. 
 
 The principles upon which the law requires the jury to 
 form their decision, are these : 
 
 1. They are to take no matter into consideration but the 
 question in issue; for it is to try the issue, and that only, 
 that they are summoned. Thus, upon pleadings such as 
 are recorded in the issue roll, {supra, p. 113,) they would 
 only have to consider whether the release was executed by 
 duress or not. Of the execution of the indenture of lease, 
 they could not inquire, for it is not in issue. So, where to 
 an action of assumpsit the defendant pleaded that he did 
 not promise within six years, to which there was a repli- 
 cation that he did promise within six years, on which issue 
 was joined, it was held not to be competent to the plaint- 
 iff to offer evidence that the action was grounded on a 
 fraudulent receipt of money by the defendant, and that 
 
118 OF THE PROCEEDINGS 
 
 the fraud was not discovered till within six years of the 
 action, for the issue was merely upon the promise within 
 six years, (t.) 
 
 2. They are bound to give their verdict for the party 
 who, upon the proof, appears to them to have succeeded 
 in establishing his side of the issue. Thus, in the same 
 example, the verdict must be given for the plaintiff, if the 
 jury think the duress is established in proof; otherwise, 
 for the defendant. 
 
 3. The burden of proof, generally, is upon that party 
 who, in pleading, maintained the affirmative of the issue ; 
 for a negative is, in general, incapable of proof. Conse- 
 quently, unless he succeed in proving that affirmative, the 
 jury are to consider the opposite proposition, or negative 
 of the issue, as established. Thus, in the same example, 
 it would be for the plaintiff to prove the duress ; for it is 
 he who affirms it ; and if, on such proof, he fails, or offers 
 no proof, the jury must find for the defendant, (m.) 
 
 Under this head comes to be considered the doctrine of 
 variance. The proof offered may, in some cases, wholly fail 
 to support the affirmative of the issue ; but in others, it 
 may fail by a disagreement in some particular point or points 
 only between the allegation and the evidence. Such dis- 
 agreement, when upon a material point, is called a variance, 
 and is as fatal to the party on whom the proof lies as a 
 total failure of evidence, the jury being bound, upon va- 
 nance, to find the issue against him. For example : The 
 plaintiff declared in covenant for not repairing, pursuant 
 to the covenant in the lease, and stated the covenant as a 
 covenant to "repair when and as need should require;" 
 and issue was joined on a traverse of the deed alleged. 
 
 (i.) Clark v. Hougham, 2 Barn. & Ores., 149 ; and see Green v. Crane, 11 
 Mod., 37. 
 
 (u.) And see an example in Catherwood v. Ghabaud, 1 Barn. & Cres., 150. 
 But to this rule there are some exceptions: thus, upon an issue whether a 
 party is living or not, the party asserting the negative, viz, that he is not 
 living, must prove the death. (Wilson v. Hodges, 2 East., 312.) The reason 
 is, that the presumption is in favor of life till the contrary be shown. (See 
 »ther exceptions in Phillips on Ev., p. 185, 6th edit.) 
 
IN AN ACTION. 119 
 
 The plaintiff, at the trial, produced the deed in proof, and 
 it appeared that the covenant was thus: to repair "when 
 and as need should require, and at farthest after notice," the 
 latter words having been omitted in the declaration. This 
 was held to be a variance, because the additional words 
 were material, and qualified the legal effect of the contract, 
 (x.) So, where the plaintiff declared in assumpsit that for 
 certain hire and reward the defendants undertook to carry 
 goods from London and deliver them safely at Dover, and 
 the contract was proved to have been to carry and deliver 
 safely, fire and robbery excepted, this was held to be a va- 
 riance, (y.) On the other hand, however, the principle is 
 not so rigorously observed as to oblige the party on whom 
 the proof lies to make good his allegation to the letter. It 
 is enough if the substance of the issue is exactly proved, (z;) 
 and a variance in mere form, or in matter quite immaterial, 
 will not be regarded. Thus, in debt on bond conditioned 
 for payment of money, where the defendant pleaded pay- 
 ment of principal and interest, and the plaintiff replied 
 that he had not paid all the principal and interest, and 
 issue was joined thereon, and the proof was that the whole 
 interest was not, in fact, paid, but that the defendant paid 
 a sum in gross, which was accepted in full satisfaction of 
 the whole claim, the issue was considered as sufficiently 
 proved on the part of the defendant, (a.) 
 
 The verdict, when given, is afterwards drawn up inform, 
 and entered on the back of the record of nisi prius. This 
 is done, upon trials in E. B. in London and Middlesex, by 
 
 (x.) Horsefall v. Testar, 7 Taunt., 385. 
 
 (y.) Latham v. Rutley, 2 Bam. & Ores., 20 ; and see Kearney v. King, 2 Barn. 
 &, Aid., 301; Vansandaui). Burt, 5 Barn. & Aid., 42; Browner. Knill, 2 
 Brod. & Bing., 395; Sprowle v. Legge, 1 Barn. & Ores., 16; West ■!). Andrews, 
 ibid, 77; Draper v. Garratt, 2 Barn. & Ores., 2; Amory v. Meryweather, ibid, 
 573; Weaver v. Lloyd, ibid, 678. 
 
 (z.) Com. Dig., Pleader, S. 26: Vin. Ab., Evidence, n. a, 10; B. N. P., 299; 
 Doct. PI., 191, 205; Prices. Brown, Str., 690; 1 Wils., 116, S. C ; Coare v. 
 Giblett, 4 East., 85; and see the cases cited, 1 Arch., 336; Phillips on Ev., 
 190, 6th edit. ' 
 
 (I.) Price V. Brown, Str., 690 ; 1 Wils., 116, S. C. 
 
120 OF THE PROCEEDINSS 
 
 the attorney for the successful party; in other cases by an 
 officer of the court, (6.) Such entry is called the postea, 
 from the word with which, at & former period, (when the 
 proceedings were in Latin,) it commenced. The postea is 
 drawn up in the negative or affirmative of the issue, as will 
 appear by the following example : 
 
 POSTEA. 
 
 For the plaintiff, on the issue, at page 113, if tried at nisi prius in London or 
 
 Middlesex. 
 
 Afterwards, that is to say, on the day and at the place within contained, 
 before the right honorable Sir Charles Abbott, knight, the chief justice 
 ■within mentioned, (John Henry Abbott, esquire, being associated to the said 
 chief justice, according to the form of the statute in such case made and pro- 
 vided,) come as well the within-named A. B. as the said C D., by their re- 
 spective attorneys within mentioned; and the jurors of the jury, whereof 
 mention is within made, being summoned, also come, who, to speak the truth 
 of the matters within contained, being chosen, tried, and sworn, say, upon 
 their oath, that the said A. B. was, at the time of the making of the said deed 
 of release within mentioned, unlawfully imprisoned and detained in prison by 
 the said C D., until, by force and duress of that imprisonment, he, the said 
 A. B., made the said deed of release, in manner and form as the said A. B. 
 hath within alleged. And they assess the damages of the said A. B., by rea- 
 son of the said breach of covenant within assigned, over and above his costs 
 and charges by him about his suit in this behalf expended, to fifty pounds ; 
 and for those costs and charges to forty shillings. Therefore, &c., (c.) 
 
 Such is the course of trial at nisi prius, in its direct and 
 simple form; and the practice of a trial at bar is, in a gen- 
 eral view, the same. Trials by jury, however, whether at 
 bar or nisi prius, are subject to certain varieties of proceed- 
 ing, some of which require to be here noticed. 
 
 If, at the trial, a point of law arises, either as to the legal 
 effect or the admissibility of the evidence, the usual course (as 
 already stated) is for the judge to decide these matters. 
 But it may happen that one of the parties is dissatisfied 
 with the decision, and may wish to have it revised by a 
 superior jurisdiction. K he is content to refer it to the 
 superior court in which the issue was joined, and out of 
 which it is sent, (called, by way of distinction from the 
 
 (6.) 2 Tidd, 931, 932, 8th edit. 
 
 (c.) Tidd's Appendix, ch. xxxvii, 6th edit. ; 6 Went., 52. 
 
IN AN ACTION. 121 
 
 court at nisi prius, the court in banc,) his course is to move 
 in that court for a new trial; a proceeding of a future or 
 subsequent period, which will be considered hereafter in 
 its proper place. But, as the nisi prius judge himself fre- 
 quently belongs to that court, a party is often desirous, 
 under such circumstances, to obtain the revision of some 
 court of error, i. e., some court of appellate jurisdiction, 
 having authority to correct the decision. For this pur- 
 pose it becomes necessary to put the question of law on 
 record for the information of such court of error; and this 
 is to be done pending the trial, in a form marked out 
 by an old statute, (Westminster 2, 13 Edward I, c. 31.) 
 The party excepting to the opinion of the judge, tenders 
 him a bill of exceptions; that is, a statement, in writing, of 
 the objection made by the party to his decision, to which 
 statement, if truly made, the judge is bound to set his seal 
 in confirmation of its accuracy. The cause then proceeds 
 to verdict, as usual, and the opposite party, for whom the 
 verdict is given, is entitled, as in the common course, to 
 judgment upon such verdict in the court in banc, for that 
 court takes no notice of the bill of exceptions, {d.) But, 
 the whole record being afterwards removed to the appel- 
 late court by writ of error, (a proceeding to be hereafter 
 explained,) the bill of exceptions is then taken into consid- 
 eration in the latter court, and there decided, (e.) 
 
 Though the judge usually gives his opinion on such 
 points of law as above supposed, yet it may happen that, 
 for various reasons, he is not required by the parties, or 
 does not wish to do so. In such case several diifereut 
 courses may be pursued for determining the question of 
 law. 
 
 First, a party disputing the legal effect of any evidence 
 
 (d.) 1 SeL, 470. 
 
 (e.) See the whole course of proceeding on a bill of exceptions minately 
 stated, Money v. Leach, 3 Burr., 1692; and, on the subject of bill of excep- 
 tions generally, see Enfield v. Hills, 2 Lev., 236; Wright v. Sharp, Salk.. 288; 
 Fabrigas v. Mostyn, 2 Black., 929 ; Davies v. Pierce, 2 T. B , 125 ; Gardaer v 
 Baillie, 1 Bos. ani Pul., 32; Bell v. Potts, 5 East., 49. 
 
122 OP THE PROCEEDINGS 
 
 offered may demur to the evidence, (/.) A demurrer to evidence 
 is analogous to a demurrer in pleading; the iparty fron 
 whom it comes declaring that he will not proceed because 
 the evidence offered on the other side is not sufficient to 
 maintain the issue. IJpon joinder in demurrer by the op- 
 posite party, the jury are in general discharged from giv- 
 ing any verdict, [g;) and the demurrer, being entered en 
 record, is afterwards argued and decided in the court in 
 banc, and the judgment there given upon it may ulti- 
 mately be brought before a court of error, {h.) 
 
 A more common, because more convenient, course than 
 this to determine the legal effect of the evidence is, to ob- 
 tain from the jury a special verdict, in lieu of that^'enera^ one, 
 of which the form has been already described; for the 
 jury have an option, instead of finding the negative or af- 
 firmative of the issue, as in a general verdict, to find all the 
 facts of the case as disclosed upon the evidence before them, and, 
 after so setting them forth, to conclude to the following 
 effect : " That they are ignorant, in point of law, on which 
 side they ought, upon these facts, to find the issue; that 
 if, upon the whole matter, the court shall be of opinion 
 that the issue is proved for the plaintiff, they find for the 
 plaintiff accordingly, and assess the damages at such a sum, 
 &c.; but if the court are of an opposite opinion, then vice 
 versa," This form of finding is called a special verdict, (i) 
 However, as on a general verdict the jury do not them- 
 selves actually frame the postea, so they have, in fact, noth- 
 
 (/.) 2 Tidd, 914, 8th edit. But where the question is on the admissibility 
 of the evidence, the course is not by demurrer, hut by bill of ezceptionsi 
 "Where a judge admits that for evidence which is not evidence, there the 
 party must not demur; for if he doth, he admits the evidence to be good, but 
 denieth the effects of it; and therefore, in such oases, he must bring his bill 
 of exceptions. And so it is if the judge will not admit that for evidence 
 which ia evidence.'' Per Holt, C. J. (Thruston v. Slatford, 3 Salt., 355. 
 
 {g.) 1 Arch. Pract., 186, 1st edit. 
 
 {h.) For full information on the subject of demurrer to evidence, see Gibson 
 V. Hunter, 2 H. BL, 187; 2 Tidd, 914, 8th edit. 
 
 (i.) See the form of it. (Wittersheim v. Lady Carlisle, 1 H. BL, 631; Cook 
 ». 'Herrard, 1 Saund., 171 a.) 
 
IN AN ACTION. 123 
 
 iug to do witli tht formal preparation of the special verdict. 
 When it is agreed that a verdict of that kind is to be 
 given, the jury merely declare their opinion as to any fact 
 remaining in doubt, and then the verdict is adjusted with- 
 out their further interference. It is settled, under the 
 »?Qrrection of the judge, by the counsel and attorneys on 
 either side, according to the state of facts as found by the 
 jury, with respect to all particulars on which they have 
 delivered an opinion, and with respect to other particulars, 
 according to the state of facts which it is agreed that they 
 oitght to find upon the evidence before them. The special 
 verdict, when its form is thus settled, is, together with the 
 whole proceedings on the trial, then entered on record; and 
 the question of law arising on the facts found is argued 
 before the court in banc, and decided by that court as in 
 case of demurrer. If the party be dissatisfied with their 
 decision, he may afterwards resort to a court of error. 
 
 It is to be observed that it is a matter entirely in the 
 cption of the jury whether their verdict shall be general or 
 special, (k.) The party objecting in point of law cannot 
 therefore insist on having a special verdict, and may con- 
 sequently be driven to demur to the evidence, at least if he 
 wishes to put the objection on record, without which no 
 writ of error can be brought nor the decision of a court of 
 error obtained. But if the object be merely to obtain the 
 decision of the court in banc, and it is not wished to put 
 the legal question on record, in a view to a ivrit of error, then 
 the more common, because the cheaper and shorter, course 
 is, neither to take a special verdict nor demur to the evidence, 
 but to take a general verdict, subject (as the phrase is) to a 
 special case; that is, to a written statement of all the facta 
 of the case, drawn up for the opinion of the court in banc, 
 by the counsel and attorneys on either side, under correc- 
 tion of the judge at nisi prius, according to the principle 
 of a special verdict, as above explained. The party for 
 whom the general verdict is so given is of course not en- 
 
 (i.) 1 Arch. Tract., 189, 1st edit. 
 
124 OF THE PROCEEDINGS 
 
 titled to judgment till the court in bane ha^ decided on 
 the special casfe; and, according to the result of that decis- 
 ion, the verdict is ultimately entered either for him or his 
 adversary. A special case is not (like a special verdict) 
 entered <m record, and consequently a writ of error cannot 
 be brought on this decision. 
 
 We must now return to the course of proceeding, after 
 trial by jury, in what has been here called its direct or 
 simple form. 
 
 The proceedings on trial by jury, at nisi prius or at bar, 
 terminate with the verdict. 
 
 In case of trial at nisi prius, the return day of the last 
 jury process, the distringas or habeas corpora, (which, lilie 
 all other judicial writs, is made returnable into the court 
 from which it issues,) always falls on a day in term subse- 
 quent to the trial, and forms the next continuance of the 
 cause. On the day given by this continuance, therefore, 
 (which is called the day in banc,) the parties are supposed 
 again to appear in the court in banc, and are in a condition 
 to receive judgment. On the other hand, in case of trial 
 at bar, the trial takes place on or after the return day of 
 the last jury process; and therefore, immediately after the 
 trial, the parties are in court, so that judgment might be 
 given. In either case, however, a period of four days 
 elapses before, by the practice of the court, judgment can 
 be actually obtained, {I.) And during this period certain 
 proceedings may be taken by the unsuccessful party to 
 avoid the effect of the verdict. He may move the court 
 to grant a new trial, or to arrest the judgment, or to give judg- 
 ment non obstante veredicto, or to award a repleader, or to axoard 
 a venire fadas de novo, (m.) Of these briefly, in their order : 
 
 1. With respect to a new trial. It may happen that one 
 
 (I.) But, after a non-suit, judgment may be signed immediately after tli» 
 day in banc. (1 Aroh. Pract., 200, 1st edit. ; 2 Tidd, 934, 8th edit.) 
 
 (m.) 2 Tidd, 935, Stt edit. So the defendant, if upon the trial he obtained 
 leave to do so, may move to enter a nonsuit, or the plaintiff, upon leave given 
 at the trial, may move to set aside a nonsuit and enter a v^dict for plaintiff'. 
 [Ihid.) 
 
IN AN ACTION. 125 
 
 of the parties may be dissatisfied with the opinion of the 
 nisi prius jmdge, expressed on the trial, whether relating 
 to the eflfect or the admissibility of evidence, or may think 
 the evidence against him insufficient in law, where no ad- 
 verse opinion has been expressed by the judge, and yet 
 may not have obtained a special verdict, or demurred to 
 the evidence, or tendered a bill of exceptions. He is at 
 liberty, therefore, after the trial, and during the period 
 above mentioned, to move the court in banc to grant a 
 new trial, on the ground of the judge's having misdirected 
 the jury, or having admitted or refused evidence contrary to law, 
 or (where there was no adverse direction of the judge) on 
 the ground that the jury gave their verdict contrary to the 
 evidence, or on evidence insufficient in law. And resort ms.y 
 be had to the same remedy in other cases, where justice 
 appears not to have been done on the first trial, as where 
 the verdict, though not wholly contrary to evidence, or on 
 insufficient evidence in point of law, is manifestly wrong 
 in point of discretion, as contrary to the weight of the evidence^ 
 and on that ground disapproved by the nisi prius judge, {n.) 
 So, a new trial may be moved for where a nev) and material 
 fact has come to light since the trial, which the party did not 
 know, and had not the means of proving before the jury, 
 or where the damages given by the verdict are excessiive, or 
 where the jury have misconducted themselves, as by casting 
 lots to determine their verdict, &c. In these and the like 
 instances the court will, on motion, and in the exercise of 
 their discretion, under all the circumstances of the case, 
 grant a new trial, that opportunity may be given for a 
 more satis&ctory decision of the issue. A new jury pro- 
 cess consequently issues, (o,) and the cause comes on to be 
 
 (n.) But not unless the finding ia manifestly wrong ; for where there is a 
 contrariety of evidence, which brought the question fairly within the discre- 
 tion of the jury, the court will not disturb the verdict, though disapproved 
 by the judge who tried the cause. And " the court in granting new trials 
 does not interfere, unless to remedy some manifest abuse or to correct some 
 manifest error in law or fact." (Carstairs v. Stein, 4 M. & S., 192; and see 
 Swinnerton v. Marquis ol Stafford, 3 Taunt., 91, 232.) 
 
 (o ) 2 Arch. Pract,, 229, 1st edit. The former nid prius record wiU answer. 
 
126 OF THE PROCEEDINGS 
 
 tried de novo. But except on such grounds as these, tend- 
 ing manifestly to show that the discretion of the jury has 
 not been legally or properly exercised, a new trial can 
 'never be obtained; for it is a great principle of law, that 
 the decision of a jury, upon an issue in fact, is in general 
 irreversible and conclusive, (p.) 
 
 2. Again, the unsuccessful party may move in arrest of 
 judgment; that is, that the judgment for the plaintiff be 
 arrested or withheld, on the ground that there is some 
 error appearing on the face of the record, which vitiates the 
 proceedings. In consequence of such error, on whatever 
 part of the record it may arise, from the commencement 
 of the suit to this period, the court are bound to arrest the 
 judgment. It is, however, only with respect to objections 
 apparent on the record that such motions can be made. 
 Nor can it be made, generally speaking, in respect of 
 formal objections. This was formerly otherwise, and judg- 
 ments were constantly arrested for errors of mere form, 
 {q;) but this abuse has been long remedied by certain stat- 
 utes, passed at different periods, to correct inconveniences 
 of this kind, and commonly called the statutes of amend- 
 ments audi jeofails, (r,) by the effect of which, judgment, at 
 the present day, cannot in general be arrested for any 
 objection oi form. 
 
 3. If the verdict be for the defendant, the plaintiffj in 
 some cases, moves for judgment non obstante veredicto; that 
 is, that judgment be given in his own favor, without regard 
 to the verdict obtained by the defendant. This motion is 
 made in cases where, after a pleading by the defendant in 
 confession and avoidance, as, for examplo, a plea in bar and 
 issue joined thereon, and verdict found for the defendant, 
 
 unless the postea has been indorsed, in which case there must be a new nisi 
 prius record. And in cases where the former record is used, the jurata must 
 be altered. Upon the judgment-roll no notice is taken of the first verdict, 
 but the record proceeds as if the second verdict was the oily one that had 
 been given. {Hid.) 
 
 {p.) See Appendix, note 32, 
 
 (j.) See 3 Beeves, 448; 3 Bl. Com., 407. 
 
 (r.) See Appendix, not« 33. 
 
IN AN AXJTION. 127 
 
 the plaintiff, on retrospective examination of the record, 
 conceives that such plea was bad in substance, and might 
 have been made the subject of demurrer on that ground. 
 If the plea was itself substantially bad in law, of course the 
 verdict, which merely shows it to be true in point of fact, 
 cannot avail to entitle the defendantto judgment; while, on 
 the other hand, the plea, being in confession and avoidance, 
 involves a confession of the plaintiff's declaration, and shows 
 that he was entitled to maintain his action. In such case, 
 therefore, the court will give j udgment for the plaintiff with- 
 out regard to the verdict; and this, for the reason above ex- 
 plained, is also called a judgment as upon confession, (s.) 
 Sometimes it may be expedient for the plaintiff to move 
 for judgment non obstante, &c., eveu though the verdict be 
 in his own favor; for in such a case, as above described, he 
 takes judgment as upon the verdict, it seems that such judg- 
 ment would be erroneous, and that the only safe course is 
 to take it as upon confession, (t.) 
 
 4. The motion for a repleader is made where the unsuc- 
 cessful party, on examination of the pleadings, conceives 
 that the issue joined was an immaterial issue, that is, not 
 taken on a point proper to decide the action. It has been 
 shown {u) that the issue joined is always some question 
 raised between the parties, and mutually referred by them 
 to judicial decision ; but that point may nevertheless, on 
 examination, be found not proper to decide the action. For 
 either of the parties may, from misapprehension of law, 
 or oversight, have passed over without demurrer a state- 
 ment on the other side insufficient and immaterial in law; 
 
 («.) Gilb., C. P., 126; Lacy v. Reynolds, Cro. Eliz., 214; Staple v. Heydon, 
 6 Mod., 10; The King v. Philips, Str., 394; Pitts v. Polehampton, 1 Ld. Ray., 
 390; Clears v. Stevens, 8 Taunt., 413; Lewis v. Clement, 3 Barn. & Aid., 702; 
 Eickards v. Bennet, 1 Barn. & Ores., 223; Drayton v. Dale, 2 Barn. & Cres., 
 293; Earl of Lonsdale v. Nelson, ■iSid, 302; Lambert ii. Taylor, 4 Barn. & 
 Ores., 138; and see the forms of such judgments, Rast. Ent., 625; 2 Roll. Ab., 
 99; Jones D. Bodinner, Carth., 370; Wilkes ti. Broadbent, 1 Wils., 63. 
 
 («.) Wilkes V. Broadbent, 1 Wils,, 63; Dighton v. Bartholomew, Cro. Eliz., 
 778; 2Eoll. Ab., 99. 
 
 (u.) Fit^e sapra, pp. 90-96; 
 
128 OF THE PEOCEEDIN(JS 
 
 and an issue in fact may have been ultimately joined on 
 such immaterial statement ; and so the issue will be imma- 
 terial, though the parties have made it the point in contro- 
 versy between them. For example, if in an action of debt 
 on bond, conditioned for the payment of ten pounds ten 
 shillings at a certain day, the defendant pleads payment of 
 ten founds, according to the form of the condition, and the 
 plaintiff, instead of demurring, tenders issue upon such 
 payment, it is plain that, whether this issue be found for 
 the plaintiff or the defendant, it will remain equally un- 
 certain whether the plaintiff is entitled or not to maintain 
 his action ; for in an action for the penalty of a bond, con- 
 ditioned to pay a certain sum, the only material question 
 is, whether the exact sum were paid or not, and a payment 
 in part is a question quite beside the legal merits, (x.) In 
 such cases, therefore, the court, not knowing for whom to 
 gi^e judgment, will award a repleader, that is, will order 
 the parties to plead de novo, for the purpose of obtaining a 
 better issue, (y.) 
 
 5. A venire facias de novo, that is, a new writ of venire 
 facias, will be awarded when, by reason of some irregular- 
 ity or defect in the proceedings on the first venire, or the 
 trial, the proper effect of that writ has been frustrated, or 
 the verdict become void in law; as, for example, where 
 the jury has been improperly chosen, or given an uncer- 
 tain, or ambiguous, or defective verdict. The consequence 
 and object of a new venire are of course to obtain a new 
 trial ; and accordingly this proceeding is, in substance, the 
 same with a motion for a new trial. Where, however, the 
 unsuccessful party objects to the verdict, in respect of some 
 irregularity or error in the practical course of proceeding, rather 
 
 {x.) Kent V. Hall, Hob., 113; and see another instance, 5 Taunt., 386. 
 
 (2/.) 2 Saund., 319 b, n. 6; Bao. Ab., Pleas, &c., M.; Com. Dig., Pleader, 
 E. 18 ; see examples of cases in wbicb a repleader has been awarded or re- 
 fused. Anon., 2 Vent., 196; Stephens v. Cooper, 3 Lev., 440; Enys v. Mohun, 
 2 Str., 847; Plomer v. Eoss, 5 Taunt., 386; Clears v. Stephens, 8 Taunt., 413; 
 Lambert v. Taylor, 4 Barn. & Ores., 138 ; and the form of entering an award 
 of repleader on record, Co. Ent., 677, 42, 151 ; Jefferson v. Morton, 5 Saund., 20, 
 
IN AN ACTION. 129 
 
 than on the merits, the form of the application is a raotion 
 for a venire de novo, and not for a new trial, {z.) 
 
 The proceedings relative to trial by jury (a) having been 
 now considered, the other modes 'of trial, which, as has been 
 already observed, (6,) are of rare and limited application, 
 may be dismissed in few words. 
 
 The trial by the grand assize is very similar to the common 
 trial by jury. There is only one case in which it appears 
 ever to have been applied, and there it is still in force. In 
 a writ of right, if the defendant, by a particular form of 
 plea, appropriate to that purpose, (c,) denied the right of 
 the demandant, as claimed, he had the option, till the re- 
 cent abolition of the extravagant and barbarous method 
 of the wager of battel, (d,) of either offering battel or putting 
 himself on the grand assize, to try whether he or the demand- 
 ant had " the greater right." The latter course he may 
 still take; and, if he does, the court awards a writ for 
 summoning four knights to make election of twenty other 
 recognitors. These knights and twelve of the recognitors 
 so elected, together making a jury of sixteen, constitute 
 what is called the grand assize; and, when assembled, they 
 proceed to try the issue, or, as it is called in this case, the 
 mise, upon the question of right. The trial, as in the case 
 of a common jury, may be either at bar or nisi prius; and, 
 if at nisi prius, a nisi jprius record is made up ; and the pro- 
 ceedings are in either case in general the same as above 
 explained with respect to a common jury, [e.) 
 
 Upon the issue or mise of right, the wager of battel or 
 the grand assize was, till the abolition of the former, and 
 the latter still is, the only legitimate method of trial ; and 
 
 (z.) The nature of a venire faciaa de novo is fully explained in Witham v. 
 Lewis, 1 Wils., 48. 
 
 (a.) See Appendix, note 34. 
 
 (6.) Supra, p. 114. 
 
 (c.) See the plea, 3 Chitty, 652, Ist edit. 
 
 {d) Bj Stat. 59 Geo. Ill, o. 46. 
 
 (e.) See Tyssen v. Clarke, 3 Wila., 419, 541 ; Hardman v. Clegg, 1 Holt, N. 
 P. E., 657; 3 Chitty, 635, 1st edit.; 2 Saund., 45 e.; 1 Aich., 402; for full 
 information or. the subject of trial by the grand assize. 
 9 
 
130 OF THE PEOCBBDINGS 
 
 the question cannot be tried by a jury in the commcn 
 form, (/.) 
 
 The trial by the record applies to cases wheie an issue of nul 
 tiel record is joined in any action. If a record be asserted 
 on one side to exist, and the opposite party deny its exist- 
 ence, under the form of traverse, that there is no such record 
 remaining in court, as alleged, and issue be joined thereon, 
 this is called an issue of nul tiel record, {g;) and the court 
 awards, in such case, a trial by inspection and examination of 
 the record, (h.) Upon this, the party affirming its existence 
 is bound to produce it in court, on a day given for the pur- 
 pose ; and, if he fail to do so, judgment is given for his 
 adversary. The trial by record is not only in use when an 
 issue of this kind happens to arise for decision, but it is 
 the only legitimate mode of trying such issue, and the 
 parties cannot put themselves upon the country, (?'.) 
 
 The trial by certificate is now of very rare occurrence, but 
 is still in force upon certain issues, (k,) one of the most 
 important of which is, the issue of ne unques accouple en 
 loial matrimonie. This arises in the action of dower, in which 
 the tenant may plead, in bar, that the demandant "was 
 never accoupled to her alleged husband in lawful matrimony." 
 Issue being joined upon this, the court awards that it be 
 tried by the diocesan of the place where the parish church 
 in which marriage is alleged to have been had is situate, 
 and that the result be certified to them by the ordinary at 
 a given day, [l.) It is said that this is a form of issue 
 
 (/.) Galton V. Harvey, 1 Bos. and Pul., 195. (See Appendix, note 35.) 
 
 (g.) This is the proper form of issue whenever a question arises as to what 
 has judicially taken place in a superior court of record; for the law pre- 
 sumes that if it took place there will remain a record of the proceeding. 
 But if the court be not of record, the issue should be directly upon the fact 
 whether any such proceeding took place, and not upon the existence of any 
 judicial memorial. (See Dyson v. Wood, 3 Barn. & Ores., 449.) 
 
 (h.) See the form of the issue, 2 Ohitty, 602. 
 
 (i.) Co. Litt., 117 b.; Br. Trials, pi. 40. 
 
 (k.) The kinds of issue on which this trial may occur are enumeiatsd, 3 
 Bl. Com., 333. 
 
 (l.) See the form of the issue, 3 Chitty, 699, Ist edit; Go. Ent., 181 a. 
 
IN AN ACTION. 131 
 
 which can arise only in dower, (m.) The trial by certificate 
 is, when competent, the only legitimate mode, and the issue 
 cannot be tried by jury. 
 
 The trial by witnesses and that by inspection are in very 
 few instances legally competent, and are not now known 
 in practice. It seems, however, that the former is still 
 applicable, as anciently, to an issue arising on the death of the 
 husband, in an action of dower, (n,) and in some other cases; 
 and that the proof by inspection is also, in some instances, 
 still admissible; for example, if in any action, upon a plea 
 oi parol dermurrer, issue be taken on the nonage, (o.) In case 
 of trial by iviinesses, the court, upon issue joined, awards 
 that both parties produce in court, at a given day, their 
 respective witnesses, {p ;) on trial by inspection, that the 
 subject to be inspected be brought into court ; for example, 
 tliat the guardian of the infant bring him into court on a 
 certain day to be viewed, {q.) In either case, the judges 
 examine and decide, and the judgment is pronounced 
 accordingly. It is to be observed, however, with respect to 
 trial by inspection, that, even when competent, it seems to 
 be not a mode so exclusively appropriate but that the par- 
 ties may, by consent, refer the question to a jury, (r;) and 
 both with respect to this trial and that by witnesses it is laid 
 down, that if, after the evidence, the judges are still unable 
 to satisfy themselves on the fact, they have, in general, a 
 discretion then to send the parties to the country, (s.) 
 
 The trial by wager of law has also fallen into complete 
 disuse; but, in point of law, it seems to be still competent 
 
 (m.) Bao. Ab., Bastardy, 516, cites 11 Hen. IV, 78. It is not allowed in 
 pergonal actions. (Jones's Case, Comb., 473; Machell v. Garrett, 3 Salk., 64,; 
 12 Mod., 276, S. C; Vin., Tit. Baron and Feme, D. b., 39.) 
 
 (n.) Abbot of Strata Meroella's Case, 9 Eep., 30 b.; Grace Faux v. Barnes, 
 Lord Eaym., 174. 
 
 (o.) Vin. Ab., Trial, B. 2, 10, cites 29 Ass., 37, 19, E. 2. 
 
 (p.) On this trial the affirmative must be proved by Pwo witnesses at th» 
 least. (3 Bl. Com., 336.) 
 
 (q) Vin. Ab., Trial, C. 
 
 (r.) Bao. Ab., Tit. Infancy, L. 10, p. 634, 5th edit. 
 
 (V) Vin. Ab., Trial, C. 9, 10; Bao Ab., Trial, A., 2, 3 ; 3 Bl. Com., 333. 
 
132 OF THE PROCEEDINGS 
 
 in most of the cases to which it anciently applied The 
 most important and best established of these cases is the 
 issue of nil debet, arising in an action of debt on simple con- 
 tract, or the issue of non deiinet in an action of detimie. In 
 the declaration in these actions, as in almost all others, the 
 plaintiff concludes by offering his suit, (of which the ancient 
 meaning was followers or witnesses, thouj -h the words are 
 now retained as a mere form,) to prove the truth of his 
 claim. On the other hand, if the defendant, by a plea of 
 nil debet or non detinet, deny the debt or detention, he may 
 conclude by offering to establish the truth of such plea, 
 " against the plaintiff and his suit, in such manner as the court 
 shall direct." Upon this the court awards the imger of law, 
 (t;) and the form of this proceeding, when so awarded, is, 
 that the defendant brings into court with him eleven of 
 his neighbors, and for himself makes oath that he does 
 not owe the debt or detain the property, as alleged ; and 
 then the eleven also swear that they believe him to speak 
 the truth; and the defendant is then entitled to judg- 
 ment, (m.) 
 
 It is to be observed, with respect to this mode »f trial, 
 that though the defendant has thus the power of resorting 
 to it, he is not obliged to do so. He is at liberty, if he 
 pleases, to put himself upon the country; the trial by jury 
 being a mode of decision always applicable to the same 
 questions on which law may be waged, and the mode, in 
 fact, always applied to them in the modern practice, (x.) 
 
 It has now been shown in what manner the issue, whether 
 in law or fact, is decided. It has been explained, too, by 
 what means the unsuccessful party may, upon an issue in 
 fact, avoid, in some cases, by motion in court, the effect of 
 the decision. Supposing, however, that such means are 
 not adopted, or do not succeed, or that the issue be an 
 issue in law, the next step is the judgment. 
 
 (t.) See the form of sucli issue and award of trial, Go. Ent., 119 a., Lil. Ent., 
 467 ; 3 Chitty, 479, Ist edit. 
 (u.) 3 Bl. Com., 343. (See Appendix, note 36.) 
 (a;.) See Appendix, note 37. 
 
IN AN ACTION. 133 
 
 As the issue is the question which the parties themselves 
 have, by their pleading, mutually selected for decision, 
 they are in general considered as having mutually put the 
 fate of the cause upon that question; and as soon, therefore, 
 as the issue is decided in favor of one of them, that party 
 in general becomes victor in the suit; and nothing remains 
 -but to award the judicial consequence which the law attaches 
 to such success. The award of this judicial consequence 
 is called the judgment, and is the province of the judges of 
 the court. 
 
 The nature of the judgment varies according to the 
 nature of the action, the plea, the issue, and the manner 
 and result of the decision. 
 
 It shall be first supposed that the issue is decided for the 
 plaintiff. 
 
 In this case, if it he an issue in law, arising on a dilatory 
 plea, the judgment is only that the defendant answer over, 
 (y,) which is called a judgment of respondeat ouster. The 
 pleading is accordingly resumed, and the action proceeds. 
 This judgment, therefore, does not fall within the definition 
 of the term just given, but is of an anomalous kind. Upon 
 all other issues in law, and, in general, all issues in fact, the 
 judgment is thai the plaintiff do recover, (z,) which is called a 
 judgment quod recuperet. The nature of such judgment, 
 more particularly considered, is as follows: It is of two 
 kinds, interlocutory and final. K the action sound in damages, 
 (according to the technical phrase,) that is, be brought, not 
 for specific recovery of lands, goods, or sums of money, (aa 
 is the case in real and mixed actions or the personal actions 
 of debt and detinue,) but for damages only, as in covenant, 
 trespass, &c. ; and if the issue be an issue in law, or any issue 
 in fact not tried by jury, then the judgment is only that the 
 plaintiff ought to recover his damages, without specifying their 
 amount; for, as there has been no trial by jury in the case, 
 the amount of damages is not yet ascertained. The judg- 
 
 (y."- Bao Ab., Pleas, &c., n. 4; 2 Arch. Praot., 3, Ist edit. 
 
 (z.) Com. Dig., Abatement, I 14, 1 15; 2 Aroh. Pract., 3, let edit. 
 
134 OF THE PROCBBDINGS 
 
 ment is then said to be interhaitary. On suoh interlocutory 
 judgment the court does not, in general, itself undertake 
 the office of assessing the damages, but issues a writ of in- 
 quiry, directed to the sheriff of the county where the facts 
 are alleged by the pleading to have occurred, commanding 
 him to inquire into the amount of the damage sustained, 
 "by the oath of twelve good and lawful men of his county,'" 
 and to return such inquisition, when made, to the court. 
 Upon the return of the inquisition, the plaintiff is entitled 
 to another judgment, viz, that he recover the amount of the 
 damages so assessed; and this is called final judgment, (a.) 
 But if the issue be in fad, and was tried by a jury, then the 
 jury, at the same time that they tried the issue, assessed 
 the damages, (6.) In this case, therefore, no writ of inquiry 
 is necessary; and the judgment is final in the first instance, 
 and to the same effect as just mentioned, viz, thai the plaint- 
 iff do recover the damages assessed. Again, if the action do 
 not sound in damages, the judgment is in this case also (in 
 general) in the first instance final; and to this eff^ect, that 
 the plaintiff recover seizin of the land, S^c, or recover the debt, S^e. 
 But there is, besides this, in mixed actions, a judgment for 
 damages also; and this is either given at the same time 
 with that for recovery of seizin, if the damages have been 
 assessed by a jury, or, if not so assessed, a writ of inquiry 
 issues, and a second judgment is given for the amount 
 found by the inquisition, (c) 
 
 The issue shall next be supposed to be decided for the 
 defendant. 
 
 In this case, if the issue, whether of fact or law, arise on 
 a dilatory flea, the judgment is, that the writ (or Ull) be 
 quashed, quod breve (or billa) cassetur, upon such pleas as are 
 in abatement of the writ or bill, and that the pleading remain 
 without day, until, ^c, {d,) upon such pleas as are in suspen- 
 
 (a.) As to the proceedings on a writ of inquiry, see 2 Arch. Pract., 19, ] st edit. 
 (6.) V^de supra, p. 117. 
 (c.) 2 Saund., 44, n. 4; Booth, 19, 74, 75, 76. 
 
 (d.) John Trollop's Case, S Rep., 69; Eeg. PI., 180; 1 Chitty, 458, 1st edit; 
 2 Arch. Pract., 3, Ist adit. » 
 
IN AN ACTION. 135 
 
 sion only; the effect, in the first case, of course being, that 
 the suit is defeated, but with liberty to the plaintiff to pros- 
 ecute a better writ or bill; in the second, that the suit is 
 suspended until the objection be removed. If the issue 
 arise upon a declaration or peremptory plea, the judgment is, 
 in general, that the plaintiff take nothing by his writ, (or bill,) 
 and that the defendant go thereof without day, ^c, which is 
 called a judgment of nil capiat per breve or per billam. 
 
 What has been said as to the different forms of judgment 
 relates to those on direct issues. Upon an issue of the col- 
 lateral or incidental kind, (e,) (which is a case that does not 
 occur in modern practice,) the judgment is sometimes re- 
 spondeat ouster; in other cases, quod recuperet; but the law, 
 with respect to the judgment on issues of this kind, does 
 not seem to be, in every instance, clearly settled, (/.) 
 
 Judgment has hitherto been supposed to be awarded 
 only upon the decision of an issue. There are several cases, 
 however, in which judgment may be given though no issue 
 have arisen, and these cases will now require notice. In 
 the description given in this chapter of the manner of suit, 
 it will be observed that the action has been uniformly sup- 
 posed to proceed to issue, and this has been done to prevent 
 digression and complexity. But an action may be cut off 
 in its progress and come to premature termination by thu 
 fault of one of the parties in failing to pursue his litiga- 
 tion; and this may happen either with the intention of 
 abandoning the claim or defense, or from failing to follow 
 them up within the periods which the practice of the court 
 in each particular case prescribes. In such cases the oppo- 
 site party becomes victor in the suit, as well as where an 
 issue has been joined and is decided in his favor, and is at 
 once entitled to judgment. Thus, in a real (though not in 
 a personal) action, if the defendant holds out against the 
 process, judgment may be given against him for default of 
 
 (e.) Vide supra, p. 107. 
 
 (/.) Co. Ent., 319; Com. Pig., Voucher, B. 2; 2 Saund., 44, n 4 Bac. Ab., 
 Pleas, &c.f n. 4. 
 
136 OF THE PKOCEBDINGS 
 
 appearance, (g.) So, in actions real, mixed, or per&onal, il 
 after appearance lie neither pleads nor demurs, or if after 
 plea lie fails to maintain his pleading till issue joined, by 
 rejoinder, rebutter, &c., judgment will be given against 
 him for want of plea, which is called judgment by nil dicit. 
 So if, instead of a plea, his attorney says he is not informed 
 of any answer to be given to the action, judgment will be 
 given against him; and it is in that case called a judgment 
 by non sum informatus Again, instead of a plea, he may 
 choose to confess the action ; or, after pleading, he may at 
 any time before trial both confess the action and withdraw 
 his plea or other allegations; and the judgment against him 
 in these two cases is called a judgment hy confession or by 
 confession relictd verificatione. On the other hand, judgment 
 may be given against the plaintiff, in any class of actions, 
 for not declaring or replying or surrejoining, &c., or for 
 not entering the issue; and these are called judgments of 
 nonpros., (from non prosequitur.) So, if he chooses, at any 
 stage of the action after appearance and before judgment, 
 to say that he "will not further prosecute his suit," or that 
 he " vsdthdraws his suit," or (in case of plea in abatement) 
 prays that his " writ" or "bill" "may be quashed, that he 
 may sue or exhibit a better one," there is judgment against 
 him of nolle prosequi, retraxit, or cassetur breve, or billa, in 
 these cases respectively. Again, judgment of nonsuit may 
 pass against the plaintiflj which happens when, on trial by 
 jury, the plaintiff, on being called or demanded, at the in- 
 stance of the defendant, to be present in court while the 
 jury give their verdict, fails to make his appearance. In 
 this case no verdict is given, but judgment of nonsuit 
 passes against the plaintiff. So if, after issue is joined, the 
 plaintiff neglects to brings such issue on to be tried in due 
 time, as limited by the course and practice of the court m 
 the particular case, judgment will also be given against him 
 for this default; and it is called judgment as in case of nonsuit. 
 These judgments by default, confession, &c., when given 
 
 (y.) Booth, 19, 73, Com. Dig,, Pleader, Y. 1 ; 2 Saund. 45, n. 4. 
 
IN AN ACTION. 137 
 
 for tbo plaintiff, are generally quod recuperet, and may be 
 either interlocutory or final, according to a distinction already 
 explained. For the defendant, the form generally is nil 
 capiat. 
 
 Upon judgment in most personal and mixed actions, 
 whether upon issue, or by default, confession, &c., it will 
 be observed that it forms part of the adjudication that the 
 plaintiff or defendant recover his costs of suit or defense, 
 wbicb costs are taxed by an officer of the court at the time 
 when the judgment is given. 
 
 There is generally an addition, too, when the judgment 
 is for the plaintiff, that the defendant "6e in mercy" [in mis- 
 ericordia,) that is, be amerced or fined for his delay of jus- 
 tice; when for the defendant, that the plaintiff be in mercy, 
 for his false claim, (h.) The practice, however, of impos- 
 ing an actual amercement has been long quite obsolete. 
 
 Judgments, like the pleadings, were formerly pronounced 
 in open court, and are still always supposed to be so; and 
 they are consequently always considered as taking place in 
 term time. But, by a relaxation of practice, there is now, 
 in general, except in the case of an issue in law, no actual 
 delivery of judgment, either in court or elsewhere. The 
 plaintiff or defendant, when the cause is in such a state 
 that by the course of practice he is entitled to judgment, 
 obtains the signature or allowance of the proper officer of 
 the coui't, expressing generally that judgment is given in 
 his favor, and this is called signing judgment, and stands in 
 the place of its actual delivery by the judges themselves, {i.) 
 
 (h.) As to this amercement, see Griesley's Case, (8 Rep., 39;) BeeoherV Case, 
 {ibid, 59.) 
 
 (i.) " The signing of tlie judgment is but the leave of the master of the 
 office for the attorney to enter the judgment for his client." Styles' Pract., 
 Eeg., Tit. Judgment. — On judgments by nil diait, in the king's bench and 
 common pleas, the way of signing judgment is, to make an indpitur of the 
 declaration on stamped paper, and get it signed by the clerk of the judg- 
 ments in the king's bench ; and, in the common pleas, at the prothonotaries 
 office. 12 Arch. Pract., p. 10, 1st edit.) Impey, C. P., 453.— On judgments 
 after verdict, in the king's bench, the master signs the postea in taxing costs, 
 and this is the signing of judgment. (1 Manning's Exchequer, 352, nots o.) 
 
138 OF THE PKOCEBDINGS 
 
 And though supposed to be pronounced during term, judg- 
 ments are frequently signed in time of vacation, {k.) 
 
 Regularly, the next proceeding is to enter the judgment on 
 record. Where it has been signed after trial or demurrer, it 
 will be remembered that the proceedings up to the time of 
 issue and the award of venire, or the continuance by curia 
 advisari vult, have already been recorded, (l.) It will remain, 
 however, to enter the subsequent proceedings to the judg- 
 ment inclusive, which is called entering the judgment. This 
 is done by drawing them up with continuances, &c., on the 
 same roll on which the issue was entered, by way of con- 
 tinuation, or further narrative, of the proceedings there 
 already recorded; and the judgment is entered in such 
 form as the attorney for the successful party conceives to 
 be legally appropriate to the particular case, supposing 
 that it were actually pronounced by the court. The roll, 
 when complete by the entry of final judgment, is no longer 
 called the issue roll, but has the name of the judgment roll, 
 (m,) and is deposited and filed of record in the treasury of 
 the court. It is believed, however, that this whole proceed- 
 ing of entering the judgment on record is, in practice, usual- 
 ly neglected. Yet there are several cases in which, by the 
 practice of the court, it becomes essential, after final judg- 
 ment, to do so, and in which it is, therefore, actually done,(?i,) 
 , When judgment is signed, not after trial or demurrer, 
 but as \)j default, confession, ^c, there having been no i^sue 
 roll yet made up, the whole proceedings, to the judgment 
 inclusive, are to be entered for the first time on record. 
 This is accordingly done by the attorney upon a parchment 
 roll, and upon the same principles, as to the form of entry, 
 that have been already stated with respect to recording the 
 issue and judgment thereon, (o.) 
 
 (i.) Lyttleton v. Cross, 3 Barn. & Ores., 317. 
 
 (Z.) But see supra, p. Ill, note z, as to the actual practice, in most cases, of 
 Making an indpiiur only, 
 (m.) 2 Arch. Pract., 206, 1st edit. 
 (n.) See ihese cases enumerated, 2 Arch. Pract., 205, 206. 
 (o.) However, instead of pursuing this, the strict and regular course the 
 
IN AN ACTION. 139 
 
 Of the form of entry, after judgment upon issues, both 
 in law audi fact, and also after judgment by default, the fol- 
 lowing are examples : 
 
 ENTET OP JtrDGMENT. 
 
 For the defendant, upon the issue in law, (supra, p. 112.) 
 
 [After the entry of the issue, as in p. 112, the proceedings are to be continued 
 on the roll as follows:) 
 
 At wHch day, before our said lord the king, at Westminster, come the par- 
 ties aforesaid, by their respective attorneys aforesaid. Whereupon, all and 
 singular the premises being seen, and by the court of our said lord the king, 
 now here, fully understood, and mature deliberation being thereupon had, it 
 appears to the said court here that the replication aforesaid, and the matters 
 therein contained, in manner and form as the same are above pleaded and set 
 forth, are not snfBcient in law for the said A. B. to have or maintain his 
 aforesaid action against the said 0. D. 
 
 Therefore it is considered that the said A. B. take nothing by his said 
 writ, but that he and his pledges to prosecute be in mercy, {p,) and that the 
 said C. D. do go thereof without day, &c. And it is further considered by 
 his majesty's court here, that the said C. D. do recover against the said A. B. 
 
 pounds, for his costs and charges by him laid out about his defense in 
 
 this behalf, by the court of our said lord the king now here adjudged to the 
 said C. D., and with his assent, according to the form of the statute in such 
 case made and provided; and that the said C. D. have execution thereof, 
 &c., (5f.) 
 
 ENTRY OP JUDGMENT. 
 
 For the plaintiff, upon the issue in fact, {supra, p. 113,) after trial by jury in 
 
 London. 
 
 {After the entry of the issue, as in page 113, the proceedings are to be continued 
 on the roll, as follows:) 
 
 Afterwards the process thereof is continued between the parties aforesaid, 
 of the plea aforesaid, by the jury being respited between them, before our 
 
 said lord the king, at Westminster, until , wheresoever our said lord 
 
 the king shall then be in England, unless the right honorable Sir Charles 
 .Abbott, knight, his majesty's chief justice, assigned to hold pleas in the court 
 
 of our said lord the king, before the king himself, shall first come on , 
 
 the day of , at the Guildhall of the city of London, according to 
 
 the form of the statute in such case made and provided, by reason of the de- 
 fault of the jurors, because none of them did appear, {r.) At which day, 
 
 usual practice is only to enter an incipitur on the roll, as in the case of entering 
 an issue. ( Vide supra, p. Ill, note z; 1 Sel., 342; 2 Arch. Pract., 10, 1st edit.) 
 
 (p.) Vide supra as to mercy, p. 137. 
 
 (q.) Tidd's Appendix, oh. xxxix., 6th edit. 
 
 (r.) This commencement of the entry refers to the award of the distrinjns; 
 as to which, see swfira, p. 116. 
 
140 OF THE PROCEEDINGS 
 
 before our slid lord the king, at Westminater, aforesaid. And the saii' chief 
 justice, before whom the said issue was tried, hath sent hither his record had 
 before him, in these words : to wit, (s,) afterwards, that is to say, on the day 
 and at the place within contained, before the right honorable Sir Charles Ab- 
 bott, the chief justice within mentioned, (&c., as in the poetea, supra, p. 120, 
 to the words "forty shillings.") Therefore it is considered, that the said A 
 B. do recover against the said C D. the damages, costs, and charges, by the 
 
 gaid jury in form aforesaid assessed, and also pounds for his costs and 
 
 charges, by the court of our said lord the king now here adjudged, of increase 
 to the said A. B., and with his assent; which said damages, costs, and charges 
 in the whole amount to pounds ; and the said C. D. in mercy, &c., (t.) 
 
 ENTET OF JUDGMEHI. 
 
 For the plaintiff, on nil didt, upon the declaration in covemant, (supra, p. 68.) 
 
 As yet of Term, in the year of the reign of King George the Fourth' 
 
 Witness Sir Charles Abbott, knight. 
 
 , to wit, A. B. puts in his place H. F., his attorney, against C. D., 
 
 m a plea of breach of covenant. 
 
 , to wit, C. D. puts in his place ff. H., his attorney, at the suit of 
 
 the said A. B., in the plea aforesaid. 
 
 , to wit, 0. B. was summoned to answer, (Ac, as in the declaration, 
 
 supra, p. 68.) 
 
 And the said 0. D., by , his attorney, comes and defends the wrong 
 
 and injury when, &c., and says nothing in bar or preclusion of the said action 
 of the said A. B. ; whereby the said A. B. remains therein undefended against 
 the said O. D. Wherefore the said A. B. ought to recover against the said C. 
 D. his dwnages on occasion of the premises. But because it is unknown to 
 the court of our said lord the king, now here, what damages the said A. B. 
 hath surtained by reason of the premises, the sheriffs are commanded («) that, 
 by the <>9,th of twelve good and lawful men of their bailiwick, they diligently 
 inquire what damages the said A. B. hath sustained, as well by reason of the 
 premises, as for his costs and charges by him about his suit in this behalf ex- 
 pended • and that they send the inquisition which they shall thereupon take 
 
 to our wd lord the king, on , wheresoever our said lord the king shall 
 
 then be in England, under their seal, and the seals of those by whose oath 
 they rfiall take that inquisition, together with the writ of our said lord the 
 king to them thereupon directed. The same day is given to the said A. B., at 
 the same place. At which day, before our said lord the king, at Westminster, 
 comes the said A. B., by his attorney aforesaid ; and the sheriffs of London, 
 to wit, , esquire, and , esquire, now here, return a certain inqui- 
 sition indented, taken before them at the Guildhall of the city of London, in 
 
 (s.) This is a transcript of the post'JX from the back of the nisi prius record. 
 As to the postea, mde supra, p. 120. 
 
 (i.) Tidd's Appendix, ch. xxxix, 6th edit. ; 3 Bl. Com., Appendix, No. II; 
 6 Went., 52. 
 
 Cm.) This is the award of the writ of inquiry; as to which, vide supra, p. 134 
 
IN AN ACTION. 141 
 
 the parish of , in the ward of , in the s&me oitj on Ae — — day 
 
 of , in the year of the reign of our said lord the king, by tlie oath 
 
 of twelve good and lawful men of their bailiwick ; by which it is found that 
 the said A. B. hath sustained damages by means of the premises to fifty 
 pounds, over and above his costs and charges by him about his suit in this 
 behalf expended, and for those costs and charges to forty shillings. There- 
 fore it is considered that the said A. B. do recover against the said C. D. his 
 
 damages aforesaid, by the said inquisition above found ; and also pounds 
 
 for his said costs and charges, by the court of our said lord the king now here 
 adjudged, of increase, to the said A. B., and with his assent ; which said 
 
 damages, costs, and charges, in the whole amount to pounds ; and the 
 
 eaid 0. D., in mercy, <£c., (x.) 
 
 The course of the action, till the entry on record of the 
 final judgment, has now been described, but the reader 
 will not have a complete view of the history of a suit with- 
 out taking some notice of two other subsequent pi'oceed- 
 ings. These are the writ of execution and the writ of error. 
 
 Upon judgment, the successful party is, in general, en- 
 titled to execution, to put in force the sentence that the law 
 has given. For this purpose he sues out a writ, addressed 
 to the sheriff, commanding him, according to the nature 
 of the case, either to give the plaintiff possession of the 
 lands, or to enforce the delivery of the chattel which was 
 the subject of the action, or to levy for the plaintiff the 
 debt or damages and costs recovered, or to levy for the 
 defendant his costs; and that, either upon the body of the 
 opposite party, his lands, or goods, or, in some cases, upon 
 his body, lands, and goods ; the extent and manner of the 
 execution directed always depending upon the nature of 
 the judgment, {y.) Like the judgment, writs of execution 
 are supposed to be actually awarded by the judges in court, 
 but no such award is in general actually made. The at- 
 torney, after signing final judgment, sues out of the proper 
 ofiSce a writ of execution in the form to which he conceives 
 he would be entitled upon such judgment as he has entered, 
 if such entry has been actually made, and, if not made, 
 then upon such as he thinks he is entitled to enter ; and he 
 
 (x.) Tidd's Appendix, ch. xxxix, 6th edit. (1 Went., p. 244.) 
 (jr.) For further information on this subject, see 3 Bl. Com., 413. 
 
142 OF THE PROCEEDINGS 
 
 does this, of course, upon peril that if he takerf a wrong 
 execution the proceeding will be illegal and void, and the 
 opposite party entitled to redress. 
 
 After final judgment is signed, the unsuccessful party 
 may bring a writ of error; and this, if obtained and allowed 
 before execution, suspends (generally speaking) the lat- 
 ter proceeding till the former is determined, (2.) A writ 
 of error, like an original writ, is sued out of chancery, 
 directed to the judges of the court in which judgment 
 was given, and commanding them, in some cases, them- 
 selves to examine the record; in others, to send it to 
 another court of appellate jurisdiction to be examined, in 
 order that some alleged error in the proceedings Ta&y be 
 corrected. The first form of writ, called a writ of error 
 coram nobis [or vobis^ (a,) is where the alleged error consists 
 of matter of fact; the second, called a writ of error gener- 
 ally, where it consists of matter of law. 
 
 When a writ of error is obtained, the whole proceedings, 
 to final judgment inclusive, are then always actually en- 
 tered (if this has not before been done) on record; and the 
 object of the writ of error is to reverse the judgment for 
 some error of fact or law that is supposed to exist in the 
 proceedings as so recorded. It will be proper here to ex- 
 plain in what such error may consist. 
 
 Where an issue in fact has been decided, there is (as for- 
 merly observed) no appeal in the English law from its 
 
 (z.) As to the allowance of a writ of error, see 2 Tidd, 1191, 8th edit. 
 
 It is also in general necessary, for the pui'pose of staying execution, that 
 bail in error should be given. By certain statutes (3 Jao. I, c. 8 ; 3 Car. I, 
 u. 4; 13 Car. II, ^.2; 16 and 17 Car. II, o. 8, sec. 3, and 22 and 23 Car. II, c. 
 4) it was provided that no execution should be stayed by writ of error in 
 certain cases, unless the plaintiff in error should enter into recognizance, with 
 two sufficient sureties, to prosecute the same with effect, and pay the debt and 
 costs, if judgment be affirmed, &c. And by a recent statute, (6 Geo. IV, c. 96,) 
 upon any j udgment thereafter to be given in any personal actions in the 
 courts of record at Westminster, or in the counties palatine or courts in great 
 session in Wales, execution shall not be stayed by writ of error, without 
 special order of the court or of some judge thereof, unless a recognizance 
 •hall first be acknowledged to the effect above stated. 
 
 (a.) As to these terms, vide 2 Tidd, 1191, 8th edit. 
 
IN AN ACTION. 143 
 
 decision, (6,) except in tlie way of motion for a new trial- 
 •and its being wrongly decided is not error in that technical 
 sense to which a writ of error refers. So, if a matter of fact 
 should exist, which was not brought into issue, but which, 
 if brought into issue, would have led to a diflferent judg- 
 ment, the existence of such fact does not, after judgment, 
 amount to error in the proceedings. For example, if the 
 defendant has a release, but does not plead it in bar, its 
 existence cannot, after judgment, on the ground of error 
 or otherwise, in any manner be brought forward. But 
 there are certain facts which affect the validity and regular- 
 ity of the legal decision itself; such as the defendant having, 
 while under age, appeared in suit by attorney, and not by 
 guardian, (c;) or, the plaintiff or defendant having been a 
 married woman when the suit was commenced, (d.) Such 
 facts as these, however late discovered and alleged, are 
 errors in fact, and sufficient to traverse the judgment upon 
 writ of error. To such cases the writ of error coram nobis 
 applies ; " because the error in fact is not the error of the 
 judges, and reversing it is not reversing their own judg- 
 ment," (e.) 
 
 But the most frequent case of error is when, upon the 
 face of the record, the judges appear to have committed a 
 mistake in law. This may be by having wrongly decided 
 an issue in law brought before them by demurrer, but it may 
 also happen in other ways. As formerly stated, (/,) the 
 judgment will in general follow success in the issue. It 
 is, however, a principle necessary to be understood, in order 
 to have a right apprehension of the nature of writs of error, 
 that the judges are, in contemplation of law, bound, before 
 in any case they give judgment, to examine the whole record, 
 
 (b.) Svjpra, p. 126. 
 
 (c.) But if judgment is given in favor of the infant, his infancy cannot in 
 tliat case be assigned for error by the plaintiff. (Bird v. Pegg, 6 Barn, & Aid, 
 418.) 
 
 (A) King V. Jones, 2 Lord Kaym., 1525. 
 
 (e.) 2 Tidd, 1191, 8th edit.; 1 Manning, 490. 
 
 (/.) Supra, p. 133. 
 
144 OP THE PROCBEDIlirGS 
 
 and then to adjudge either for the plaintiff or defendant, 
 according to the legal right as it may on the whole appear, 
 notwithstanding, or without regard to, the issue in law or 
 fact that may have been raised and decided between the 
 parties; and this, because the pleader may, from misappre- 
 hension, have passed by a material question of law without 
 taking issue upon it. Therefore, whenever, ufcm, examina- 
 tion of the whole record, right appears on the whole not to 
 have been done, and judgment appears to have been given for 
 one of the parties, when it should have been given for the other, 
 this will be error in law. And it will be equally error, 
 whether the question was raised on demurrer, or the issue 
 was an issue in fact, or there was no issv£; judgment hav- 
 ing been taken by default, confession, &c. In all these 
 cases, indeed, except the first, the judges have reaUy com- 
 mitted no error ; for it may be collected from preceding 
 explanations, that no record, or even copy of the proceed- 
 ings, is actually brought before them, except upon demur- 
 rer; but, with respect to a writ of error, the effect is the 
 same as if the proceedings had all actually taken place and 
 been recorded in open court, according to the fiction and 
 supposition in law. So, on the same principle, there will 
 be error in law if judgment has been entered in a wrong form, 
 inappropriate to the case; although, as we have seen, the 
 judges have in practice nothing to do with the entry on the 
 roll. But, on the other hand, nothing will be error in law 
 that does not appear on the face of the record; for matters 
 not so appearing are not supposed to have entered into the 
 consideration of the judges, (g.) Upon error in law, the 
 remedy is not by writ of error coram nobis, (for that would 
 be merely to make the same judges reconsider their own 
 judgment,) but by a writ of error, requiring the record to 
 be sent into some other court of appellate jurisdiction, 
 that the error may be there corrected, and called a writ 
 of error generally. 
 
 With respect to the writ of error of this latter description, 
 
 (jr.) 2 Inst., 426. 
 
IN AN ACTION. 145 
 
 it is further to be observed, that it cannot be supported 
 unless the error in law be of a substantial kind. For as, by 
 the effect of the statutes of amendments and jeofails, errors 
 of mere form are no ground for arresting the judgment, (A,) so, 
 by the effect of the same statutes, such objections are now 
 insufficient to found a writ of error; though at common 
 law the case was otherwise, (i.) 
 
 When, on the ground of some error in law, the record 
 is removed by writ of error, the following is the course of 
 appeal among the different courts : From the common pleas 
 the record may be removed into the court of king's bench, 
 and from thence, by a new writ of error, into the house of 
 lords; from the exchequer into the court of exchequer 
 chamber, held before the lord chancellor, lord treasurer, 
 and the judges of the court of king's bench and common 
 pleas, and from thence into the house of lords; from the 
 king's bench, in proceedings by bill, in most of the usual 
 actions, into the court of exchequer chamber, held before 
 the judges of the common pleas, the barons of the excheq- 
 uer, and from thence into the house of lords; in proceed- 
 ings by original, into the house of lords in the first instance, 
 (A.) 
 
 By what course of proceeding the error in the record is 
 discussed and corrected in the appellate court, and the 
 judgment reversed or affirmed, it is not material to the 
 purpose of the present treatise to explain. The reader who 
 wishes for information on that subject may be referred 
 generally to the many valuable books of practice, {I.) 
 
 (h.) Supra, p. 126. 
 
 (i.) On this subject, see 3 Bl. Com., 406, 407. 
 (A.) 3 Bl. Com., 411. 
 {I.) Vide 2 Tidd, ch. zliv, Ac., 8th edit 
 10 
 
CHAPTER n. 
 
 OP THE PRINCIPAL RULES OF PLllADDTG. 
 
 The account of the course of an action being now con- 
 cluded, and a view thus obtained of the general form and 
 manner of pleading, and its connection with other parts of 
 the suit, it is next proposed to investigate its principal or 
 fundamental rules, and to explain their scope and tendency 
 as parts of an entire system. For this purpose some ob- 
 servations shall be premised, relative to the manner in 
 which that system was formed, and the objects which it 
 contemplates. 
 
 The manner of allegation in our courts may be said to 
 have been first methodically formed and cultivated as a 
 science in the reign of Edward I. From this time the 
 judges began systematically to prescribe and enforce cer- 
 tain rules of statement, of which some had been estabhshed 
 at periods considerably more remote, and others, appar- 
 ently, were then, from time to time, first introduced, (a.) 
 None of them seem to have been originally of legislative 
 enactment, or to have had any authority except usage or 
 judicial regulation; but, from the general perception of 
 their wisdom and utility, they acquired the character of 
 fixed and positive institutions, and grew up into an entire 
 and connected system of jpleading. This system, which, in 
 its essential parts, still remains in practice unaltered, ap- 
 pears to have been originally devised in a view to certain 
 objects or results, which it will be necessary, to the right 
 apprehension of the subject of this chapter, here to explain. 
 The pleadings (as appears in the preceding chapter) are 
 so conducted as always to evolve some question, either of 
 fact or law, disputed between the parties, and mutually pro- 
 
 (a.) See Appendix, note 38. 
 
 Ii7 
 
148 OF THE PEINCIPAL 
 
 posed and accepted by them as the subject for decision, 
 and the question so produced is called the issue, (6.) 
 
 As the object of all pleading or judicial allegation is to 
 ascertain the subject for decision, (c,) so the main object 
 of that system of pleading established in the common law 
 of England is to ascertain it by the production of an issue; 
 and this appears to be peculiar to that system. To the 
 best of the author's information, at least, it is unknown in 
 the present practice of any other plan of judicature. In 
 all courts, indeed, the particular subject for decision must 
 of course be in some manner developed before the dec'.sioii 
 can take place; but the methods generally adopted for rhis 
 purpose differ widely from that which belongs to the Eng- 
 lish law. 
 
 By the general course of all other judicatures the parties 
 are allowed to make their statements at large, (as it may be 
 called,) and with no view to the extrication of the precise 
 question in controversy; and it consequently becomes 
 necessary, before the court can proceed to decision, to re- 
 view, collate, and consider the opposed effect of the differ- 
 ent statements, when completed on either side, to distinguish 
 and extract the points mutually admitted, and those which, 
 though undisputed, are immaterial to the cause, and thus, 
 by throwing off all unnecessary matter, to arrive at length 
 at the required selection of the point to be decided. This 
 retrospective development is, by the practice of most courts, 
 privately made by each of the parties for himself, as a 
 necessary medium to the preparation and adjustment of 
 his proofs, and is also afterwards virtually effected by the 
 judge in the discharge of his general duty of decision, while 
 in some other styles of proceeding the course is different; 
 the point for decision being selected from the pleadings by 
 an act of the court or its officer, and judicially promul- 
 gated prior to the proof or trial. The common law of 
 England differs (it will be observed) from both methods, 
 
 (5.) See Appendix, note 39. 
 (c.) Vide supra, p. 37. 
 
RULES OF PLEADING. 149 
 
 by obliging the parties to come to issue; that is, so to 
 plead as to develop some question (or issue) by the effect of 
 their own allegations, and to agree upon this question as the 
 point for decision in the cause, thus rendering unnecessary 
 any retrospective operation on the pleadings for the pur- 
 pose of ascertaining the matter in controversy. 
 
 The author is of opinion that this peculiarity of coming 
 to issue took its rise in the practice of oral pleading. It 
 seems a natural incident of that practice, to compel the 
 pleaders to short and terse allegations, applying to each 
 other by way of answer, in somewhat of a logical form, 
 and at length reducing the controversy to a precise point. 
 For while the pleading was merely oral, and not committed 
 by any contemporaneous record to writing, (a state of 
 things which may be distinctly traced among the yet ex- 
 tant archives of the early continental jurisprudence,) the 
 court and the pleaders would have to rely exclusively on 
 their memory for retaining the tenor of the discussion; and 
 the development of some precise question or issue would 
 then be a very convenient practice, because it would pre- 
 vent the necessity of reviewing the different statements, 
 and leave no burden on the memory but that of retaining 
 the question itself so developed. And even after the prac- 
 tice of recording was introduced, the same brief and log- 
 ical forms of allegation would naturally continue to be 
 acceptable, while the pleadings were still viva voce, and 
 committed to record on the inconvenient plan of contem- 
 porary transcription, (d.) 
 
 A co-operative reason for coming to issue was the variety 
 of the modes of decision which the law assigned to differ- 
 ent kinds of question. The various modes enumerated in 
 the first chapter, as still recognized in practice, were, in 
 the days of oral pleading, in fall vigor and observance, and 
 evidently made it necessary to settle publicly between the 
 parties the precise point on which their controversy turned; 
 for on the nature of this depended the very manner of 
 
 [d.) See Appendix, note 40. 
 
150 OP THE PRINCIPAl 
 
 the sTjbsequent decision and the form of proceeding to ba 
 instituted for that purpose. As questions of law were 
 decided by the court, and matters of fact referred to other 
 kinds of investigation, it was, in the first place, necessary 
 to settle whether the question in the cause or issue was a 
 matter of law or fact Again, if it happened to be a matter 
 of fact, it required to be developed in a form sufficiently 
 specific to show what was the method of trial appropriate 
 to the case. And, unless the state of the question were 
 thus adjusted between the parties, it is evident that they 
 would not have known whether they were to put them- 
 selves on the judgment of the court or to go to trial; nor, 
 in the latter case, whether they were to prepare themselves 
 for trial by jury or for one of the other various modes of 
 deciding matter of fact. 
 
 To the opinion that this distinctive feature of the English 
 pleading was derived from the practice of oral allegation, 
 and from that of applying difierent forms of trial to the 
 determination of different kinds of question, it may per- 
 haps be objected that both these practices anciently pre 
 vailed, not only in England, but among the continental 
 nations, among whom, nevertheless, the method of coming 
 to issue is now unknown. This objection, however, is capa- 
 ble of a satisfactory answer. On the continent, the ancient 
 system of judicature, of which these practices formed a 
 part, was, at early periods, supplanted by the methods of 
 the civil law, in which the pleadings were written, (e,) and 
 there was but one form of trial, viz, a trial by the judge 
 himself, upon examination of instruments and witnesses 
 adduced in evidence before him, (/.) On the other hand, 
 in the courts of "Westminster, the law of trial still remains 
 almost without a change; and, with respect to oral plead- 
 ing, though it at length grew out of fashion there, it gave 
 place, not to allegations formed upon the principles of the 
 imperial practice, but to supposed transcriptions from the 
 
 (e.) See Appendix, note 41. 
 (/.) Fortesone de Laud., c. 20. 
 
RULES OF PLEADING. 151 
 
 record, the effect of which, (as explained in the f rst chap- 
 t®^») (5'>) ^^^ heen to preserve, in these written pleadings, 
 the style and method of those which were delivered viva 
 voce at the bar of the court. 
 
 But, whatever may be the origin and reason of the 
 method of coming to issue, it is at least certain that that 
 method has been substantially practiced in the English 
 pleading from the earliest period to which any of the now 
 existing sources of information refer, and, from the work 
 of Glanville on the Laws of England, it may clearly be 
 shown to have existed, in effect, in the reign of Henry 11. 
 The term itself, of "issue," though perhaps somewhat less 
 ancient, yet occurs as early as the commencement of the 
 Tear-Books, viz, in the first year of Edward II, (A,) and 
 from the same period at least, if not an earlier one, the 
 production of the issue has been not only the constant 
 effect, but the professed aim and object, of pleading. 
 
 It was not, however, the only object. It was found that, 
 though the parties should arrive at an issue, that is, at 
 some point affirmed on one side and denied on the other, 
 and mutually proposed and accepted by them as the sub- 
 ject for decision, it might yet happen that the point was 
 immaterial, that is, unfit to decide the action. This of course 
 rendered the issue useless. When it occurred, the proper 
 remedy, as in the practice of the present day, was a re- 
 pleader, (i.) But it was also naturally an object to avoid 
 its occurrence, and so to direct the pleadings as to secure 
 the production, not only of an issue, but a material one. 
 
 Again, it was found to be in the nature of many con- 
 troversies to admit of more than one question fit to decide 
 the action, or, in other words, actions would often tend to 
 more than one material issue. This might happen, in the 
 first place, in causes which involved several distinct claims. 
 Thus, if an action be brought, founded on two separate 
 
 (jr.) Vide swpra, pp. 63, 64. 
 
 (^.) See Tear-Book, ]. Eflward II, 14; see Appendix, note 42. 
 
 (i.) Vidt supra, 127. 
 
152 01 THE PKINCIPAL 
 
 demands, for example, two bonds, executed by the defend 
 ant in favor of the plaintiff, the issue may arise, as to one 
 of them, whether it be not discharged by a subsequent re- 
 lease; as to the other, whether it were not executed under 
 duress of imprisonment, which would make it voidable in 
 law. So, there may be more than one material issue in 
 causes which involve only a single claim. Thus, in an 
 action brought upon one bond only, two issues of the 
 same kind may arise, viz, whether it were not executed 
 under duress of imprisonment, or whether, at any rate, it 
 were not after its execution released by the plaintiff. In 
 thfe case of several claims, justice clearly requires that, if the 
 cause tend to several issues, distinctly applicable to each, 
 these several issues should all be raised and decided ; for 
 otherwise there would be no determination of the whole 
 matters in demand. But, in the case of a single claim, the 
 same consideration does not apply, for the decision of any 
 one of the material issues that may arise upon it will be 
 sufficient to dispose of the entire claim. Thus, in the first 
 example given, the finding that one bond was released, or 
 that it was not released, would leave the demand on the 
 other wholly untouched. On the other hand, in the second 
 example, if the party be put to his election, either to rely 
 on the fact of the execution under duress or on the release, 
 either of the questions which he so elects will lead to an 
 issue sufficient to decide the whole claim. While several 
 issues, therefore, must of necessity be allowed, in respect 
 of several subjects of suit, the allowance of more than one 
 issue in respect of each subject of suit is, in some degree, a 
 question of expediency. Those who founded the system 
 of pleading took the course of not allowing more than one, 
 and the motives which led to this course are sufficiently 
 obvious. For reasons assigned in another place, (k,) it was 
 of considerable importance to the judges, in those remote 
 times, when the contention was conducted orally, to sim- 
 plify and abbreviate the process as much as possible; and 
 
 (k.) Supra, p. 149. 
 
KULES OF PLEADING. 153 
 
 it was in this view, no doubt, that it was found expedient 
 to establish the principle of confining the pleaders to a 
 single issue, in respect of each single claim, allowing, at the 
 same time, from necessity, of several issues, when each re. 
 lated io a distinct subject of demand. But, whatever the 
 reason, it is clear that, in point of fact, this principle was 
 very early recognized in pleading, and that the issue was 
 required not only to be material, but single. 
 
 There was still another quality essential to the issue — 
 that of certainty. This word is technically used in plead- 
 ing in the two different senses of d istinctnes s and particu- 
 l^ri^- It is here employed in the latter sense on ly ;'''t!n'^r^ 
 wEen it is said that the issue must be1?aW»!ftSemeaning 
 is, that it must be particular or ^^ec^cJ^Topposed to undue 
 generality. 
 
 One of the causes which have been above assigned for 
 the practice of coming to issue made it also necessary to 
 come to issue with some degree of certainty. The variety 
 in the modes of decision required that the issue should be 
 sufficiently certain to show whether the point in contro- 
 versy consisted of law or fact; and, if the latter, so far to 
 show its nature, as to ascertain by what form of trial it 
 ought to be decided, (I.) But a certainty still greater than 
 this was required by a cause of another kind, viz, the 
 nature of the original constitution of the trial by jury. It is a 
 matter clear beyond dispute (but one that has, perhaps, 
 been too little noticed in works that treat of the origin of 
 our laws) that the jury anciently consisted of persons who 
 were witnesses to the facts, or at least in some measure per- 
 sonally cognizant of them; and who, consequently, in their 
 verdict, gave, not (as now) the conclusion of their judg- 
 ment upon facts proved before them in tbe cause, but their 
 testimony as to facts which they had antecedently known, 
 (m.) Accordingly, the venire facias, issued to summon a jury 
 
 (I.) An illustration of this occurs in a recent case. The King xi. Cook , 2 Bara 
 ft Ores., 871. 
 (m.) See Appendix, note 43. 
 
154 OF THE PRINCIPAL 
 
 in those days, did not (as at present) (n) direct the jurors 
 to be summoned from the body of the county, but from the 
 immediate neighborhood where the facts occurred, and from 
 among those persons who best knew the truth of the matter. 
 And the only means that the sheriff himself had of know- 
 ing what was the matter in controversy, so as to be in a 
 condition to obey the writ, appears to have been the venire 
 facias itself, which then stated the nature of the issue, instead 
 of being confined (as now) to a short statement of the form 
 of the action, (o.) In this state of things, it was evidently 
 necessary that the issue should be sufficiently certain, to 
 show specifically the nature of the question of fact to be 
 tried. Unless it showed (for example) at what place the 
 alleged matter was said to have occurred, it would not ap- 
 pear into what county the venire should be sent, nor from 
 what neighborhood the jury were to be selected. So, if it 
 did not specify the time and other particulars of the alleged 
 transaction, the sheriff would have no sufficient guide for 
 summoning, in obedience to the venire, persons able, of 
 their own knowledge, to testify upon that matter. For all 
 these reasons, and probably for others also, connected with 
 the general objects of precision and clearness, (p,) it was 
 considered as one of the essential qualities of the issue 
 that it should be certain; and the certainty was generally 
 to be of the degree indicated by the preceding considera- 
 tions. In modern times, as the jurors have ceased to be 
 of the nature of witnesses, and are taken, generally, from 
 the body of the county, it is no longer necessary to shape 
 the issue for the information of the summoning officer; 
 and, accordingly, the venire facias no longer even sets the 
 issue forth. But as the parties now prove their facts by 
 the adduction of evidence before the jury, and have conse. 
 
 (n.) XHde supra, p. 115. 
 
 (o.) Vide Bract., p. 309 b, 310 a, &o. 
 
 {p.) It is laid down by Bracton, oportet quod petens rem designet qnam 
 petit; videlicet, qualitatein, &o., item quantitatem, &c. Certam enim rem 
 oportet deducere in judicium, ne contingat judicium esse delusorium vel ob- 
 scuruE, &c. (Braot., 431 a.) 
 
RULES OF PLEADING. 155 
 
 qaently to provide themselves with the proper documenta 
 and witnesses, it is as essential that they should each be 
 apprized of the specific nature of the question to be tried, 
 as it formerly was that the sheriff should be so instructed; 
 and the particularity which was once required, for the in- 
 formation of that officer, now serves for the guidance of 
 the parties themselves in preparing their proofs, [q.) 
 
 On the whole, therefore, the author conceives the chief 
 objects of pleading to be these : That the parties be brought to 
 issue, and that the issue so produced be material, single, and 
 certain in its quality. In addition to these, however, the 
 system of pleading has always pursued those general ob- 
 jects also which every enlightened plan of judicature pro- 
 fesses to regard: the avoidance of obscurity and confusion, 
 of prolixity and delay. Accordingly, the whole science of 
 pleading, when carefully analyzed, will be found to reduce 
 itself to certain principal or primary rules, the most of 
 which tend to one or other of the objects above enumerated, 
 and were apparently devised in reference to those objects, 
 while the remainder are of an anomalous description, and 
 appear to belong to other miscellaneous principles. It is 
 proposed, in this chapter, to collect and investigate these 
 principal rules, and to subject them to a distribution, con- 
 formable to the distinctions that thus exist between them 
 in point of origin and object. The chapter will therefore 
 treat — 
 
 I. Of rules which tend simply to the production of an 
 issue. 
 
 II. Of rules which tend to secure the materiality of the 
 issue. 
 
 TIT . Of rules which tend to produce singleness or unity 
 in the issue. 
 
 IV. Of rules which tend to produce certainty or particu- 
 larity in the issue. 
 
 (j.) As to this latter, or modern reason, for certainty, see Collett v. Lord 
 Keith, 2 East., 260; J' Anson v. Stuart, 1 T. R., 748 ; Holmes t>. Oatesby, J 
 Taunt., 543, 
 
156 Oi; THE PRINCIPAL 
 
 V. Of rules which tend to prevent obscurity and confu- 
 sion in pleading. 
 
 VI. Of rules which tend to prevent prolixity and delay 
 in pleading. 
 
 VII. Of certain miscellaneous rules, (n) 
 
 The discussion of these principal rules will incidentally 
 involve the consideration of many other rules and prin- 
 ciples, of a kind subordinate to the first, but extensive, 
 nevertheless, and important in their application; and thus 
 will be laid before the reader an entire, though general, 
 view of the whole system of pleading, and of the relations 
 which connect its different parts with each other. 
 
 SECTION I. 
 
 OF RULES WHICH TEND SIMPLY TO THE PRODUCTION OP AN ISSUE. 
 
 Upon examination of the process or system of allegar' 
 tion by which the parties are brought to issue, as that 
 process is described in the first chapter, (s,) it will be found 
 to resolve itself into the following fundamental rules or 
 principles : First, that after the declaration the parties must at 
 each stage demur, or plead by way of traverse, or by way of 
 confession and avoidance; secondly, that upon a traverse, issue 
 must be tendered, {t;) lastly, that the issue, when well tendered, 
 must be accepted. Either, by virtue of the first rule, a de- 
 murrer takes place, which is a tender of an issue in law, 
 or, by the joint operation of the two first, the tender of an 
 issue in fact ; and then, by the last of these rules, the issue 
 so tendered, whether in fact or in law, is accepted, and be- 
 comes finally complete. It is by these rules, therefore, 
 that the production of an issue is effected ; and these will 
 consequently form the subject of the following section. 
 
 (r.) See Appendix, note 44. 
 (s.) Vide supra, pp. 82-96. 
 
 (t) With respect to demurrer, it will be remembered that it necessarily im- 
 flies a tender of issue. {Supra, pp. 91, 93.) 
 
RULES OF PLEADING. 157 
 
 RULE I. 
 
 AFTEE THE DEOLARATION, THE PASTIES MUST AT EACH STAGE DEMUB, CB PLBAB 
 BY WAT OF TEAVEESE, OE BT WAT OF CONFESSION AND AVOIDANCE. 
 
 This rule has two branches — 
 
 1. The party must demur or plead. One or other of 
 these courses he is bound to take (while he means to main- 
 tain his action or defense) until issue be tendered. If he 
 does neither, but confesses the right of the adverse party, 
 or says nothing, the court immediately gives judgment for 
 his adversary; in the former case, ashy confession; in the 
 latter, by nonpros, or nil dicit, {u.) 
 
 2. K the party pleads, it must either be by way of trav- 
 erse or of confession and avoidance. If his pleading amount 
 to neither of these modes of answer, it is open to demur- 
 rer on that ground, (x.) 
 
 Such is the effect of this rule generally and briefly con- 
 sidered. But, for its complete illustration, it will be ne- 
 cessary to enter much more deeply into the subject, and to 
 consider at large the doctrines that relate both to demurrers 
 and to pleadings. 
 
 I. Of demurrer. ' 
 
 Under this head it is intended to treat, 1, of the nature 
 and properties of a demurrer ; 2, of the effect of passing 
 a fault by without demurrer, and pleading over ; 3, of the 
 considerations which determine the pleader in his election 
 to demur or plead. 
 
 1. Of the nature and properties of a demurrer. 
 
 A demurrer may be for insufficiency either in substance 
 or in f(yrm; that is, it may be either on the ground that the 
 case shown by the opposite party is essentially insufficient, 
 or on the ground that it is stated in an inartificial manner; 
 for " the law requires in every plea " (and the observation 
 equally applies to all other pleadings) "two things : the one 
 
 (u ) As to the nature of these judgments, vide supra, p. 136. 
 {X.) Eeg. Plac, 59 ; 21 Hen. VI, 12 ; 5 Hen. VIII, 23 a, 14 a b. ; 1 Tidd, 666. 
 8th edit. ; Meroeron v. Doweon, 5 Barn. & Ores. 479. 
 
158 OF THE PEINCIPAL 
 
 that it be iu matter sufficient, the other that it be deduced 
 and expressed according to the forms of law; and if either 
 the one or the other of these be wanting, it is cause of de- 
 murrer," [y.) And we may here take occasion to remark, 
 that a violation of any of the rules of pleading that will 
 be hereafter stated is, in general, ground for demurrer; and 
 such fault occasionally amounts to matter of substance, but 
 usually to matter of form only. 
 
 A demurrer, as in its nature, so also in its form, is of two 
 kinds : it is either general or special. A general demurrer 
 excepts to the sufficiency in general terms, without show- 
 ing specifically the nature of the objection; a special de- 
 murrer adds to this a specification of the particular ground 
 of exception, {z.) Of both these forms the reader has 
 already had examples in the first chapter, (a.) A general 
 demurrer is sufficient where the objection is on a matter of 
 substance. A special demurrer is necessary where it turns 
 on matter of form only; that is, where, notwithstanding 
 such objection, enough appears to entitle the opposite 
 party to judgment, as far as relates to the merits of the 
 cause. For, by two statutes, 27 Elizabeth, c. 5, and 4 
 Anne, c. 16, passed in a view to the discouragement of 
 merely formal objections, it is provided, in nearly the same 
 terms, that the judges "shall give judgment according as 
 the very right of the cause and matter in law shall appear 
 unto them, without regarding any imperfection, omission, 
 defect, or want of form, except those only which the party 
 demurring shall specially and particularly set down and 
 express, together with his demurrer, as causes of the same;" 
 the latter statute adding this proviso : " So as sufficient mat- 
 ter appear in the said pleadings, upon which the court may 
 give judgment according to the very right of the cause." 
 Since these statutes, therefore, no mere matter of form can 
 be objected on a general demurrer; but the demurrer must 
 
 (y.) Per Lord Hobart, Colt i). Bishop of Coventry, Hob., 164. 
 
 (c.) Co. Litt., 72 a; Reg. Plac, 125, 126; Bao. Ab., Pleas, &o., n. 5 
 
 (a.) Vide supra, pp. 82, 83. 
 
RULES OP PLEADING. 159 
 
 be in the spocial form, and the objection specifically stated, 
 {b.) But, on the other hand, it is to be observed that, 
 under a special demurrer, the party may, on the argument, 
 not only take advantage of the particular faults which his 
 demurrer specifies, but also of all such objections in sub- 
 stance, or regarding "the very right of the cause" (as the 
 statutes express it) as do not require, under those statutes, 
 to be particularly set down, (c.) It follows, therefore, that 
 unless the objection be clearly of this substantial kind, it 
 is the safer course, in all cases, to demur specially, (d.) 
 Yet, where a general demurrer is plainly sufficient, it is 
 more usually adopted in practice; because, the effect of 
 the special form being to apprize the opposite party more 
 distinctly of the nature of the objection, it is attended with 
 the inconvenience of enabling him to prepare to maintain 
 his pleading in argument, or of leading him to apply the 
 earlier to amend. With respect to the degree of particu- 
 larity with which, under these statutes, the special demur- 
 rer must assign the ground of objection, it may be observed, 
 that it is not sufficient to object, in general terms, that the 
 pleading is "uncertain, defective, informal," or the like; 
 but it is necessary to show in what respect uncertain, defect- 
 ive, or informal, (e.) The concluding words, therefore, in 
 the example formerly given, (/,) "And also that the said 
 declaration is, in other respects, uncertain, informal, and in- 
 sufficient," (though these, or some others of similar import^ 
 are usually added,) are inoperative and useless, (g.) 
 
 "With respect to the effect of a demurrer, it is, first, a rule 
 thai a demurrer admits all such matters of fact as are suff- 
 
 (b.) For examples of cases where a special demurrer is considered as neces- 
 sary, and where, on the other hand, a general one is sufficient, see Buckley v. 
 Kenyon, 10 East., 139; Bowdell v. Parsons, id., 359, 593; Bolton v. Bishop 
 of Carlisle, 2 H. Bl., 2£9 ; Bach v. Owen, 5 T. B., 409. A demurrer to a 
 plea in aiatement never needs to be special. (2 Saund., 2 b., n. h.) 
 
 (c.) 1 Chitty, 642, 1st edit. 
 
 {d.) 1 Arch., 313 ; Clue v. Baily, 1 Vent., 240. 
 
 (e.) 1 Saund., 161, n. 1 ; 337 b, n. 3. 
 
 (/.) Vide mpra, p. 83. 
 
 (y.) See Appendix, nate 45. 
 
160 OF THE PBINCIPAL 
 
 nently pleaded, (h.) The meaning of this rale is, that the 
 party, having had his option whether to plead or demur, 
 shall be taken, in adopting the latter alternative, to admit 
 that he has no ground for denial or traverse; which (as 
 formerly shown) (i) is one of the kinds of pleading. A de- 
 murrer is consequently an admission that the facts alleged 
 are true; and therefore the only question for the court is, 
 whether, assuming such facts to be true, they sustain the 
 case of the party by whom they are alleged. It will be 
 observed, however, that the rule is laid down with this 
 qualification, that the matter of fact be sufficiently pleaded. 
 For, if it be not pleaded in a formal aud sufficient man- 
 ner, it is said that a demurrer, in this case, is no admission 
 of the fact, {k.) But this is to be understood as subject to 
 the alterations that have been introduced into the law of 
 demurrer by the statutes already mentioned; and therefore, 
 if the demurrer be general, instead of special, it amounts, as 
 it is said, to a confession, though the matter be informally 
 pleaded, (l.) 
 
 Again, it is a rule, that on demurrer the court will consider 
 the whole record, and give judgment for the party who, on the 
 whole, appears to be entitled to it, (m.) Thus, on demurrer to 
 the replication, if the court think the replication bad, but 
 perceive a substantial fault in the plea, they will give judg- 
 ment, not for the defendant, but the plaintiff, (n,) provided 
 the dechration be good; but if the declaration also be bad 
 in substance, then, upon the same principle, judgment 
 would be given for the defendant, (o.) This rule belongs 
 
 (h.) Bao. Ab., Pleas, &c., n. 3; Com. Dig., Pleader, Q.5; Nowlan v.QeddeB, 
 1 East., 634; Gtindry v. Feltham, 1 T. T., 334. 
 
 (i.) Vide supra, p. 89. 
 
 (k.) Com. Dig., Pleader, Q. 6. 
 
 (I.) 1 Sannd., 337 b, n. 3 ; 1 Arch., 318. 
 
 (m.) Com. Dig., Pleader, M. 1, M. 2; Bac. Ab., Pleas, &o., A. n. 3; 5 Eep., 
 29 a. ; 1 Saund., 285, n. 5 ; Foster v. Jackson, Hob., 56; Anon., 2 Wils., 150; 
 Le Bret v. Papillon, 4 East., 602. 
 
 (n.) Anon., 2 Wils., 150; Thomas v. Heatborn, 2 Bam. & Ores., 477. 
 
 (o.) Piggot's Case, 5 Eep., 29 a. ; Bates v. Cort, 2 Barn & Ores., 474. 
 
RULBS OF PLBADINQ. 161 
 
 to the general principle stated in the first chapter, {p,) that 
 when judgment is to be given, whether the issue be in law 
 or fact, and whether the cause have proceeded to issue or 
 not, the court is always bound to examine the whole record, 
 and adjudge for the plaintiff or defendant, according to the 
 legal right, as it may on the whole appear. It is, however, 
 subject to the following exceptions: First, if the plaintiff 
 demur to a plea in abatement, and the court decide against 
 the plea, they will give judgment of respondeat ouster, 
 without regard to any defect in the declaration, (q.) Sec- 
 ondly, though on the whole record the right may appear 
 to be with the plaintiff, the court will not adjudge in favor 
 of such right, unless the plaintiff have himself put his action 
 upon that ground. Thus, where, on a covenant to perforin 
 an award, and not to prevent the arbitrators from making 
 an award, the plaintiff declared in covenant, and assigned 
 as a breach that the defendant would not pay the sum 
 awarded, and the defendant pleaded that, before the award 
 made, he revoked, by deed, the authority of the arbitrators, 
 to which the plaintiff demurred, the court held the plea 
 good, as being a sufficient answer to the breach alleged, and 
 therefore gave judgment for the defendant, although they 
 also were of opinion that the matter stated in the plea 
 would have entitled the plaintiff to maintain his action, if 
 he had alleged, by way of breach, that the defendant pre- 
 vented the arbitrators from making their award, (r.) Lastly, 
 the court, in examining the whole record, to adjudge accord- 
 ing to the apparent right, will consider only the right in 
 matter of substance, and not in respect of mere form, such as 
 should have been the subject of special demurrer. Thus, 
 where the declaration was open to an objection of form, 
 such as should have been brought forward by special de- 
 murrer — ^the plea bad in substance — and the defendant 
 
 {p.) Vide supra, p. 143. 
 
 \q.) Belasyse V. Hester, Lutw., 1592; Eouth v. Weddell, 1667; Hastrop «. 
 Hastings, 1 Salk., 212; Eioh v. Pilkington, Garth., 172. 
 (r.) Marsh v. Bulteel, 5 Barn. & Aid.. 507. 
 11 
 
16^ OF THE PRINCIPAL 
 
 demurred to tLe replication, the court gave judgment for 
 the plaiutiff, in respect of the insufficiency of the plea, 
 without regard to the formal defect in the declaration (s.) 
 
 2. Next is to be considered the effect of pleading over 
 without demurrer. 
 
 It has been shown that it is the effect of a demurrer to 
 admit the truth of all matters of fact sufficiently pleaded 
 on the other side; but it cannot be said, e converso, that it 
 is the effect of a pleading to admit the sufficiency in law 
 of the facts adversely alleged. On the contrary, it has 
 been seen (t) that, upon a demurrer arising at a subsequent 
 stage of the pleading, the court will take into considera- 
 tion, retrospectively, the sufficiency in law of matters to 
 which an answer in fact had been given. And in the first 
 chapter it was shown, (m,) that even after an issue in fact and 
 verdict thereon, the court are bound to give judgment on 
 the whole record, and therefore to examine the sufficiency 
 in law of all allegations through the whole series of the 
 pleadings; and, accordingly, that advantage may often be 
 taken by either party of a legal insufficiency in the plead- 
 ing on the other side, either by motion in arrest of judg- 
 ment or motion for judgment non obstante veredicto or writ 
 of error, according to the circumstances of the case. 
 
 It thus appears, then, that in many cases a party, though 
 he has pleaded over without demurring, may nevertheless 
 afterwards avail himself of an insufficiency in the pleading 
 of his adversary. But this is not universally true. For, 
 first, it is to be observed, that faults in the pleading are, in 
 some cases, aided by pleading over, {x.) Thus, in an action 
 of trespass, for taking a hook, where the plaintiff omitted 
 to allege in the declaration that it was his hook, or even 
 that it was in his possession, and the defendant pleaded a 
 
 (s.) Humplireya v. Bethily, 2 Vent., 222. 
 
 (t.) Supra, pp. 159, 160. 
 
 (u.) Supra, pp. 126, 127, 143. 
 
 (x.) Com. Dig., Pleader, C. 85, E. 37; Co. Litt., 303 b.; Praot. Eeg., 351; 
 Anon., 2 Salk., 519; Fowl? v. Welsh, 1 Barn. & Ores., 29; Fletchei v. Pogson, 
 8 Barn. & Cres., 192. 
 
RULES OF PLEADING. lOS 
 
 matter in confession and avoidance, justifying his taking 
 the hook out of the jplaintiff's hand, the court, on motion in 
 arrest of judgment, held, that as the plea itself showed 
 that the hook was in the possession of the plaintiff, the 
 objection, which would otherwise have been fatal, was 
 cured, (y.) And with respect to all objections of form, it is 
 laid down as a general proposition, "that if a man pleads 
 over he shall never take advantage of any slip committed 
 in the pleading of the other side which he could not take 
 advantage of upon a general demurrer," {z.) Again, it is 
 to be observed, that faults in the pleading are, in some cases, 
 aided by a verdict, (a.) Thus, if the grant of a reversion, a 
 rent charge, an advowson, or any other hereditament which 
 lies in grant, and can only be conveyed by deed, be plead- 
 ed, such grant ought to have been alleged to have bee n 
 made by deed, and, if not so alleged, it will be ground of 
 demurrer; but if the opposite party, instead of demurring, 
 pleads over, and issue be taken upon the grant, and the 
 jury find that the grant was made, the verdict aids or cures 
 the imperfection in the pleading, and it cannot be objected 
 in arrest of judgment or by writ of error, (6.) The extent 
 and principle of this rule of aider by verdict is thus explain- 
 ed in a modern decision of the court of king's bench: 
 " Where a matter is so essentially necessary to be proved 
 that, had it not been given in evidence, the jury could not 
 have given such a verdict, there the want of stating that 
 matter in express terms, in a declaration, provided it con- 
 tains terms sufficiently general to comprehend it in fair 
 and reasonable intendment, will be cured by a verdict; and 
 
 (y.) Glasscock v. Morgan, Sid., 184, cited Bao. Ab., Trespass, p. 603. 
 
 (z.) Per Holt, C. J.; Anon., 2 Salk., 519; Bac. Ab., Pleas, &c., 322. 
 
 (a.) Com. Dig., Pleader, C. 87; 1 Saund., 228, n. 1; Weston v. Mason, 3 
 Burr., 1725; Spieres v. Parker, 1 T. R., 141; Johnstone v. Sutton, iMd, 545; 
 Nerot V. Wallace, 3 T. Pi.., 25; Jackson v. Pesked, 1 M. & S., 23^; Campbell 
 V. Lewis, 3 Barn & Aid., 392 ; Keyworth v. Hill, ibid, 685 ; Pippit v. Hearn, 
 5 Barn. & Aid., 634; Lord Huntingtower v. Gardiner, 1 Barn. & Cres., 297; 
 Price V. Seaman , 4 Barn. & Cres., 525. 
 
 (6.) 1 Saund., 228 a, n. 1 ; Lightfoot v. Brightman, Hutt., 54. 
 
164 OF THE PKINCIPAL 
 
 vs^here a general allegation must, in fair construction, so 
 far require to be restricted that no judge and no jury could 
 have properly treated it in an unrestrained sense, it may 
 reasonably be presumed, after verdict, that it was eo re- 
 strained at the trial," (c.) In entire accordance with this 
 are the observations of Mr. Sergeant Williams : " Where 
 there is any defect, imperfection, or omission in any plead- 
 ing, whether in substance or form, which would have been 
 a fatal objection upon demurrer, yet if the issue joined be 
 such as necessarily required, on the trial, proof of the facts 
 so defectively or imperfectly stated or omitted, and with- 
 out which it is not to be presumed that either the judge 
 would direct the jury to give or the jury would have given 
 the verdict, such defect, imperfection, or omission is cured 
 by the verdict," (d.) It is, however, only where such " fair 
 and reasonable intendment" can be applied that a verdict 
 will cure the objecti6n; and, therefore, if a necessary alle- 
 gation be altogether omitted in the pleading, or if the 
 pleading contain matter adverse to the right of the party 
 by whom it is alleged, and so clearly expressed that no 
 reasonable construction can alter its meaning, a verdict 
 will not aid, (e.) Therefore, where the plaintiff brought 
 an action of trespass on the case, as being entitled to the 
 reversion of a certain yard and wall, to which the declara- 
 tion stated a certain injury to have been committed, but 
 omitted to allege that the reversion was, in fact, prejudiced, 
 or to show any grievance which, in its nature, would neces- 
 sarily prejudice the reversion, the court arrested the judg- 
 ment, after a verdict had been given in favor of plaintiff, 
 and held the fault to be one which the verdict could not 
 cure, (/.) Lastly, it is to be observed, that at certain stages 
 of the cause all objections of form are cured by the different 
 
 (c.) Jackson v. Pesked, 1 M. & S., 234. 
 (d.) 1 Saund., 228, n. 1. 
 
 (e.) Jackson v. Pesked, 1 M. & S., 234 ; Nerot o. Wallace, 3 T. R., 25 ; Wes- 
 ton V. Mason, 3 Burr., 1725. 
 
 (/.) Jackson i. Pesked, 1 M. & S., 234. 
 
RULES OF PLEADING. 165 
 
 Statutes of jeofails and amendments, (g;) the cumulative effect 
 of which is, to provide that neither after verdict nor judg- 
 ment, by confession, nil dicit, or non sum informatus, cau 
 the judgment be arrested or reversed by any objection of 
 that kind. Thus, in an action of trespass, where the 
 plaintiff omits to allege in his declaration on what cer- 
 tain day the trespass was committed, (which is a ground 
 of demurrer,) and the defendant, instead of demurring, 
 pleads over to issue, and there is a verdict against him, 
 the fault is cured by the statutes of jeofails, (A,) if not also 
 by the mere effect of pleading over. 
 
 3. It will now be useful to examine the considerations 
 by which, in a view to the state of the law, as above ex- 
 plained, the pleader ought to be governed, in making his 
 election to demur or to "plead. 
 
 He is first to consider whether the declaration or other 
 pleading opposed to him is sufficient in substance and in 
 form to put him to his answer. If sufficient in both, he 
 has no course but to plead. On the other hand, if insuffi- 
 cient in either, he has ground for demurrer ; but whether 
 he should demur or not is a question of expediency, to be 
 determined upon the following views : If the pleading be 
 insufficient in form, he is to consider whether it is worth 
 while to take the objection, recollecting the indulgence 
 which the law allows in the way of amendment, («;) but also 
 bearing in mind that the objection, if not taken, will be 
 aided by pleading over, or, after pleading over, by the ver- 
 dict, ot by the statutes of amendments and jeofails. And if 
 he chooses to demur, he must take care to demur specially, 
 lest, upon general demurrer, he should be held excluded 
 from the objection. On the other hand, supposing an in- 
 sufficiency in substance, he is to consider whether that in- 
 Bufficiency be in the case itself, or in the manner of state- 
 
 {g.) Vide supra, p 126. 
 
 \h.) 3 Bl. Com., 394; 1 Saund., 228 c, n. 1, where Mr. Sergeant Williann 
 sorrects a mistake in the passage in Blackstone's Commentaries, 
 (i.) Vide mpra, p. 109. 
 
1G6 OF THE PBINCIPAL 
 
 ment; for, on the latter supposition, it might be removed 
 by an amendment, and it may, therefore, not be worth 
 while to demur. And whether it be such as an amendment 
 would remove or not, a further question will arise, whether 
 it be not expedient to pass by the objection for the present, 
 and plead over ; for a pai-ty, by this means, often obtains 
 the advantage of contesting with his adversary, in the first 
 instance, by an issue in fact, and of afterwards urging tlie 
 objection in law by motion in arrest of judgment or writ 
 of error, (k.) This double aim, however, is not always ad- 
 visable; for, though none but formal objections are cured 
 by the statutes of jeofails and amendments, there are some 
 defects, of svhstance as well as form, which are aided by 
 pleading over or by a verdict, {I;) and therefore, unless 
 the fault be clearly of a kind not to be so aided, a demui'rer 
 is the only mode of objection that can be relied upon. The 
 additional delay and expense of a trial is also sometimes a 
 material reason for proceeding in the regular way by de- 
 murrer, and not waiting to move in arrest of judgment or 
 to bring a writ of error. And a concurrent motive for 
 adopting that course is, that costs are not allowed when the 
 judgment is arrested, (m,) nor where it is reversed upon 
 writ of error, (n,) (each party in these cases paying his own ;) 
 but on demurrer the party succeeding obtains his costs. 
 
 Having now taken some view of the doctrine of demur- 
 rers, the next subject for consideration will be that 
 
 II. Of pleadings. 
 
 Under this head it is proposed to examine, 1, the na- 
 
 [h.) "When the matter in fact will clearly serve for your client, although 
 your opinion is that the plaintiff hath no cause of action, yet take heed 
 that you do not hazard the matter upon a demurrer, in which, upon tl e 
 pleading and otherwise, more will perhaps arise than you thought of; but 
 first take advantage of the matters of fact, and leave matters in law, which 
 always arise upon the matters in fact, ad uliimum, and never at first demur 
 in law when, after trial of the matters in fact, the matters in la w will be saved 
 to you." ( Lord Cromwell's Case, 4 Eep., 14 a.) 
 
 {I.) As in the example, supra, p. 162. 
 
 (m.) 1 Sel. Pract., 497 ; Cameron v. Reynolds, Cowp., 407. 
 
 (n.) 2 Tidd, 1243, 8th edit. 
 
RULES OF PLEADING. 167 
 
 tiire and properties of irayerses; 2, the nature and proper- 
 ties of pleadings in confession and avoidance; 3, the nature 
 and properties oi pleadings in general, without reference to 
 their quality, as being by way of traverse or confession and 
 avoidance, 
 
 1. Of the nature and pi-operties of traverses. 
 
 Of traverses, there are various kinds. The most ordinary 
 kind is that which may be called a common traverse. It 
 consists of a tender of issue; that is, of a denial, accompa- 
 nied bv a formal offer of the point denied for decision, (o; ) 
 and the. denial that it makes is by way of express contradic- 
 tion, in wrms of the allegation traversed. Of this kind ex- 
 amples have already been given in the first chapter, {jp.) 
 
 TJpon referring to these, it will be found that they are 
 all expressed in the negative. That, however, is not invari- 
 ably the case with a common traverse ; for, if opposed to 
 a precedent negative allegation, it will, of course, be in the 
 affirmative, as in the following example: 
 
 PLEA OP THE STAIUTB OP LIMITATI0K8. 
 
 In assumpsit. 
 
 (j.) And the said 0. D., by , his attorney, comes and defends the 
 
 wrong and injury, when, &c., and says that the said A. B. ought not to have 
 or maintain his aforesaid action against him, because, he says, that he, the 
 said C. D., did not, at any time within six years next before the commence- 
 ment of this suit, undertake or promise, in manner and form as the said A. 
 B. hath above complained ; and this the said C. D. is ready to verify. Where- 
 fore he prays judgment, if the said A. B. ought to have or maintain his 
 aforesaid action against him, &c. 
 
 EEPLIOATION. 
 
 And the said A. B. says, that, by reason of anything in the said plea 
 alleged, he ought not be barred from having and maintaining his aforesaid 
 action against the said 0. D., because, he says, that the said Q. D. did, within 
 six years text before the commencement of this suit, undertake and promise, 
 
 (o.) See '.he definition of tendering issue, given in the first chapter, supra 
 
 r 91. 
 
 (p.) Vide supra, pp. 90, 94, 95. 
 
 (g.) Pleadings are always entitled at the commencement, i. e., have a super- 
 scription of the court and term, as in the examples in the first chapter; but in 
 this, and all subsequent examples, the title is, for the sake of brevity, omitted. 
 
168 OF THE PRINCIPAL 
 
 in manner aal form as he, the said A. B., hath above oomiilained ; and this 
 he prays, may be inquired of by the country. 
 
 Besides this, the common Mad, there is a class of trav 
 erses which, from its great frequency and importance in 
 practice, requires particular notice. It is that of the general 
 issues. In most of the usual actions there is an appropri- 
 ate plea, fixed by ancient usage, as the proper method of 
 traversing the declaration, in cases where the defendant 
 means to deny the whole or the principal part of its allega- 
 tions, (r.) This form of plea or traverse is called the 
 general issue in that action; and it appears to be so called, 
 because the issue that it tenders, involving the whole dec- 
 laration or the principal part of it, is of a more general 
 and comprehensive kind than that usually tendered by a 
 common traverse. Erom the examples of it that will be 
 presently given, it will be found that, not only in extent or 
 comprehensiveness, but in point of form also, it differs 
 somewhat from a common traverse; for though, like that, 
 it tenders issue, yet, in several instances, it does not contra- 
 dict in terms of the allegation traversed, but in a more general 
 form of expression, (s.) 
 
 In the ijorit of right and in dower there seems to be, prop- 
 erly speaking, no general issue, {t.) 
 
 la formedon the general issue is in the following formula, 
 and is called the plea of ne dona pas or non dedit. 
 
 And the said C. D., by , his attorney, comes and defends his right, 
 
 when, &c., and says that the said E. F. did not give the said manor, with the 
 appurtenances, or any part thereof, to the said G. B. and the heirs of his body 
 issuing, in manner and form as the said A. B. hath in his said count above 
 alleged ; and of this the said 0. D. puts himself upon the country, (u.) 
 
 In quare impedii the general issue is called ne disturba pas, 
 
 (x;) and it is in the following form: 
 
 And the said bishop, C. D., and E. F., by , their attorney, come and 
 
 dflfend the wrong and injury, when, &o., and say that they do not hinder the 
 
 (r.) Keg. Plac, 57; Boot. & Stud., 272. 
 
 (s.) See the general issues of non est factum and not guilty, post. 169. 
 
 (<.) See Appendix, note 46. 
 
 (u.) 10 Went., 182. 
 
 (a.) Oslt «. Bishop of Coventry, Hob, 162; Bae Ab., Simony, I. But thera 
 
•RULES OP PLEADING. 169 
 
 Rlid A. BAo preseit a, fit person to the said chu/ch, in manner and fijrin as 
 the said A. B. hath in his said declaration above alleged ; and of this the said 
 bishop, O. D., and E. F. put themselves upon the country, (y.) 
 
 In debt on bond or other specialty the general issue is called 
 the plea of non est factum ; and is as follows: 
 
 And the said C. Z>., by , hia attorney, comes and defends the wrong 
 
 and injury, when, &c., and says that the said supposed writing obligatory (or 
 "indenture," or "articles of agreement," according to the subject of the action) 
 is not his deed ; and of this he puts himself upon the country. 
 
 In debt on simple contract the general issue is called the 
 plea of nil debet; and is thus : 
 
 And the said C. D., by , his attorney, comes and defends the wrong 
 
 and injury, when, &c., and says that he does not owe the said sum of money 
 above demanded, or any part thereof, in manner and form as the said A. B. 
 hath above complained; and of this the said 0. D. puts himself upon the 
 country, (z.) 
 
 In covenant the general issue is non est factum, and its 
 form is similar to that in debt on specialty. 
 
 In detinue the general issue is called the plea of non deti- 
 net; and is as follows: 
 
 And the said O. D., by , his attorney, comes and defends the wrong 
 
 and injury, when, &o., and says that he does not detain the said goods and 
 chattels {or "deeds and writings," according to the subject of the action) in the 
 said declaration specified, or any part thereof, in manner and form as the said 
 A. B. hath above complained ; and of this the said 0. D. puts himself upon 
 the country. 
 
 In trespass the general issue is called the plea of not 
 
 guilty; and is as follows : 
 
 And the said 0. D., by , his attorney, comes and defends the force 
 
 and injury, when, &c., and says that he is not guilty of the said trespasses 
 
 is a dictum of Ashhurst, J., that there is no general issue in qtmre impedit. 
 (Bead v. Brookman, 3 T. E., 158.) 
 
 (y.) See East., 517; Winch. Ent., 703. 
 
 (c.) Nil debet is the proper form of the general issue, not only in debt on 
 eimple contract, but in all other actions of debt not founded on a deed or 
 specialty. And an action is not considered as founded on a deed or specialty, 
 so as to require a plea of non est factum,, if the deed be mentioned in the 
 declaration only as introductory to some other main cause of action. There- 
 fore ml debet is a good plea in debt for rent upon an indenture, or in debt fjT 
 an escape, oi in debt upon a devastavit. (1 Tidd., 701, 8th edit.) 
 
170 OP THE PRINCIPAL 
 
 above laid to his charge, or any part thereof, in manner and form as th« oaid 
 A. B. hath above complained ; and of this the said G. D. puta himself upon 
 the country. 
 
 In trespass on the case (in the species of assumpsit) the gen- 
 eral issue is called the plea ofnon assumpsit; and is as fol- 
 lows: 
 
 And the said C. D., by , his attorney, comes and defends the wrong 
 
 and injury, when, &o., and says that he did not undertake or promise, in man- 
 ner or form as the said A. B. hath above complained ; and of this the said 
 0. D. puts himself upon the country. 
 
 In trespass on the case, in general, the general issue is not 
 guilty; and is thus: 
 
 And the said G. D., by , his attorney, comes and defends the wrong 
 
 and injury, when, &c., and says that he is not guilty of the premises above 
 laid to his charge, in manner and form as the said A. B. hath above com- 
 plained ; and of this the said C D. puts himself upon the country. 
 
 In replevin the general issue is called the plea of non 
 cepii; and is as follows: 
 
 And the said C. D., by , his attorney, comes and defends the wrong 
 
 and injury, when, &c., and says that he did not take the said cattle (or "goods 
 and chattels" according to the subject of the action) in the said declaration 
 mentioned, or any of them, in manner and form as the said A. B. hath above 
 complained ; and of this the said G. D. puts himself upon the country. 
 
 A very important effect attends the adoption of the gen- 
 eral issue, viz, that by tendering the issue on the declara 
 tion, and thus closing the process of the pleading at so 
 early a stage, it throws out of use, wherever it occurs, a 
 great many rules of pleading, applying exclusively to the 
 remoter allegations. For it is evident that, when the issue 
 is thus tendered in the plea, the whole doctrine relating to 
 pleadings in confession and avoidance, replications, re- 
 joinders, &c., is superseded. At the same time, the gen- 
 eral issue is of very frequent occurrence in pleading; and 
 it has, therefore, on the whole, the effect of narrowing, 
 very considerably, the application of the greater and more 
 subtle part of the science. 
 
 The important character of this plea makes it material 
 to explain distinctly in what cases it may and ought to be 
 used; and this is the more necessary, because an allowed 
 
RULBS OF PLEADINa. 171 
 
 relaxation in the modern practice has, in son.e actions, 
 given it an application more extensive than belongs to it 
 in principle. To obtain a clear view of this subject, we 
 must examine the language of the different general issues, 
 in reference to the declarations which they respectively 
 traverse. 
 
 First, with respect to the general issue in formedon, we 
 find that this jjlea simply denies the gift in tail to have 
 been a ... ^nanner and form as alleged. It will there- 
 fore be the proper plea if the tenant means to dispute 
 the fact of the gift, but will apply to no other case, (a.) 
 
 In quare impedit, the general issue simply denies that 
 the defendant obstructed the presentation, and is adapted 
 to no other ground of defense, (b.) 
 
 In debt on specialty and in covenant, the general issue, 
 non est factum, denies that the deed mentioned in the dec- 
 laration is the deed of the defendant. Under this, the 
 defendant at the trial may contend, either that he never 
 executed such deed as alleged, or that it is absolutely void 
 in law: for example, on the ground that the alleged 
 obligor or covenantor was, at the time of execution, a mar- 
 ried woman or a lunatic, (c;) or that since its execution, 
 and before the commencement of the suit, it has been 
 erased or altered by the obligee or covenantee himself, or 
 (if in a material point) by a stranger, (d.) But if the de- 
 fendant's case consist of anything but a denial of the exe- 
 cution of such deed as alleged, or some fact showing its 
 absolute invalidity, the plea of non est factum will be 
 
 (a.) See Dowland v. Slade, 5 East., 289. 
 
 (J.) It is consequently never pleaded, unless in oases where there has been 
 actually no refusal to institute and induct the plaintiff's clerk. It amounts 
 to a confession of the right of patronage ; and, therefore, upon such plea, the 
 plaintiff may immediately pray judgment and a writ to the ordinary; or, 
 if he pleases, he may proceed in the action, to maintain the disturbance, and 
 recover damages. (1 Arch., 441; Colt. v. Bishop of Coventry, Hob., 163; 
 Bac. Ab., Simony, I. 
 
 (c.) Com. Dig., Pleader, 2 W., 18; Yates ii. Boen, 2 Str., 1M4; Collins » 
 Blantern, 2 Wils., 347. 
 
 {d.) Pig?ot's Case, 11 Rep., 26 b. 
 
172 OF THE PRINCIPAL 
 
 improper, (e.) And it 13 to be observed that, in point of 
 pleading, a deed is on some grounds absolutely wm^ in law, 
 on others voidable only. Thus, though it is void for the 
 lunacy of the party vs^ho executes, his infancy makes it 
 only voidable, (/.) And its execution under duress is also 
 an objection of the latter kind, {g.) Fow the rule is, that 
 while matters which make a deed absolutely void may be 
 given in evidence under non est factum, those which make 
 it voidable only must be specially pleaded, (h.) And it 
 seems that, in general, objections to the legality of the 
 consideration on which a deed was founded are referable 
 to the latter class ; for it has been decided, that where the 
 condition of a bond is in restraint of matrimony, that 
 ground of defense is not evidence under non est factum, (i;) 
 and that where a bond is given to compound a felony, that 
 is matter which must be specially pleaded, {k.) And it is 
 a general rule that any illegality arising from the pro- 
 hibition of an act of parliament, as in the case of usury, or 
 gaming, is matter for special plea, and is not evidence 
 under non est factum, (l;) a rule apparently founded on the 
 same principle; for its reason seems to be, that the statute 
 
 (e.) If the statement of the deed in the declaration materially varies from 
 the tenor of the deed itself, the plea of non est factum will of course be as 
 applicable as where no deed has been executed by the defendant ; for in either 
 case the deed, as alleged, is not his. So, if the instrument was delivered as 
 an escrow, this is evidence under non est factum, (1 Tidd, 701, 8th edit.,) be- 
 cause it shows the invalidity of the instrument as a deed. But it seems that 
 its delivery as an escrow may be also specially pleaded. (Murray v. Earl of 
 Stair, 2 Barn. & Ores., 82 ; 2 Chitty, 462, n. t, 1st edit.) 
 
 (/.) Whelpdale's Case, 5 Rep., 119 a.; 2 Inst., 483; Darby «. Boucher, 1 
 Salk., 279; Zouch v. Parsons, 3 Burr., 1805; Gibbs v. Merrell, 3 Taunt., 307; 
 Baylis v. Dinely, 3 M. & S., 477; Keane v. Boycott, 2 H. Bl., 515. 
 
 (g.) 2 Inst., 482, Com. Dig., Pleader, 2 W., 19. 
 
 ih.) Com. Dig., Pleader, 2 W., 18. 
 
 (i) Colton V. Goodridge, 2 Black., 1108. 
 
 (k.) Harmer v. Eowe, 2 Chit. Lep., 334; 2 Stark., 36, S. C. ; and see Collins 
 V. Blantern, 2 Wils., 347. 
 
 (Z.) Whelpdale's Case, 5 Eep., 119 a. With respect to usury, it is said that, 
 even if the conlition of a bond, as set forth in the pleadings, appears on the 
 face of it to be usurious, yet the iefendant cannot demur, but must jlead th« 
 nsTiry. (1 Saund., 295 a., n. 1.) 
 
RULES OP x-LEADING. 173 
 
 is always eo construed as to make the instrument not ab- 
 solutely void, but voidable by special plea, (m.) 
 
 If the general issue in debt on simple contract be now ex- 
 amined, its effect and application will be found to be much 
 more extensive. The declaration alleges that the defend- 
 ant was indebted to the plaintiff on some consideration, e. 
 g., for goods sold and delivered, (n.) The general issue 
 alleges " that he does not owe the sum of money," &c. 
 Were the allegation merely that " the goods were not sold 
 and delivered," it would of course be applicable to no case 
 but that wh^re the defendant means to deny the sale and 
 delivery; but as the allegation is that he does not owe, it is 
 evident that the plea is adapted to any kind of defense that 
 tends to deny an existing debt; and, therefore, not only to a 
 defense consisting in a denial of the sale and delivery, but 
 to those of release, satisfaction, arbitrament, (o,) and a multi- 
 tude of others, to which a general issue of a narrower kind 
 (for example, that oinon est factum) would, in its appropriate 
 actions, be inapplicable. In short, there is hardly any mat- 
 ter of defense to an action of debt to which the plea of nil 
 debet may not be applied, because almost all defenses resolve 
 themselves into a denial of the debt, (p.) 
 
 In detinue, the declaration states that the defendant de- 
 tains certain goods of the plaintiff, [q;) the general issue 
 alleges that he "does not detain the said goods in the said 
 declaration specified," &c. This will apply either to a case 
 
 (to.) See Whelpdale's Case, 5 Bep., 119 a. 
 
 {n.) Vide supra, p. 67 . 
 
 (o.) Anon, 5 Mod., 18; Paramore w. Johnson, 1 Ld. Bay., 566; 12 Mod., 
 376, S. C. 
 
 (p.) It was even holden, per Holt., C. J., that as the plea is in the present 
 tense, the defendant may give in evidence the statute of limitations. (Draper 
 V. Glassop, 1 Ld. Ray., 153; Lee u. Clarke, 2 East., 336. Per Lawrence, J. 
 Qu. tamen., see 1 Saund., 283, n. 2, 2 Saund., 62 c, n. 6.) But under thij 
 plea, defendant cannot give in evidence a tender, nor (without notice) a set- 
 off; nor (in an action for rent on indenture,) that the plaintiff had nothing in 
 the tenements; nor (in debt, qui tam) a former recovery against him for the 
 same cause by another person. (1 Tidd, 700. 8th edit.) 
 
 (q.) Vide supra, p. 69. 
 
174 OF THE PRINCIPAL 
 
 wheie the defendant means to deny that he detains the 
 goods mentioned, or to a case where he means to deny that 
 the goods 80 detained are the property of the pMntiff; for, 
 if they are not the plaintiff's property, then it is true that 
 the defendant does not detain the goods specified in the 
 declaration; the only goods there specified being described 
 as the goods of the plaintiff, (r.) 
 
 In trespass, the general issue, not guilty, evidently amounts 
 to a denial of the trespasses alleged, and no more. There- 
 fore, if in trespass for assault and battery the case be, that 
 the defendant has not assaulted or beat the plaintiff, it will 
 be proper that he should plead the general issue; but if his 
 case be of any other description, the plea will be inapplica- 
 ble. So, in trespass quare clausiim fregit, or for taking 
 the plaintiff's goods, if the defendant did not, in fact, break 
 and enter the close in question or take the goods, the gen- 
 eral issue, "not guilty," will be proper. It will also be 
 applicable if he did break and enter the close, but it was 
 not in the possession of the plaintiff^, or not lawfully in his 
 possession, as against the better title of the defendant, (s.) So it 
 will be applicable if he did take the goods, but they did not 
 belong to the plaintiff; for, as the declaration alleges the tres- 
 pass to have been committed on the close or goods of the 
 plaintiff, the plea of not guilty involves a denial that the de- 
 fendant broke and entered the close or took the goods of 
 the plaintiff; and is, therefore, a fit plea, if the defendant 
 means to contend that the plaintiff had no possession of 
 the close, or property in the goods, sufficient to entitle him 
 to call them his own. But if the defense be of any other 
 kind, the general issue will not apply. 
 
 So far, all is consistent with the form and principle of 
 these several pleas ; but, with respect to the two general 
 issues that next follow, the case is somewhat different. 
 
 First, with respect to that in assumpsit. The declara- 
 
 (r.) Therefore he may give in evidence, under non detinei, a gift from tlie 
 plaintiff; for that proves that he does not detain the plaintiff's gooda ; but he 
 eannot give in evidence that they were pawned to him. (Co. Litt., 283.) 
 
 («.) Dodd V. Kyffin, 7 T. E., 254. 
 
KULBS OF PLEADING. 175 
 
 tiou in this action, {t,) states that the defendant, upon a 
 certain consideration therein set forth, made a certain 
 promise to the plaintiff. The general issue, in this action, 
 states that the defendant " did not promise and undertake 
 in manner and form," &c. This, at first sight, would 
 appear to put in issue merely the fact of his having made 
 a promise such as alleged. A much wider effect, however, 
 belongs in practice to this plea, and was originally allowed, 
 (as it would appear,) in reference to the following distinc- 
 tion. It has been already stated, in a former part of the 
 work, (m,) that the law will always imply a promise, in 
 consideration of an existing debt or liability; and that the 
 action of assumpsit may be consequently founded on a 
 promise either express or implied. When the promise relied 
 upon was of the latter kind, and the defendant pleaded the 
 general issue, the plaintiff's mode of maintaining the 
 affirmative of this issue, on the trial, was, of course, by 
 proving that debt or liability on which the implied promise 
 would arise ; and in such case it was evidently reasonable 
 that the defendant also should, under his plea denying the 
 promise, be at liberty to show any circumstance by which 
 the debt or liability was disproved; such, for example, as 
 performance or a release. Accordingly, in actions on im- 
 plied assumpsits, this effect was, on the principle here 
 mentioned, allowed to the general issue. But it was at first 
 allowed in the case of implied assumpsits ordy; and, where 
 an express promise was proved, the defendant, in conform- 
 ity with the language and strict principle of his plea, was 
 permitted, under the general issue, only to contest the fact 
 of the promise, or at most to show that, on the ground of 
 some illegality, it was a promise void in law, (x.) This 
 practice, however, was by relaxation gradually applied to 
 those on express promises also ; and at length, in abactions 
 
 ((.) Vide!iupra,^.'72. 
 (u.) Vide supra, p. 49. 
 
 (x.) Fitar. Freestone, 1 Mod., 310; Abbot v. Cbapman, 2 Lev., 81; Vin. 
 Ab., Evidence, Z a; 1 Chitty, 471, Ist edit. 
 
176 OF THE PRINCIPAL 
 
 of assumpsit, without distinction, the defendant was, under 
 the general issue, permitted not only to contend that no 
 promise was made, or to show facts impeaching the valid- 
 ity of the promise, but (with some few exceptions,) (y,) to 
 prove any matter of defense whatever which tends to deny 
 his debt or liability ; for example, a release or performance. 
 And such is the present state of the practice. 
 
 This is a great deviation from principle ; for it is to be 
 observed that many of these matters of defense are such 
 (in the case of express promise) as ought regularly to be 
 pleaded in confession and avoidance. Thus, if the defendant 
 be charged with an express promise, and his case be, that, 
 after making such promise, it was released or performed, 
 this plainly confesses and avoids the declaration. To allow 
 the defendant, therefore, to give this in evidence under the 
 general issue, which is a plea by way of traverse, is to lose 
 sight of the distinction between the two kinds of pleading. 
 And even where the matters of defense thus admitted in 
 evidence are not such as would have been pleadable by way 
 of confession and avoidance, but are in the nature of a 
 traverse of the declaration, yet they are almost always in- 
 consistent with the form and language of the general issue 
 in this action ; which (as has been seen) consists of a 
 denial of the promise only, and purports to traverse no 
 other part of the declaration. Thus, in an action which 
 has become, of all others, the most frequent and general 
 in its application, the science of pleading has been, in a 
 great measure, superseded by an innovation of practice, 
 which enables the parties to come to issue upon the plea 
 (the second step in the series of allegations) in a great 
 variety of cases, which would formerly have led to much 
 remoter or more specific issues. This important inroad 
 on the ancient dominion of pleading has been effected for 
 
 (y.) He cannot give in evidence a tender, hanhrwptey of defendant, the stat- 
 ute of limitations, a discharge under the insolvent act, nor (in some cases) a de- 
 fense nnder the court of conscience acts. Nor is a set-off evidence under non 
 assumpsit, unless notice of set-off he given with the plea. (1 Chitty, 473, 1st 
 edit. ; 1 Tidd, 700, 8th ed.) 
 
■RULES OF PLEADING. 177 
 
 more than a century past, (2;,) and was probably first en- 
 couraged by the judges in consequence of a prevalent 
 opinion that the rules of this science were somewhat more 
 strict and subtle than is consistent with the objects of jus- 
 tice ; and that, as the general issue tended to abbreviate its 
 process, and proportionably to emancipate the suitors from 
 its restrictions, it was desirable to extend, as much as pos- 
 sible, the use and application of that plea. 
 
 Next in order is the general issue, which belongs to the 
 action of trespass on the case in general. The declaration in 
 this action sets forth specifically the circumstances which 
 form the subject of complaint, (a.) The general issue, not 
 guilty, is a mere traverse or denial of the facts so alleged; 
 and, therefore, on principle, should be applied only to cases 
 in which the defense rests on such denial. But here a re- 
 laxation has taken place similar to that which prevails in 
 assumpsit; for, under the plea now in question, a defend- 
 ant is permitted not only to contest the truth of the declara- 
 tion, but, with certain exceptions, (b,) to prove any matter 
 of defense that tends to show that the plaintiff has no right 
 of action, though such matters be in confession and avoid- 
 ance of the declaration; as, for example, a release given or 
 satisfaction made. This latitude was, no doubt, originally 
 allowed in the same view that prompted the encourage- 
 ment of the general issue in assumpsit. It is not, however, 
 easy to conceive by what artifice of reasoning the relaxa- 
 tion was, in this case, held to be reconcilable with the 
 principles of pleading, to which it stands in apparent vari- 
 ance; and perhaps the truth is, that the practice in question 
 was first applied to the general issue in trespass on the 
 
 (a.) See Paramour v. Johnson, 12 Mod., 377, where Holt, C. J., says: '-It 
 is indulgence to give accord with satisfaction in evidence upon non assumpsit 
 pleaded, but that has irept in, and now is settled." 
 
 (a.) Supra, p. 73. 
 
 (5.) In an action of libel or words of slander he cannot give in evidence 
 ^he truth of the charges, but must plead it specially; nor retaking on fresh 
 pv/rsuit, in an action for escape ; nor in any action on the case, the statute of lim- 
 iiatims. (1 Tidd, 702, 8th edit.; 1 Chitty, 487, 1st edit.) 
 12 
 
178 OF THE PRINCIPAL 
 
 case in general, without regard to any principle beyond 
 that of a forced analogy to the similar practice in trespass 
 on the case in assumpsit, (c.) 
 
 Thus, in assumpsit and trespass on the case in general, 
 the defendant is allowed, under the general issue, to give 
 in evidence matters which do not fall within the strict 
 principles of that plea; and, among these, matters in con- 
 fession and avoidance. It is to be observed, however, 
 with respect to matters of this latter description, that, 
 though allowed, he is in no case obliged to take that 
 course, but may still bring forward, by way of special plea 
 in confession and avoidance, all such allegations as prop- 
 erly fall within the principle of such pleadings; that is, all 
 which confess what is adversely alleged, but repel or obvi- 
 ate its legal effect. Thus the defendant may, in assumpsit 
 and other actions of trespass on the case, plead a release, 
 though it is also competent to him to rely upon it in evi- 
 dence under the general issue, {d.) As this course is 
 allowable, so there are reasons of convenience which 
 sometimes dictate its adoption, (e;) but the general issue, 
 where capable of being applied, is much the more usua], 
 form of plea, and that which, from its generality, is com. ' 
 monly the most advantageous to the defendant. 
 
 Lastly, the general issue, non cepii, in replevin, applies to 
 the case where the defendant has not in fact taken the cattle 
 or goods, or where he did not take them, or have them, in 
 
 (c.) See, however, Lord Mansfield's explanation of the reason for allowing 
 this practice in trespass on the case. (Bird v. Randall, 3 Burr, 1353; 1 Chitty, 
 486, Ist edit. 
 
 (d.) Upon this principle the defendant may plead specially, not only a re- 
 lease, performance, payment, accord and satisfaction, or other matter in dis- 
 charge, hut any matter also which tends to show the contract void or voidable 
 in point of law, while it admits it to have heen made in fact, such as infancy, 
 lunacy, coverture, duress, usury, gaming, or the statute of frauds. All these, 
 however, are evidence under the general issue. 
 
 (e.) The chief advantage of pleading specially is, that it obliges the plaint- 
 iff to reply ; in doing which, he is confined (as will be shown hereafter) to a 
 single answer. This often puts him to great disadvantage, for he may hava 
 several answer? to the defendant's case ; and, if the general issue be pleaded, 
 may avail himself of all. 
 
BULBS OF PLEADING. 179 
 
 the place mentioned in the declaration, (/.) For it vrill be 
 observed, that the declaration alleges that the defendant 
 "took certain cattle or goods of the plaintiff, in a certain 
 place called," &c., {g,) and the general issue states that he 
 did not take the said cattle or goods "in manner and form 
 as alleged;" which involves a denial both of the taking 
 and of the place in which the taking was alleged to have 
 been; the^fece being a material point in this action, {h.) 
 
 On the subject of general issues, it remains only to re- 
 mark, that other pleas are ordinarily distinguished from 
 them by the appellation of special pUas; and, when resort 
 is had to the latter kind, the party is said to plead specially, 
 in opposition to pleading the general issue, [i.) So the issues 
 produced upon special pleas, as being usually more specific 
 and particular than those of not guilty, nil debet, &c., are 
 sometimes described in the books as special issues, by way 
 of distinction from the others, which were called general 
 issues, (k;) the latter term having been afterwards applied 
 not only to the issues themselves, but to the pleas which 
 tendered and produced them. . 
 
 The is another species of traverse, which varies from 
 the common form, and which, though confined to particu- 
 lar actions, and to a particular stage of the pleading, is of 
 frequent occurrence. It is the traverse de injuria sua pro- 
 pria, absque tali causa, or (as it is more compendiously called) 
 the traverse de injuria. It always tenders issue; but, on the 
 other hand, differs, like many of the general issues, from 
 
 (/.) 1 Chitty, 490; 2 Chitty, 508, Ist edit. 
 
 {g.) Supra, p. 74. 
 
 {h.) It may occur that this plea ought, upon the principle already explained 
 with respect to detinue and trespass, {supra, pp. 173, 174,) to be also applica- 
 ble to the case where the defendant denies the plaintiff's property in the 
 goods ; but the law is not so. (1 Chitty, 159, 1st edit. ; Wildman v. Norton, 
 1 Vent., 249.) 
 
 (i.) These terms, it may be remarked, have given rise to the popular de- 
 nomination of the whole science to which this work relates, which, thoogB 
 properly described as that oi pleading, is generally known by ths a Mm oi 
 ipecial pleading. 
 
 (*.) Oo. Litt.. 126 a; Heath's Mazims, 53 ; Com. Dig., Pleader, R. 2. 
 
180 OP THE PRINCIPAL 
 
 the common form of a traverse, by denying m general and 
 summary terms, and not in the words of the aUegaUon trav- 
 ersed. The following is an example : 
 
 PLEA OF SON ASSAULT DEMESNE. 
 
 In trespass, for assault and battery. 
 
 And for a further plea (f) in this behalf, as to the said assaulting, beating, 
 ■wounding, and ill-treating, in the said declaration mentioned, the said C. D., 
 by leave of the court here for this purpose first had and obtained, according 
 to the form of the statute in such case made and provided, says that the said 
 A. B. ought not to have or maintain his aforesaid action thereof against him, 
 because, he says, that the said A. B., just before the said time, when, &c., to 
 wit, on the day and year aforesaid, at aforesaid, in the county afore- 
 said, with force and arms, made an assault upon him, the said 0. D., and would 
 then and there have beaten and ill-treated him, the said C. D., if he had not 
 immediately defended himself against the said A. B.; wherefore the said O. 
 D. did then and there defend himself against the said A. B., as he lawfully 
 might, for the cause aforesaid, and in so doing did necessarily and unavoid- 
 ably a little beat, wound, and ill-treat the said A. B., doing no unnecessary 
 damage to the said A. B. on the occasion aforesaid ; and so the said C. D. 
 saith, that if any hurt or damage then and there happened to the said A. B., 
 the same was occasioned by the said assault so made by the said A. B. on 
 him, the said 0. D., and in the necessary defense of himself, the said G. D., 
 against the said A. B., which are the supposed trespasses in the introductory 
 part of this plea mentioned, and whereof the said A. B. hath above com- 
 plained ; and this the said 0. D. is ready to verify. Wherefore he prays 
 judgment if the said A. B. ought to have or maintain his aforesaid action 
 thereof against him. 
 
 EEPLIOATION. 
 
 And as to the said plea by the said defendant last above pleaded, in bar t6 
 the said several trespasses in the introductory part of that plea mentioned, 
 the said A. B. says that, by reason of anything therein alleged, he ought not 
 to be barred from having and maintaining his aforesaid action thereof against 
 the said G. D., because, he says, that the said G. D., at the said time when, 
 Ac, of his own wrong, and without the cause in his said last-mentioned plea 
 alleged, committed the said several trespasses in the introductory part of that 
 plea mentioned, in manner and form as the said A. B. hath above complained; 
 and this he prays may be inquired of by the country, (m.) 
 
 This species of traverse occurs in the replication in action 
 
 (2.) In this case the defendant is supposed to plead mote pleas than one, 
 The doctrine of pleading semeral pleas will be explained in r, subsequent sec- 
 tion. 
 
 (j».) 2 Chitty, 523, 642, 1st edit. 
 
RULES OF PLEADING. 181 
 
 of trespass and trespass on the case, (n,) but is not used in 
 any other stage of the pleading. In these actions it is the 
 proper form, when the plea consists merely of matter of 
 excuse. But when it consists of or comprises matter of 
 title or interest in the land, &c., or the commandment of an- 
 other, or authority of law, or authority in fact, derived from 
 the opposite party, or matter of record, — in any of these cases, 
 the replication de injuria is generally improper, (o;) and 
 the traverse of any of these matters should be in the com- 
 mon form ; that is, in the words of the allegation traversed, 
 
 {P-) 
 
 There is still another species of traverse, which differs 
 from the common form, and which will require distinct no- 
 tice. It is known by the denomination of a special traverse, 
 {q.) Though formerly in very frequent occurrence, this 
 species has now fallen, in great measure, into disuse; but 
 the subtlety of its texture, its tendency to illustrate the gen- 
 eral spirit and character of pleading, and the total dearth 
 of explanation in all the reports and treatises with respect 
 to its principle, seem to justify the consideration of it at 
 greater length and in a more elaborate manner than its 
 actual importance in practice demands. Of the special 
 traverse the following is an example : 
 
 Example 1. 
 
 DEOLAKATION IN COVENANT. 
 
 For non-payment of rent, hy the heir of a lessor against a lessee. 
 
 , to wit, 0. B., was smnmoned to answer A. B., son and heir of E. 
 
 B., his late father, deceased, of a plea, that he keep with the said A. B. the 
 covenant made by the said G. D. with the said E. B., according to the force, 
 form, and effect of a certain indenture in that behalf made between them. 
 And thereupon the said A. B., by , his attorney, complains : For that 
 
 (n.) It is not applicable in repleoin. (Finch Law, 396 ; Jones v. Kitchen, 
 1 Boa. & Ptd., 76.) 
 
 (o.) Crogate's Case, 8 Eep., 67 a; Doct. PL, 113, 115. See the law on this 
 subject more fully explained, and the exceptions noticed, 1 Chitty, 578, 1st 
 edit; 1 Arch., 238; 2 Saund., 295, n. 1; 1 Saund., 244 c, n. 7. 
 
 (j>.) As to the traverse de injuria absque residua causce, vide post, Sec. Ill, 
 Enle I, 5. 
 
 (j.) It is also caJJed Sk formal traverse; or, a traverse with an absgue hoc. 
 
182 OP THE PRINCIPAL 
 
 whereas the said JE. B., at the time of making the indenture hereinafter men 
 tioned, was seized in his demesne as of fee of and in the premi,-se8 hereinaftej 
 mentioned to he demised to the said G. D.; and, heing so seized, he, the said 
 
 E. £., in his lifetime, to wit, on the day of , in the year of our 
 
 Lord , at , in the county of , hy a certain indenture then 
 
 and there made between the said E. B. of the one part and the said C. D. of 
 the other part, (one part of which said indenture, sealed with the seal of the 
 said C. D., the said A. B. now brings here into court, the date whereof is the day 
 and year aforesaid,) for the considerations therein mentioned, did demise, lease, 
 set, and to farm let, unto the said C. D., his executors, administrators, and 
 assigns, a certain messuage, or dwelling-house, with the appurtenances, situate 
 
 at , to have and to hold the same unto the said C. D., his executors, 
 
 administrators, and assigns, from the day of then last past to the 
 
 full end and term of years thence next ensuing and fully to be complete 
 
 and ended, yielding and paying therefor yearly, and every year, to the said E. 
 
 B., his heirs or assigns, the clear yearly rent or sum of pounds, payable 
 
 quarterly, at the four most usual feasts or days of payment of rent in the year, 
 that is to say, on the 25th day of March, the 24th day of June, the 29th day 
 of September, and the 25th day of December, in each and every year, in equal 
 f urtions. And the said 0. D. did thereby, for himself, his executors, admin- 
 u Irators, and assigns, covenant, promise, and agree, to and with the said E. 
 £., his heirs and assigns, that he, the said 0. D., his executors, administrators, 
 ar assigns, should and would well and truly pay, or cause to be paid, to the 
 
 B»id E. B., his heirs or assigns, the said yearly rent or sum of pounds, 
 
 tii the several day and times aforesaid, as by the said indenture, reference 
 lieing thereunto had, will more fully appear. By virtue of which said demise, 
 
 lae said C. D. afterwards, to wit, on the day of , in the year 
 
 , entered into the said premises, and was thereof possessed for the said 
 
 term, the reversion thereof belonging to the said E. B. and his heirs. And he, 
 the said G. D., heing so possessed, and the said E. B. being so seized of the 
 said reversion in his demesne as of fee, he, the said E. B., afterwards, to wit, 
 
 on the day of , in the year aforesaid, at aforesaid, in the 
 
 county aforesaid, died so seized of the said reversion. After whose decease 
 the said reversion descended to the said A. B., as son and heir of the said E. 
 B.; whereby the said A. B. was seized of the reversion of the said demised 
 premises in his demesne as of fee. And the said A. B. in fact says that he 
 the said A. B., being so seized, and the said G. D. being so possessed as afore- 
 said, afterwards, and during the said term, to wit, on the day of , 
 
 in the year of our Lord , at , in the county of , a large 
 
 sum of money, to wit, the sum of pounds, of the rent aforesaid, for 
 
 divers, to wit, years of the said term then elapsed, became and was due 
 
 and owing, and still is in arrear and unpaid to the said A. B., contrary to 
 the form and effect of the said covenant in that behalf. And so the said A. 
 B. in fact saith, that the said G. D. (although often requested) hath tot kept 
 his said covenant in that behalf, but hath broken the same, and to keep the 
 same hath hitherto wholly refused, and still refuses, to the damage of the said 
 A. B. of pounds; and therefore he brings his 'suit, &c. 
 
BDLES OF PLEADING. 183 
 
 And the said C I)., by , his attorney, comes an 1 defends the wrong 
 
 Bnd injury, when, &c., and says that the said A. B. ought not to have or 
 maintain his aforesaid action against him, because, he says, that the said E. 
 B., deceased, at the time of the making of the said indenture, was seized in 
 his demesne as of freehold, for the term of his natural life, of and in the said 
 demised premises, with the appurtenances, and continued so seized thereof 
 until and at the time of his death ; and that, after the making of the said in- 
 denture and before the expiration of the said term, to wit, on the day 
 
 of , in the year of our Lord , at , aforesaid, the said E. B. 
 
 died; whereupon the term created by the said indenture wholly ceased 
 and determined : Without this, that after the making of the said indenture, 
 the reversion of the said demised premises belonged to the said E. B. and his 
 heirs, in manner and form as the said A. B. hath in his said declaration al- 
 leged ; and this the said 0. D. is ready to verify. Wherefore he prays judg- 
 ment if the said A. B. ought to have or maintain his aforesaid action against 
 him, (r.) 
 
 The substance of this plea is, that the father was seized 
 for life only, and therefore that the term determined at 
 his death; which involves a denial of the allegation io the 
 declaration, that the reversion belonged to the father in 
 fee. The defendant's course was, therefore, to traverse 
 the declaration, (s.) But it will be observed that he does 
 not traverse it in the common form. If the common trav- 
 erse were adopted in this case, the plea would be: "And 
 
 the said C. D., by , his attorney, comes and defends 
 
 the wrong and injury, when, &c., and says that the said 
 A. B. ought not to have or maintain his aforesaid action 
 against him, because, he says, that after the making of the 
 said indenture, the said reversion of the said demised 
 premises did not belong to the said E. B. and his heirs, 
 in manner and form as the said A. B. hath in his said dec- 
 laration alleged; and of this the said C. D. puts himself 
 upon the country." But, instead of this simple denial and 
 tender of issue, the defendant adopts a special traverse. 
 This first sets forth the new affirmative matter, that K B. 
 was seized for life, &c., and then annexes to this the denial 
 
 (r.) 2 Ohitty, 500, 1st edit. ; and see Brudnell v. Roberts, 2 Wills., 143 ; 
 Palmer v. Ekins, Lord Bay., 1550. 
 (s.) See Appendix, note 47. 
 
184 OF THE PRINCIPAL 
 
 that the leversion belonged to him and his heirs by that 
 peculiar and barbarous formula, " Without this, that" &c.; 
 and, lastly, does not (like a common traverse) tender issite, 
 but concludes with the words, " and this the said C. D. is 
 ready to verify. "Wherefore he prays judgment," &c,; 
 which is called a verification and prayer of judgment, and is 
 the constant conclusion of all pleadings in which issue is 
 not tendered. The affirmative part of the special traverse 
 is called its inducement, {t;) the negative part is called the 
 absque hoc, those being the Latin words formerly used, and 
 from which the modern expression, without this, is trans- 
 lated. The different parts and properties here noticed are 
 all essential to a special traverse, which must always thus 
 consist of an inducement, a denial, and a verification, (it.) 
 
 By way of further illustration, and as the foundation for 
 some subsequent remarks on the nature and meaning of a 
 special traverse, it will be necessary here to add some other 
 examples of this form of pleading 
 
 Example 2. 
 
 PLEA. 
 
 In trespass, quare claiisum f regit. 
 
 And for a further plea, as to the breaking and entering the said close, in 
 which, &o., and the treading down, trampling upon, consuming, and spoiling 
 the said grass and herbage, as above supposed to have been done, the said C. 
 D., by leave of the court here for this purpose first had and obtained, accord- 
 ing to the form of the statute in such case made and provided, says that the 
 said A. B. ought not to have or maintain his aforesaid action thereof against 
 
 him, because, he says, that before the said time, when, &c., to wit, on the 
 
 day of , in the year , one I. N., clerk, prebendary of the prebend 
 
 of N., in the cathedral church of H., was seized in his demesne, as of fee, in 
 right of the said prebend, of and in certain tenements, whereof the said close, 
 in which, &c., then and from thenceforth hitherto hath been parcel ; and being 
 so seized, before the said time, when, &c., to wit, on the day and year last 
 
 aforesaid, at , aforesaid, in the county aforesaid, by a certain indenture, 
 
 sealed with the seal of the said 1. N., (and now shown to the court here, the 
 date whereof is the day and year last aforesaid,) the said /. N. demised the 
 
 {t.) Bac. Ab., Pleas, &c., H. 1. 
 
 (u.) The denial, however, may be introduced by other forms of expression 
 besides absque hoc. Et non will suffice. ( Bennet v. Pilkins, 1 Saund.. 21 : 
 Walters v. Hodges, Lut., 1625.) 
 
RULES Of PLEADING. 186 
 
 said tenements, with the appurtenances, (among other things,) to the said C. 
 !>., by the name of all hia prebend of N. aforesaid, &c., to have and to hold 
 
 to the said 0. D. and his assigns, from the day of then next, to 
 
 the end and term of fifty years thence next following, yielding and paying 
 therefor, yearly, during the said term, to the said prebendary and his success- 
 ors, the sum of pounds, at the feasts of and , by equal 
 
 portions. By virtue of which demise the said C B. was possessed (among 
 other things) of the said tenements, with the appurtenances ; and, being so 
 
 possessed, one J. H., bishop of , then being true and undoubted patron 
 
 and ordinary of the said prebend of N., afterwards, to wit, on the day 
 
 of , in the year , at , by his writing, sealed with his com- 
 mon seal, (and now shown to the court here, the date whereof is the day and 
 year last aforesaid,) ratified, approved, and confirmed the said estate and in- 
 terest of the said C B. in the premises. And afterwards one I. E., master 
 of arts, dean of the said cathedral church and the chapter of the said church 
 
 for the time being, (a,) to wit, on the day of , in the year , at 
 
 , by their writing, sealed with their common seal, (and now shown to 
 
 the court here, the date whereof is the day and year last aforesaid,) ratified) 
 approved, and confirmed the said estate and interest of the said C. D. in the 
 premises. And the said A. B., claiming the said tenements, with the appur- 
 tenances, by color of a certain charter of demise to him thereof made for the 
 term of his life by the said I. N., long before the said demise to the said C 
 D., in form aforesaid made, (whereas nothing of the said tenements, with the 
 appurtenances, ever passed into the possession of the said A. B. by that char- 
 ter,) before the said time, when, &o., entered into the said tenements, with 
 the appurtenances ; upon whose possession whereof the said C. D., at the 
 said time, when, &c., entered into the said tenement, with the appurtenances^ 
 and broke and entered the said close, in which, &c., and trod down, trampled 
 upon, consumed, and spoiled the grass and herbage there growing and being, 
 as it was lawful for him to do, for the cause aforesaid ; which are the same 
 trespasses in the introductory part of this plea mentioned, and whereof the said 
 
 A. B. hath above complained ; and this the said G. D. is ready to verify. 
 Wherefore he prays judgment if the said A. B. ought to have or maintain his 
 aforesaid action against him, &c. 
 
 BBPLICAIION. 
 
 And as to the said plea by the said C. D. last above pleaded, as to the said 
 several trespasses in the introd?actory part of that plea mentioned, the said A. 
 
 B. says that, by reason of anything therein alleged, he ought not to be barred 
 from having and maintaining his atoresaid action thereof against him, be- 
 cause, protesting that the said I. N. did not demise the said tenements, with 
 the appurtenances, to the said Q. D., as the said G. D. hath above alleged, for 
 replication, nevertheless, in this behalf, the said A. B. says that the said G. 
 
 {x.) If the bishop happen to be patron as well as the ordinary, the confirma- 
 tion of the dean and chapter, as well as the bishop, is necessary. (Co. Jli-,t., 
 300 b.) 
 
186 OF THE PRINCIPAL 
 
 £>., onthesaid day of ,in the year ,at — -^ — aforesaio, in fclis 
 
 county aforesaid, brought to the said bishop a certain writing of demise of the 
 said tenements by the said I. N. to the said 0. D., and then and there desired 
 the said bishop to confirm the said writing, sealed with the seal of the said I. N., 
 in which writing no number of years was then written which the said G. D. wm 
 to have in the said tenements ; which said writing of demise the said bishop then 
 and there confirmed, and sealed the said writing with his seal. And before the 
 
 said time, when, &c., to wit, on the day of , in the year , at 
 
 , aforesaid, in the county aforesaid, the said I. N. died. After whose 
 
 death, and before the said time, when, &c., the said bishop, as the true and un- 
 doubted patron and ordinary of the said prebend so being vacant by the death 
 of the said I. N., collated the same on his clerk, the said A. B., and caused him 
 to be justly instituted and inducted and put in corporeal possession of the 
 said prebend. Whereby the said A. B. was seized of the said tenements, with 
 the appurtenances, in his demesne, as of fee, in right of his said prebend, un- 
 til the said C. D., on the day* of , in the year , with force and 
 
 arms, broke and entered the close of the said A. £., at aforesaid, and 
 
 trod down, trampled upon, consumed, and spoiled the grass and herbage 
 
 therein to value of pounds, as he hath above complained. Without this, 
 
 that the said bishop, by his said writing, ratified, approved, and confirmed the 
 estate and interest of the said 0. D. in the premises, in manner and form as 
 the said G. D. hath in his said last-mentioned plea alleged ; and this the said 
 A. B. is ready to verify. Wherefore he prays judgment, and his damages by 
 him sustained by reason of the said trespasses in the introductory part of that 
 plea mentioned, to be adjudged to him, &o., (y.) 
 
 In both the preceding examples, it will be observed that 
 the inducement contains new affirmative matter. But a spe- 
 cial traverse may also occur in cases where the denial is, 
 in its nature, unconnected with any new affirmative matter 
 that can be stated by way of inducement. Of this the 
 following is an example: 
 
 ExanvpU 3. 
 
 FLEA. 
 
 In trespass, quare clausum /regit. 
 
 And for a further plea in this behalf, as to the breaking and entering the said 
 close, in which, &c., and with feet in walking, treading down, trampling upon, 
 consuming, and spoiling the said grass, as above supposed to have been done, 
 the said G. D.,hy leave of the court here for this purpose first had and ob- 
 tained, according to the form of the statute in such case made and provided, 
 says that the said A. £. ought not to have or maintain his aforesaid action 
 thereof against him, because, he says, that one W. F., before and at the same 
 time, when, &o., was and yet is seized in his demesne, as of fee, of and in a 
 
 [y.) f3ee tie precedent, PI. Gen., 609. 
 
RULES OF PLEADING. 187 
 
 certain messuage, c r tenement and lands, with the appurtenances, situate and 
 
 being at , in the county aforesaid. And that the said W. F., and all 
 
 those whose estate he hath, and at the same time when, &o., had of and in 
 the said messuage, or tenement and lands, with the appurtenances, from time 
 whereof the memory of man is not to the contrary, have had and used, and 
 been accustomed to have and use, and of right ought to have and use, for him- 
 self and themselves, and his and their farmers and tenants, occupiers of the 
 said messnage, or tenement and lands, with the appurtenances, for the time 
 being, a certain way from the said messuage, or tenement and lands, with the 
 appurtenances, into, through, and over the said close, in which, &c., unto a 
 
 certain place called , and so from thence back again into, through, and 
 
 over the said close, in which, &c., unto the said messuage, or tenement and 
 lands, with the appurtenances, to go, return, pass and repass, on foot, at all 
 times of the year, at his and their free will and pleasure, as to the said 
 messuage, or tenement and lands, with the appurtenances belonging and 
 appertaining. Wherefore the said C. D., as the servant of the said W. F., and 
 by his command, at the said several times when, &c., having occasion to use 
 that way, broke and entered the said close, in which, &o., and passed and 
 repassed on foot through and over the said way there, using the said way for 
 the purpose and on the occasion aforesaid, as it was lawful for him to do for 
 the cause aforesaid ; and in so doing the said 0. D. necessarily and unavoid- 
 ably, at the said time when, &c., with his feet in walking, trod down, trampled 
 upon, consumed, and spoiled a little of the grass then growing and being in 
 the said way there ; doing as little damage as he possibly could to the said 
 A. B. on that occasion. Which are the same supposed trespasses in the intro- 
 ductory part of this plea mentioned, and whereof the said A. B. hath above 
 complained ; and this the said C. D. is ready to verify. Wherefore he prays 
 judgment if the said A. B. ought to have or maintain his aforesaid action 
 thereof against him, &c. 
 
 EEPLICATIOH. 
 
 And as to the said plea by the said C. D. last above pleaded, as to the 
 several trespasses in the introductory part of that plea mentioned, the said 
 A. B. says that, by reason of anything therein alleged, he ought not to be 
 barred from having and maintaining his aforesaid action thereof against him ; 
 because the said A. B. says that he, the said G. D., of his own wrong, broke 
 and entered the said close, in which, &c., and with feet in walking, trod down, 
 trampled upon, consumed, and spoiled the grass there then growing and being, 
 as the said A. B. hath above complained. Without this, that the said W. F., 
 and all those whose estate he hath, and at the said several times when, &c., 
 had of and in the said messuage, or tenement and lands, with the appurte- 
 nances, from time whereof the memory of man is not to the contrary, have 
 had and used, and been accustomed to have and use, and of right ought to 
 cave and use, for himself and themselves, and his and their farmers and ten- 
 ants, occupiers of the said messuage, or tenement and lands, with the appur- 
 tenances, for the time being, a certain way from the said messuage, or tenement 
 and lands, with the appurtenances, into, through, and over the said close, in 
 vihich, &o., unto a certain place called , and so from thence back agaifi 
 
188 OE THE PRINCIPAL 
 
 into, through, and over the said close, in which, &o., unto the said measuaa^ 
 or tenement and lands, with the appurtenances, to go, return, pass and lepasa, 
 on foot, at all times of the year, at his and their free will and pleasure, as to 
 the said messuage, or tenement and lands, with the appurtenances belonging 
 and appertaining, in manner and form as the said C. D. hath in his said last- 
 mentioned plea alleged ; and this the said A. B. is ready to verify. Where- 
 fore he prays judgment, and his damages by him sustained by reason of the 
 said trespasses in the introductory part of that plea mentioned, to be ad- 
 judged to him, &c., (0.) 
 
 In this last example it will be observed that there is no 
 new affirmative matter contained in the inducement. For 
 it consists of a mere repetition of the trespasses that had 
 been antecedently alleged in the declaration, and an allega- 
 tion that they were committed de injuria, sua propria, or of 
 the defendant's own wrong. In this respect, therefore, viz, 
 in the want of new affirmative matter in the inducement, 
 this last example differs from the two first given. 
 
 The regular method of pleading in answer to a special 
 traverse, is to tender issue upon it, with a repetition of the 
 allegation traversed. Accordingly, in the first example, 
 issue would be tendered in the replication thus : 
 
 EEPLICATION. 
 
 To the plea, (p. 183.) 
 And as to the said plea by the said 0. D. above pleaded, the said A. B. says 
 that, by reason of anything therein alleged, he ought not to be barred from 
 having and maintaining his aforesaid action against the said C. D., because 
 the said A. B. says, that after the making of the said indenture the reversion 
 of the said demised premises belonged to the said E. B. and his heirs, in man- 
 ner and form as the said A. B. hath in his said declaration above alleged; and 
 this he prays may be inquired of by the country. 
 
 And so, in the remaining examples, issue would be ten- 
 dered in the rejoinder by a similar repetition of the matter 
 which the traverse denies. 
 
 It will be perceived, therefore, that the effect of a special 
 traverse is to postpone the issue to one stage of the plead- 
 ing later than it would be attained by a traverse in the 
 common form. For if the defendant had, in the first ex- 
 ample, traversed without an inducement, and concluded to 
 
 (s.) See the precedents, 9 Went., 233, 238. 
 
RULES OF PLEADING. 189 
 
 the country, it -n ould only have remained for the plaintiff 
 to add the simihter, so that the issue would have been 
 joined in the replication. On the other hand, upon ihe 
 plan of special traverse, the issue is not tendered till the 
 replication; and, consequently, the similiter still remains 
 to be added in a rejoinder by the defendant. 
 
 The use and object of a special traverse is the next subject 
 for consideration. Though this relic of the subtle genius 
 of the ancient pleaders has now fallen, as above stated, 
 into comparative disuse, it is still of occasional occurrence; 
 and it is remarkable, therefore, that no author should have 
 hitherto offered any explanation of the objects for which 
 it was originally devised, and in a view to which it con- 
 tinues to be, in some cases, adopted, (a.) The following 
 remarks are submitted, as those which have occurred to 
 the writer of this work, on a subject thus barren of better 
 authority. The general design of a special traverse, as 
 distinguished from a common one, is to explain or qualify 
 the denial, instead of putting it in the direct and absolute 
 form ; and there were several different views, in reference 
 to one or other of which the ancient pleaders seem to 
 have been induced to adopt this course. 
 
 First. A simple or positive denial may, in some cases, 
 be rendered improper, by its opposition to some general 
 rule of law. Thus, in the example of special traverse first 
 above given, it would be improper to traverse in the com- 
 mon form, viz, "that after the making of the said indent- 
 ure the reversion of the said demised premises did not 
 belong to the said M B. and his heirs," &c., because, by a 
 rule of law, a tenant is precluded (or, in the language of 
 pleading, estopped) from alleging that his lessor had no 
 title in the premises demised, (6;) and a general assertion 
 that the reversion did not belong to him and his heira 
 would seem to fall within the prohibition of that rule. 
 But a tenant is not by law estopped to say that his lessor 
 
 (a.) See Appendix, note 48. 
 (5.) Blake v. F/ister, 8 T. K., 487 
 
190 OF THE PRINCIPAL 
 
 had only a 'particular estate, which has since expired, (c.) lu 
 a case, therefore, in which the declaration alleged a seizin 
 in fee in the lessor, and the nature of the defense was, 
 "■that he had a particular estate only, (e. g., an estate for 
 life,) since expired, the pleader would resort, as in the first 
 example, to a special traverse, setting forth the lessor's 
 limited title, by way of inducement, and traversing his 
 seizin of the reversion in fee under the absque hoc. He 
 thus would avoid the objection that might otherwise arise 
 on the ground of estoppel. 
 
 Secondly. A common traverse may sometimes be inex- 
 pedient, as involving, in the issue in fact, some question 
 which it would be desirable rather to develop and submit 
 to the judgment of the court as an issue in law. This 
 may be illustrated by the second example of special trav- 
 erse, above given. In that case it would seem that a lease, 
 not expressing any certain term of demise, had been brought 
 to the ordinary for his confirmation ; that he had accord- 
 ingly confirmed it in that shape under his seal; and that 
 the instrument was afterwards filled up as a lease for fifty 
 years. The party relying upon this lease states that the 
 demise was to the defendant for the term of fifty years, 
 and that the ordinary " ratified, approved, and confirmed 
 his estate and interest in the premises," {d.) If the oppo- 
 site party were to traverse in the common form, " that the 
 ordinary did not ratify, approve, and confirm his estate 
 and interest in the premises," &c., and so tender issue in 
 fact on that point, it is plain that there would be involved 
 in such issue the following question of few, viz : whether 
 the confirmation by the ordinary of a lease, in which the 
 length of the term is not at the time expressed, be valid? 
 This question would, therefore, fall under the decision of 
 the jury to whom the issue in fact is referred, subject to 
 the direction of the judge presiding at nisi prius, and the 
 
 (c.) Blake v. Poster, 8 T. R., 487. 
 
 [d.) This case would seem to have arisen before the restraining statutes; 
 einoe which a lease by eoolesiastical persons, even with confirmation, is good 
 for no longer period than twenty-one years, or three lives. (2 Bl. Com., 320.) 
 
RULES OF PLEADING. 191 
 
 ultimate revisiou of the court in banc. Now, it may, for 
 many reasons, be desirable that, without going to a trial, 
 this question should rather be brought before the court in 
 the first instance, and that, for that purpose, an issue in 
 lav) should be taken. The pleader, therefore, in such a 
 case, would state the circumstances of the transaction in 
 an inducement, substituting a special for a common trav- 
 erse. As the whole facts thus appear on the face of the 
 pleading, if his adversary means to contend that the con- 
 firmation was, under the circumstances, valid in point of 
 law, he is enabled by this plan of special traverse to raise 
 the point by demurring to the replication; on which de- 
 murrer an issue in law arises for the adjudication of the 
 court. 
 
 By these reasons, and sometimes by others also, which 
 the reader, upon examination of different examples, may, 
 after these suggestions, readily discover for himself, the 
 ancient pleader appears to have been actuated in his fi-e- 
 quent adoption of an inducement of new affirmative mat- 
 ter, tending to explain or qualify the denial, (e.) But though 
 these reasons seem to show the purpose of the inducement, 
 they do not account for the two other distinctive features of 
 the special traverse, viz, the absque hoc and the conclusion 
 with a verification. For it will naturally suggest itself, that 
 the affirmative matter might, in each of the above cases, 
 have been pleaded per se, without the addition of the abs- 
 que hoc. So, whether the absque hoc were added or not, 
 the pleading might, consistently with any of the above 
 reasons, have tendered issue, like a common traverse, instead 
 of concluding with a verification. These latter forms were 
 dictated by other principles. The direct denial under the 
 absque hoc was rendered necessary by this consideration : 
 that the affirmative matter, taken alone, would be only an 
 indirect (or, as it is called in pleading, argumentative) denial 
 of the precedent statement ; and, by a rule which will be 
 considered in its proper place hereafter, all argumentative 
 
 (e.| See Appendix, note 49. 
 
192 OF THE PRINCIPAL 
 
 pleading is prohibited. In order, therefore, to avoid thia 
 fault of argumentativeness, the course adopted was, to follow 
 up the explanatory matter of the inducement with a direci 
 denial, (/.) Thus, to allege, as in the first example, that 
 E. B. was seized for life, would be to deny by implication, 
 but by implication only, that the reversion belonged to him 
 in fee; and therefore, to avoid argumentativeness, a direct 
 denial that the reversion belonged to him in fee is added, 
 under the formula of absque hoc, {g.) With respect to the 
 verification, this conclusion was adopted in a special trav- 
 erse, in a view to another rule, of which there will also be 
 occasion to speak hereafter, viz : that wherever new matter 
 is introduced in a pleading it is improper to tender issue, and 
 the conclusion must consequently be with a verification. The 
 inducement setting forth new matter makes a verification 
 necessary, in conformity with that rule. 
 
 The special traverse having, with these views and in this 
 manner, been introduced into the system of pleading, grew 
 so much into fashion as to be frequently adopted even in 
 cases to which the original reasons of the form were inap- 
 plicable, that is, to cases where the intended denial was 
 In its nature simplt and absolute, and connected with no 
 new matter. This will be illustrated by the last of the 
 preceding examples. In this, the defendant having pleaded 
 a right of way, the object of the replication is merely to 
 deny that the right of way existed. And there is no reason 
 why this should not be done in the simple form of a com- 
 mon traverse, viz: "that the said W. F., and all those 
 whose estate, &c., have not had and used, &c., a certain 
 way, &c., in manner and form as alleged;" concluding to 
 the country. But the fashion of traversing specially led 
 the ancient pleaders, in such a case as this also, to use the 
 inducement, the absque hoc, and the verification. And 
 because the nature of the case afibrded no allegation of 
 
 (/.) 3 Eeevea' Hist., 432 ; Bac. Ab., Pleas, &c., H. ; Courtney v. Phelps, 1 
 Sid., 301; Herring v. Blacklow, Cro. Eliz., 30; 10 Hen. VI, 7 pi., 21. 
 {g.) See Appendix, note 50. 
 
RULES OE PLEADING. 193 
 
 new matter, as introductory to the denial, in lieu of this a 
 kind of inducement was adopted containing, in fact, no 
 new matter, hut a mere repetition of the original complaint, 
 viz, " that the defendant, of his oicn wrong, broke and entered 
 the close, &c. "Without this, that," &c., {h.) 
 
 Hairing now explained the form, the effect, and the use 
 and object of a special traverse, it remains to show in what 
 cases this method of pleading is or ought to be applied at 
 the present day. First, it is to be observed that this form 
 was at no period applicable to every ease of denial, at the 
 pleasure of the pleader. There are many cases of denial 
 to which the plan of special traverse has never been 
 applied, and which have always been and still are the sub- 
 jects of traverse in the common form exclusively, (i.) These 
 it is not easy to enumerate or define ; they are determined 
 by the course of precedent, and in that way become known 
 to the practitioner. On the other hand, in many cases 
 where the special traverse used anciently to occur, it is 
 now no longer practiced. This relates principally to that 
 species of it which is illustrated by the last example. Even 
 when the formula was most in repute, the use of this species 
 does not appear to have been regarded as matter of neces- 
 sity ; and, in cases which admit or require no allegation of 
 new matter, we find the special and the common traverse 
 to have been indifferently used by the pleaders of those 
 days, {k.) But in modern times the special traverse, wdth- 
 out an inducement of new matter, has been considered, 
 not only as unnecessary, but as frequently improper. As 
 the taste in pleading gradually simplified and improved, 
 the prolix and dilatory effect of a special traverse brought 
 it into disfavor with the courts ; and they began, not only 
 to enforce the doctrine that the common form might allow- 
 
 (h.) Upon the same principle, where the traverse was taken in the rejoin- 
 der it had often an inducement, simply maintaining the matter of the plea, aa 
 in Stennell v. Hogg, 1 Saund., 223 ; Mayor of Oxford v. Richardson, 4 T. E., 
 437; 9 Went., 211, 308. 
 
 (i.) Home V. Lewin, 1 Ld. Bay., 641. 
 
 (Jc.) Bast. Ent., 622; and see Home v. Lewin, 1 Ld. Bay., 641. 
 
 13 
 
194 OF THE PRINCIPAL 
 
 ably be siibstituted in cases where there was no inducement 
 of new matter, but often intimated their preference of that 
 form to the other, (l.) Afterwards they appear to have 
 gone further, and to have established in favor of the com- 
 mon plan of traverse, in cases where there is no allegation 
 of new matter, the following rule of distinction : That where 
 the whole substance of the last pleading is denied, the conclusion 
 must be to the country, or, in other words, the traverse must 
 be in the common form ; but where one of several facts only 
 is the subject of denial, the conclusion may be either to the coun- 
 try or with a verification; that is, the traverse may be either 
 common or special, at the option of the pleader, (m.) Thus, 
 in the last example, the special traverse would apparently 
 now be no longer allowable; because the replication, deny- 
 ing the right of way, denies the whole substance of the plea. 
 It is not easy to trace either the original authority, or even 
 a very satisfactory reason, for this distinction. It does not 
 appear to coincide with the practice at a former period, 
 which certainly allowed special traverses, though without 
 an inducement of new matter, in many cases where the 
 whole substance of the pleading was denied; and its true 
 origin is perhaps to be referred very much to the inclina- 
 tion of the courts to discourage this formula. From the 
 time that the special traverse thus fell into disrepute it 
 has been much neglected, even in cases where legally 
 allowable ; and it now rarely occurs in any instance where 
 there is no inducement of new matter, although the denial 
 relate to one out of several facts only. This change of prac- 
 tice, however, is very recent, having been effected within 
 the memory of many living practitioners, («..) With respect 
 to the other kind of special traverse, viz, that which is 
 attended with an inducement of new matter, as illustrated 
 in the first two examples, the case is very different. This 
 
 (I) Eobinson v. Bayley, 1 Burr., 320. 
 
 (m.) See 1 Saxind:., 103 a, b, n. 3 ; Bao. Ab., Pleas, &o., p. 381, in notis ; 
 Smith V. Do vera, 2 Doug., 430. 
 (n.) See 1 Chitty, 593, 1st edit. ; and 1 Saund., 103 a, n. 3. 
 
RULES OF PLBADIN&. 195 
 
 was originally devised, as has been shown, for certain rea- 
 sons of convenience or necessity; and those reasons still 
 occasionally operate the same way. However, in the 
 general decline of the method of special traverse there is 
 felt in practice a great disinclination to adopt in any case 
 whatever, without a clear reason for doing so, this discred- 
 ited form; and this more particularly in a view to the dis- 
 advantages with which it is attended. These disadvantages 
 consist not only in prolixity and delay, but in the addi- 
 tional inconvenience that the inducement tends to open 
 the real nature of the party's case, by giving notice to his 
 adversary of the precise grounds on which the denial pro- 
 ceeds, and thus facilitates to the latter the preparation of 
 his proofs, or otherwise guides him in his further proceed- 
 ings. For these reasons the special traverse is perhaps 
 daily becoming more rare. And even though the case be 
 such as would admit of an inducement of new matter 
 explanatory of the denial, the usual course is to omit any 
 such inducement, and to make the denial in an absolute 
 form, -with, a tender of issue; thus substituting the com- 
 mon for the special formula. The latter, however, appears 
 to be still always allowable when the ease is such as admits 
 of an inducement of new matter, except in certain instances 
 before noticed, to which, by the course of precedent, the 
 common form of traverse has always been exclusively 
 applied, (o.) And, where allowable, it should still be occa- 
 sionally adopted, in a view to the various grounds of neces- 
 sity or convenience by which it was originally suggested. 
 Accordingly, it is apprehended that in the two first exam- 
 ples a special traverse would be as proper at the present 
 day as it was at the period when the precedents first 
 occurred. 
 
 To complete our view of the nature of a special traverse, 
 it will be necessary now to advert to certain principles laid 
 down in the books relative to this form. 
 
 First, it is a rule th-at the inducemmi should be such as in 
 
 (o.) Supra, p. 193. 
 
196 OF THE PRINCIPAL 
 
 itself amounts to a sufficient answer in sub&tance to the last 
 pleading, (p.) For, as has been shown, it is the use and 
 object of the inducement to give an explained or qualified 
 denial ; that is, to state such circumstances as tend to show 
 that the last pleading is not true ; the absque hoc being 
 added merely to put that denial in a positive form, which 
 had previously been made in an indirect one. Now, an indi- 
 rect denial amounts, in substance, to an answer; and i; 
 follows, therefore, that an inducement, if properly framed, 
 must always in itself contain, without the aid of the absque 
 hoc, an answer in substance to the last pleading. Thus, 
 in the first example, the allegation that E. B. was seized 
 for life, and that that estate is since determined, is in itself, 
 in substance, a sufficient answer, as denying, by implica- 
 tion, that the fee descended from E. B. on the plaintiff. 
 That sort of special traverse containing no new mattei in 
 the inducement, as in the last example, is no exception 
 to this rule. Thus, to say, as in that example, that the 
 defendant, of his own wrong, broke the close, &c., is of itself 
 an answer, for it indirectly denies the right of way. 
 
 It follows, from the same consideration as to the object 
 and use of a special traverse, that the answer given by the 
 inducement can properly be of no other nature than that of 
 an indirect denial. Accordingly, we find it decided, in the 
 first place, that it must not consist of a direct denial. Thus 
 the plaintiff, being bound by recognizance to pay J. Bush 
 300Z. in six years, by 50^. per annum, at a certain place, 
 alleged that he was ready every day, at that place, to have 
 paid to Bush the said 501., but that Bush was not there to 
 receive it. To this the defendant pleaded, that J. Bush 
 was ready at the place to receive the 50Z., absque hoc, that 
 the plaintiff" was there ready to have paid it. The plain- 
 tiff demurred, on the ground that the inducement alleging 
 Bush to have been at the place ready to receive contained 
 a direct denial of the plaintiff's precedent allegation that 
 
 (p.) Bao. Ab., H. 1 ; Com. Dig Pleader, G. 20 ; Anon.. 3 SaJk.. 353 ; Diks 
 V. Ricks, Cro. Car., 336. 
 
RULES OF PLEADING. 197 
 
 Bush was not there, and should therefore have confluded 
 to the country, without the absque hoc, and judgment was 
 given accordingly for the plaintiff, {q.) Again, as the an- 
 swer given by the inducement must not be a direct denial^ 
 so it must not be in the nature of a confession and avoidance, 
 (r.) Thus, if the defendant makes title as assignee of a 
 term of years of ^., and the plaintiff, in answer to this, 
 claims under a prior assignment to himself from A. of the 
 same term, this is a confession and avoidance; for it admits 
 the assignment to the defendant, but avoids its effect, by 
 showing the prior assignment. Therefore, if the plaintiff 
 pleads such assignment to himself by way of inducement, 
 adding, under an absque hoc, a denial that A. assigned to 
 the defendant, this special traverse is bad, (s.) The plain- 
 tiff should have pleaded the assignment to himself as in 
 confession and avoidance, without the traverse. 
 
 Again, it is a rule with respect to special traverses, that 
 the opposite party has no right to traverse the induce- 
 ment, (^,) or (as the rule is more commonly expressed) that 
 there must be no traverse upon a traverse, (u.) Thus, in the 
 first example, if the replication, instead of taking issue on 
 the traverse, (as in page 188,) had traversed the inducement, 
 either in the common or the special form, denying that E. 
 B., at the time of making the indenture, was seized in his 
 demesne as of freehold for the term of his natural life, &c., 
 such replication would have been bad, as containing a trav- 
 erse upon a traverse. The reason of this rule is clear and 
 satisfactory. By the first traverse a matter is denied by 
 one of the parties which had been alleged by the other, and 
 which, having once alleged it, the latter is bound to main- 
 tain, instead of prolonging the series of the pleading and 
 
 (2.) Hughes V. Phillips, Yelv., 38 ; and see 36 Hen. VI, 15. 
 
 (r.) Com. Dig., Pleader, G. 3; Lambert v. Cook, Ld. Ray., 238; Helier v. 
 Whytier, Cro. Eliz,, 650. 
 
 {».} Com. Dig., Pleader, G. 3 ; Helier v. Whytier, Cro. Eliz., 650. 
 
 («.) Anon., 3 Salk., 353. , 
 
 \u.) Com. Dig., Pleader, G. 17 ; Bao. Ab., Pleas, &o., H. 4 ; The King v. 
 Bishop of Worcester, Vaughan, 62 ; Digby v. Fitzharbert, Hob., 104. 
 
198 OF THE PRINCIPAL 
 
 retarding the issue by resorting to a new traverse. How 
 ever, this rule is open to an important exception, viz, thai 
 there may he a traverse upon a traverse when the first is a 
 had one, {x;) or, in other words, if the denial under the 
 absque hoc of the first traverse be insufficient in law, it 
 may be passed by, and a new traverse taken on the induce- 
 ment. Thus, in an action of prohibition, the plaintiff 
 declared that he was elected and admitted one of the com- 
 mon council of the city of London, but that the defendants 
 delivered a petition to the court of common council, com- 
 plaining of an undue election, and suggesting that they 
 themselves were chosen ; whereas (the plaintiff alleged) the 
 common council had no jurisdiction to examine the validity 
 of i5uch an election, but the same belonged to the court of 
 the- mayor and aldermen. The defendants pleaded 1 hat 
 the common council, time out of mind, had authority to 
 determine the election of common councilmen ; and that 
 the defendants, being duly elected, the plaintiff intruded 
 b;mself into the office ; whereupon the defendants deliv- 
 ded their petition to the common council, complaining 
 of an undue election ; without this, that the jurisdiction to 
 examine the validity of such election belonged to the court 
 of the mayor and aldermen. The plaintiff replied by trav- 
 ersing the inducement; that is, he pleaded that the com- 
 mon council had not authority to determine the election 
 of common councilmen, concluding to the country. 
 
 To this the defendant demurred, and the court adjudged 
 that the first traverse was bad, because the question in this 
 prohibition was not whether the court of aldermen had 
 jurisdiction, but whether the common council had ; and 
 that, the first traverse being immaterial, the second was 
 well taken, {y.) 
 
 As the inducement cannot, when the denial, under the 
 
 {x.) Com. Dig., Pleader, G. 18, 19 ; Thrale v. Bishop of London, 1 H. BL, 
 376; Eichardson v. Mayor of Oxford, 2 H. Bl., 186; King qtu tsm v. Bolton, 
 Str., 117 ; Crosse v. Hunt, Garth., 99. 
 
 (y ) King qui tam v. Bolton, Str., 117. 
 
RULES OF PLEiDIKG. 199 
 
 absque hoc, is sufficient in law, be traversed, so, for the same 
 reasons, it cannot be answered by a pleading in confession 
 and avoidance. But, on the other hand, if the denial be 
 insufficient in law, the opposite party has then a right to 
 plead in confession and avoidance of the inducement, or 
 (according to the nature of the case) to traverse it ; or he 
 may demur to the whole traverse for the insufficiency of 
 the denial. 
 
 As the inducement of a special traverse, when the denial 
 under the absque hoc is sufficient, can neither be traversed 
 nor confessed and avoided, it follows that there is, in that 
 case, no manner of pleading to the inducement. The only 
 way, therefore, of answering a good special traverse is to 
 plead to the absque hoc, which is done by tendering issue on 
 such denial, in the form already explained at p. 188. But 
 though there can be no pleading to an inducement, when 
 the denial under the absque hoc is sufficient, yet the induce- 
 ment may be open, in that case, to exception in point of 
 law. If it be faulty in any respect, as, for example, in not 
 containing a sufficient answer in substance, or in giving 
 an answer by way of direct denial, or by way of confession 
 and avoidance, the opposite party may demur to the whole 
 ixaverse, though the absque hoc be good, for this insuf- 
 ficiency in the inducement, {z.) 
 
 The different kinds, or forms of traverse, having been now 
 explained, it will be proper next to advert to certain prin ■ 
 ciples which belong to traverses in general. 
 
 The first of these that may be mentioned is, that it is the 
 nature of a traverse to deny the allegation in the mann&r 
 and form in which it is made, and therefore to put the 
 opposite party to prove it to be true in manner and form, 
 as well as in general effect. Accordingly, it has been shown 
 in the first chapter (a) that he is often exposed at the trial 
 to the danger of a variance, for a slight deviation in his 
 evidence from his allegation. This doctrine of variance 
 
 (z.) Com. Dig., Pleader, G. 22 ; Foden v. Haines, Comb., 245. 
 (o.) Supra, p. 118. And see Hoar v Mill, 4 M. & S., 47'). 
 
200 OF THE PRINCIPAL 
 
 we now perceive to be founded on the strict quality of tlie 
 traverse here stated. It has been explained, however, in the 
 same place, that this strictness is so far modified that it is, 
 in general, sufficient to prove accurately the substance of the 
 allegation ; and that a deviation in point of mere form, or 
 in matter quite immaterial, will be disregarded. On this sub- 
 ject of variance, or the degree of strictness with which, in 
 different instances, the traverse puts the fact in issue, there 
 are a great number of adjudged cases, involving much 
 nicety of distinction ; but it does not belong to this work 
 to enter into it more fully, (6.) The general principle is 
 that which is here stated, that the traverse brings the fact 
 into question, according to the manner and form in which it 
 is alleged; and that the opposite party must consequently 
 prove that, in substance, at least, the allegation is accurately 
 true. The existence of this principle is indicated by the 
 wording of a traverse, which, when in the negative, gen- 
 erally denies the last pleading modo ei forma, "in manner 
 and form as alleged," (c.) This will be found to be the case 
 in all the preceding examples, except in the general issue 
 non est factum and the replication de injuria, which are 
 almost the only negative traverses that are not pleaded 
 modo et forma. These words, however, though usual, are 
 said to be in no case strictly essential, so as to render their 
 omission cause of demurrer, [d.) 
 
 It is naturally a consequence of the principle here men- 
 tioned, that great accuracy and precision, in adapting the 
 allegation to the true state of the fact, are observed in all 
 well-drawn pleadings; the vigilance of the pleader being 
 always directed to these qualities, in order to prevent any 
 
 (5.) Several of these cases are collected, supra, p. 119, note (y.) 
 (c.) But, notwithstanding the words modo et forma, it is enough to prove 
 the substance of the allegation. (See Litt., sect. 483 ; Doct. PL, 344 ; Harris 
 V. Ferrand, Hardr., 39; Pope v. Skinner, Hob., 72; Carrick v. Blagrave, 
 1 Brod. & Bing., 536.) As to the effect of these words, as covering the 
 whole matter of the allegation traversed, see Weathrell v. Howard 3 Bine 
 135. 
 (d.) Com. Dig., Plnader, G. 1 ; Nevil and Cook's Case, 2 Leo., 5. 
 
RULES OF PLEADING. 201 
 
 risk of variance or failure of proof at the trial, in the event 
 of a traverse by the opposite party. 
 
 Again, with respect to all traverses, it is laid down as a 
 rule, that a traverse must not be taken upon matter of law, (e.) 
 For a denial of the law involved in the precedent pleading 
 is, in other words, an exception to the sufficiency of that 
 pleading in point of law, and is therefore within the scope 
 and proper province of a demurrer, and not of a traverse. 
 Thus where, to an action of trespass for fishing in the 
 plaintiff's fishery, the defendant pleaded that the locus in 
 quo was an arm of the sea, in which every subject of the 
 realm had the liberty and privilege of free fishing, and 
 the plaintiff, in his replication, traversed that in the said 
 arm of the sea every subject of the realm had the liberty 
 and privilege of free fishing, this was held to be a traverse 
 of a mere inference of law, and therefore bad, (/.) Upon 
 the same principle, if a matter be alleged in pleading, "by 
 reason whereof" (virtute cujus) a certain legal inference is 
 drawn, as that the plaintiff "became seized," &c., or the 
 defendant "became liable," &c., this virtute cujus is not trav- 
 ersable, {g;) because, if it be intended to question the facts 
 from which the seizin or liability is deduced, the traverse 
 should be applied to the facts, and to those only; and, if 
 the legal inference be doubted, the course is to demur. 
 But, on the other hand, where an allegation is mixed of 
 law and fact, it may be traversed, (A.) For example, in 
 answer to an allegation that a man was "taken out of 
 prison by virtue of a certain writ of habeas corpus," it may 
 be traversed that he was "taken out of prison by virtue 
 of that writ," (i.) So, where it was alleged in a plea that, 
 
 (e.) 1 Saund., 23, n. 5; Doct. PI., 351; Kenicot v. Bogan, Yelv., 200; Priddle 
 and Napper's Case, 11 Eep., 10 b ; Bichardson v. Mayor of Oxford, 2 H. Bl., 182. 
 
 (/.) Eichardson v. Mayor of Oxford, 2 H. Bl., 182. 
 
 \g.) Doct. PI., 351; Priddle and Napper's Case, 11 Rep., 10 b. 
 
 {h.) 1 Saund., 23, n. 5, and see the instances eited ; Bac. Ab., Pleas, &o., p. 
 380, note h, 5th edit.; Be^il v. Simpson, 1 Lord Ray., 412; Grocers' Company 
 V Archbishop of Canterbury, 3 Wila., 234. 
 
 \i) Beal v. Simpson, 1 Lord Ray., 412 ; Treby, Ch. J., cont. 
 
202 OF THE PRINCIPAL 
 
 iu consequence of certain circumstances therein set fortli, 
 it belonged to the wardens and commonalty of a certain 
 body corporate to present to a certain church, being var 
 cant, in their turn, being the second turn, and this was 
 answered by a special traverse, without this, that it belonged 
 to the said wardens and commonalty to present to the said 
 church, at the second turn, when the same became va'cant, 
 &c., in manner and form as alleged, the court held the 
 traverse good, as not applying to a mere matter of law, 
 "but to a matter of law, or rather of right resulting from 
 facts," {k.) So it is held, upon the same principle, that 
 traverse may be taken upon an allegation that a certain 
 person obtained a church by simony, [l.) 
 
 It is also a rule, that a traverse must not be taken upon matter 
 not alleged, {m.) The meaning of this rule will be suffi- 
 ciently explained by the following cases : A woman brought 
 an action of debt on a deed, by which the defendant obliged 
 himself to pay her 200Z. on demand, if he did not take her 
 to wife, and alleged in her declaration that, though she 
 had tendered herself to marry the defendant, he refused, 
 and married another woman. The defendant pleaded that, 
 after making the deed, he offered himself to marry the 
 plaintiff, and she refused; absque hoe, "that he refused to 
 take her for his wife before she had refused to take him 
 for her husband." The court was of opinion that this 
 traverse was bad; because there had been no allegation in 
 the declaration "that the defendant had refused before 
 the plaintiff had refused;" and therefore the traverse went 
 to deny what the plaintiff had not affirmed, (n.) The plea 
 in this case ought to have been in confession and avoid- 
 ance; stating merely the affirmative matter, that before 
 the plaintiff offered the defendant offered, and that the 
 plaintiff had refused him; and omitting the absque hoc. 
 
 (k.) Grocers' Company v. Archbishop of Canterbury, 3 Wils., 234. 
 il.) Ibid; East. Ent., 532 a. 
 
 (m.) lSaund.,312d,n.4; Doot. Pl.,358; Crosse «. Hunt, Cirtk, 99; Pow 
 trs V. Cook, 1 Lord Bay., 63; 1 Salk., 298, S. C. 
 (n.) Crosse v. Hunt, Garth., 99. 
 
RULES ' V PLBADESTG. 203 
 
 Again, in an action of debt on bond against the defendant, 
 as executrix of J. S., she pleaded in abatement that J. S. 
 died intestate, and that administration was granted to her. 
 On demurrer, it was objected, that she should have gone 
 on to traverse "that she meddled as executrix before the 
 administration granted;" because, if she so meddled, she 
 was properly charged as executrix, notwithstanding the 
 subsequent grant of letters of administration. But the 
 court held the plea good in that respect; and Holt, C. J., 
 said, " that, if the defendant had taken such traverse, it 
 had made her plea vicious; for it is enough for her to show 
 that the plaintiff's writ ought to abate, which she has done, 
 in showing that she is chargeable only by another name. 
 Then, as to the traverse, that she did not administer as 
 executrix before the letters of administration were granted, 
 it would be to traverse what is not alleged in the plaintiff's 
 declaration ; which would be against a rule of law, that a 
 man shall never traverse that which the plaintiff has not 
 alleged in his declaration," (o.) There is, however, the 
 following exception to this rule, viz, that a traverse may be 
 taken upon matter which, though not expressly alleged, is neces- 
 sarily implied, {p.) Thus, in replevin for taking cattle, the 
 defendant made cognizance (g) that A. was seized of the 
 close in question, and, by his command, the defendant took 
 the cattle damage feasant. The plaintiff pleaded in bar, 
 that he himself was seized of one-third part, and put in 
 
 (o.) Powers v. Cook, 1 Lord Ray., 63; 1 Salk., 298, S. C. 
 
 (;).) 1 Saund., 312d.,n. 4; Gilberts. Parker, 2 Salk., 629; 6 Mod., 158, 
 S, C ; Meriton v. Briggs, 1 Lord Ray., 39. 
 
 (gr.) The action of repleoin differs from other actions in the names of the 
 pleadings. If the defendant pleads some matter confessing the taking, but 
 showing lawful title or excuse, such pleading is not (as it would be in other 
 actions) called a plea in bar, but an avowry or a cognizance; the former term 
 applying to the case where the defendant sets up right or title in himself; the 
 latter being used when he alleges the right or title to be in another person, 
 by whose command he acted. (Com. Dig. Pleader, 3 K., 13, 14.) The answer 
 to the avowry or cognizance is called plea in bar; and then follow replica- 
 tion, rejoinder, &e.; the ordinary name of each pleading being thus post 
 poned by one step. 
 
204 OF THK PKINCIPAL 
 
 his cattle, absque hoc, "that the said J., was sole seized.*^ 
 On demurrer, it was objected that this traverse was taken 
 in matter not alleged, the allegation being that A. waa 
 seized, not that A. was sole seized. But the court held, that 
 in the allegation of seizin that of sole seizin was neces- 
 sarily implied, and that whatever is necessarily implied is 
 traversable, as much as if it were expressed. Judgment 
 for plaintiff, (r.) The court, however, observed that, in 
 this case, the plaintiff was not obliged to traverse the sole 
 seizin; and that the effect of merely traversing the seizin 
 modo et formS, as alleged, would have been the same on 
 the trial as that of traversing the sole seizin. 
 
 Another rule that may be referred to this head, though 
 of a more special and limited application than the former, 
 is the following : that a party to a deed, who traverses it, must 
 plead non est factum, and should not plead that he did not 
 grant, did not demise, &c., (s.) This rule seems to depend 
 on the doctrine of estoppel. 
 
 A man is sometimes precluded, in law, from alleging or 
 denying a fact in consequence of his own previous act, 
 allegation, or denial to the contrary, and this preclusion is 
 called an estoppel, {t.) It may arise either from matter of 
 record, from the deed of the party, or from matter in pais, 
 that is, matter oi fact, (u.) Thus, any confession or admis- 
 sion made in pleading in a court of record, whether it be 
 exptigjs or implied, from pleading over without a traverse, 
 will forever preclude the party from afterwards contesting 
 the same fact, in any subsequent suit, with the same ad- 
 versary, (x.) This is an estoppel by matter of record. As 
 an instance of an estoppel by deed, may be mentioned the 
 
 (r.) Gilbert v. Parker, 2 Salk., 629 ; 6 Mod., 158, S. C. 
 
 (s.) Doct. PL, 261 ; Eobinaon v. Corbett, Lutw., 662 ; Taylor v. Needham, 
 2 Taunt., 278. 
 
 (i.) An estoppel is, "when a man's own act or acceptance stoppeth oi 
 eloseth up his mouth to allege or plead the truth.'' (Co. Litt., 352 a.) 
 
 (m.) Co. Litt., 352 a. 
 
 (x.) Bract., 421 a. ; Com. Dig., Estoppel, A. 1 ; and see Outram v. Morewood 
 8 Last., 346; Vooglit v. Winch., 2 Barn. & Aid., 662. 
 
RULES OP PLEADING. 20i> 
 
 case of a bond reciting a certain fact. The party executing 
 that bond will be precluded from afterwards denying, in 
 an action brought upon that instrument, the fact so recited, 
 {y.) An example of an estoppel bj matter in pais occurs 
 when one man has accepted rent of another. He will be 
 estopped from afterwards denying, in any action with that 
 person, that he was, at the time of such acceptance, his 
 tenant, [z.) 
 
 Now, it is from this doctrine of estoppel, apparently, that 
 the rule now under consideration as to the mode of trav- 
 ersing deeds has resulted, {a.) For though a party against 
 whom a deed is alleged may be allowed, consistently with 
 the doctrine of estoppel, to say non est factum, viz, that 
 the deed is not his, he is, on the other hand, precluded by 
 that doctrine from denying its effect or operation ; because, 
 if allowed to say non concessit or non demisit, when the in- 
 strument purports to grant or to demise, he would be per- 
 mitted to contradict his own deed. Accordingly, it will 
 be found that in the case of a person not a party, but a 
 stranger to the deed, the rule is reversed, and the form of 
 traverse in that case is non concessit, &c., (b;) the reason of 
 which seems to be, that estoppels do not hold with respect 
 to strangers, (c.) 
 
 The doctrine of traverse being now discussed, the next 
 subject for consideration is, 
 
 2. The nature and properties of pleadings in confession 
 and avoidance. 
 
 First, with respect to their division. Of -pleas in confes- 
 
 {y.) Bonner v. Wilkinson, 5 Barn. & Aid., 682; and see Baker v. Dewey, 1 
 Barn. & Ores., 704. 
 
 (z.) Com. Dig., Estoppel, A. 3 ; Co. Litt., 352 a. 
 
 (a.) See 39 Ed. Ill, 3 ; Taylor v. Needham, 2 Taunt., 278. 
 
 (6.) Taylor v. Needham, 2 Taunt., 278. N. B. The court there lay it down 
 that the plea of non concessit, &c., brings into issue the title of the grantor, 
 as well as the operation of the deed. 
 
 (c.) In accordance with the same doctrine of estoppel, it is held, ■with re- 
 spect to real or personal representatives, that they are in the same situation 
 with porfes, and must plead non est factv/m. (Robinson v.Corbett, Lutw., 662. 
 As %o primes in estate, see 2 Hen, IV, 20 ; Taylor v. Needham, 2 Taunt., 281.) 
 
206 OF THE PlilNOlPAi 
 
 sion aud avoidance, some are distinguished (in reference 
 to their subject-matter) as pleas in justifieation or excuse, 
 others as pleas in discharge, (d.) The pleas of the former 
 class show some justification or excuse of the matter 
 charged in the declaration ; those of the latter, some dis- 
 charge or release of that matter. The effect of the former, 
 therefore, is to show that the plaintiff never had any right 
 of action, because the act charged was lawful ; the effect 
 of the latter, to show that though he had once a right of 
 action, it is discharged or released by some matter subse- 
 quent. Of those in justification or excuse, the plea of son 
 assault demesne (e) is an example ; of those in discharge, a 
 release, (/.) This division applies to pkas only; for repU- 
 caiions and other subsequent pleadings in confession and avoid- 
 ance are not subject to any such classification. 
 
 As to the form of pleadings in confession and avoidance, 
 it will be sufficient to refer the reader to the examples i? 
 the first chapter, {g,) and to observe that, in common wit'r 
 all pleadings whatever which do not. tender issue, thep 
 always conclude vnth a verification and prayer of judgment, (h ) 
 
 With respect to the quality of these pleadings, it is a rul'"!, 
 that every pleading by way of confession and avoidance must 
 give color, (i.) This is a rule which it is very essential to 
 understand, in a view to a correct apprehension of the na- 
 ture of these pleadings ; yet it appears to have been not 
 hitherto adequately explained or developed in the books 
 of the science. Color is a term of the ancient rhetoricians, 
 (k,) and was adopted at an early period into the language 
 of pleading, (1.) As a term of pleading, it signifies an ap- 
 
 (d) Com. Dig., Pleader, 3 M., 12. 
 
 (e.) See this plea, supra, p. 180. 
 
 (/.) See this plea, supra, p. 90. 
 
 (g.) Supra, pp. 90, 95. 
 
 fh ) Vide supra, p. 186. 
 
 (i.) See Eeg. Plac, 304 ; Hatton v. Morse, 3 Salk., 273 ; Hallet v. Byrt, 5 
 Mod., 252: Holler v. Bush, 1 Salk., 394; 1 Chitty, 498, 1st edit. 
 
 (i.) See Appendix, note 51. 
 
 Q.) It occurs at least as early as the reign of Ed. III. (Sea Year-Books, 
 <8 Ed. 111,28; 40 Ed. Ill, 23.) 
 
KULES OE PLEADING. 207 
 
 parent or prima facie right; and the meaniLg of the rule, 
 that every pleading in confession and avoidance must give 
 color, is, that it must admit an apparent right in the oppo- 
 site party, and rely, therefore, on some new matter by 
 which that apparent right is defeated, (m.) Thus, in the 
 example formerly given of a plea of release to an action 
 for breach of covenant, (n,) the tendency of the plea is to 
 admit an apparent right in the plaintiff, viz, that the de- 
 fendant did, as alleged in the declaration, execute the deed 
 and break the covenant therein contained, and would, 
 therefore, prima facie, be chargeable with damages on that 
 ground; but shows new matter, not before disclosed, by 
 which that apparent right is done away, viz, that the 
 plaintiff executed to him a release, (o.) Again, the plaint- 
 iff, in his replication, impliedly admits that the defendant 
 has, prima facie, a good defense, viz, that such release was 
 executed as alleged in the plea, and that the defendant, 
 therefore, would be apparently discharged; but relies on 
 new matter, by which the effect of the plea is avoided, viz, 
 that the release was obtained by duress. The plea in this 
 case, therefore, gives color to the declaration, and the repli- 
 cation to the plea. But let it be supposed that the plaintiff 
 had replied that the release was executed by him, but to 
 another person, and not to the defendant; this would be 
 an informal replication, as wanting color, because, if the re- 
 lease were not to the defendant, there would not exist even 
 an apparent defense, requiring the allegation of new mat- 
 ter to avoid it, and the plea might be sufficiently answered 
 by a traverse, denying that the deed stated in the plea is 
 the deed of the plaintiff, {p.) So, in the following exam- 
 ple, the pleading is bad for want of color. 
 
 (TO.) See Appendix, note 52. 
 
 (n.) Supra, p. 90. 
 
 (p.) See another illustration, Eeg. Plao., 304. 
 
 {p.) See Gifford v. Perkins, 1 Sid., 450, where ajpka of this kind was held 
 to be had. The objection, indeed, in that case, took a somewhat different 
 shape, viz, that the plea amounted to the general issue. But this objection, 
 as will be explained in a subsequent part of the work, is in substance the 
 game with the want of color. 
 
208 OF THE PRINCIPAL 
 
 PLEA. 
 
 In trespass, quare cla/usumf regit. 
 And for a further plea in this behalf, as to the breaking the said close, it 
 which, &c., and the treading down, trampling upon, and consuming and spoil 
 ing the grass and herbage, as above supposed to have been done, the said C. 
 D. and E. F., by leave of the court here for this purpose first had and ob- 
 tained, according to the form of the statute in such case made and provided, 
 say that the said A. B. ought not to have or maintain his aforesaid action 
 thereof against them, because, they say, that before the said time, when, &c., 
 one 0. D., the father of the said 0. D., the now defendant, was seized in his 
 demesne, as of fee, of and in the said close, in which, &c. ; and, being so seized, 
 
 the said 0. D., the father, before the said time, when, &o., to wit, on the 
 
 day of , in the year of our Lord , gave the said close, &c., to one 
 
 &. D., son and heir-apparent to the said G. D., the father, to have and to hold 
 the same to himself, the said Q. D., and the heirs of his body lawfully begot- 
 ten, and for default of such issue the remainder thereof to the said 0. D., the 
 now defendant, younger son of the said C. D., the father, and the heirs of the 
 body of him, the said 0. D, the now defendant, lawfully begotten, and for 
 the default of such issue the remainder thereof to the right heirs of the said 
 C. D., the father, for ever. By virtue of which gift the said &. D. was seized 
 of and in the said close, in which, &c., in his demesne, as of fee tail, that is 
 to say, to him and the heirs of his body lawfully begotten, the remainder 
 thereof, for default of such issue, to the said 0. D., the now defendant, and 
 the heirs of his body lawfully begotten, the remainder thereof over, for de- 
 fault of such issue, to the right heirs of the said C. D., the father, for ever; 
 until one /. S., before the said time, when, &c., entered into and upon the said 
 close, in which, &o., upon the possession of the said G. D. thereof, and him 
 the said Q. D. unjustly and without judgment disseized, whereby the said J. 
 8. was seized of and in the said close, in which, Ac, in his demesne, as of fee, 
 by disseizin, &c. ; and he, being so seized thereof by disseizin, the said ©. D. 
 made his continual claim to the said close, in which, &c., upon the possession 
 of the said /. 8. thereof, sometimes by entering thereon, and sometimes by 
 approaching thereto as near as he, the said Q. D., dared, so as to avoid bodily 
 hurt, during the whole life of the said J. 8., and within a day and year of the 
 death of the said /. 8. ; which said /. 8., being seized in form aforesaid of the 
 
 said close, in which, &c., before the said time, when, &c., to wit, on the 
 
 day of , in the year , at aforesaid, in the county aforesaid, 
 
 died BO seized of his said estate therein. After whose death the said close, in 
 which, &c., descended to one T. 8., as son and heir of the said /. 8. Where- 
 fore the said T. 8., before the said time, when, &c., entered into the said 
 close, in which, &c., and was seized thereof in his demesne as of fee ; upon 
 whose possession whereof the said G. D. re-entered in and upon the said close, 
 in which, &c. , and was seized thereof in his demesne as of fee tail, by form 
 of the gift aforesaid, as in his former estate. And being so seized thereof, the 
 
 said (?. D. afterwards, and before the said time, when, &o., to wit, on the 
 
 day of , in the year , at aforesaid, in the county aforesaid, 
 
 died so seized of his said estate thereof, without heir of his body lawfully 
 
RULES OF PLEADING. 209 
 
 begotten. After whose death, and before the said time, wnen, &c., the said C. 
 D., the now defendant, entered into and upon the said close, in which, &c., as 
 into his said remainder, and was thereof seized in his demesne as of fee tail, 
 according to the lorm of the gift aforesaid. And being so seized thereof, the 
 said O. D., the now defendant, before the said time, when, &c., to wit, on the 
 day 01 , in the year , at aforesaid, in the county afore- 
 said, demised the said close, in which, &c., to E. F., the other of the said defend- 
 ants, to have and to hold the same to him and his assigns, from the feast of 
 the annunciation of the Blessed Virgin Mary then last past until the end 
 and term of twenty-one years thence next following and fully to be complete 
 and ended. By virtue of which demise the said E. F., before the said time, 
 when, &o., entered into the said close, in which, &c., and was thereof pos- 
 sessed*. Wherefore, the said E. F., in his own right, and the said G. D., the 
 now defendant, as the servant of the said E. F., and by his command, after- 
 wards, to wit, at the said time, when, &c., broke and entered the said close, 
 in which, &c., and trod down, trampled upon, consumed, and spoiled the grass 
 and herbage there growing and being, as it was lawful for them to do for the 
 cause aforesaid; which are the same trespasses in the introductory part of 
 this plea mentioned, and whereof the said A. B. hath above complained ; and 
 this the said defendants are ready to verify. Wherefore they pray judgment 
 if the said A. B. ought to have or maintain his aforesaid action thereof 
 against them, &c. 
 
 This plea, as already observed, is informal, as wanting 
 color, {q.) The declaration charges the defendants with 
 breaking and entering the plaintiff's close; to which the 
 answer (in substance) is, that at the time of the alleged 
 trespass, one of the defendants was seized in tail of the 
 said close, and the other defendant in possession of it, as 
 his lessee for years. But, if this be so, it follows that the 
 plaintiff has not even a colorable right to maintain the 
 action as for trespass to his close; for he had not even the 
 possession, and, if he had, a mere possession, without some 
 show of title, is insufficient in law to give such colorable 
 right against the true owner. In such case, the usual and 
 regular course would be, not to plead in confession and 
 avoidance, but to adopt the general issue, not guilty, which, 
 (as we have seen,) (r,) puts the plaintiff's lawful possession 
 of the close in issue, as well as the mere fact of the tres- 
 pass. 
 
 (g.) See Patriokson v. Barton Cro. Jac, 229. 
 (r.) Vide swpra, p. 174. 
 
 14 
 
210 OP THE PRINCIPAL 
 
 The kind of color to which these observations relate, 
 being a latent quality naturally inherent in the structure 
 of all regular pleadings in confession and avoidance, has 
 been called implied color, to distinguish it from another 
 kind, which is, in some instances, formally inserted in the 
 pleading, and is therefore known by the name of express 
 color, (s.) It is the latter kind to which the technical term 
 most usually applies; and to this the books refer when 
 color is mentioned per se, without the distinction between 
 express and implied. Color, in this sense, is defined to be 
 " a feigned matter, pleaded by the defendant in an action 
 of trespass, from which the plaintiff seems to have a good 
 cause of action, whereas he has, in truth, only an appear- 
 ance or color of cause," (<.) This is one of the most curi- 
 ous subtleties that belong to the science of pleading ; and 
 though now rather of rare occurrence, yet, as it is still 
 sometimes practiced, and is, besides, illustrative of the 
 important doctrine of implied co\ov, deserves attention. Its 
 nature and use may be thus explained. The necessity of 
 an implied color has evidently the effect of obliging the 
 pleader to traverse in many instances in which his case, 
 when fully stated, does not turn on a mere denial of 
 fact, but involves some considerations of law. In the ex- 
 ample first above given, of want of color, (m,) this would 
 not be so ; for, if the deed of release were executed not 
 to the defendant, but to a different person, this, of course, 
 amounts to no more than a mere denial that the deed, as 
 alleged in the plea, is the deed of the plaintiff; and no 
 question of law can be said to arise .under this traverse. 
 But, in the second example, (x,) let it be supposed that the 
 plaintiff was in wrongful possession of the close, without 
 any farther appearance of title than the possession itself, 
 at the time of the trespass alleged, and that the defend- 
 
 (s.) Halletti). Burch, 3 Salk., 272; Hatton v. Morse, 3 Salk., 273- Holt's 
 Inst., 561, S. C. ; Beg. Plac., 304. 
 (t.) Bao. Ab., TreBpaas, I. 4. 
 (m.) Supra, p. 207. 
 {x.) Supra p. 207. 
 
RULES OF PLEADING. 211 
 
 ants entered upon liim in assertion of their title, but being 
 unable to set forth this title in the pleading, in consequence 
 of the objection that would arise from want of color, (the 
 plaintiff's mere wrongful possession being insufficient to 
 prevent that objection,) are driven to plead the general 
 issue, not guilty. By this plea an issue is produced, whether 
 the defendants are guilty or not of the trespasses; but upon 
 the trial of the issue it will be found that the question 
 turns entirely upon construction of law. The defendants 
 say they are not guilty of the trespasses, because they are 
 not guilty of breaking the dose of the pla'iniiff,ii3 alleged in 
 the declaration; and that they are not guilty of breaking 
 the close of the plaintiff, because they had themselves the 
 property in that close; and their title is this: That the 
 father of one of the defendants, being seized of the close 
 in fee, gave it in tail to his eldest son, remainder in tail to 
 one of the defendants; that the eldest son was disseized, 
 but made continual claim until the death of the disseizor ; 
 after whose death, the descent being cast upon his heir, 
 the disseizee entered upon the heir, and afterwards died; 
 when the remainder took effect in the said defendant, who 
 demised to the other defendant. Now, this title involves 
 a legal question, viz, whether continual claim will not pre- 
 serve the right of entry in the disseizee, notwithstanding a 
 descent cast on the heir of a disseizor, (?/.) The issue, how 
 ever, is merely not guilty, and this is triable by jury ; and the 
 effect, therefore, would be that a jury would have to decide 
 this question of law, subject to the direction upon it which 
 they would receive from the judge at nisi prius. But let 
 it be supposed that the defendants, in a view to the more 
 satisfactory decision of this question, wish to bring it under 
 the consideration of the court in banc, rather than have it 
 referred to a jury. If they have any means of setting forth 
 their title specially in their plea, the object will be attained; 
 for then the plaintiff, if disposed to question the sufficiency 
 
 (y.) As to the law on this point, see Co. Litt. 250, 251 ; 2 Bl. Com., 316 ; Ibid^ 
 175 
 
212 OF THE PRINCIPAL 
 
 of the title, may demur to the plea, and thus refer the legal, 
 question to the decision of the judges. But such plea, (as 
 we have seen,) if pleaded simply according to the state of 
 fact, would be informal for want of color ; and hence arises 
 a difficulty. The pleaders of former days contrived to over- 
 come this difficulty in the following singular manner. In 
 such a case as that supposed, the plea wanting implied color, 
 they gave in lieu of it an express one, by inserting a fic- 
 titious allegation of some colorable, but insufficient, title 
 in the plaintiff; which they at the same time avoided by 
 the preferable title of the defendants. Thus they would 
 set forth the title as in the example, p. 209, down to the 
 mark *, and would then proceed to insert the following 
 fictitious averment: "And the said A. B., claiming the 
 said close, &c., by color of a certain charter of demise to 
 him thereof made for the term of his life by the said C. D., 
 the father, long before the said gift by the said C D., the 
 father, to the said G. D., in form aforesaid, made (whereas 
 nothing of or in the said close, in which, &c., ever passed 
 into the possession of the said A. B. by virtue of that char- 
 ter) before the said time, when, &c., entered into and upon 
 the said close, in which, &c.. And thereupon the said E. 
 F., in his own right, and the said C. D., the now defend- 
 ant, as the servant of the said U. F., and by his command, 
 afterwards, to wit, at the said time, when, &c., entered into 
 and upon the said close, in which, &c., in and upon the 
 said A. B.'s possession thereof, and trod down, trampled 
 upon, consumed, and spoiled," &c., to the end of the plea, {z.) 
 This was called giving color; and it was held to cure, or 
 prevent, the objection which would otherwise arise from 
 the want of implied color ; and the plea with this inser- 
 tion was considered as sufficiently formal. For, when 
 pleaded in that form, it confesses some apparent title in 
 the plaintiff, viz, a charter of demise for the term of his 
 
 (z.) This plea, with the color here given, is copied from Brown's Entries, p. 
 343. Another example will be found, swpra, p. 185. See also 2 Edw. IV, 8 
 fo) an example of color, and an illustrative case upon the subject. 
 
KULES OF PLEADING. 213 
 
 life, by virtue of which he entered and was possessed. 
 The plea admits, therefore, that the close was, in some 
 sense, the close of the plaintiff, but at the same time it avoids 
 this colorable title, by showing that of the defendants, and 
 alleging that the plaintiff's title under the charter of demise 
 was defective in point of law, and that nothing passed 
 under that charter, (a.) 
 
 It is to be understood, that when color was thus given, 
 the plaintiff was not allowed, in his replication, to traverse 
 the fictitious matter suggested by way of color, (b;) for, its 
 only object being to prevent a difficulty of form, such trav- 
 erse would be wholly foreign to the merits of the cause, 
 and would only serve to frustrate the fiction which the law 
 in such case allows. The plaintiff would, therefore, pass 
 over the color without notice, and would either traverse 
 the title of the defendants, if he meant to contest its truth 
 in point of fact, or demur to it, if he meant to except to 
 its sufficiency in point of law; and thus the defendants 
 would obtain their object, of bringing any legal question 
 raised upon their title under consideration of the court, 
 and withdrawing it from the jury. 
 
 Such is still the course of proceeding and the state of 
 the law on this subject, in the few cases in which express 
 color is now given ; and the particular example above ad- 
 duced is one that might occur in the practice of the present 
 day, (c.) 
 
 The practice of giving express color obtained in the 
 mixed actions called an assize, and the writ of entry, in nature 
 of an assize, and the personal action of trespass, [d.) The 
 two former kinds of proceeding being now out of use, it 
 occurs at present in the action of trespass only, nor is it, 
 
 (a) The defect in the title, given by this color, is, that the charter, though 
 a charter of demise for life, is not pleaded as a feoffment, and does not appear 
 to have been accompanied by livery of seizin. (See Doct. PL, 73 ■ Leyfield's 
 Case, 10 Eep., 89 b.) 
 
 6.) 1 Chitty, 501, 1st edit. 
 
 (c) See Appendix, note 53. 
 
 (d) 3 Reeves, 438; Doct. &StwL, p. 271. 
 
214 OF THE PRINCIPAL 
 
 even in trespass, often found to be expedient. As to these 
 fictions, so the practice of giving express color seems to be 
 confined to pleas, and not to extend to replications or other 
 subsequent pleadings, (e.) It is also to be understood, with 
 respect to giving express color, that though, originally, 
 various suggestions of apparent right might be adopted, 
 according to the fancy of the pleader, (/,) and though the 
 same latitude is, perhaps, still allowable, yet, in practice, it 
 is unusual to resort to any except certain known fictions, 
 which long usage has applied to the particular case. Thus, 
 in trespass to land, the color universally given is that of a 
 defective charier of demise, as in the above example. 
 
 There are some rules, with respect to express color, 
 immediately resulting from the nature of the fiction and 
 the object for which it is adopted. Thus, it is laid down, 
 that it must consist of such matter as, if it were effectual, would 
 maintain the nature of the action, {g.) For example : In an 
 action of assize, where the demandant complains of a dis- 
 seizin of his freehold, the tenant should not, by way of giv- 
 ing color, suggest a demise to the demandant for years, 
 because this would not give him even a colorable ground 
 to maintain an assize, (A.) On the other hand, it is to be 
 observed that the right suggested must be colorable only, 
 and that it must not amount to a real or actual right. For, 
 if it does, then the plaintiflF would, of course, upon the 
 defendant's own showing, be entitled to recover, and the 
 plea would be an insufficient answer. For example: In 
 trespass for taking away one hundred loads of wood, if the 
 defendant pleads that I. S. was possessed of them ut de 
 bonis propriis, and the plaintiff, claiming them by color of a 
 deed of gift by the said I. S. afterwards made, took them, and 
 then the defendant retook them, the plea is bad; for if the 
 plaintiff took possession of the goods under a deed of gift 
 
 (e.) 1 Chitty, 601, 1st edit. And see Taylor v. Eastwood, 1 East., 212; 3 
 Eeeves, 441. 
 (/.) 3 Reeves, 441. 
 
 {ff.) Bac. Ab., Pleas, &o., I. 8; Com. Dig., Pleader, 3 M., 41. 
 (h.) Anon., Keilw., 103 b. 
 
RULES OF PLEADING. 215 
 
 from the lawful owner, he has a good title to them, and 
 ought to recover, (i.) So, in the example of color before 
 given, it would be bad pleading, if, instead of alleging that 
 the plaintiff claimed bj' color of a certain charter of demise 
 for the term of his life, &c., it were alleged that he claimed 
 by color of a certain feoffment for the term of his life; for 
 in the word feoffment the law intends not only the charter 
 of demise, but the delivery of seizin also; and the title 
 allowed to the plaintiff would, therefore, not be defective 
 or colorable, but valid, {k.) There are other rules relative 
 to express color, (l;) but as they seem, on examination, to 
 be either resolvable into the same principles that have been 
 already considered, or, where this is not the case, to be ob- 
 scure and unimportant, they need not be here discussed. 
 
 The pleadings by way of traverse, and those by way of 
 confession and avoidance, having been now separately consid- 
 ered, there are yet to be noticed, 
 
 3. The nature and properties of pleadings in general, with- 
 out reference to their quality, as being by way of traverse 
 or confession and avoidance. 
 
 First, it is a rule that every pleading must be an answer to 
 the whole of what is adversely alleged, (m.) 
 
 Therefore, in an action of trespass for breaking a close 
 and cutting down three hundred trees, if the defendant 
 pleads, as to cutting down all but two hundred trees, some 
 matter of justification or title, and as to the two hundred 
 trees says nothing, the plaintiff is entitled to sign judg- 
 ment, as by nil dicit, against him in respect of the two hun- 
 dred trees, and to demur or reply to the plea as to the 
 remainder of the trespasses. In such cases the plaintiff 
 should take care to avail himself of his advantage in this 
 (which is the only proper) course; for if he demurs or 
 replies to the plea, without signing judgment for the part 
 
 (i.) Eadford v. Harbyn, Cro. Jac, 122. 
 (A.) Doct. PI., 73. 
 
 (I.) See Com. Dig., Pleader, 3 M, 40, 3 M, 41. 
 
 (ro.) Com. Dig., Pleader, E. 1, F. 4; 1 Saund., 28, n. 3 , Herlakenden's 
 Case, 4 Eep., 62 a. 
 
216 OF THE PRINCIPAL 
 
 not answered, the whole action is said to be discontinued, 
 (n.) The principle of this is, that the plaintiff, by not tak- 
 ing judgment, as he was entitled to do for the part unan- 
 swered, does not follow up his entire demand, and there is 
 consequently that sort of chasm or interruption in the pro- 
 ceedings which is called in the technical phrase a discontin- 
 uance, (o;) and such discontinuance will amount to error 
 on the record, [p.) It is to be observed, however, that as 
 to the plaintiff's course of proceeding, there is a distinc- 
 tion between a case like this, where the defendant does not 
 profess to answer the whole, and a case where, by the com- 
 mencement of his plea, he professes to do so, but in fact 
 gives a defective and partial answer, applying to part only. 
 The latter case amounts merely to insufficient pleading; 
 and the plaintiff's course therefore is not to sign judgment 
 for the part defectively answered, but to demur to the whole 
 plea, (q.) It is also to be observed, that where the part of 
 pleading to which no answer is given is immaterial, or such 
 as requires no separate or specific answer — for example, if 
 it be mere matter of aggravation — the rule does not in that 
 case apply, (r.) 
 
 Again, it is a rule that every pleadiny is taken to confess 
 such traversable matters alleged on the other side as it does not 
 traverse, (s.) Thus, in the example given in the first chap 
 
 (w.) Com. Dig., Pleader, E. 1, P. 4; 1 gaund., 28, n. 3; Herlakenden's 
 
 Case, 4 Bep., 62 a ; Morley v. , 12 Mod., 421 ; Vincent v. Beaton, 1 Ld. 
 
 Bay., 716 ; Market v. Jolmson, 1 Salk., 180. 
 
 (o.) The proper and original meaning of a discontinuance is explainedi 
 supra, p. 60. By analogy to this, whenever a suit is not regularly carried 
 on from its commencement to its oonolusion, but a chasm of any kind, either 
 in the process or pleading, occurs, there is also a discontinuance. Besides the 
 example in the text, see another in Tippet v. May, 1 Bos. & Pul., 411. 
 
 {p.) Wats V. King, Cro. Jac, 353. A discontinuance is cured, however, 
 after verdict, by the statute of jeofails, 32 H. VIII, c. 3 ; and after judgment by 
 nil dicit, confession, or non sum informatus, by 4 Ann., o. 16. 
 
 (g.) 1 Saund., 28, n. 3 ; Thomas v. Heathorn, 2 Barn. & Ores , 477 ; 
 Earl of St. Germains v. Willan, 216. 
 
 (r.) 1 Saund., 28, n. 3. 
 
 (s.) Com. Dig., Pleader, G. 2 ; Bao. Ab., Pleas, &c., pp. 822, 386 5f:h edit. ; 
 Hudson V. Jones, 1 Salk., 91 ; Nicholson v. Simpson, Fort., 3P6. 
 
KTTLES OF PLEADING. 217 
 
 ter, (t,) of an action on an indenture of covenant, the plea 
 of release, as it does not traverae the indenture, is taken 
 to admit its execution; and the replication of duress, on 
 the same principle, is an admission of the execution of the 
 release. So the plea traversing the want of repair (u) is 
 an admission of the indenture of demise. The effect of 
 such admission is extremely strong, for, first, it concludes 
 the party, even though the jury should improperly go 
 out of the issue and find the contrary of w^hat is thus 
 confessed on the record, (x;) and, in the next place, it is 
 to he remarked, that the confession operates not only to 
 prevent the fact from being afterwards brought into ques- 
 tion in the same suit, but is equally conclusive as to the 
 truth of that fact in any subsequent action between the 
 same parties. The rule, however, (it will be observed,) 
 extends only to such matters as are traversable; for mat- 
 ters of law [y) or any other matters which are not fit sub- 
 jects of traverse, are not taken to be admitted by plead- 
 ing over, [z.) 
 
 It is this rule which has given rise to the practice of 
 proiesiaiion in pleading, (a.) When the pleader passes 
 over, without traverse, any traversable fact alleged, and, 
 at the same time, wishes to preserve the power of deny- 
 ing it in another action, he makes, collaterally or incident- 
 ally to his main pleading, a declaration, importing that 
 this fact is untrue; and this is called a protestation, and 
 it has the effect of enabling the party to dispute, in 
 another action, the fact so passed over, (6.) Its form is 
 as follows : 
 
 («.) 8upra, pp. 90, 95. 
 
 {u.) Supra, p. 90. 
 
 (x.) Bac. Ab., Pleas, &c., p. 322, 5tb edit. ; Wilcox v. Servant of Skipwith, 
 2 Mod., 4. 
 
 (y.) Vide eupra, p. 201. 
 
 (z.) 10 Ed., IV, 12; The King v. The Bishop of Chester, 2 Salk., 561. See 
 Appendix, note 54. 
 
 (a.) Bac. Ab., Pleas, &c., p. 386, note a, 5th edit. 
 
 (5.) Com. Dig., Pleader, N; Co. Litt., 124 b; 2 Saund., 103 a,n. 1 ; IV Ed. 
 11, 534; 43 Ed. Ill, 17; 40 Ed. Ill, 17, 46; 48 Ed. Ill, 11. 
 
218 OF THE PRINCIPAL 
 
 PLEA IN ASSUMPSIT. 
 
 For goods sold and delivered. 
 
 And the said C. D., by , his attorney, comes and defends the wrong 
 
 and injury, when, &o., and says that the said A. B. ought not to have or 
 maintain his aforesaid action against him, the said C. D., because, he says, 
 that after the making of the said promises and undertakings, and before the 
 
 commencement of this suit, to wit, on the day of , in the year 
 
 . ^ at aforesaid, in the county aforesaid, he, the said O. D., gave 
 
 and delivered to the said A. B. a certain pipe of wine, in full satisfaction and 
 discharge of the said promises and undertakings and of all damages accrued 
 to the said A. B. by reason of the non-performance thereof, which said pipe 
 of wine, so given in full satisfaction and discharge as aforesaid, the said A. B. 
 then and there accepted in full satisfaction and discharge of the said prom- 
 ises and undertakings and of all damages accrued to the said A. B. by reason 
 of the non-performance thereof; and this the said G. D. is ready to verify. 
 Wherefore he prays judgment if the said A. B. ought to have or maintain 
 his aforesaid action against him. 
 
 BEPLICATION. 
 
 And the said A. B. says, that by reason of anything in the said plea alleged 
 he ought not to be barred from having and maintaining his aforesaid action 
 against the said C. D., because, protesting that the said C. D. did not give or 
 deliver to him, the said A. B., the said pipe of wine, as the said 0. D. hath 
 above impleading alleged, for replication, nevertheless, in this behalf, the said 
 A. B. says that he, the said A. B., did not accept the said pipe of wine in full 
 satisfaction and discharge of the said promises and undertakings, and of all 
 damages accrued to the said A. B. by reason of the non-performance thereof, 
 in manner and form as the said C D. hath above alleged; and this the said 
 A. B. prays may be inquired of by the country, (c.) 
 
 In the case supposed by the above example, the deliver]/ 
 of the pipe of wine and its acceptance are two different 
 allegations, and in traversing the latter it may be thought 
 advisable not to admit the former, because the delivery, 
 if it were not, accepted in satisfaction, might possibly be- 
 come the subject of dispute in some other action between 
 the same parties. In order, therefore, not to be concluded 
 by the implied admission of its delivery, which would 
 otherwise arise by passing it over without traverse, the 
 pleader takes the delivery hj protestation, while he traverses 
 the acceptance. 
 
 Such being the only object and effect of the protestation, 
 
 (c.) 3 Went., 135; 2 Chitty, 602, Ist edit.; Young v. Eudd, Garth., 347. 
 
RULES OF PLEADING. 219 
 
 it will be understood that it is wholly without avail in the 
 action in which it occurs; and that, under the rule already 
 laid down, every traversable fact not traversed is, notwith- 
 standing the protestation, to be taken as admitted in the 
 sxisting suit. 
 
 It is also given as a rule, that if upon the traverse the 
 issue is found against the party protesting, the protestation 
 does not avail ; and that it is of no use except in the event 
 of the issue being determined in his favor; with this excep- 
 tion, however, that if the mattei' taken by protestation be 
 such as the pleader could not have taken issue upon, the 
 protestation in that case shall avail, even though the issue 
 taken were decided against him, {d.) 
 
 A protestation ought not to be repugnant to the pleading 
 which it accompanies, (e,) nor ought it to be taken cm such mat- 
 ter as the pleading itself traverses, (/.) The rules, however, 
 with respect to the form of a protestation, becomes the 
 less material, because it has been decided that neither a 
 superfluous nor repugnant protestation is suflficient ground 
 for demurrer, (g;) the protestaticn itself having in view 
 another suit only, and its faults of form being, therefore, 
 immaterial in the present action. 
 
 It has been already observed, that the necessity of the 
 protestation arises from the rule, "that every traversable 
 fact not traversed is confessed." But it has been seen, 
 that an answer in fact is no admission of the sufficiency 
 in point of law of the matter answered, (h.) It follows, 
 therefore, that it is not necessary, in passing over an insuf- 
 ficient pleading without demurrer, and answering in point 
 of fact, to make any protestation of the insufficiency in 
 law of such pleading ; for, even without the protestation, 
 no implied admission of its sufficiency arises. In prac- 
 tice, however, it is not unusual, in such case, to make a 
 
 (d.) 2 Saund., 103 a., n. I ; p. v., for farther explanation •)n this subject. 
 
 («.) Com Dig., Pleader, N ; 2 Saund., ubi supra. 
 
 If.) Com. Dig., Pleader, N. 
 
 (jr.) Com. Dig. and Sauud., ubi supt o. 
 
 (h.) Vide supra, p. 162. 
 
220 OF THE PRINCIPAL 
 
 protestation of insufficiency in law, the form having appar 
 ently been adopted by analogy to the proper kind of pro- 
 testation, viz, that against the truth of &fact. 
 
 Such are the doctrines involved in the general rule, 
 that the party must either demur, or plead by way of traverse or 
 by way of confession and avoidance. It remains, however, to 
 notice 
 
 Certain exceptions to which that branch of the rule is sub- 
 ject which relates to pleading, and which requires a party to 
 plead either by way of traverse or by way of confession and 
 avoidance. 
 
 First, there is an exception in the case of dilatory pleas, 
 for a plea of this kind merely opposes a matter of form to 
 the declaration, and (as will appear on examination of the 
 examples in the first chapter) does not tend either to deny 
 or to confess its allegations. But replications and subsequent 
 pleadings, following on dilatory pleas, are not within this 
 exception. 
 
 Again, the rule is not applicable to the case of pleadings 
 in estoppel. 
 
 These are pleadings which, without confessing or deny- 
 ing the matter of fact adversely alleged, rely merely on 
 some matter of estoppel («) as a ground for excluding the 
 opposite party from the allegation of the fact, and after 
 stating the previous act, allegation, or denial on which the 
 estoppel is supposed to arise, pray judgment if he shall be 
 received or admitted to aver contrary to what he before did or 
 said. The form is as follows : 
 
 PLEA OF MISNOMER. 
 
 In abatement of the hill. 
 
 And C. D., against whom the said A. B. hath exhibited his bill, by the 
 name of E. D., in his own person comes and says, that he was baptized by 
 
 the name of G., to wit, at aforesaid, and by the christian name of C. 
 
 hath always, since his baptism, hitherto been called and known, {k.) Without 
 
 (i.) As to the doctrine of estoppel, vide supra, p. 204. 
 
 Ck) It is a rule, with respect to pleas in abatement, (to be hereafter explained 
 in its proper place,) that they must give the plaintiff a better writ or bill, that 
 IS, afford him the means of correcting the mistake of form to which the plea 
 
RULES OF PLEADING. 221 
 
 this, that the said C. D. now is, or at the ame of exhibiting the said bill was, 
 or 3ver before had been, called or known by the christian name of E., as by 
 the said bill is supposed; and this the said C. D. is ready to verify. Where- 
 fore he prays judgment of the said bill and that the same may be quashed. 
 
 EEPLIOAIION. 
 
 And the said A. B. saith, that the said person against whom he hath ex- 
 hibited his said bill, by the name of E. D., ought not to he admitted or received 
 to plead the plea by him above pleaded for quashing the bill of him the said 
 A. B., because, he saith, that the said person against whom he, the said A. B., 
 hath exhibited his said bill, by the name of X D., heretofore, to wit, in the 
 
 term of , last past, came into this court here and put in bail, at the suit 
 
 of the said A. B., in the plea aforesaid, by the name of £. D., as by the record 
 thereof remaining in the said court of our said lord the king, before the king 
 himself, at Westminster, aforesaid, more fully appears ; and this he, the said 
 A. B., is ready to verify by that record. Wherefore he prays judgment if the 
 said person against whom he hath exhibited his said bill, by the name of E. D., 
 ought to be admitted or received to his said plea for quashing the said bill, con- 
 trary to his own acknowledgment and the said record, and that he may 
 answer over to the said bill, (l.) 
 
 Another exception to that branch of the general rule, 
 which requires the pleader either to traverse, or confess 
 and avoid, arises in the case of what is called a new assign- 
 ment. 
 
 It has been seen that the declarations are conceived in 
 very general terms ; a quality which they derive from their 
 adherence to the tenor of those simple and abstract form- 
 ulae, the original writs. The effect of this is, that in some 
 cases, the defendant is not sufficiently guided by the declar- 
 ation to the real cause of complaint, and is, therefore, led 
 to apply his plea to a different matter from that which the 
 plaintiff has in view. A new assignment is a method of 
 pleading to which the plaintiff" in such cases is obliged to 
 resort in his replication, for the purpose of setting the de- 
 refers. Accordingly, this plea of misnomer, in denying that the defendant is 
 called by the name of E., states his true name, C, and the insertion of this 
 matter, by way of introduction to the denial, occasions the necessity of using 
 a special traverse. Here, therefore, is another case, in addition to those for- 
 merly noticed, in which it becomes proper to resort to that formula. Vide 
 iupra, pp. 181, 186. 
 
 (1.) 2 Chitty, 416, 590, 1st edit. See anot)ier example of plewling ia 
 tstjppel in Took v. Glasclcck, 1 Saund., 257. 
 
222 OF THE PRINOIPAL 
 
 fendant riglit. An example shall be given in an action for 
 assault and battery. A case may occur in which the plain- 
 tiff has been twice assaulted by the defendant ; and one of 
 'these assaults may have been justifiable, being committed 
 in self-defense, while the other may have been committed 
 without legal excuse. Supposing the plaintiff to bring his 
 action for the latter, it will be found, by referring to the 
 example formerly given, (m,) of declaration for assault and 
 battery, that the statement is so general as not to indicate 
 to which of the two assaults the plaintiff" means to refer, {n.) 
 The defendant may, therefore, suppose, or affect to sup- 
 pose, that the first is the assault intended, and will plead 
 son assault demesne, as in the example, [supra, p. 180.) This 
 plea the plaintiff cannot safely traverse; because, as an as- 
 sault was in fact committed by the defendant, under the cir- 
 cumstances of excuse here alleged, the defendent would 
 have a right, under the issue joined upon such traverse, to 
 prove those circumstances, and to presume that such as- 
 sault, and no other, is the cause of action. And it is evi- 
 dently reasonable that he should have this right ; for if the 
 plaintiff were, at the trial of the issue, to be allowed to set 
 up a different assault, the defendant might suffer, by a mis- 
 take into which he had been led by*the generality of the 
 plaintifl"'s declaration. The plaintiff", therefore, in the case 
 supposed, not being able safely to traverse, and having no 
 ground either for demurrer or for pleading in confession 
 and avoidance, has no course, but by a new pleading, to 
 correct the mistake occasioned by the generality of the dec- 
 lai'ation, and to declare that he brought his action, not for 
 the first, but for the second assault; and this is called a new 
 assignment, (o.) Its form, in the example here chosen, 
 would be as follows : 
 
 (m.) Supra,^. 70. 
 
 {n.) As for the day and place alleged in the declaration, (which may be sup- 
 posed sufficient in general to idetitify the assault referred to,) it vri'A be shown 
 hereafter that they are not considered as material to be proved in such a case, 
 and are consequently alleged without much regard to the true state of fact. 
 
 (o.) He may guard himself, bv anticipation, against this necessity, in the 
 
RULES OP PLEADING. 223 
 
 EEPLICATION. 
 
 To the plea of son assault demesne, (in p. 180,) by way of new assignment. 
 
 And as to the said plea of the said 0. D. by him secondly above pleaded, 
 af to the said several trespasses in the introductory part of that plea men- 
 tioned and therein attempted to be justified, the said A. B. says that, by 
 reason of anything in that plea alleged, he ought not to be barred from having 
 and maintaining his aforesaid action thereof against the said 0. D., because, 
 he says, that he brought his said action, not for the trespasses in the said 
 second plea acknowledged to have been done, but for that the said 0. D. here- 
 tofore, to wit, on the day of , in the year of our Lord , with 
 
 force and arms, at aforesaid, in the county aforesaid, upon another 
 
 and different occasion, and fee another and different purpose than in the said 
 second plea mentioned, made another and different assault upon the said A. 
 B. than the assault in the said second plea mentioned, and then and there 
 beat, wounded, and ill-treated him, in manner and form as the said A. B. 
 hath above thereof complained ; which said trespasses, above newly assigned, 
 are other and different trespasses than the said trespasses in the said second 
 plea acknowledged to have been done ; and this the said A. B. is ready to 
 verify. Wherefore, inasmuch as the said 0. D. hath not answered the said 
 trespasses above newly assigned, he, the said A. B., prays judgment and his 
 damages by him sustained by reason of the committing thereof to be ad- 
 judged to him, &c., (p.) 
 
 The mistake being thus set right by the new assign- 
 ment, it remains for the defendant to plead such matter as 
 he may have in answer to the assault last mentioned, the 
 first being now out of the question. 
 
 By way of further Example, may be mentioned a case 
 that arises in trespass quare clausum fregit, and was for- 
 merly of very frequent and ordinary occurrence. In this 
 action, if the plaintiff declares for breaking his close in a 
 certain parish, without naming or otherwise describing 
 the close, (a course which in point of pleading is allowa- 
 ble,) [q,) if the defendant happen to have any freehold land 
 in the same parish, he may be supposed to mistake the 
 close in question for his own, and may therefore plead 
 
 particular case supposed, by charging the defendant in the declaration with 
 hath the assaults, which (in the form of different counts) is allowable. (As 
 to the use of several counts, vide post, Sec. III.) If both assaults are thus 
 charged, the defendant of course must answer both in his plea, and the reason 
 for the new assignment fails. 
 
 (p) 9 Went., 10; 2 Chitty, 553, 1st edit. 
 
 {q.) Mai tin v. Kesterton, 2 Black., 1089. 
 
224 OP THE PRINCIPAL 
 
 what is called the common bar, viz, that the close in which 
 the trespass was committed is his own freehold, (r*.) And 
 then, upon the principle already explained, it will be ne- 
 cessary for the plaintiff to new-assign, alleging that he 
 brought his action in respect of a different close from that 
 claimed by the defendant as his freehold, (s.) 
 
 The examples that have been given consist of cases 
 where the defendant in his plea wAo% mistakes the subject 
 of complaint. But it may also happen that the plea cor- 
 rectly applies to part of the injuries, while, owing to a mis- 
 apprehension occasioned by the generality of the statement 
 in the declaration, it fails to cover the whole. Thus, in 
 trespass quare clausum fregit, for repeated trespasses, the 
 declaration usually states, that the defendant, on divers 
 days and times before the commencement of the suit, 
 broke and entered the plaintiff's close, and trod down the 
 soil, &c., without setting forth, more specifically, in what 
 parts of the close or on what occasions the defendant tres- 
 passed, [t.) Now, the case may be, that the defendant 
 claims a right of way over a certain part of the close, and, 
 in exercise of that right, has repeatedly entered and walked 
 over it; but has also entered and trod down the soil, &c., 
 on other occasions, and in parts out of the supposed line 
 of way ; and the plaintiff, not admitting the right claimed, 
 may have intended to point his action both to the one set 
 
 (r.) In the common bar, it seems that the defendant is not bound to name 
 his close. (1 Saund., 299 b., n. 5; Elwis v. Lombe, 6 Mod., 117; Salk.,453, 
 S. C, sed qu. t See Cooker v. Crompton, 1 Barn. & Ores., 489.) 
 
 (s.) See examples, Baldwin's Case, 2 Eep., 18 ; 2 Chitty, 656, 1st edit. But 
 if the plaintiff has named his close in the declaration, the plea of freehold 
 does not drive him to new-assign, though the defendant may have another 
 close of the same name in the same parish ; unless, at least, the defendant, in 
 his plea, describes his close by its abuttals. (Cooker v. Crompton, 1 Barn. & 
 Ores., 489; and see Lethbridge v. Winter, 2 Bing., 49.) And on the subject 
 of the common bar generally, see 1 Saund., 299 b., n. 5; Martin v. Kesterton, 
 supra: Hawke v. Bacon, 2 Taunt., 156. 
 
 N. B. — In order to avoid the prolixity of the common bar and new assign- 
 ment, it is now usual to name the close in the declaration, as in the example, 
 supra, p. 48. 
 
 (t.) See an example, 9 Went.. 97. 
 
RULES OF PLEADING. 225 
 
 of trespasses and to the other. But from the generality of 
 the declaration the defendant is entitled to suppose that 
 it refers only to his entering and walking in the line of 
 way. He may, therefore, in his plea allege, as a complete 
 answer to the whole complaint, that he has a right of 
 ^^y ^y grant, &c., over the said close; and if he does 
 this, and the plaintiff confines himself in his replication 
 to a traverse of that plea, and the defendant at the trial 
 proves a right of way as alleged, the plaintiff would be 
 precluded (upon the principle already explained) from giv- 
 ing evidence of any trespasses committed out of the line 
 or track in which the defendant should thus appear en- 
 titled to pass. His course of pleading in such a case, 
 therefore, is, both to traverse the plea and also to new- 
 assign, by alleging that he brought his action not only 
 for those trespasses supposed by the defendant, but for 
 others, committed on other occasions and in other part8 
 of the close, out of the supposed way, which is usually 
 called a new assignment extra viam; or, if he means to 
 admit the right of way, he may new-assign simply, with- 
 out the traverse, {u.) 
 
 As the object of a new assignment is to correct a mis- 
 take occasioned by the generality of the dedaraiion, it 
 always occurs in answer to a plea, and is therefore in the 
 nature of a repKcaiion. It is not used in any other part of 
 the pleading because the statements subsequent to the 
 declaration are not, in their nature, such, when properly 
 framed, as to give rise to the kind of mistake which re- 
 quires to be corrected by a new assignment. 
 
 A new assignment chiefly occurs in an action of trespass, 
 but it seems to be generally allowed in all actions in which 
 the form of declaration makes the reason of the practice 
 equally applicable, {x.) 
 
 Several new assignments may occur in the course of the 
 
 (u.) See examples of a new assignment extra viam, 9 Went., 323, 396. 
 (x.) 1 Chitty, 602, Ist edit.; Vin. Ab., Novel Assignment 4, 5; 3 Went., 
 151 ; Batt V. Bradley, Cro Jac, 141. 
 15 
 
226 OF THE PRINCIPAL 
 
 same series of pleading. Thus, in the first of the above 
 examples, if it be supposed that three different assaults had 
 been committed, two of which were justifiable, the defend- 
 ant might plead, as above, to the declaration, and then, by 
 way of plea to the new assignment, he might again justify, 
 in the same manner, another assault; upon which it would 
 become necessary for the plaintiff to new-assign a third, 
 and this upon the same principle by which the first new 
 assignment was required, (?/.) 
 
 A new assignment is said to be in the nature of a new 
 declaration, (z.) It seems, however, to be more properly 
 considered as a repetition of the declaration, (a,) differing 
 only in this, that it distinguishes the true ground of com- 
 plaint as being different from that which is covered by 
 the plea. Being in the nature of a new or repeated dec- 
 laration, it is consequently to be framed with as much 
 certainty or specification of circumstances as the declaration 
 itself, {b.) In some cases, indeed, it should be even more 
 particular, so as to avoid the necessity of another new assign- 
 ment. Thus, if the plaintifi'declares in trespass quare claitsum 
 fregit without naming the close, and the defendant pleads 
 the common bar, which, as we have seen, obliges the 
 plaintiff to new-assign, he must, in his new assignment, 
 either give his close its name or otherwise sufficiently de- 
 scribe it, (c,) though such name or description was not 
 required in the declaration, [d.) 
 
 The rule under consideration and its exceptions being 
 
 (y.) 1 Chitty, 614; 1 Saund., 299 c. 
 
 (z.) Bae. Ab., Trespass, 1, 4, 2; 1 Saund., 299 c. 
 
 (a.) See 1 Chitty, 602. 
 
 (6.) Bac. Ab., uhi supra; 1 Chitty, 610. 
 
 (c.) Semh. Dy., 264 a; Com. Dig., Pleader, 3 M., 34. (See an example, 9 
 Went., 187.) 
 
 (d) On the subject of new assignment, see 1 Saund., 299 a., n. 6; Barnes 
 V Huni,, 11 East., 451; Cheasley ■». Barnes, 10 East., 73; Taylor v. Smith, 7 
 Taunt, 156; Taylor v. Cole, 3 T. E., 292; Lambert v. Prince, 1 Bing., 317; 
 Phillips V. Howgate, 5 Barn. & Aid., 220. Some of these cases will be found 
 to involve nice distinctions as to the necessity, in particular instances, of a 
 new assignmsnt. 
 
RULES OF PLEADING. 227 
 
 now discussed, the last point of remark relates to an infer- 
 ence or deduction to which it gives rise. 
 
 It is implied in this rule, that as the proceeding must 
 either be by demurrer, traverse, or confession and avoid- 
 ance, so any of these forms of opposition to the last plead- 
 ing is in itself sufficient. 
 
 There is, however, an exception to this in a case which 
 the books consider as anomalous and solitary. It is as 
 follows : If in debt on a bond, conditioned for the perform- 
 ance of an award, the defendant pleads that no award was 
 made, and the plaintiff, in reply, alleges that an award was 
 made, setting it forth, it is held that he must also proceed 
 to state a breach of the award, and that without stating 
 such breach the replication is insufficient, [e.) This, as 
 has been observed, is an anomaly ; for, as by alleging and 
 setting forth the award he fully traverses the plea which 
 denied the existence of an award, the replication would 
 seem, according to the general rule under consideration, 
 to be sufficient without the specification of any breach 
 And in accordance with that rule it is expressly laid down^ 
 that in all other cases, " if the defendant pleads a special 
 matter that admits and excuses a non-performance, the 
 plaintiff need only answer and falsify the special matter 
 alleged; for he that excuses a non-performance supposes 
 it, and the plaintiff need not show that which the defend- 
 and hath supposed and admitted," (/.) 
 
 RULE II. 
 
 UPON A TEAVEBSE, ISSUE MUST BE TENDEEED. 
 
 In the account given in another place {g) of traverses, it 
 was shown that, with the exception of a special traverse, 
 
 (e.) 1 Saund., 103, n. 1; Meredith v. AUeyn, 1 Salk., 138; Garth., 116, 
 S. C. ; Nicholson v. Simpson, Str., 299. In Meredith v. AUeyn a reason is 
 assigned for the exception, but not (as the author conceives) a satisfactory 
 reason. Though this is considered as a solitary case, it may he observed that 
 another analogous one is to he found, (Gayle v. Betts, 1 Mod., 227.) 
 
 (/.) Per Holt, C. J., Meredith i;. Alleyn Salk., 138. 
 
 is) Bapra, pp 167, 168, 180. 181 
 
228 OF THE PKINCIPAL 
 
 the different forms all involve a tender of issue. The rule 
 under consideration prescribes this as a necessary incident 
 to them; and establishes it as a general principle, that 
 wherever a traverse takes place, or, in other words, wher- 
 ever a denial or contradiction of fact occurs in pleading, 
 issue ought, at the same time, to be tendered on the fact 
 denied. The reason is, that as by the contradiction it 
 sufficiently appears what is the issue or matter in dispute 
 between the parties, it is time that the pleading should 
 now close, and that the method of deciding this issue 
 should be adjusted. 
 
 The formulae of tendering the issue in fact vary, of 
 course, according to the mode of trial proposed. 
 
 The tender of an issue to be tried by jury is by a form- 
 ula called the conclusion to the country. This conclusion is 
 in the following words, when the issue is tendered by the 
 defendant: " And of this the said C. D. 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," (A.) It is held, how- 
 ever, that there is no material difference between these two 
 modes of expression, and that if ponit se be substituted for 
 petit quod inquiratur, or vice versa, the mistake is unimport- 
 ant, («.) Of the tender of issue thus concluding to the 
 country several examples have already been given in this 
 work, (k,) and to these it will now be sufficient to refer. 
 
 The form of the issue, or mise, when in a writ of right 
 the tenant puts himself upon the grand assize, is as follows ; 
 
 FLEA. 
 
 In a writ of right, (I.) 
 
 And the said G. D., by , his attorney, comes and defends (m) the 
 
 right of the said A. B. and the seizin of the said Q. B., when, &o., and the 
 
 {h.) Heath's Maxims, 68; Weltale ». Glover, 10 Mod.; 166, Bract., 57; Ey, 
 Plae. Pari., 146. 
 (i.) Weltalev. Glover, 10 Mod., 166. 
 {h.) Supra, pp. 90, 94, 95. 
 (I.) See the count, p. 65. 
 (m.) "Defends" here means "denies." (3 Bl. Com., 297.) 
 
RULES OF PLEADING. 229 
 
 whols, &c., and whatsoever, &o., and chiefly of the teuemeuts aforesaid, 'widli 
 the appurtenances, as of fee and of right, &c., and puts himself upon the grand 
 assize of our lord the king, and prays recognition to be made whether he himaeU 
 has greater right to hold the tenements aforesaid, with the appurtenances, to 
 him and his heirs, as tenants thereof, as he now holds them, or the said A. B. to 
 have the said tenements, with the appurtenances, as he above demands them, (n.) 
 
 The form of tendering an issue to be tried hy record is this : 
 
 FLEA. 
 
 Of judgment recovered, in assumpsit. 
 
 And the said C. D., by , his attorney, comes and defends the wrong 
 
 and injury, when, &c., and says that the said A. B. ought not to have or 
 maintain his aforesaid action against him, because, he says, that the said A. 
 
 B. heretofore, to wit, in term, in the year of the reign of our 
 
 lord the now king, in the court of our said lord the king, before the king 
 himself, the same court then and still being holden at Westminster, in the 
 county of Middlesex, impleaded the said C. Z)., in a certain plea of trespass 
 
 on the case on promises, to the damage of the said A. B. of pounds, for 
 
 the not performing the same identical promises and undertakings in the said 
 declaration mentioned. And such proceedings were thereupon had in the 
 same court in that plea, that afterwards, to wit, in that same term, the said 
 A. B., by the consideration and judgment of the said court, recovered in the 
 
 said plea against the said C. D. pounds, for the damages which he had 
 
 sustained, as well by reason of the not performing of the said promises and 
 undertakings in the said declaration mentioned, as for his costs and charges 
 by him about his suit in that behalf expended, whereof the said C D. was 
 convicted, as by the record and proceedings thereof remaining in the said 
 court of our said lord the king, before the king himself, at Westminster, afore- 
 said, more fully appears ; which said judgment still remains in full force and 
 effect, not in the least reversed, satisfied, or made void; and this the said 0. 
 D. is ready to verify by the said record. Wherefore he prays judgment if the 
 Baid A. B. ought to have or maintain his aforesaid action against him. 
 
 EEPLICATION. 
 
 And the said A. B. says, that by reason of anything in the said plea 
 alleged, he ought not to be barred from having and maintaining his aforesaid 
 action against the said C. D., because, he says, that there is not any record 
 of the said supposed recovery remaining in the said court of our said lord the 
 king, before the king himself, in manner and form as the said C. D. hath above 
 in his said plea alleged; and this he, the said A. B., is ready to verify when, 
 where, and in such manner as the court here shall order, direct, or appoint, (o.) 
 
 (n.) Co. Ent., 181 b. ; 3 Bl. Com., Appendix No. I, sec. 6 ; 3 Chitty, 652, 1st 
 edit. ; see Appendix, note 55. 
 
 (o.) 2 Chitty, 438, 602, Ist edit.; Tidd, 800, 801, 8th edit., whore see th« 
 further entry with wnich the replication in such cases concludes, giving a day 
 to produce the record. 
 
230 OP THE PRINCIPAL 
 
 The tender of an issue to be decided by certificate, vnt- 
 nesses, or inspection is by tbe following formula: "And this, 
 the said A. B. (or 0. B.) is ready to verify, when, where, 
 and in such manner as the court here shall order, direct, 
 or appoint," [f.) 
 
 The form of tendering an issue to be tried by wager of 
 law is as follows : 
 
 PLEA. 
 
 Of nil debet, in debt on simple contract. 
 
 And the said C. D., in his own proper person, comes and defends the wrong 
 and injury, when, &o., and says that he does not owe to the said A. B. the 
 
 said sum of pounds, above demanded, or any part thereof, in manner and 
 
 form as the said A. B. hath above complained against him ; and this he is 
 ready to defend against him, the said A. B., and his suit, as the court of our 
 lord the king here shall consider, &c., (q.) 
 
 With respect to the extraordinary methods of trial, their 
 occurrence is too rare to have given rise to any illustration 
 of the rule in question. It refers chiefly to traverses of 
 such matters of fact as are triable by the country; and, 
 therefore, we find it propounded in the books most fre- 
 quently in the following form : That upon a negative and 
 affirmative the pleading shall conclude to the country, but other- 
 wise with a verification, (r.) 
 
 To the rule, in whatever form expressed, there is the 
 following exception : That when new matter is introduced, the 
 "pleading should always conclude with a verification, (s.) 
 
 To this exception belongs the case formerly noticed, of 
 special traverses. These, as already explained, never tender 
 issue, but always conclude with a verification, [t;) and the 
 
 {p.) See Co. Ent., 180 b.; East., 228; Thorn v. Eolfe, Moore, 14; Benl., 86 
 S. C; 3 Chitty, 599, 1st edit. ; Qu., however, as to trial by inspection ? See 
 Booth, 147; 17 Ed. Ill, pi., 116; 24 Ed. Ill, pi., 10. 
 
 (g.) Co. Ent., 119 "a.; Mod. Ent., 179; Lil. Ent., 467; 3 Chitty, 497, 1st edit. 
 
 (r.) Com. Dig., Pleader, E., 32; 1 Saund., 103, n. 1. 
 
 (s.) 1 Saund., 103, n. 1, and the authorities there cited; Whitehead r.' Buck- 
 land, Stile, 401; Cornwallis v. Savery, 2 Burr., 772; Vere v. Smith, 2 Lev., 5; 
 Vent., 121 S. C; Sayre v. Minns, Cowp., 575; Henderson v. Withy, 2 T. R., 
 676. 
 
 {t ) Vide snpra, p. 192. 
 
RULES OF PLEADING. 231 
 
 reason seems to be, that in sucli of them aj contain new 
 matter in the inducement, the introduction of that new 
 matter will give the opposite party a right to be heard in 
 answer to it if the absque hoc be immaterial, and conse- 
 quently makes a tender of issue premature. And, on the 
 other hand, with respect to such special traverses as con- 
 tain no new matter in the inducement, they seem in this 
 respect to follow the analogy of those first mentioned, 
 though they are not within the same reason. 
 
 Not only in the case of special traverses, but in other 
 instances also, to which that form does not apply, a traverse 
 may sometimes involve the allegation of new matter; and 
 in all such instances, as well as upon a special traverse, 
 and for a similar reason, the conclusion must be with & 
 verification, and not to the country. An illustration of this 
 is afibrded by a case of very ordinary occurrence, viz, where 
 the action is in debt on a bond conditioned for performance 
 of covenants. If the defendant pleads generally perform- 
 ance of the covenants, and the plaintiff, in his replication, 
 relies on a breach of them, he must show specially in what 
 that breach consists; for to reply generally that the defend- 
 ant did not perform them would be too vague and uncer- 
 tain, (u.) His replication, therefore, setting forth, as it 
 necessarily does, the circumstances of the breach, discloses 
 new matter ; and consequently, though it is a direct denial 
 or traverse of the plea, it must not tender issue, but must 
 conclude with a verification, (x.) So, in another common 
 case, in an action of debt on bond conditioned to indem- 
 nify the plaintiff against the consequences of a certain act, 
 if the defendant pleads non damnificatus, and the plaintiff 
 replies, alleging a damnification, he must, on the principle 
 just explained, set forth the circumstances, and the new 
 matter thus introduced will make a verification necessary, 
 (y.) To these it may be useful to add another example. 
 
 (u.) This results from a rule which will be discussed hereafter. fSes 
 Sec. IV.) 
 
 (3.) See an example in Gainsford v. Griffith, 1 Saund., 54. 
 (y.) See an example in Richards v. Hodges, 2 Saund., 82. 
 
232 OF THE PRINCIPAL 
 
 The plaintiff declared in debt, on a bond conditioned foi 
 the performance of certain covenants by the defendant, in 
 his capacity of clerk to the plaintiff; one of which cove- 
 nants was to account for all the money that he should 
 receive. The defendant pleaded performance. The plain- 
 tiff replied, that on such a day such a sum came to his 
 hands, which he had not accounted for. The defendant 
 rejoined, that he did account, and in the following manner : 
 that thieves broke into the counting-house and stole the 
 money, and that he acquainted the plaintiff of the fact; 
 and he concluded with a verification. The court held, 
 that though there was an express affirmative that he did 
 account, in contradiction to the statement in the replica- 
 tion that he did not account, yet that the conclusion with 
 a verification was right ; for that, new matter beiug alleged 
 in the rejoinder, the plaintiff ought to have liberty to come 
 in with a surrejoinder, and answer it by traversing the 
 robbery, {z.) 
 
 The application, however, to particular cases, of this 
 exception, as to the introduction of new matter, is occasion- 
 ally nice and doubtful ; and it becomes difficult sometimes 
 to say whether there is any such introduction of new matter 
 as to make the tender of issue improper. Thus, in debt 
 on a bond conditioned to render a full account to the plaint- 
 iff of all such sums of money and goods as were belonging 
 to W. N. at the time of his death, the defendant pleaded 
 that no goods or sums of money came to his hands. The 
 plaintiff replied, that a silver bowl, which belonged to the 
 said W. N. at the time of his death, came to the hands of 
 the defendant, viz, on such a day and year ; " and this he is 
 ready to verify," &c. On demurrer, it was contended that 
 the replication ought to have concluded to the country, 
 there being a complete negative and affirmative ; but the 
 court thought it well concluded, as new matter was intro- 
 duced. However, the learned judge who reports the case 
 thinks it clear that the replication was bad; and Mr. Ser- 
 
 (z ) Vere v. Smith, 2 Lev., 5 ; Vent., 121, S. C. 
 
RULES OF PLEADING. 233 
 
 leant Williams expresses the same opinion, holding that 
 there was no introduction of new matter, such as to renc'er 
 a verification proper, (a.) 
 
 RULE III. 
 ISSUE, WHBar well tehdeeed, must be accepted, (6.) 
 
 If issue be well tendered, both in point of substance and 
 in point of form, nothing remains for the opposite party 
 but to accept or join in it, and he can neither demur, trav- 
 erse, nor plead in confession and avoidance, (c.) 
 
 The acceptance of the issue, in ease of a conclusion to 
 the country, i. e., of trial by jury, may, as explained in the 
 first chapter, {d,) either be added in making up the issue 
 or paper-book, or may be filed or delivered before that 
 transcript is made up. It is in both cases called the simi- 
 liter, and in the latter case a special similiter. The form of 
 a special similiter is thus : "And the said A. B.," {or " O. 
 Z>.,") "as to the plea" (or "replication," &c.) "of the said 
 C. -D.," {or "A. B.") "whereof he hath put himself upon 
 the country," {or whereof he hath prayed it may be " in- 
 quired by the country,") " doth the like." The similiter, 
 when added in making up the issue or paper-book, is 
 simply this: "And the said A. B." {or " C. D.") "doth 
 the like." 
 
 As the party has no option in accepting the issue, when 
 well tendered, and as the similiter may in that case be 
 added for him, the acceptance of the issue, when well ten- 
 nered, may be considered as a mere matter of form. It is 
 a form, however, which should be invariably observed; 
 
 {a.) Hayman v. Gerrard, 1 Saund., 101. But see Cornwallia v. Savery 
 Burr., 772; Sayre v. Minns, Cowp., 675. 
 
 (6.) Bac. Ab., Pleas, &c., p. 353, 5th edit. ; Digbyu. Fitzharbert, Hob., 104; 
 Wilson 1). Kemp, 2 M. & S., 549. " In all pleadings, wherever a traverse wat 
 first properly taken, the issue closed." (Gilb., 0. P., 66.) 
 
 (c.) But he may plead in estoppel. 
 
 (d,) Supra, p. 108 
 
234 OF THE PRINCIPAL 
 
 and its omission has sometimes formed a ground of suc« 
 cessful objection, even after verdict, (e.) 
 
 The rule expresses that the issue must be accepted onljr 
 when it is well tendered. For if the opposite party thinks 
 the traverse bad, in substance or in form, or objects to the 
 mode of trial proposed, in either case he is not obliged to 
 add the similiter, but may demur, (/,) and, if it has been 
 added for him, may strike it out and demur, {g.) 
 
 The similiter, therefore, serves to mark the acceptance 
 both of the question itself and the mode of trial proposed. 
 It seems originally, however, to have been introduced in 
 a view to the latter point only. The resort to a jury, in 
 ancient times, could in general be had only by the mutual 
 consent of each party, (A.) It appears to have been with 
 the object of expressing such consent that the similiter 
 was in those times added in drawing up the record ; and 
 from the record it afterwards found its way into the writ- 
 ten pleadings. Accordingly, no similiter or other accept- 
 ance of issue is necessary when recourse is had to any of 
 the other modes of trial ; and the rule in question does not 
 extend to these. Thus, when issue is tendered to be tried 
 by the record, as in the above example, (p. 229,) the plaintiff 
 is entitled to consider the issue as complete upon such 
 tender, {i,) and no acceptance of it, on the other side, is 
 essential. 
 
 (e.) Griffith v. Crookford, 3 Brod. & Bing., 1. But see Saund., 3] 9, n. 6; 
 and Tidd, 956, 8th edit. 
 
 (/.) But he c&niLoiplead over, as we have seen he may do in case of an im- 
 material traverse with an absque hoc. Whitehead v. Buckland, Stile, 402 ; 
 where Eoll, C. J., says the plaintiff "must either demur or join issue with 
 yoB ; and I have not heard of passing over in this case, as may be done in 
 the case of a traverse," (meaning a traverse with an absque hoc.) So it is 
 said, per Holt, C. J., that pleading over, when issue is offered, is a discordin 
 uance. (Campbell v. St. John, 1 Salk, 219.) 
 
 ( g.) Vide supra, p. 109. 
 
 {h.) See Appendix, note 34. It may be observed that this is still indicated 
 by the form of the venire facias, which contains the formal clause, "because 
 as well the said 0. D. as the said A. B.," &o., "have put themselves upon 
 that jury." Vide supra, p. 115. 
 
 (i.) And the repl' cation may, therefore, conclude with an entry that a day 
 
RULES OP PLEADING. 235 
 
 The rule in question extends to an issue in law, as well 
 as an issue in fact; for, by analogy (as it would seem) to 
 the similiter, the party whose pleading is opposed by a 
 deinurrer is required formally to accept the issue in law 
 which it tenders by the formula called a joinder in demur- 
 rer; of which an example was given in the first chapter, (k.) 
 However, it differs in this respect from the similiter, that 
 whether the issue in law be well or ill tendered— that is, 
 whether the demurrer be in proper form or not— the oppo- 
 site party is equally bound to join in demurrer. For it is 
 a rule, that there can be no demurrer upon a demurrer, (l;) 
 because the first is sufficient, notwithstanding any inac- 
 curacy in its form, to bring the record before the court for 
 their adjudication ; and as for traverse or pleading in confes- 
 sion and avoidance, there is of course no ground for them 
 while the last pleading still remains unanswered, and there 
 is nothing to oppose but an exception in point of law. 
 
 SBCTIOJST II. 
 
 OP RULES WHICH TEND TO SECURE THE MATERIALITY OP THE 
 
 ISSUE. 
 
 In a view to the materiality of the issue, it is of course 
 necessary that at each step of the series of pleadings, by 
 which it is to be produced, there should be some pertinent 
 and material allegation or denial of fact. On this subject, 
 therefore, a general rule may be propounded in the follow- 
 ing form : 
 
 EULE. 
 
 ALL PLEADIHGS MUSI CONTAIN MATTER PERTINENT AND MATERIAL. 
 
 Thus, if to an action of assumpsit against an adminis- 
 tratrix, laying promises by the intestate, she pleads that 
 
 is given to inspect the record. (Tipping v. Johnson, 2 Boa. & Pul., 302 ; Jack- 
 gon V. Wickes, 2 Marsh, 354; 7 Taunt., 30, S. 0. ; Pitt v. Knight, 1 Saund.,96 a; 
 Tidd, 300, 801, 8th edit.) And see Booth, 96, as to the mise on a wrii of right. 
 
 (A.) Supra, p. 92. 
 
 (I.) Bao. Ab., Pleas, &c., N. 2. And demurrer upon demurrer is a discon- 
 timiance. (Campbell v. St. John, 1 Salk., 219.) 
 
236 OF THE PBINCIPAL 
 
 she, the defe,ylant, (instead of the intgatate,) did not prom 
 ise, the plea is obviously immaterial and bad, (m.) So 
 where, in replevin for taking cattle, the defendant avowed 
 taking them in the close in which, &c., for rent in arrear, 
 and the plaintiff pleaded in bar to the avowry that the 
 cattle were not levant and couchant on the close in which, 
 &c., the plea was hoTden bad on demurrer; for it is a gen- 
 eral rule, that all things upon the premises are distrainable 
 for rent in arrear, and the levancy and couchancy of the 
 cattle is immaterial, unless under special circumstances, 
 such as did not appear by the plea in bar to have existed 
 in this case, (n.) 
 
 "With respect to traverses in particular, this general doc- 
 trine is illustrated in the books by subordinate rules of a 
 more special kind. Thus it is laid down : 
 
 1. That traverse must not he taken on an immaterial point, (o,) 
 
 This rule prohibits, first, the taking of a traverse on a 
 point wholly immaterial. Thus where, to an action of 
 trespass for assault and battery, the defendant pleaded that 
 a judgment was recovered, and execution issued there- 
 upon against a third person, and that the plaintiff, to rescue 
 that person's goods from the execution, assaulted the bail- 
 iffs, and that in aid of the bailiffs, and by their command, 
 the defendant molliter manus imposuit upon the plaintiff, 
 to prevent his rescue of the goods, it was holden that a 
 traverse of the command of the bailiffs was bad; for even 
 without their command the defendant might lawfully 
 interfere to prevent a rescue, which is a breach of the 
 peace, {p.) 
 
 So, by this rule, a traverse is not good when taken on 
 matter the allegation of which was premature, though in 
 
 (m.) Anon., 2 Vent., 196. 
 
 («.) Jones V. Powell, 5 Barn. & Ores., 647. 
 
 (o.) Com. Dig., Pleader, E. 8, G. 10; Bao. Ab., Pleas, &o., H. 5. 
 
 (p.) Bridgwater ^. Bythway, 3 Lev., 113. Aliter, if not done to prevent 
 a rescue ; for in a case where defendant justifies merely as assistant to, and 
 by command of, a person executing legal process, the command is traversable. 
 (Britton v. Cole, 3 Salk., 409.) 
 
RULES OF PLEADING. 237 
 
 itself not immaterial to the case. Thus, if in debt on bond 
 the plaintiff should declare that, at the time of sealing and 
 delivery, the defendant was of full age, the defendant should 
 not traverse this, because it was not necessary to allege it 
 in the declaration; though if in fact he was a minor, this 
 would be a good subject for a plea of infancy, to which the 
 plaintiff might then well reply the same matter, viz, that 
 he was of age, (q.) 
 
 Again, this rule prohibits the taking of a traverse on 
 matter of aggravation; that is, matter which only tends to 
 increase the amount of damages, and does not concern the 
 right of action itself. Thus, in trespass for chasing sheep, 
 per quod the sheep died, the dying of the sheep, being ag- 
 gravation only, is not traversable, (r.) So it is laid down 
 that, in general, traverse is not to be taken on matter of 
 inducement; that is, matter brought forward only by way of 
 explanatory introduction to the main allegations; but this 
 is open to many exceptions, for it often happens that in- 
 troductory matter is in itself essential, and of the substance 
 of the case, and in such instances, though in the nature of 
 inducement, it may nevertheless be traversed, (s.) 
 
 While it is thus the rule, that traverse must not be taken 
 on an immaterial point, it is, on the other hand, to be ob- 
 served that, where there are several material allegations, it is in 
 the option of the pleader to traverse vMch he pleases, (t.) Thus, 
 in trespass, if the defendant pleads that A. was seized and 
 demised to him, the plaintiff may traverse either the seizin 
 or the demise, (u.) Again, in trespass, the defendant pleads 
 that A. was seized, and enfeoffed B., who enfeoffed C, who 
 enfeoffed D., whose estate the defendant hath: in this case 
 
 (q.) Sir Ralph Bovy's Case, 1 Vent., 217, where see another ezample. 
 
 (r.) Leech «.Widsley, 1 Vent., 54; 1 Lev., 283 S. C. 
 
 («.) Com. Dig., Pleader, G. 14; Kinnersley v. Cooper, Cro. Eliz., 168; Car- 
 vick V. Blagrave, 1 Brod. & Bing,, 531. 
 
 (t.) Com. Dig., Pleader, G. 10; Bead's Case, 6 Rep., 24; Doct. PI., 354, 365; 
 Baker v. Blackman, Cro. Jao., 682; Young v. Budd, Carth., 347; Young v 
 Euddle, Salk., 627; Bac. Ab., Pleas, &c., H. 5, p. 392, 5th edit. 
 
 (m,) Com. lyg., Pleader, 0. 10; Moor v. Pudsey, Hardr., 317. 
 
238 OF THE PRINCIPAL 
 
 the plaintiff may traverse which of the feoffments he pleases, 
 
 The principle of this rule is sufficiently clear; for it is 
 'evident that where the case of any party is built upon sev- 
 eral allegations, each of which is essential to its support, it 
 is as effectually destroyed by the demolition of any one of 
 these parts as of another. 
 
 It is also laid down — 
 
 2. Thxit a traverse must not he too large, nor, on the other hand, 
 too narrow, {y.) 
 
 As a traverse must not be taken on an immaterial alle- 
 gation, so, when applied to an allegation that is material, 
 it ought, in general, to take in no more and no less of that 
 allegation than is material. If it involves more, the traverse 
 is said to be too large: if less, too narrow. 
 
 A traverse may be too large, by involving in the issue 
 quantity, time, place, or other circumstances, which, though 
 forming part of the allegation traversed, are immaterial to 
 the merits of the cause. Thus, in an action of debt on 
 bond conditioned for the payment of 1,550^, the defend- 
 ant pleaded that part of the sum mentioned in the condi- 
 tion, to wit, 1,500Z., was won by gaming, contrary to the 
 statute in such case made and provided, and that the bond 
 was consequently void. The plaintiff' replied that the bond 
 was given for a just debt, and traversed that the 1,500^. 
 was won by gaming, in manner and form as alleged. On 
 demurrer, it was objected that the replication was ill, be- 
 cause it made the precise sum parcel of the issue, and 
 tended to oblige the defendant to prove that the whole 
 sum of 1,500Z. was won by gaming; whereas the statute 
 avoids the bond if any "part of the consideration be on that 
 account. The court was of opinion that there was no color 
 to maintain the replication, for that the material part of 
 the plea was that part of the money for which the bond 
 was given was won by gaming; and that the words "to 
 
 {x) Doot. PL, 365. 
 
 (y.) 1 Saimd., 268, n. 1, 269, n. 2; Com. Dig., Pleader, Q. 15, G. 16. 
 
EULES OF PLBADIN&. 239 
 
 wit, 1,500^.," were only form, of whicli the replication 
 ouglA not to have taken any notice, (z.) So, where the 
 condition of a bond was that the obligor should serve the 
 obligee half a year, and, in an action of debt on the bond, 
 the defendant pleaded that lie had served him half a year 
 at D., in the county of K., and the plaintiff replied that he 
 had not served him half a year at D., in the county of K., 
 this was adjudged to be a bad traverse, as involving the 
 flace, which was immaterial, (a.) So, where the plaintiff 
 pleaded that the queen, at a manor court, held on such a 
 day, by I. S., her steward, and by copy of court-roll, &c., 
 granted certain land to the plaintiff's lessor, and the de- 
 fendant rejoined, traversing that the queen, at a manor 
 court, held such a day, by I. S., her steward, granted the 
 land to the lessor, the court held that the traverse was ill, 
 "for the jury are thereby bound to find a copy on such a 
 day, and by such a steward, which ought not to be." The 
 traverse, it seems, ought to have been, that the queen did 
 not grant, in manner and form, as alleged, (b,) words which, 
 as already observed, (c,) bring into issue only the substance 
 of the allegation. 
 
 Again, a traverse may be too large, by being taken in 
 the conjunctive, instead of the disjunctive, where it is not ma- 
 terial that the allegation traversed should be proved con- 
 junctively. Thus, in an action of assumpsit, the plaintiff 
 declared on a policy of insurance, and averred "that the 
 ship insured did not arrive in safety ; but that the said 
 ship, tackle, apparel, ordnance, munition, artillery, boat, 
 and other furniture, were sunk and destroyed in the said 
 voyage." The defendant pleaded with a traverse, "With- 
 out this, that the said ship, tackle, apparel, ordnance, mu- 
 nition, artillery, boat, and other furniture, were sunk and 
 destroyed in the voyage, in manner and form as alleged." 
 
 (0.) Colborne v. Stookdale. Str., 493; 8 Mod., 58 S. C. 
 
 la.) Doct. PI., 360. 
 
 (6.) Lane v. Alexander, Yelv., 122. 
 
 (c.) Supra, p. 200, note c. 
 
240 OF THE PBINCIPAL 
 
 Upoa demurrer, this traverse was adjudged to be bad; and 
 it was held that the defendant ought to have denied, dis- 
 junctively, that the ship or tackle, &c., was sunk or de- 
 stroyed, because, in this action for damages, the plaintiff 
 would be entitled to recover compensation for any part of 
 that which was the subject of insurance, and had been lost; 
 whereas, (it was said,) if issue had been taken in the con- 
 junctive form, in which the plea was pleaded, " and the 
 defendant should prove that only a cable or anchor arrived 
 in safety, he would be acquitted of the whole, {d.) 
 
 On the other hand, however, a party may, in general, 
 traverse a material allegation of title or estate, to the extent to 
 which it is alleged, though it need not have been alleged to that 
 extent; and such traverse will not be considered as too 
 large, (e.) For example, in an action of replevin, the de- 
 fendant avowed the taking of the cattle, as damage feasant, 
 in the place in which, &c. ; the same being the freehold of 
 Sir F. L. To this the plaintiff pleaded that he was seized 
 in his demesne as of fee of B. close, adjoining to the 
 place in which, &c. ; that Sir F. L. was bound to repair the 
 fence between B. close and the place in which, &c. ; and 
 that the cattle escaped through a defect of that fence. The 
 defendant traversed, that the plaintiff was seized in his de- 
 mesne as of fee of B. close ; and on demurrer the court 
 was of opinion that it was a good traverse, for though a 
 less estate than a seizin in fee would have been sufficient 
 to sustain the plaintiff's case, yet, as the plaintiff, who 
 should best know what estate he had, had pleaded a seizin 
 in fee, his adversary was entitled to traverse the title so 
 laid, (/.) Again, in an action of trespass, for trespasses 
 committed in a close of pasture, containing eight acres, in 
 
 (d) Goram v. Sweeting, 2 Saund,, 205. 
 
 (e.) Com. Dig., Pleader, G. 16; Sir Francis Leke's Case, Dy., 365; 2 Saund., 
 207, n. 24 ; Wood v. Budden, Hob., 119 ; Tatem v. Perient, Yelv., 195 ; Car- 
 viok V. Blagrave, 1 Brod. & Bing., 531. Palmer v. Ekins, 2 Str., 818, is ap- 
 parently contra, but, from the report of the same case, (Ld. Bay., 1550,) it 
 may be reconciled with the other authorities. 
 
 (/.) Sir Francis Leke's Case, Dyer, 365 ; 2 Saund., 206 a, n. 22. 
 
RULES OF PLEADING. 241 
 
 the town of Tollard Royal, the defendant pleaded that W., 
 Earl of Salisbury, was seized in fee and of right of an 
 ancient chase of deer, called Granborn, and that the said 
 chase did extend itself, as well in and through the said 
 eight acres of pasture as in and through the said town of 
 Tollard Royal; and justified the trespasses as committed in 
 using the said chase. The plaintiff traversed, that the said 
 chase extended itself as well to the eight acres as to the whole 
 town; and, issue being taken thereon, it was tried and found 
 for the plaintiff. It was then moved, in arrest of judg- 
 ment, "that this issue and verdict were faulty, because, if 
 the chase did extend to the eight acres only, it was enough 
 for the defendant; and therefore the finding of the jury, 
 that it did not extend as well to the whole town as to the 
 eight acres, did not conclude against the defendant's right 
 in the eight acres, which was only in question. But it was 
 answered by the court, that there was no fault in the issue, 
 much less in the verdict, (which was according to the 
 issue,) but the fault was in the defendant's plea; for he 
 puts in his plea more than he needed, viz, the whole 
 town, which, being to his own disadvantage and to the 
 advantage of the plaintiff, there was no reason for him to 
 demur upon it, but rather to admit it, as he did, and so 
 to put it in issue. And so judgment was given for the 
 plaintiff," (c/.) 
 
 Of a traverse too narrow, the following is an example: 
 In an action of assumpsit, brought for a compensation for 
 the plaintiff's service as a hired servant, the plaintifl' al- 
 leged that he served from the 21st of March, 1647, to 1st 
 November, 1664 ; the defendant pleaded that the plaintiff 
 continued in the service till December, 1658, and then 
 voluntarily quitted the service; without this, that he served 
 until the 1st of November, 1664. This was a bad traverse, 
 for, as the plaintiff, in this action for damages, is entitled 
 to compensation, pro tanto, for any period of service, it is 
 obviously no answer to say that he did not serve the whole 
 
 {g ) Wood V. Bndden, Hob., 119. 
 16 
 
242 OF THE PRINCIPAL 
 
 time alleged, (h.) So a traverse may be too narrow, by 
 being applied to part only of an allegation, which the law 
 considers as in its nature indivisible and entire, such as 
 that of a prescription or grant. Thus, in an action of 
 trespass for breaking and entering the plaintiff's close, 
 called S. C, and digging stones therein, the defendant 
 pleaded that there are certain wastes lying open to one 
 another, one, the close called S. C, and the other called 
 S. G., and so proceeded to prescribe for the liberty of 
 digging stones in both closes, and justified the trespasses 
 under that prescription. The replication traversed the 
 prescriptive right in S. C. only, dropping 8. G.; but the 
 court held that the traverse could not be so confined, and 
 must be taken on the whole prescription as laid, (i.) 
 
 SECTION III. 
 
 OF RULES WHICH TEND TO PKODUCE SINGLENESS OR UNITY IN THE 
 
 ISSUE. 
 
 The following rules enforce singleness in the method of 
 pleading or allegation, and, by consequence, tend to pro- 
 duce a single issue. 
 
 EULE I. 
 
 PLEADIJirGS MUST HOT BE DOUBLE, (k.) 
 
 This rule applies both to the declaration and subsequent 
 pleadings. Its meaning, with respect to the former, is, 
 that the declaration must not, in support of a single de- 
 mand, allege several distinct matters, by any one of which 
 that demand is sufiiciently supported. "With respect to 
 the subsequent pleadings, the meaning is, that none of 
 
 (h.) Osborne v. Rogers, 1 Saund., 267. This is a case which could not arise 
 in assumpsit at the present day, because, by the modern practice, the plea 
 would be only non-assumpsit. 
 
 (i.) Morewood v. Wood, 4 T. R., 157; and see Dost. PL, 351, 352, 370; 
 Briddle and Napper's Case, 11 Eep., 10 b ; Bradhurn ti. Kennerdale, Carth., 
 164; 1 Saund., 268, u. 1. 
 
 (Jc.) Com. Dig., Pleader, C. 38, E. 2, F. 16; Bac. Ab., Pleas, &c., K.; Hnm- 
 phreys v. Bethily, 2 Vent., 198, 222 ; Doct. PL, 135. 
 
RULES OF PLEADING. 243 
 
 them is to oontain several distinct answers to that which 
 preceded it, and the reason of the rule in each case is, that 
 such pleading tends to several issues in respect of a single 
 claim, (l.) 
 
 The rule, it may be observed, in its terms, points to 
 doubleness only, as if it prohibited only the use of two alle- 
 gations or answers of this description; but its meaning, 
 of course, equally extends to the case of more than two, 
 the term doubleness, or duplicity, being applied, though with 
 some inaccuracy, to either case. 
 
 Of this rule, as applied to the declaration, the following 
 is an example : The plaintiff declared in debt on a penal 
 bill, (m,) by which the defendant was to pay ten shillings 
 on the 11th of June, and ten shillings upon the 10th of 
 July next following, and ten shillings every three weeks 
 after, till a certain total sum were satisfied by such several 
 payments, and by the said bill the defendant bound him- 
 self for the true payment of the said several sums in the 
 penal sum of seven pounds, and the plaintiff alleged that 
 the defendant did not pay the said total sum, or any part 
 thereof, upon the several days aforesaid; whereby an action 
 had accrued to him to demand the said penalty of seven 
 pounds. This was held bad for duplicity. For, if the 
 defendant had failed in payment of any one of the sums, 
 such failure would alone be a breach of the condition, and 
 sufficient to entitle the plaintiff to the penalty he claimed; 
 and the plaintiff ought, therefore, to have confined him 
 self to the allegation of the non-payment of one of those 
 sums only, (n.) So, where the plaintiff declared in assump- 
 sit, that the defendant was indebted to him in such a sum, 
 for nourishing one K L., at the request of the defendant, 
 which the latter promised to pay, and also that the defend- 
 
 (l.) La cause est pur ceo, que deux issues purroient estre pris sur les plees. 
 (Per Finchden, 49 Ed. Ill, 45;) see also 15 Ed. IV, 1. 
 
 (m.) Bills penal are instruments not now in use, having been superseded by 
 bonds with conditions. Tbe example in the text would, therefore, not occur 
 in modern practice, but serves equally well the purpose of illustration. 
 
 (n.) Humjjhreys v. Bethily, 2 Vent., 198, 222. 
 
244 OP THE PRINCIPAL 
 
 ant promised to pay him so much as he reasonably deserved 
 to have for nourishing the said E. L. during the same time; 
 this was bad for duplicity, and, indeed, also for repugnan- 
 cy, (another fault in pleading that v^ill be hereafter consid- 
 ered,) as the two promises — to pay a sum certain, and to 
 pay quantum meruit — were inconsistent, and could not 
 stand together, (o.) 
 
 Of duplicity in pleadings, subsequent to the declaration, the 
 following example occurs in a plea in abatement: The defend- 
 ant pleaded, in disability of the person of the plaintiff, ten 
 different outlawries adjudged against him, and it was held 
 that the plea was ill for duplicity; because the plaintiff 
 was disabled as well by one outlawry as by the whole ten, 
 (p.) The following is an instance of duplicity in a plea in 
 bar: In trespass for breaking a close and depasturing the 
 herbage with cattle, if the defendant pleads that A. had a 
 right of common, and J3. also a right of common, in the 
 close, and that the defendant, as their servant and by their 
 command, entered and turned in the cattle, in exercise of 
 their rights of common, the plea is bad for duplicity, (q;) 
 because the title of either one or other of the commoners, 
 and the authority derived as his servant, would have alone 
 constituted a sufficient answer to the declaration. Duplic- 
 ity in the replication may be thus exemplified : The plaint- 
 iff declared in trespass for breaking and entering his sta- 
 ble, cutting asunder a beam, and throwing down the tiles 
 of the roof. The defendant justified, as servant to Sir 
 H. G., and pleaded that Sir H. G. was seized of a wall in 
 his demesne as of fee, and because the beam was placed 
 in the wall of the said Sir H. G. without his consent, the 
 defendant, as his servant, in order to remove this nuisance, 
 did enter the stable and cut the beam as near to the wall 
 as he could, doing as little damage as possible, and thereby 
 the tiles were thrown down. The plaintiff replied, trav- 
 
 (o.) Hart ». Longfield, 7 Mod., 148. As to the duplicity in the declaration 
 tee also Cornwallis v. Savery, 2 Burr., 773; Manser's Case, 2 Rep., 4. 
 {p.) Trevelian v. Seccomb, Garth., 8. See Appendix, note 56. 
 (y.) Vin. Ab., tit. Double Pleas, A, 114, cites 15 Henry VII, 10. 
 
KULBS OF PLEADING. 245 
 
 eraing that the wall was Sir H. G.'s; and then, with a 
 protestation that the wall was not his, further pleaded that 
 the defendant, of his own wrong, did throw down the tiles, 
 for the cutting the beam as aforesaid. The court held 
 that, +he first traverse being a complete answer to the whole, 
 the second made the replication double, (r.) 
 
 The object of this rule being to enforce a single issue, 
 upon a single subject of claim, admitting of several issues 
 where the claims are distinct, (s,) the rule is, accordingly, 
 carried no further than this in its application. The decla- 
 ration, therefore, may, in support of several demands, allege 
 as many distinct matters as are respectively applicable to 
 each. Thus, let one of the examples above given, with 
 respect to the declaration, be so far varied as to substitute, 
 for the case of an action in debt on a penal bill for the 
 penalty accrued in consequence of non-payment of a sum 
 by several installments, the case of an action of covenant, 
 on a covenant to pay that sum by similar installments. In 
 this latter case the plaintiff might, without duplicity, 
 declare that the defendant " did not pay the said total sum, 
 or any part thereof, upon the several days aforesaid." For 
 he does not, as in the action upon the penal bill, found 
 upon such non-payments a single claim, viz, the claim to the 
 penalty of seven pounds; there being no penalty in ques- 
 tion, his claims are multiplied in proportion to the number 
 of non-payments; that is, he is entitled to ten shillings in 
 respect of the first default, and ten shillings more upon 
 each of the rest; the allegation of several defaults is, 
 therefore, in this case, the allegation of so many distinct 
 demands, and consequently allowable, (t.) So the plea, 
 though it must not contain several answers to the whole 
 of the declaration, may nevertheless make distinct answers 
 to such parts of it as relate to different matters of claim or 
 complaint, (m.) Thus, in the preceding example of du- 
 
 (r.) Humphreys v Churchman, Eep., temp. Hard., 289. 
 
 (s.) Supra, p. 151. 
 
 (t.) See Bac. Ab., Pleas, &o., p. 446, 5th edit. 
 
 (u.) Com. Dig., Pleader, E. 2 Co. Litt., 304 a. 
 
246 OF THE PRINCIPAL 
 
 plicity in a plea in bar, if the case were a little varied, and 
 the defendant, being charged with putting five beasts on 
 the common, had pleaded that A. and B. had respectively 
 rights of common there, and that he, as the servant of A., 
 put in two of the beasts in respect of his common right, 
 and, as the servant of B., put in three in respect of Ms 
 common right, there would no longer be duplicity; for 
 he pleads the several titles, not as several answers to the 
 same subject of claim or complaint, but as distinct answers 
 to different matters of complaint, arising in respect of dif- 
 ferent cattle, (x.) So, in the replication and other subse- 
 quent parts of the series, a severance of pleading may take 
 place in respect of several subjects of claim or complaint 
 Thus, if an action be brought for trespasses in closes A. 
 and B., and the defendant pleads a single matter of defense 
 applying to both closes, the plaintifiT is still at liberty, in 
 his replication, to give one answer as to so much of the 
 plea as applies to close J..,' and another answer as to so 
 much of the plea as applies to close B., [y.) The power, 
 however, of alleging in a plea distinct matters, in answer 
 to such parts of the declaration as relate to different claims, 
 seems to be subject to this restriction: that neither of the 
 matters so alleged be such as would alone be a sufficient 
 answer to the whole. Thus, if an action be brought on 
 two bonds, though the defendant may plead, as to one, 
 payment, and as to the other, duress; yet if he pleads as 
 to one a release of all actions, and as to the other duress, it 
 will be double ; for the release is alone a sufficient answer 
 to both bonds, (2.) 
 
 Again, if there be several defendants, the rule against du- 
 plicity is not carried so far as to compel each of them to 
 make the same answer to the declaration. Each defend- 
 ant is at liberty to use such plea as he may think proper 
 
 (a;.) Vin. Ab., tit. Double Pleas, A, 115. 
 
 (y.) See an example, in Johns v. Whitley, 3 Wils., 132. 
 
 (z.) Doct. PL, p. 136; Vin. Ab., tit. Double Pleas, D. In Viner, however, 
 iome cases are cited which show that this restriction has not been uniformly 
 ebserved, or is at least open to several exceptions. 
 
RULES OP PLEADING. 247 
 
 for his own defense, and they may either join in the same 
 plea or sever, at their discretion, (a.) Bat, if the defend- 
 ants have once united in the plea, they cannot afterwards 
 sever at the rejoinder or other later stage of the plead- 
 ing, (6.) 
 
 Where, in respect of several subjects or several defend- 
 ants, a severance has thus taken place in the pleading, this 
 may, of course, lead to a corresponding severance in the 
 whole subsequent series, and, as the ultimate effect, to the 
 production of several issues. And where there are several 
 issues, they may, respectively, be decided in favor of 
 different parties, and the judgment will follow the same 
 division. 
 
 Such being in general the nature of duplicity, the fol- 
 lowing rules or points of remark will tend to its further 
 illustration : 
 
 1. A pleading will be double that contains several answers, 
 whatever be the class or quality of the answer. Thus, it will 
 'je double by containing several matters in abatement or 
 several matters in bar, (e,) or by containing one matter in 
 abatement and another in bar, (d.) So a pleading will be 
 double by containing several matters in confession and 
 avoidance, or several answers by way of traverse, or by 
 combining a traverse with a matter in confession and 
 avoidance, (e.) 
 
 2. Matter may suffice to make a pleading double, though it be 
 ill pleaded. Thus, in trespass for assault and battery, the 
 defendant pleaded that he committed the trespasses in the 
 
 (a.) Co. Litt., 303 a.; Essington v. Boucher, Hob., 245. It is said, how- 
 ever, arguendo, in the case cited, that they cannot sever in dilatory pleas. 
 Bed qu. f (See Cuppledick v. Terwhit, Hob., 350.) 
 
 (b.) And see a case where, upon a replication to a plea by one defendant, 
 a rejoinder by all the defendants was adjudged to be bad. (Morrow v. Belcher, 
 4 Barn. & Ores., 704.) 
 
 (c.) Com. Dig., Pleader, E. 2; and see the cases already cited on the sub- 
 ject of duplicity. 
 
 (d.) Semb. Com. Dig., Pleader, E. 2; Bleeke v. Grove, 1 Sid., 176. 
 
 (e.) Com. Dig., Pleader, E. 2; Bac. Ab., Pleas, &c., K.; and see the cases 
 already cited. 
 
248 OB XHE PKINCIPAL 
 
 moderate correction of the plaintiff as his servant, and 
 further pleaded, that since that time the plaintiff had dis- 
 charged and released to him the said trespasses, without 
 alleging, as he ought to have done, a release under seal. 
 The court held that this plea was double, the moderate 
 correction and the release being each a matter of defense; 
 and, though the release was insufficiently pleaded, yet, as 
 it was a matter that a material issue might have been taken 
 upon, it sufficed to make the plea double, (/.) 
 
 On the other hand, it seems that 
 
 3. Matter immaterial cannot operate to make a pleading dou- 
 ble, {g.) Thus, in an action by the executors of J. G. on 
 a bond conditioned that the defendant should warrant to 
 J. G. a certain meadow, the defendant pleaded that the 
 said meadow was copyhold of a certain manor, and that 
 there is a custom within the manor, that if the customary 
 tenants fail in payment of their rents and services, or 
 commit waste, then the lord for the time being may enter 
 for forfeiture; and that the said J. G., during his life, 
 peaceably enjoyed the meadow; which descended after his 
 death to one B., his son and heir; who, of his own wrong, 
 entered without the admission of the lord, against the 
 custom of the manor; and because three shillings of rent 
 were in arrear on such a day, the lord entered into the 
 meadow, as into lands forfeited. On demurrer, it was 
 objected (among other things) that the plea was double; 
 because, in showing the forfeiture to have accrued by the 
 heir's own wrongful act, two several matters are alleged: 
 first, that he entered without admission, against the cus- 
 tom ; secondly, that three shillings of rent were in arrear. 
 But the judges held, that the only sufficient cause of for- 
 
 (/.) Bao. Ab., Pleaa, &o., K. 2; Bleeke v. Grove, 1 Sid., 175. 
 
 (jr.) Bao. Ab., Pleas, &o., K. 2; 1 Hen. VII., 16 ; Countess of Northimber- 
 land's Case, 5 Eep., 98 a. ; Case of the Executors of Grenelefe, Dyer, 42 b. ; 
 Doct. PI., 138. There is, bowever, a dictum of Doddridge, J., that a plea may 
 be double, though only one of the matters be material. (Calfe v. Nevil, 
 Poph., 183.) But the weight of the authorities, and the reason of the thing, 
 we opposed *o this opinion. 
 
RULES OF PLEADING. 249 
 
 feiture was the non-payment of rent; that, there being no 
 custom alleged for forfeiture in respect of entry without 
 admission, the averment of such entry was mere sur- 
 plusage, and could not, therefore, avail to make the plea 
 double, (h.) It is, however, to be observed, that the plea 
 seems to rely on the non-payment of the rent as the only 
 ground of forfeiture; for it alleges that, "because three 
 shillings of the rent were in arrear, the lord entered;" and 
 the court noticed this circumstance. The case, therefore, 
 does not explicitly decide, that where two several matters 
 are not only pleaded, but relied upon, the immateriality of 
 one of them shall prevent duplicity; but the manner in 
 which the judges express themselves seems to show that 
 the doctrine goes to that extent; and there are other au- 
 thorities the same way, [i.) 
 
 This doctrine, that a plea may be rendered double by 
 matter ill pleaded, but not by immaterial matter, quite 
 accords with the object of the rule against duplicity, as 
 formerly explained, {k.) That object is the avoidance 
 of several issues. Now, whether a matter be well or ill 
 pleaded, yet if it be sufficient in substance, so that the 
 opposite party may go to issue upon it, if he chooses to 
 plead over, without taking the formal objection, such mat- 
 ter tends to the production of a separate issue, and is on 
 that ground held to make the pleading double. On the 
 other hand, if the matter be immaterial, no issue can prop- 
 erly be taken upon it; it does not tend, therefore, to a 
 separate issue, nor, consequently, fall within the rule against 
 duplicity. 
 
 4. No matter will operate to make a pleading double that is 
 pleaded only as necessary inducement to another allegation. 
 Thus, it may be pleaded without duplicity that, after the 
 cause of action accrued, the plaintiff (a woman) took hus- 
 band, and that the husband afterwards released the de- 
 
 (A.) Case of the Lxeoutors of Grenelefe, Dyer, 42 b. 
 
 (i.) Bac. Ab., Pleas, &c., K. 2. 
 
 \k.) Supn , p. 242; and see also p. 152. 
 
250 OF THE PEINCIPAL 
 
 fendant; for though the coverture is itself a defense, as 
 well as the release, yet the averment of the coverture is a 
 necessary introduction to that of the release, (l.) This 
 exception to the general rule is prescribed by an evident 
 principle of justice; for the party has a right to rely on 
 any single matter that he pleases in preference to another; 
 as in this instance, on the release, in preference to the cov- 
 erture; but if a necessary inducement to the matter on 
 which he relies, when itself amounting to a defense, were 
 held to make his pleading double, the effect would be to 
 exclude him from this right, and compel him to rely on 
 the inducement only. 
 
 5. No matters, however multifarious, will operate to make 
 a pleading double that together constitute but one connected 
 proposition or entire point. Thus, to an action for assault 
 and imprisonment, if the defendant plead that he arrested 
 the plaintiff on suspicion of felony, he may set forth any 
 number of circumstances of suspicion, though each cir- 
 cumstance may be alone sufficient to justify the arrest; 
 for all of them taken together do but amount to one con- 
 nected cause of suspicion, (m.) This qualification of the 
 rule against duplicity applies not only to pleadings in 
 confession and avoidance, but to traverses also; so that a 
 man may deny as well as affirm, in pleading, any number 
 of circumstances that together form but a single point or 
 proposition. Thus, in an action of trespass for breaking 
 the plaintiff's close and depasturing it with cattle, the de- 
 fendant pleaded a right of common in the close for the 
 said cattle, being his own commonable cattle, levant and 
 couchant, upon the premises. The plaintiff, in the replica- 
 tion, traversed, " that the cattle were the defendant's own 
 cattle, and that they were levant and couchant upon the 
 premises, and commonable cattle." On demurrer for du- 
 plicity, it was objected that there were three distinct facts 
 put in issue by this replication, any one of which would be 
 
 (}.) Bac. Ab., Pleas, &c., K. 2; Com. Dig., Pleader, E. 2; 24 E. Ill, 75 b. 
 (m.) Viu. Ab., Double Pleas, A. 7., cites 2 Ed. IV, 8. 
 
RULES OF PLEADING. 251 
 
 sufficient by itself; but the court held that tbe point of 
 the defense was, that the cattle in question were entitled 
 to common ; that this point was single, though it involved 
 the three several facts, that the cattle were the defendant's 
 own, that they were levant and couchant, and that they 
 were commonable cattle; that the replication traversing 
 these facts, in effect, therefore, only traversed the single 
 point, whether the cattle were entitled to common ; and 
 was, consequently, not open to the objection of duplicity, 
 in.) The most frequent instance of this cumulative trav- 
 erse, as it may be called, occurs in the case of the repli- 
 cation, de injuria absque tali causa. This replication, (it 
 will be recollected,) alleges that the defendant did the act 
 (the subject of complaint) of his own wrong, and ^'■without 
 the cause alleged;" and this cause frequently consists of several 
 connected circumstances, of which the example formerly 
 given (o) may serve as an illustration. Another example 
 is afforded by the following recent case. In an action for 
 maliciously suing out a commission of bankruptcy against 
 the plaintiff, the defendant pleaded that the plaintiff, being 
 a trader, and indebted to him in 100?., became bankrupt; 
 whereupon the defendant sued out the commission. The 
 plaintiff replied de injuria absque tali causa. Upon de- 
 murrer, it was objected that by this form of replication it 
 was attempted to put in issue three distinct facts: the 
 trading, the petitioning creditor's debt, and the act of 
 bankruptcy ; but it was adjudged that these facts together 
 constituted but one proposition, viz, that the plaintiff duly 
 became bankrupt, and that the replication was therefore 
 good, {p.) It is, however, (as was formerly stated,) (g',) a 
 
 {n.) Robinson v. Rayley, 1 Burr., 316. 
 
 (o.) Supra, p. 180. 
 
 (p.) O'Brien v. Saxon, 2 Barn. & Ores., 908; and see another example in 
 Phillips V. Howgate, 5 Barn. & Aid., 220, a case which proves that upon this 
 replication the defendant must prove the whole of the cause alleged in his 
 plea, so far as material to the defense, but not such circumstances of it as are 
 immaterial. 
 
 (j.) Svpta, p. 180. 
 
252 OF THE PRINCIPAL 
 
 restriction in the use of this replication, that it cannot be 
 applied so as to include in the traverse any matter alleged 
 on the other side in the nature of title, interest, command- 
 ment, authmity, or matter of record. If, therefore, any such 
 matter be contained in the plea, and the plain tiiff wishes to 
 deny it, such matter must be traversed separately; or, if 
 he chooses not to point the denial to this, but to other mat- 
 ters in the plea, these other matters must separately form 
 the subject of traverse. In the former case, the denial is 
 in the words of the allegation ; in the latter, the usual form 
 is to plead with a protestation, and a traverse de injuria 
 absque residue causae, thus : " Protesting that the said C. D. 
 is not seized, &c. For replication, nevertheless, in this 
 behalf, the said A. B. says that the said C. D., of his own 
 wrong, and without the residue of the cause in his said plea 
 alleged, broke and entered the said close, &c.," (r.) And 
 it is to be observed that this restriction, by which matter 
 of title, interest, commandment, authority, or record is required 
 to be separately traversed, is not to be taken as applicable 
 merely to the use of the replication de injuria, but extends 
 (it is conceived) in its principle to aU cases of cumulative 
 traverse, so that it may be said to be generally true, that 
 where any such matter is alleged in connection with other 
 circumstances, it is not a case in which it is competent to 
 the other party to traverse cumulatively, (s;) and that, if 
 he include all these circumstances in the same traverse, his 
 pleading will be double. 
 
 In some cases the general issues appear to partake of the 
 nature of these cumulative traverses. For some of them 
 are so framed as to convey a denial, not of any particular 
 fact, but generally of the whole matter alleged, as not 
 guilty in trespass or trespass on the case, and nil debet in 
 debt. And in assumpsit the case is the same in effect, 
 according to a relaxation of practice formerly explained, (i,) 
 
 (r.) See the precedents, 9 Went,, 327 2 Chitty, 644. 
 (s.) See Bui. Ni. Pri., 93. 
 («.) Supra, p. 175. 
 
KULBS OP PLEADING. 253 
 
 by which the defendant is permitted, under the general 
 issue, in that action, to avail himself, with some few excep- 
 tions, of any matter tending to disprove his liability. The 
 consequence is, that under these general issues the defend- 
 ant has the advantage of disputing, and therefore of put- 
 ting the plaintiff to the proof of every averment in the 
 declaration. Thus, by pleading not guilty, in trespass quare 
 clausum fregit, he is enabled to deny, at the trial, both 
 that the land was the plaintiff's and that he committed 
 upon it the trespasses in question, and the plaintiff must 
 establish both these points in evidence. Indeed, besides 
 this advantage of double denial, the defendant obtains, 
 under the general issue, in assumpsit and other actions of 
 trespass on the case, the advantage of double pleading in 
 confession and avoidance. For, as upon the principles for- 
 merly explained, (m,) he is allowed, in these actions, to 
 bring forward, upon the general issue, almost any matters, 
 (though in the nature of confession and avoidance,) which 
 tend to disprove his debt or liability; so he is not limited, 
 (as he would be in special pleading,) to a reliance on any 
 single matter of this description, but may set up any num- 
 ber of these defenses. While such is the effect of many 
 of the general issues in mitigating or evading the rule 
 against duplicity, the remark does not apply to all. Thus, 
 the general issue of won est factum raises only a single ques- 
 tion, namely, whether the defendant executed a valid and 
 genuine deed, such as is alleged in the declaration. The 
 defendant may, under this plea, insist that the deed was 
 not executed by him, or that it was executed under circum- 
 stances which absolutely annul its effect as a deed, but can 
 set up no other kind of defense. 
 
 6. A protestation will not make the -pleading double, (x.) 
 Thus, in the example formerly given, (?/,) where the de- 
 fendant pleads the delivery or acceptance of a pipe of wine 
 
 (m.) Sapra, pp. 175, 177. 
 (a.) 3 Bl. Com., 311. 
 {y.) fhtpra, p 218. 
 
2bri OF THE PRINCIPAL 
 
 in satisfaction of the plaintiff's demand, though the plaint- 
 iff cannot reply that the wine was neither delivered nor 
 accepted in satisfaction, for this would be double j yet he 
 may protest that it was not delivered, and at the same time 
 deny the acceptance, without incurring the objection. For 
 a protestation (as already explained) does not tend to issue 
 in the action, but is made merely to reserve to the party 
 the right of denying or alleging the same matter in a fu- 
 ture suit. It consequently cannot fall within the object of 
 the rule against duplicity, which is, to avoid a plurality of 
 issues. 
 
 The rule against duplicity in pleading being now ex- 
 plained, {z,) it is necessary, in the next place, to advert to 
 certain modes of practice by which the effect of that rule is 
 materially qualified and evaded. These are, the use of 
 several counts and the allowance of several pleas, the former 
 being grounded on ancient practice, the latter on the stat. 
 4 Ann., c. 16. 
 
 First shall be considered the subject oi several counts. 
 
 "Where a plaintiff' has several distinct causes of action, he 
 is allowed to pursue them cumulatively in the same orig- 
 inal writ, subject to certain rules which the law prescribes, 
 as to joining such demands only as are of similar quality 
 or character, (a.) Thus, he may join a claim of debt on 
 bond with a claim of debt on simple contract, and pursue 
 his remedy for both by the same original writ in debt. So, 
 if several distinct trespasses have been committed, these 
 may all form the subject of one original writ in trespass; 
 but, on the other hand, a plaintiff cannot join in the same 
 suit a claim of debt on bond and a complaint of trespass, 
 these being dissimilar in kind, (6.) Where a plaintiff thus 
 makes several demands by the same writ, his course of pro- 
 ceeding in debt, covenant, and detinue, and the real and 
 mixed actions, where the writs are in a simple and general 
 
 (z.) See Appendix, note 57. 
 
 (a.) Upon this subject, see Bao, Ab., Actions, C. 
 
 (6.) See Appendix, note 58. 
 
RULES OF PLEADING. 255 
 
 -form, (c,) is merely to enlarge his claim in point of sums 
 and quantities; but in trespass, and trespass on the case, 
 where the form is more special, (d,) the original writ sepa- 
 rately specifies each subject of claim or complaint. For 
 example, if the action be brought in trespass for two 
 assaults and batteries, the original writ, after setting forth 
 one, proceeds to detail the other. And, when the time for 
 the declaration arrives, the plaintiff, in all forms of action, 
 sets forth in the declaration, separately, each different sub- 
 ject of claim or complaint thus put together in the same 
 writ. So, in the case of proceeding by bill, the different 
 claims or complaints are separately brought forward in the 
 bill or declaration, care, however, being taken to join only 
 such as might have been jointly claimed by the same orig- 
 inal. Such different claims or complaints constitute differ- 
 ent parts or sections of the declaration, and are known in 
 pleading by the description of several counts, (e.) 
 
 But in order to give the unlearned reader an exact idea 
 of the nature of several counts, it will be necessary (though 
 it lead to the insertion of some very common and well- 
 known forms) to lay before him the following examples: 
 
 DEOLAEATION. 
 
 In trespass, for assault and battery. 
 
 (By original.) 
 
 In the King'i Bench, Term, in the yea/r of the reign of ES/ng 
 
 George the Fourth. 
 
 , to wit, G. -D. was attached to answer A. B. of a plea, wherefore 
 
 he, the said 0. D., with force and arms, at , in the county of 
 
 made an assanlt upon the said A. B., and beat, wounded, and ill-treated him, 
 BO that his life was despaired of. And also, wherefore, with force and arms, 
 
 at aforesaid, in the county aforesaid, the said 0. D. made another 
 
 assault upon the said A. B., and again beat, wounded, and ill-treated him, so 
 that his life waa despaired of, and other wrongs to him there did, to the dam- 
 age of the said A. B. and against the peace of our lord the now king. And 
 thereupon the said A. B., by , his attorney, complains: For that the 
 
 (c.) See the forms of writs in the first chapter. 
 
 (d) Ibid. 
 
 (e.) See Appendix, note 59. 
 
256 on THE PRINCIPAL 
 
 said C. D. heretofore, to wit, on the day of , in the year of oni 
 
 Lord , with force and arms, at , in the county of , made an 
 
 assault upon the said A. B., and beat, wounded, and ill-treated him, so that 
 his life was despaired of. And also for that the said C. D. heretofore, to wit, 
 
 on the day and year aforesaid, with force and arms, at aforesaid, in 
 
 the county aforesaid, made another assault upon the said A. B,, and again 
 beat, wounded, and ill-treated him, so that his life was despaired of, and other 
 wrongs to him then and there did, against the peace of our said lord the king, 
 
 and to the damage of the said A. B. of pounds ; and therefore he brings 
 
 his suit, &o., (/.) 
 
 DEOLAEATION. 
 
 In asiumpsU, for goods sold, work done, money lent, <&c. 
 
 {By original.) 
 
 In the King's Bench, Term, in the year of the reign of King 
 
 George the Fourth. 
 
 , to wit, 0. D. was attached to answer A. B. oi a plea of trespass 
 
 on the case. And thereupon the said A. B., by , his attorney, com- 
 plains : For that whereas the said Q. D. heretofore, to wit, on the day 
 
 of , in the year of our Lord , at , in the county of , 
 
 was indebted to the said A. B. in the sum of pounds, of lawful money 
 
 of Great Britain, for divers goods, wares, and merchandises by the said A. B. 
 before that time sold and delivered to the said C D., at his special instance 
 and request; and.being so indebted, he, the said C. D., in consideration thereof, 
 
 afterwards, to wit, on the day and year aforesaid, at aforesaid, in the 
 
 county aforesaid, undertook and faithfully promised the said A. B. to pay 
 him the said sum of money when he, the said C. D., should be thereto after- 
 wards requested. And whereas also the said C D. afterwards, to wit, on the 
 day and year aforesaid, at aforesaid, in the county aforesaid, was in- 
 debted to the said A. B. in the further sum of pounds, of like lawful 
 
 money, for work and labor, care and diligence, by the said A. B. before that 
 time done, performed, and bestowed, in and about the business of the said C. D., 
 and for the said C. D., at his like instance and request, and, being so indebted, 
 he, the said C. D., in consideration thereof, afterwards, to wit, on the day and 
 year aforesaid, at aforesaid, in the county aforesaid, undertook and faith- 
 fully promised the said A.B.to pay him the last-mentioned sum of money when 
 he, the said C. D., should be thereto afterwards requested. And whereas also 
 
 the said C. D. afterwards, to wit, on the day and year aforesaid, at 
 
 aforesaid, in the county aforesaid, was indebted to the said A. B. in the fur- 
 ther sum of pounds, of like lawful money, for so much money by the 
 
 said A. B. before that time lent and advanced to the said C. D., at his like 
 instance and request, and, being so indebted, he, the said G. D., in considera- 
 tion thereof, afterwards, to wit, on the day and year aforesaid, at 
 
 (/.) See the declaration with a count for one assault and battery only, su- 
 pra, p. 70. 
 
RULES OF PLEADING. 257 
 
 aforesaid, in the county aforesaid, undertook and faithfully promised the said 
 
 A. B. to pay him the said last-mentioned sum of money when he, the said C. 
 D., should be thereto afterwards requested. And whereas also the said C. D. 
 
 afterwards, to wit, on the day and year aforesaid, at aforesaid, in the 
 
 county aforesaid, was indebted to the said A. B. in the further sum of 
 
 pounds, of like lawful money, for so much money by the said A. B. before 
 that time paid, laid out, and expended to and for the use of the said C D., 
 at his like instance and request; and, being so indebted, he, the said C. D., in 
 consideration thereof, afterwards, to wit, on the day and year aforesaid, at 
 
 aforesaid, in the county aforesaid, undertook and faithfully promised 
 
 the said A. B. to pay him the said last-mentioned sum of money when he, 
 the said C. D., should be thereto afterwards requested. And whereas also ihe 
 said O. D. afterwards, to wit, on the day and year aforesaid, at af( 're- 
 said, in the county aforesaid, was indebted to the said A. B. in the further 
 
 sum of pounds, of like lawful money, for so much money by the sail' 0. 
 
 D. before that time had and received, to and for the use of the said A. 
 and, being so indebted, he, the said G. D., in consideration thereof, afterwaids, 
 
 to wit, on the day and year aforesaid, at aforesaid, in the county afc re 
 
 said, undertook and faithfully promised the said A. B. to pay him the said lost- 
 mentioned sum of money when he, the said C. i)., should be thereto afterwiifda 
 requested. And whereas also the said 0. D. afterwards, to wit, on the day (md 
 
 year aforesaid, at aforesaid, in the county aforesaid, accounted with Ihe 
 
 said A. B. of and concerning divers other sums of money from the said C. 1). to 
 the said A. B. before that time due and owing, and then in arrear and unpaid j 
 and upon that account the said C. D. was then and there found to be in arrear 
 
 and indebted to the said A. B. in the further sum of pounds, of like 
 
 lawful money, and, being so found in arrear and indebted, he, the said 
 G. D., in consideration thereof, afterwards, to wit, on the day and year 
 aforesaid, at aforesaid, in the county aforesaid, undertook and faith- 
 fully promised the said A. B. to pay him the said last-mentioned sum of 
 money when he, the said G. D., should be thereto afterwards requested. Yet 
 the said C. D., not regarding his said several promises and undertakings, but 
 contriving and fraudulently intending, craftily and subtlely, to deceive and 
 defraud the said A. B. in this behalf, hath not yet paid the said several sums 
 of money, or any part thereof, to the said A. B., (although oftentimes after- 
 wards requested.) But the said G. D., to pay the same or any part thereof, 
 hath hitherto wholly refused and still refuses, to the damage of the said A. 
 
 B. of pounds ; and therefore he brings his suit, &c., {g.) 
 
 When several counts are thus used, the defendant may, 
 according to the nature of his defense, demur to the whole; 
 or plead a single plea applying to the whole; or may demur 
 to one count and plead to another; or plead a several plea 
 
 {g.) See the declaration in assumpsit, with a count for ga)ds sold only, mpra 
 p. 72. 
 
 17 
 
258 OP THE PRINCIPAL 
 
 to each couut; and in the two latter cases the result may 
 be a corresponding severance in the subsequent pleadings, 
 and the production of several issues. But, whether one or 
 more issues be produced, if the decision, whether in law 
 or fact, be in the plaintiff's favor, as to any one or more 
 counts, he is entitled to judgment pro tanto, though he fail 
 as to the remainder, {h.) 
 
 The use of several counts, when applied to distinct causes 
 of action, ia quite consistent with the rule against duplicity; 
 for the object of that rule, as formerly explained, (i,) is to 
 prevent several issues in respect of the same demand only; 
 there being no objection to several issues where the 
 demands are several. But it happens more frequently than 
 otherwise that, when various counts are introduced, they 
 do not really relate to distinct claims, but are adopted 
 merely as so many different forms of propounding the same 
 cause of action, and are therefore a mere evasion of the rule 
 against duplicity. This is a relaxation of very ancient date, 
 and has long since passed, by continual sufferance, into 
 allowable and regular practice. It takes place when the 
 pleader, in drawing the declaration or bill in any action, 
 or in preparing the praecipe {k) for an original writ in tres- 
 pass, or trespass on the case, after having set forth his case 
 in one view, feels doubtful whether, as so stated, it may 
 not be insufficient in point of law, or incapable of proof in 
 point of fact; and at the same time perceives another 
 mode 6f statement, by which the apprehended difficulty 
 may probably be avoided. Wot choosing to rely on either 
 view of the case exclusively, he takes the course of adopt- 
 ing both; and accordingly inserts the second form of state- 
 ment in the shape of a second count, in the same manner 
 as if he were proceeding for a separate cause of action. If, 
 upon the same principle, he wishes to vary stiU further the 
 method of allegation, he may find it necessary to add 
 
 (A.) See PhUlips v. Howgate, S Barn. & Aid., 220. 
 
 (i.) Supra, p. 245. 
 
 (k.) As to the prscipe, vide swpra, p. 56. 
 
RULES OF PLEADING. 259 
 
 many other succeeding counts besides the second; and thus, 
 in practice, a great variety of counts often occurs in respect 
 of the same cause of action; the law not having set any 
 limits to the discretion of the pleader, in this respect, if 
 fairly and rationally exercised, (I.) 
 
 It may be desirable, however, to explain more particu- 
 larly in what case, and with what objects, resort is had to 
 several counts in respect of the same cause of action. 
 This may happen either where the state of facts to which 
 each count refers is really different, or where the same state 
 of facts is differently represented. The first case may be 
 exemplified in the instance, formerly cited, of an action of 
 debt on a penal bill, whereby the defendant engaged to 
 pay 71., as penalty, in the event of non-payment of 10s. on 
 the 11th of June, and 10s. more on the 10th of July, and 
 10s. every three weeks after, till a certain sum was satisfied. 
 Let it be supposed that the plaintiff complains of a failure 
 in payment both on the 11th June and 10th July. Either 
 failure entitles him to the penal sum for which he brings 
 the action; but, if he states them both in the same count, 
 the declaration, as we have seen, will be double, (m.) The 
 case, however, may be such as to make it convenient to 
 rely on both defaults; for there may be a doubt whether 
 one or other of the payments were not made, though it 
 may be certain that there was at least one default; and if, 
 under these circumstances, the plaintiff" should set forth 
 one of the defaults, and the defendant should take issue 
 upon it, he might defeat the action by proving payment on 
 the day alleged, though he would have been unable to 
 prove the other payment. To meet this difficulty, the 
 pleader might resort to two counts. The first of these 
 would set forth the penal bill, alleging a default of pay- 
 ment on the 11th of June ; the second would again set 
 
 (J.) See Meeke v. Oxlade, 1 N. R,, 289; Gabell v. Shaw, 2 Chit. Rep., 299; 
 rhomas v. Hanscombe, 1 Bing., 281 ; Brindley v. Dennet, 2 Bing., 184 ; Nel- 
 eon V. Griffiths, ibid, 412; 1 Tidd., 667, 8th edit. 
 
 (ot.) Supra, p. 243. 
 
260 BULBS OP PLEADING. 
 
 forth the same bill, describing it as "a certain other bill," 
 &c., and would allege a default on the 10th of July. The 
 effect of this would be, that the plaintiff, at the trial, might 
 rely or either default, as he might then find convenient. 
 In th ^ instance, the several counts are each founded on a 
 different state of fads, (viz, a different default in payment,) 
 though in support of the same demand. But it more fre- 
 quently happens that it is the same state of facts differently 
 represented which forms the subject of different counts. 
 Thus, where a man has ordered goods of another, and an 
 action is brought against him for the price, the circum- 
 stances may be conceived to be such as to raise a doubt 
 whether the transaction ought to be described as one of 
 <)oods sold and delivered, or of work and labor done ; and, in 
 this case, there would be two counts, setting forth the claim 
 both ways, exactly as in the two first counts of the last 
 example, in order to secure a verdict, at all events, upon 
 one of them. And it may be useful to observe here that^ 
 upon this principle, the four last counts of that example, 
 viz, those for morvey lent and advanced, money paid, money had 
 and received, and money due on account stated, (commonly 
 called the money counts,) are, some or all of them, generally 
 inserted, as a matter of course, in every praecipe, declara- 
 tion, or bill in assumpsit, though the cause of action be 
 also stated in a more special form in other counts. This 
 is done because it often happens that, when the special 
 counts are found incapable of proof at the trial, the cause 
 of action will resolve itself into one of these general pecu- 
 niary forms of demand, and thus the plaintiff may obtain 
 a verdict on one of these money counts, though he fail as 
 to all the rest. Again, the same state of facts may be 
 varied, by omitting, in one count, some matter stated in 
 another. In such a case the more special count is used, 
 lest the omission of this matter should render the other 
 insufficient in point of law. The more general count is 
 adopted, because, if good in point of law, it will relieve 
 the plaintiff from the necessity of proving such omitted 
 matter in point of fact. If the defendant demurs to the 
 
RTTibS OF PLEADING. 261 
 
 latter count as insufficient, and takes issue in fact on the 
 former, the plaintiff has the chance of proving the matter 
 alleged, and also the chance of succeeding on the demur- 
 rer. If, on the other hand, the defendant does not think 
 proper to demur, but takes issue in fact on both, the plaint- 
 iff will hav6 no occasion at the trial to rely at all upon 
 the former count, but will succeed by merely proving the 
 latter. 
 
 It is to be observed, that whether the subjects of sev- 
 eral counts be realty distinct or identical, they must always 
 purport to be founded on distinct causes of action, and not 
 to refer to the same matter ; and this is effected by the in- 
 sertion of such words as "other," "the further sum," &e., 
 as in the above examples. This is evidently rendered ne- 
 cessary by the rule against duplicity, which, though evaded, 
 as to the declaration, by the use of several counts, in the 
 manner here described, is not to be directly violated, (n.) 
 
 The next subjection for consideration is that of several 
 pleas. 
 
 It has been already stated that the rule against duplicity 
 does not prevent a defendant from giving distinct answers 
 to different claims or complaints on the part of the plaint- 
 iff, (o.) To several counts, or to distinct parts of the same 
 count, he may, therefore, plead several pleas, viz, one to 
 each, (p.) Thus, in an action of trespass, for two assaults 
 and batteries, he may plead, as to the first count, not guilty; 
 and as to the second, the statute of limitations, viz, that 
 he was not guilty within four years ; and the following is 
 an example of the form in which this may be done: 
 
 (to.) Hart V. Longfield, 7 Mod., 148 ; West v. Troles, 1 Salk., 213 ; Bao. Ab., 
 Pleas, &c., B. 
 
 (p.) Supra, p. 245. 
 
 (p.) Oi he may plead to one count, and demur to another. (See post, 
 Eule ii.) And it seems that, in pleading different pleaa to different parts of 
 the declaration, the defendant is not confined to pleas of the same hind. 
 Thus, it is laid down that he may plead in abatement to part, and demur oi 
 plead in bar to the residue. (2 Saund., 209 e, n. 1.) And see Berries v. Jam- 
 ieson, 5 T. E., 553. 
 
262 OF THE PRINCIPAL 
 
 FLEAS. 
 
 In irespcsss, for assault and battery, (q.) 
 
 And tie said O. D., by , his attorney, comes and defends the force 
 
 »ad injury, when, &o., and, as to the first count of the said declaration, the said 
 0. D. says, that he is not guilty of the said trespasses therein mentioned, or 
 any part thereof, in manner and form as the said A. B. hath above thereof 
 complained ; and of this the said 0. D. puts himself upon the country. And 
 as to the second count of the said declaration, the said C. D. says, that the 
 said A. B. ought not to have or maintain his aforesaid action thereof against 
 him, because, he says, that he, the said G. D., was not, at any time within four 
 years next before the commencement of this suit, guilty of the said trespasses 
 in the said second count mentioned, or any part thereof, in manner and form 
 as the said A. B. hath above complained ; and this the said C. D. is ready to 
 verify. Wherefore he prays judgment if the said A. B. ought to have or 
 maintain his aforesaid action thereof against him. 
 
 But it may also happen that a defendant may have 
 several distinct answers to give to the same claim or com- 
 plaint. Thus, to an action of trespass for two assaults and 
 batteries, he may have ground to deny both the trespasses, 
 and also to allege that they were neither of them commit- 
 ted within four years. Anterior, however, to the regulation, 
 which will be presently mentioned, it was not competent 
 to him to plead these several answers to both trespasses, 
 as that would have been an infringement of the rule against 
 duplicity. The defendant was, therefore, obliged to elect 
 between his different defenses, where more than one thus 
 happened to present themselves, and to rely on that which, 
 in ppint of law and fact, he might deem most impregnable. 
 But as a mistake in that selection might occasion the loss 
 of the cause, contrary to the real merits of the case, this 
 restriction against the use of several pleas to the same 
 matter, after being for ages observed in its original sever- 
 ity, was at length considered contrary to the true princi- 
 ples of justice, and was accordingly relaxed by legislative 
 enactment. The stat. 4 Ann., c. 16, s. 4, provides, that "it 
 shall be lawful for any defendant or tenant, in any action 
 or suit, or for any plaintiff in replevin, in any court of 
 record, with leave of the court, to plead as many several 
 
 {q.) See the declaration, supra, p. 255. 
 
RULES OF PLEADING. 263 
 
 matters thereto as he shall think necessary for his defense." 
 Since this act the course has been for the defendant, if he 
 wishes to plead several matters to the same subject of 
 demand or complaint, to apply previously for a rule of 
 court permitting him to do so ; and, upon this, a rule is 
 accordingly drawn up for that purpose, (r.) The form of 
 pleading several pleas, where leave is thus granted, will 
 appear by the following example : 
 
 Jnjraaggss, for Q^s^Hijmd battery, (s.) 
 
 And the said 0. D., by , his attorney, comes and defends the force 
 
 and injury, when, &c., and aays that he is not guilty of the said trespasses 
 above laid to his charge, or any part thereof, in manner and form as the said 
 
 A. B. hath above thereof complained ; and of this the said 0. D. puts him- 
 self upon the country. And for a further plea in this behalf, the said C. D., 
 by leave of the court here for this purpose first had and obtained, according to 
 the form of the statute in such case made and provided, says that the said A. 
 
 B. ought not to have or maintain his aforesaid action against him, because, he 
 says, that he, the said C. D., -was not, at any time within four years next before 
 the commencement of this suit, guilty of the said trespasses in the said declara- 
 tion mentioned, or any part thereof, in manner and form as the said A. B. 
 hath above complained ; and this the said C. D. is ready to verify. Wherefore 
 he prays judgment if the said A. B. ought to have or maintain his aforesaid 
 action against him. 
 
 When several pleas are pleaded, either to different mat- 
 ters, (as in p. 262,) or (by virtue of the statute of Anne) to 
 the same matter, as in the last example, the plaintiff may, 
 according to the nature of his case, either demur to the 
 whole, or demur to one plea and reply to the other, or 
 make a several replication to each plea; and, in the two 
 latter cases, the result may be a corresponding severance 
 in the subsequent pleadings, and the production of several 
 issues. But, whether one or more issues be produced, if 
 the decision, whether in law or fact, be in the defendant's 
 favor, as to any one or more pleas, he is entitled to judg- 
 
 (r.) But the court have a discretion, either to permit or refuse, according 
 to the nature of the matters proposed to be pleaded. (Jeriins v. Edwards, 
 5 T. R., 97.) 
 
 (».) See the declaration, supra, p. 255. 
 
264 OF THE PEINCIPAI. 
 
 ment, though he fail as to the remainder, i. e., he is entitled 
 to judgment in respect of that subject of demand or com- 
 plaint to which the successftil plea relates; and, if it were 
 pleaded to the whole declaration, to judgment generally, 
 though the plaintiff should succeed as to all the other 
 pleas. 
 
 By a relaxation similar to that which has obtained with 
 respect to several counts, the use of several pleas (though 
 presumably intended by the statute to be allowed only in a 
 case where there are really several grounds of defense,) {t,) 
 is, in practice, carried much further. For it was soon 
 found that, when there was a matter of defense by way of 
 special plea, it was generally expedient to plead that mat- 
 ter in company with the general issue, whether there were 
 any real ground for denying the declaration or not; because 
 the effect of this is to put the plaintiff to the proof of his 
 declaration before it can become necessary for the defend- 
 ant to establish his special plea; and thus the defendant 
 has the chance of succeeding, not only on the strength of 
 his own case, but by the failure of the plaintiff's proof. 
 Again, as the plaintiff, in the case of several counts, finds 
 »t convenient to vary the mode of stating the same subject 
 vf claim, so, for similar reasons, defendants were led, un- 
 der color of pleading distinct matters of defense, to state 
 >'<'iriously, in various pleas, the same defense, and this, 
 either by presenting it in an entirely new view, or by omit- 
 ting in one plea some circumstances alleged in another. 
 To this extent, therefore, is the use of several pleas now 
 carried; and, accordingly, the form of pleading, in the last 
 of the above examples, would, in practice, be adopted, in- 
 stead of that in the first, whether the truth of the case 
 really warrants a denial of both counts oi not. Some 
 efforts, however, were at one time mad« to restrain this 
 apparent abuse of the indulgence given by the statute. 
 For that leave of the court which the statute requires was 
 formerly often refused where the proposed subjects of 
 
 (t.) See Lord Clinton i;. Morton, 2 Str., 1000. 
 
RULES OF PLEADING. 265 
 
 plea appeared to be inconsistent; and on this ground leave 
 has been refused to plead to the same trespass not guilty 
 and accord and satisfaction, or non estfactKm and payment to 
 the same demand, (m.) In modern practice, however, such 
 pleas, notwithstanding the apparent repugnancy between 
 them, are permitted, (x;) and the only pleas, perhaps, which 
 have been uniformly disallowed, on the mere ground of 
 inconsistency, are those of the general issue and a tender, {y.) 
 On the subject of several pleas it is to be further observed, 
 that the statute extends to the case of pleas only, and not 
 to replications or subsequent pleadings. These remain subject 
 to the full operation of the common law against duplicity, so 
 that, though to each plea there may, as already stated, be 
 a separate replication, [z,) yet there cannot be offered to 
 the same plea more than a single replication, nor to the 
 same replication more than one rejoinder ; and so to the 
 end of the series. The legislative provision allowing sev- 
 eral matters of plea was confined to that case, under the 
 impression, probably, that it was in that part of the plead- 
 ing that the hardship of the rule against duplicity was 
 most seriously and frequently felt, and that the multiplicity 
 of issues which would be occasioned by a further extension 
 of the enactment would have been attended with expense 
 and inconvenience more than equivalent to the advantage. 
 The effect, however, of this state of law is somewhat re- 
 markable. For example : it empowers a defendant to plead 
 to a declaration in assumpsit, for goods sold and delivered, 
 1, the general issue; 2, that the cause of action did not 
 accrue within six years; 3, that he was an infant at the 
 time of the contract. On the first plea the plaintiff has 
 
 (u.) Com. Dig., Pleader, E. 2. 
 
 {x.) Vide 1 Sel. Pract., 299; 2 Chitty, 582, 1st edit. See Eama, Chitty ii 
 Hume, 13 East., 255. 
 
 (y.) But the court of C. P. lately refused to allow the defendant in scire 
 facias, on a judgment, to plead, 1, payment ; 2, that the judgment was ob 
 tained by fraud ; 3, that the warrant of attorney on which judgment was 
 tntered was obtained by fraud. (Shaw v. Lord Alvanley, 2 Bing., 325.) 
 
 (2.) Supra, p. 263. 
 
266 OF THE PKINCIPAL 
 
 only to join issue, but with respect to each of the two last 
 he may have several answers to give. The case may be 
 such as to afford either of these replications to the statute 
 of limitations, viz, that the cause of action did accrue within 
 six years, or that at the time the cause of action accrued 
 he was beyond sea, and that he commenced his suit within 
 six years after his return. So, to the plea of infancy he 
 may have ground for replying, either that the defendant 
 was not an infant, or that the goods for which the action is 
 brought were necessaries suitable to the defendant's condi- 
 tion in life. Yet, though the defendant had the advantage 
 of his three pleas cumulatively, the plaintiff is obliged to 
 make his election between these several answers, and can 
 reply but one of them to each plea. 
 
 It is also to be observed, that the power of pleading 
 several matters extends to pleas in bar only, and not to 
 those of the dilatory class, with respect to which the leave 
 of the court will not be granted, {a.) 
 
 Again, it is to be remarked, that the statute does not 
 operate as a total abrogation, even with respect to pleas 
 in bar, of the rule against duplicity. For, first, it is neces- 
 sary (as we have seen) to obtain the leave of the court to 
 make use of several matters of defense; and then the 
 several matters are pleaded formally, with the words "by 
 leave of the court for this purpose first had and obtained," 
 in the manner shown in the example, (b.) The several 
 defenses must also each be pleaded as a new or further plea, 
 with a formal commencement and conclusion as such; 
 so that, notwithstanding the statute and the leave of the 
 court obtained in pursuance of it, to plead several matters, 
 it would still be improper to incorporate several matters in 
 one plea in any case in which the plea would be thereby 
 rendered double at common law. 
 
 Such is the nature and extent of the rule against double 
 pleading, and of the modifications to which, in practice, 
 
 (a.) See 1 Sell. Pract., 275. 
 (6.) Supra, p. 263. 
 
RULES OF PLEADING. 267 
 
 it is subject. Under this rule, it remains only to observe 
 that, if, instead of demurring for duplicity, the opposite 
 party passes the fault by, and pleads over, he is, in thai 
 case, bound to answer each matter alleged ; and has no 
 right, on the ground of the duplicity, to confine himself 
 to any single part of the adverse statement, (c.) 
 
 RULE II. 
 
 IT IS NOT ALLOWABLE BOTH TO PLEAD AND TO DEMUB TO THE SAME MAT- 
 
 TEE, (d.) 
 
 This rule depends on exactly the same principles as the 
 last. As it is not allowable to plead double, lest several 
 issues in fact in respect of the same matter should arise, 
 so it is not permitted both to plead and demur to the same 
 matter, lest an issue in fact and an issue in law, in respect 
 of a single subject, should be produced. The party must, 
 therefore, make his election. 
 
 The rule, however, it will be observed, only prohibits 
 the pleading and demurring to the same matter. It does 
 not forbid this course as applicable to distinct statements. 
 Thus, a man may plead to one count, or one plea, and 
 demur to another. The reason of this distinction is suffi- 
 ciently explained by the remarks already made on the sub- 
 ject of duplicity in pleading. 
 
 Lastly, it is to be remarked, that the statute of Anne, 
 which authorizes the pleading of several pleas, gives no 
 authority for demurring and pleading to the same matter. 
 The rule now in question, therefore, is not affected by that 
 provision, but remains in the same state as at common 
 law. 
 
 SECTION ly. 
 
 OP EtTLES WHICH TEND TO PRODUCE CERTAINTY OK PARTICU- 
 LARITY IN THE ISSUE. 
 
 The rules tending to certainty in the pleadings, and, by 
 conBequence, certainty in the issue, are very numerous, 
 
 (c.) Bolton V. Cannon, 1 Vent., 272. 
 (d) Bac. Ab., Pleas, &c., K. 1. 
 
268 OF THE PRINCIPAL 
 
 and in tbeir nature do not easily admit of methodical ar- 
 rangement; but an enumeration shall here be attempted 
 of such of them as appear to be of principal importance. 
 
 EULE I. 
 
 THE PLEADINGS MUST HAVE CEETAINTT OP PLAOE, («.) 
 
 It was formerly explained (/) that the nature of the 
 trial by jury, while conducted in the form which first be- 
 longed to that institution, was such as to render particu- 
 larity of ph,ce absolutely essential in all issues which a jury 
 was to decide. Consisting, as the jurors formerly did, of 
 witnesses, or persons in some measure cognizant of their 
 own knowledge of the matter in dispute, they were of 
 course, in general, to be summoned from the particular 
 place or neighborhood where the fact happened, {g;) and, 
 in order to know into what county the venire facias for 
 summoning them should issue, and to enable the sheriff to 
 execute that writ, it was necessary that the issue, and there- 
 fore the pleadings out of which it arose, should show par- 
 ticularly what that place or neighborhood was, (A.) Such 
 place or neighborhood was called the vemce, or visne, (from 
 vicinetum,) (i,) and the statement of it in the pleadings 
 obtained the same name ; to allege the place being, in the 
 language of pleading, to lay the venue. 
 
 The present law of venue may be stated as follows : 
 
 First, the original writ must be directed to the sheriff of 
 
 some county ; and in that county the action is said to be 
 
 hrought or laid. Each affirmative traversable allegation in 
 
 the writ is to be laid with a venue or place, comprising 
 
 (e.) Com. Dig., Pleader, C. 20 ; lUd, Abatement, H. 13 ; Co. Litt., 125 a. 
 
 (/.) Vide supra, p. 154. 
 
 {g.) Co. Litt., by Harg., 125 a, n. 1. "The venire was to bring up the 
 pores of the place where the fact was laid, in order to try the issue ; and orig- 
 inally every fact was laid in the place where it was really done ; and there- 
 fore the written contracts bore date at a certain place." (Gilb. Hist., 0. P., 84.'^ 
 
 (^4.) Ilderton v. Ilderton, 2 H. Bl., 161 ; per Lord Mansfield, Mostyn * 
 I'abrigas, Cowp., 176 ; Co. Litt., 125 a, b. See 2 Hen. VII, 4. 
 
 {%.) Bao. Ab., Visne or Venue, A. ; 3 Bl Com., 294. 
 
RULES OP PLBADINS. 269 
 
 not only the county in which the fact arose, but the parish, 
 town, (k,) or hamlet within the county, (l;) but in a mere de- 
 nial, of course, no venue is to be used, nor is any required 
 in respect of facts not traversable ; for example, matter of 
 inducement or aggravation, (m.) The pleader has his elec- 
 tion to lay either the parish, the town, or the hamlet; but 
 a more extensive division than a parish (for example, a hun- 
 dred) is not a sufficient venue; that having apparently 
 been considered, in ancient times, as too large an allegation 
 of place to instruct the sheriff properly as to the summon- 
 ing of the jurors, (n.) Of the different facts alleged in the 
 writ, it is necessary that some principal one, at least, should 
 be laid in some parish, town, or hamlet, within the countj' 
 in which the action is brought, in order to justify the bring- 
 ing of the action in that county, (o,) and such county, and 
 the particular place so laid within it, are called the venue 
 in the action, or the venue where the action is laid. 
 
 The declaration, as it conforms to the writ in other par^ 
 ticulars, (p,) so it adheres of necessity to the same venue. 
 The county where the action is laid is placed at the com- 
 mencement, in the margin of the declaration, {q;) and all 
 the different affirmative traversable allegations are to be 
 
 {k.) A ioicn is, in pleading, otherwise called otM. (1 B1. Com., 114.) See Cur- 
 wen V. Salkeld, 3 East., 538. 
 
 (l.) Co. Litt., 125 a; Com. Dig., Abatement, H. 13; Ibid, Pleader, C. 20; 
 Braddish v. Bishop, Gro. Eliz., 260 ; The King v. Holland, per Buller, J., 5, 
 T. E., 620 ; Amory v. Brodrick, 5 Barn. & Aid., 712. But in Ware v. Boydell, 
 3 M. & S., 148, (which was an action on a promissory note,) the court 
 held it sufficient to allege a county for venue, in the declaration, without a 
 parish, because the jury now come de corpore comitatus. 
 
 (to.) Com. Dig., Pleader, C. 20; cites PI. Com., 190 b. 
 
 (71.) Co. Litt., by Harg., 125, n. 1. If the fact happened out of any parish, 
 town, or hamlet, but in some other known place, such as a forest, or the like, 
 Buch hnovm place may be laid for venue. (Co. Litt., 125 a, b ; Bac. Ab., 
 Visne, E., in marg.) And if it happened out of any parish, town, hamlet, or 
 known place, the venue may be laid in the county generally. (Bac. Ab., ibid.) 
 
 (o.) See The King v. Burdett, 4 Barn. & Aid., 175, 176 , Calvin's Case, T 
 Rep., 1 ; Scott v. Brest, 2 T. E., 238. 
 
 (p.) Vide svpra, p. 63. 
 
 (q.) See the forms of declaration in the first chapter. 
 
270 OF THE PRINCIPAL 
 
 laid with a venue of parish, town, or hamlet, as well as 
 county, (r,) in the same manner as above explained with 
 regard to the writ, and in accordance with that instrument. 
 
 In proceedings by bill, the law of venue is exactly the 
 same as that already described, subject only to the differ- 
 ence necessarily introduced by the absence of the original 
 writ, the only effect of which is, that the declaration, in- 
 stead of the original, first determines where the action is 
 laid, and, as in proceedings by original the action is said 
 to be brought or laid in the county into which the writ issues, 
 so in proceedings by bill it is said to be brought or laid in 
 the county named in the margin of the declaration. Again, 
 as in proceedings by original, the county into which the 
 writ issues, and the place within that county at which the 
 principal fact is laid, are called the venue in the action, so in 
 proceedings by bill, the same term applies to the county in 
 the margin of the declaration, and the place within that 
 county laid to the principal fact. 
 
 Whether the action be by original or by bill, the plea, 
 replication, and subsequent pleadings lay a venue to each 
 affirmative traversable allegation, according to the prin- 
 ciples already stated, until issue joined. 
 
 It having been stated that the original object of thus 
 laying a venue was to determine the place from which the 
 venire facias should direct the jurors to be summoned, in 
 case the parties should put themselves upon the country, 
 it will be proper now to consider how far the same use is 
 made of the venue in modern practice. And, in order to 
 explain clearly the existing law on this subject, it will be 
 convenient to take a short retrospect of its former state 
 and progress. 
 
 The most ancient practice, as established at the period 
 when juries were composed of persons cognizant of their 
 own knowledge of the fact in dispute, was, of course, to 
 summon the jury from that venue which had been laid to 
 the particular fact in issue, and from the venue of parish 
 
 (r.) See page 269, note I. 
 
KULES OF PLEADING. 271 
 
 lown, or hamlet, as well as county, (5.) Thus, in an action 
 of debt on bond, if the declaration alleged the contract to 
 have been made at "Westminster, in the county of Middle- 
 sex, and the defendant, in his plea, denied the bond, issue 
 being joined on this plea, it would be tried by a jury from 
 Westminster. Again, if he pleaded an affirmative matter, 
 as, for example, a release, he would lay this new travers- 
 able allegation with a venue; and, if this venue happened 
 to differ from that in the declaration, being laid, for exam- 
 ple, at Oxford, in the county of Oxford, and issue were 
 taken on the plea, such issue would be tried by a jury from 
 Oxford, and not from Westminster, (t.) And it may here 
 be incidentally observed, that as the place Qt neighborhood 
 in which the fact arose and also the allegation of that place 
 in the pleadings was called the venue, so the term was often 
 applied to the jury summoned from thence. Thus it would 
 be said in the case last supposed that the venue was to come 
 from Oxford. With respect to the form of the venire at 
 this period, it was as follows: venire facias duodecim liberos 
 et legales homines, de vicineto de W., (or O.,) {i. e., the 
 parish, town, or hamlet,) per quos rei Veritas melius sciri 
 poterit, &c., [u.) 
 
 While such appears to have been the most ancient state 
 of practice, {x,) it soon sustained very considerable changes. 
 When the jury began to be summoned no longer as wit- 
 nesses, but as judges, and, instead of being cognizant of 
 the fact on their own knowledge, received the fact from 
 the testimony of others judicially examined before them, 
 the reason for summoning them from the immediate neigh- 
 
 (s.) Co. Litt., 125 a.; Bao. Ab., Visne or Venue, E.; and see an illustrativa 
 case, 43 Ed. Ill, 1. 
 
 (i.) Craft «. Boite, 1 Saund., 246 b.; Com. Dig., Action, N. 12; 8 Ed. Ill, 
 8, pL, 20; 45 Ed. Ill, 15; 3 Beeves, 110. 
 
 (li.) De vicineto tali (is the expression of Bracton) per quos rei Veritas me- 
 lius Bciri poterit, Sec., Bract., 309 b., 310 a., 396 b., 397 a. In the statute 27 
 Eliz., c. 6, sec. 1, the form is, 12 liberos et legales homines de moineto de B., 
 per quos rei Veritas, &c. ; and see Litt., sec. 234. 
 
 (x.) See Appendix, note 60. 
 
272 OF THE PRINCIPAL 
 
 borhood ceased to apply, and it was considered as sufficient 
 if, by way of partial conformity with the original principle, 
 a certain number of the jury came from the same hundred in 
 wbich the place laid for venue was situate, though their 
 companions should be of the county only, and neither of 
 the venue nor even of the hundred. This change in the 
 manner of executing the venire did not, however, occasion 
 any alteration in its form, which still directed the sheriff, 
 as in former times, to summon the whole jury from the 
 particular venue, [y.) The number of hundredors which 
 it was necessary to summon was different at different 
 periods; in later times no more than two hundredors were 
 required in a personal action, {z.) 
 
 In this state of the law was passed the statute 16 and 
 17 Car. II, c. 8. By this act (which is one of the statutes 
 of jeofails) it is provided, "that after verdict judgment 
 shall not be stayed or reversed, for that there is no right 
 venue, so as the cause were tried by a jury of the proper 
 county or place where the action is laid." This provision 
 was held to apply to the case (among others) where issue 
 had been taken on a fact laid with a difierent venue from 
 that in the action, but where the venire had improperly 
 directed a jury to be summoned from the venue in the action, 
 instead of the venue laid to the fact in issue, (a.) This had 
 foi'merly been matter of error, and, therefore, ground for 
 arresting or reversing the judgment, (6;) but by this act 
 (passed with a view of removing what had become a merely 
 formal objection) the error was cured, and the staying or 
 reversal of the judgment disallowed. 
 
 While such was its direct operation, it has had a further 
 effect, not contemplated, perhaps, by those who devised the 
 enactment. For what the statute only purported to cure 
 as an error, it has virtually established as regular and uni- 
 
 (y.) 27 Eliz., c. 6, s. 1 ; Litt, sec. 234. 
 Cz.) 27 Eliz., 0. 6, B. 5. (See Appendix, note 61.) 
 (a.) Craft v. Boite, 1 Saund., 247. 
 
 (5.) 1 Saund., 247, n. 1 ; 2 Saund., 5, n. 3 ; Bowyer's Case, Cro. Eliz., 468 ; 
 Eden's Case, 6 Eep., 15 b ; Co. Litt., by Harg., 125 a., n. 1. 
 
RULES OP PLEADING. 273 
 
 form practice ; and issues taken on facts laid with a different 
 venue from that in the action have, for a long time past, been 
 constantly tried, not by a jury of the venue laid to the fact 
 in issue, but by a jury of the venue in the action, (c.) 
 
 Another change was introduced by the statute 4 Ann., 
 0. 16, sec. 6. This act provides that " every venire facias 
 for the trial of any issue shall be awarded of the body of 
 the proper county where such issue is triable," instead of 
 being (as in the ancient form) awarded from the particular 
 venue of parish, town, or hamlet. From this time, there- 
 fore, the form of the venire has been changed, and directs 
 the sheriff to summon twelve good and lawful m^en, &c., 
 "from the body of his county," {d;) and they are accord- 
 ingly, in fact, all summoned from the body of the county 
 only, and no part of them necessarily from the hundred in 
 which the particular place laid for venue is situate, (e.) 
 
 On the whole, then, by the joint effect of these two stat- 
 utes, the venire, instead of directing the jury to be sum- 
 moned from that venue which had been laid to the fact in 
 issue, and from the venue of parish, town, or hamlet, as well 
 as county, now directs them, in all cases, to be summoned 
 from the body of the county in which the action is laid, whether 
 that be the county laid to the fact in issue or not, and 
 without regard to the parish, town, or hamlet. 
 
 What has been hitherto said on the subject of venue 
 relates only to the form in which the venue is laid and its 
 effect as to the venire. There is, however, another very 
 important point still remaining to be considered, viz, how 
 far it is necessary to lay the venue truly. 
 
 Before the change in the constitution of juries above 
 mentioned, the venue was of course always to be laid in 
 the true place where the fact arose, for so the reason of 
 
 (c.) 2 Sannd., 5, n. 3. 
 
 (d.) See the form of the venire, supra, p. 115. 
 
 (e.) And even in criminal proceedings it is now expressly enacted, that no 
 jurors shall be required to be returned from any hundred or hundreds, or from 
 any particular venue within the county, and that the want of hundredors 
 shall be no cause of challenge. (6 Geo. IV, o. 50, sec. 13.) 
 18 
 
274 OP THE PRINCIPAL 
 
 the law of venue evidently required. But when, in conse- 
 quence of that change, this reason ceased to operate, the 
 law began to distinguish between cases in which the truth 
 of the venue was material, or of the substance of the issue, 
 and cases in which it was not so. A difference began now 
 to be recognized between local and transitory matters. The 
 former consisted of such facts as carried with them the 
 idea of some certain place, comprising all matters relating 
 to the realty, and hardly any others; the latter consisted of 
 Buch facts as might be supposed to have happened any- 
 where; and, therefore, comprised debts, contracts, and 
 generally all matters relating to the person or personal 
 property. With respect to the former, it was held, that if 
 any local fact were laid in pleading at a certain place, and 
 issue were taken on that fact, the place formed part of the 
 substance of the issue, and must, therefore, be proved as 
 laid, or the party would fail as for want of proof But as 
 to transitory facts, the rule was, that they might be laid as 
 having happened at one place, and might be proved on the 
 trial to have occurred at another, (/.) 
 
 The present state of the law, with respect to the neces- 
 sity of laying the true venue, is accordingly as follows : 
 
 Actions are either local or transitory. An action is local, 
 if all the principal facts on which it is founded be local; 
 and transitory, if any principal fact be of the transitory 
 kind. In a local action, the plaintiff must lay the venue in 
 the action truly. In a transitory one, he may lay it in any 
 county, and any parish, town, or hamlet within the county, 
 that he pleases. 
 
 From this state of the law, it follows, first, that if an 
 action be local, and the facts arose out of the realm, such 
 action cannot be maintained in the English courts, (g;) for, 
 as the venu£ in the action is to be laid truly, there is no 
 county into which, consistently with that rule, the origi- 
 nal writ can be directed. But, on the other hand, if the 
 
 (/.) Vin. Ab., Trial, M. f. ; Co. Litt., 282 a. See Appendix, note 62. 
 (^.) Per Buller, J., Doulson v. Matthews, 4 T. E., 503. 
 
RULES OP PLEADING. 275 
 
 action be transitory, then, thougli all the facts arose abroad, 
 the action maybe maintained in this country; because the 
 venue in the action may be laid in any English county, at 
 the option of the plaintiff. 
 
 The same state of law also leads to the following infer- 
 ence: that, in a transitory action, the plaintiff may have 
 the action tried in any county that he pleases; for (as we 
 have seen) he may lay the venue in the action in any county, 
 and upon issue joined the venire issues into the county 
 where the venue in the action is laid. And such, accordingly, 
 is the rule, subject only to a check interposed by another 
 regulation, viz, that which relates to the changing of the 
 venue. The courts established, about the reign (as it is 
 said) of James I, (A,) a practice, by which defendants were 
 enabled to protect themselves from any inconvenience 
 they might apprehend from the venue being laid contrary 
 to the fact, and enforce, if they pleased, a compliance with 
 the stricter and more ancient system, (1) By this practice, 
 ■when the plaintiff in a transitory action lays a false venue, 
 the defendant is entitled to move the court to have the venue 
 changed, i. e., altered to the right place; and the court, upon 
 affidavit that the cause of action arose wholly in the county 
 to which it is proposed to change the venue, will in most 
 cases grant the application, and oblige the plaintiff to 
 amend his declaration in this particular, unless he, on the 
 other hand, will undertake to give, at the trial, some mate- 
 rial evidence arising in the county where the venue was 
 laid. 
 
 Whether the action be local or transitory, every local 
 fact alleged in the vrrit and declaration must still be laid 
 with its true venue, on peril of a variance, if the fact 
 should be brought in issue; but transitory facts may be 
 laid with any venue, at the choice of the plaintiff; though 
 it is the usual and most proper course to lay all these with 
 the venu£ in the action. As in the writ and declaration, so 
 
 (h.) Knight v. Farnaby, 2 Salk., 670. 
 (i.) See Appendix, note 63. 
 
276 OF THE PRINCIPAL 
 
 in the plea and subsequent pleadings, every local fact must 
 be laid with its true venue, under peril of variance; but 
 with respect to transitory ones, the rule is, that they must 
 be laid with the venue in the action, (k;) and even to lay the 
 true place is, in this case, not allowable, if it differ from 
 that venue. Thus, in the example already supposed, of 
 an action on a bond, where the action is laid in Middlesex, 
 if the defendant should plead a release at Oxford, this 
 departure from the venue in the action, would be bad, (l,) 
 though the release should really have been executed there. 
 For as the plaintiff may, for a transitory matter, choose 
 any venue that he likes, in his writ and declaration, so, 
 upon the same principle, it would have followed, that the 
 defendant might also, for a transitory matter, have chosen 
 any venue in his plea; and thus, whoever happened to 
 make the last affirmative allegation, and, therefore, to lay 
 the last venue, would have been able (prior to the altera- 
 tion of practice introduced by the statute of Charles 11,) 
 to draw the venire facias and the trial to anyplace that he 
 pleased. But it was thought more reasonable and con- 
 venient that this option should rest with the plaintiff, who, 
 having in the first instance chosen a venue, ought not to 
 be removed from it without cause. The defendant, there- 
 fore, is obliged to follow the venue that the plaintiff has 
 laid; and, in consequence of the establishment of this 
 rule, it seems now to be held that, to transitory matters, 
 no venue need now be laid in pleadings subsequent to the 
 declaration, because, with respect to every matter of this 
 description, the original venue will be taken to be irn- 
 plied, (m.) In practice, however, it is usual to lay a venue 
 in these as well as in the declaration; and perhaps, in point 
 of strict form, it is the more proper course. 
 
 Another point to be noticed on this subject of the true 
 allegation of venue, is, that when transitory matters are 
 
 (k.) Wright V. EamBcot, 1 Saund., 85; 2 Saund., 5, n. 3. 
 
 (7) Co. Litt., 282, b. 
 
 (m.) Se<i 1 Cnitty, 517, 1st edit. 
 
RULES OP PLEADING. 277 
 
 alleged out of their true place, it seems to be necessary 
 that they should be laid, as tiie phrase is, under a videlicet 
 i. e., with the prior interveation of the words "to wit," or 
 "that is to say;" for the form of which the reader may 
 be referred to many of the past examples of pleadings in 
 this work. The eflfect and object of the videlicet, is to mark 
 that the party does not undertake to prove the precise 
 place. And, accordingly, there is some doubt whether the 
 omission of a videlicet does not occasion a necessity, in 
 the event of a traverse even of a transitory matter, of prov- 
 ing the place alleged, {n.) On the other hand, however, it 
 is clear, that where the place is material, or, in other words, 
 where the matter is local, the use of videlicet will not pre- 
 vent the necessity of proving the venae laid. This doc- 
 trine as to a videlicet, it will be observed, is not peculiar 
 to venue, but applies (as will afterwards appear) to many 
 other of the points on which certainty is required in plead- 
 ing. 
 
 The last point of remark that occurs on this subject, re- 
 lates to the case where a heal matter, occurring out of the 
 realm, is alleged in the course of the pleading. This was 
 formerly considered as a case of difficulty ; for, on the one 
 hand, all local facts are to be alleged (as has been shown) 
 in the true place, and, on the other hand, if a place out of 
 the realm be laid for venue, and issue be joined on the 
 fact, it was, at one time, supposed that the issue could not 
 be tried, because no jury could be summoned from the 
 place ; and prior to the statute of Charles, it was, by the 
 general rule, essential (as already stated) that the jury 
 should be summoned from the venue laid to the fact in 
 issue, (o.) It was, however, early decided, that notv?ith- 
 
 (n.) Mr. Chitty inclines to consider the omission as immaterial. (See 1 
 Chitty, 308, note 6, 1st edit.) Opposed, however, to the authorities on which 
 the learned author relies, are Symmons v. Knox, 3 T. R., 68 ; Arnfield v. 
 Bate, 3 M. & S., 173 ; 2 Saund., 291 c, n. 1 ; Bray v. Freemen, 2 J. B. Moore, 
 114; Corporation of Arundel v. Bowman, ihid., 93; Crispin v. Williamson, 8 
 Taunt., 107; Draper v. Garratt, 2 Barn. & Crea., 2. 
 
 ( ).) See a curious instance of the difficulty formerly found in such oases, 
 
278 OP THE PRINCIPAL 
 
 standing that general rule, such naatter might be tried 
 by a jury from the vmue in the action, (p.) And, by way of 
 more effectually preventing the objection, a form has long 
 been in use, which satisfies the double object of conforming 
 to the true place, and, at the same time, laying a venue 
 within the realm ; the venue of a fact arising abroad being 
 often alleged with a videlicet, under the following form of 
 expression : " In parts beyond the seas, at Fort St. G-eorge, 
 in the East Indies," (the real place,) " to wit, at "Westminster, 
 in the county of Middlesex," (the venue in the action,) {q.) 
 "With respect to this method, indeed, of laying the true 
 place, with the addition of the venue in the action, under 
 a videlicet, we may take occasion to observe, that it is 
 ubually applied, not only to local facts arising out of the 
 realm, but to those arising in this country also, if they hap- 
 pened at a different venue from that in the action. 
 
 RULE II. 
 
 THE PLEADIH-GS MUST HAVE OEETAINTY OF TIME, (r.) 
 
 In personal actions, the pleadings must allege the time; 
 that is, the day, month, and year when each traversable 
 fact occurred ; and, when there is occasion to mention a 
 continuous act, the period of its duration ought to be 
 shown, (s.) 
 
 The necessity of laying a time, like that of laying a venue, 
 extends to traversable facts only, and therefore no time need 
 be alleged to matter of inducement or aggravation. The 
 courts, indeed, are in the habit of considering the allega- 
 tions of place and time as connected together; and have 
 
 cited per Abbott, C. J., The Zing v. Burdett, 4 Barn. & Aid., 172 ; and another 
 instance, cited Dowdale's Case, 6 Rep., 47 b. ; and see Broddeck v. Briggs, 
 Garth., 265; Nichols v. Pawlett, iUd., 302 ; Holding v. Haling, 3 Keb., 150. 
 
 (2).) Dowdale's Case, 6 Rep., 46 b. ; Calvin's Case, 7 Rep., 27 a. 
 
 (j.) Com. Dig., Action, n. 7. 
 
 (r.) Com. Dig., Pleader, C, 19; Halsey n. Carpenter, Cro. Jac., 359 ; Denisoa 
 ». Kiohardson, 14 East., 291. 
 
 (!.) Hid. 
 
RULES OF PLEADING. 279 
 
 laid down this general principle, that wherever it is neces- 
 sary to lay a venue, it is also necessary to mention time, (t.) 
 As the place, in transitory matters, is considered as form- 
 ing no material part of the issue, so that one place maybe 
 alleged and another proved, the same law has obtained 
 with respect to time, in all matters generally, (m.) The 
 pleader, therefore, in general, assigns any time that he 
 pleases to a given fact. This option, however, is subject 
 to certain restrictions: 1. He should lay the time under 
 a videlicet, if he does not wish to be held to prove it strictly, 
 (x.) 2. He should not lay a time that is intrinsically impos- 
 sible, or inconsistent with the fact to vMch it relates. A time 
 so laid would, in general, be sufficient ground for demur- 
 rer. But, on the other hand, there is no ground for demur- 
 rer, where such time is laid to a fact not traversable, or 
 where, for any other reason, the allegation of time was 
 unnecessarily made ; for an unnecessary statement of time, 
 though impossible or inconsistent, will do no harm, upon 
 the principle that utile, per inutile, non vitiatur, (?/.) 3. 
 Again, there are some instances in which time happens to 
 form a material point in the merits of the case ; and in these 
 instances, if a traverse be taken, the time laid is of the 
 substance of the issue, and must be strictly proved ; just as 
 in local matters it is necessary to prove the alleged venue. 
 The pleader, therefore, with respect to all facts of this 
 description, must state the time truly, at the peril of fail- 
 ure, as for a variance. And here, as in the case of a local 
 fact, the insertion of a videlicet will give no help. Thus, 
 where the declaration stated a usurious contract, made on 
 
 (t.) Per Buller, J^The King v. Holland, 5 T. R., 620. 
 
 lu.) Co. Litt, 283 a; The Kingu. Bishop of Chester, 2 Salk., 561; Cooke 
 V. Birt, 5 Taunt., 765. 
 
 (x.) As to the qeaning and effect of a videlicet, vide supra, p. 277. 
 
 (y.) This appears to be a correct general statement of the law with respect 
 tc demurrer for an impossible or inconsistent date; but the current of author- 
 ities is not quite clear and uniform on this subject. (See Com. Dig., Pleader, 
 C. 19 ; 2 Saund., 291 c, n. 1 ; ibid., 171 a, n. 1.) N. B. The jbjection is often 
 aided, after verdict, or cured by the statutes of jeofails. (See Appendix, 
 note 64.) 
 
280 OF THE PRINCIPAL 
 
 the 21st day oi December, 1774, for giving day of paymeu* 
 of a certain sum to the 23d day of December, 1776, and 
 the proof was that the contract was on the 23d December, 
 1774, giving day of payment for two years, it was held 
 that the verdict must be for the defendant; the principle 
 of this decision being, that the time given for payment 
 being of the substance of an usurious contract, such time 
 must be proved as laid, (z.) So, where the declaration 
 stated a usurious agreement on the 14th of the month, to 
 forbear and give day of payment for a certain period, but 
 it was proved that the money was not advanced till the 
 16th, the plaintiff was nonsuited, (a;) it being held by 
 Lord Mansfield at the trial, and afterwards by the court 
 in banc, that the day from whence the forbearance took 
 place was material, though laid under a videlicet, (6.) 
 
 Where the time needs not to be truly stated, (as is gen- 
 erally the case,) it is subject to a rule of the same nature 
 with one that applies to venue in transitory matters, (c,) 
 viz, that the plea and subsequent pleadings should follow 
 the day alleged in the writ and declaration, [d;) and if, in 
 these cases, no time at all be laid, the omission is aided, 
 after verdict, or judgment by confession or default, by the 
 operation of the statute of jeofails, (e.) But where, in the 
 plea or subsequent pleadings, the time happens to be mate- 
 rial, it must be alleged ; and there (as in the case of a venue 
 
 (z.) Carlisle v. Trears, Cowp., 671. 
 
 (a.) The nature of judgment of nonsuit has been stated in the first chapter, 
 rupra, p. 136. It will be proper to explain here, however, that when, on ac- 
 count of a variance, or any other matter of form, the plaintiff understands 
 that the judge is going to direct the jury to find a verdict against him, he 
 usually takes the course of avoiding a verdict, by voluntarily submitting to 
 judgment of nonsuit; and for that purpose he is supposed to absent himself 
 from the court. The reason is, that such judgment does not prevent his 
 bringing another action, but by a verdict he is barred forever. (See 3 Bl. 
 Com., 376.) 
 
 (6.) Johnson v. Picket, cited Grimwood v. Barritt, 6 T. E., 433; sea also 
 Hardy v. Cathcart, 5 Taunt., 2. 
 
 (c.) Supra, p. 275. 
 
 (d.) 2 Saund., 5, n. 3 ; Hawe v. Planner, 1 Saund., 14. 
 
 (e.) Higgins v. Highfield, 13 East., 407. 
 
RULES OF PLBADINS. 281 
 
 to a local fact) the pleader may be obliged to depart from 
 the day in the writ and declaration. 
 
 Certainty of time is said to be required in personal 
 actions only; it being held that in real and mixed actions 
 it is in general not necessary to allege the day, month, and 
 year, and that it is sufficient to show in what king's reign 
 the matter arose, (/.) 
 
 RULE III. 
 
 THE PLEADINGS MUST SPECIPT (H7ALITT, aUANTITT, ASS VALUE, (g.) 
 
 It is, in general, necessary, where the declaration alleges 
 any injury to goods and chattels, or any contract relating to 
 them, that their quality, quantity, and value or price, should 
 be stated. And in any action brought for recovery of real 
 property, its quality should be shown, as, whether it consists 
 of houses, lands, or other hereditaments, and in general it 
 should be stated whether the lands be meadow, pasture, or 
 arable, &c. And the quantity of the lands or other real estate 
 must also be specified, (A.) So, in an action brought for 
 injuries to real property, the quality should be shown, as, 
 whether it consists of houses, lands, or other hereditaments. 
 
 Thus, in an action of trespass, for breaking the plaintiff's 
 close and taking away his fish, without showing the number 
 or nature of the fish, it was, after verdict, objected, in arrest 
 of judgment, first, "that it did not appear by the declara- 
 tion of what nature the fish were : pikes, tenches, breams, 
 &c. ; " and, secondly, that "the certain number of them did 
 not appear." And the objection was allowed by the whole 
 court, [i.) So, where, in an action of trespass, the declara- 
 
 (/.) Com. Dig., Pleader, C. 19; The King v. Bishop of Chester, 2 Salk., 561; 
 f^kin., 660, 9 Henry VI, 115, 116. 
 
 (ff-) Oportet quod petens rem designet, quam petit, videlicet, qualitatem, 4c., 
 item quantitatem, &c., BrMt. 431 a., Harpur's Case, 11 Rep., 25 b. ; Doot 
 PI., 85, 86; Knights. Symms, Carth., 204; Doe v. Ploughman, 1 East., 441; 
 Goodtitle v. Otway, 8 East., 375; Andrew v. Whitehead, 13 East., 1C2: 1 
 Saund., 333, n. 7 ; 2 Saund., 74, n. 1. 
 
 {k.) See the authorities last cited. 
 
 (i) Playter's Case, 5 Rep., 34 b. 
 
 N. B. — Sergeant Williams observes, that in this case the omisaion would, 
 
282 OP THE PRINCIPAL 
 
 tion charged the taking of cattle, the declaration was iield 
 to be bad, becauee it did not show of what species the 
 cattle were, (k.) So, in an action of trespass, where the 
 plaintiff declared for taking goods generally, without s;peci- 
 fying the particulars, a verdict being found for the plaintiff, 
 the court arrested the judgment for the uncertainty of the 
 declaration, (l.) So, in a modern case, where, in an action 
 of replevin, the plaintiff declared that the defendant, "in 
 a certain dwelling house, took divers goods and chattels 
 of the plaintiff," without stating what the goods were, the 
 court arrested the judgment, for the uncertainty of the 
 declaration, after judgment by default and a writ of inquiry 
 executed, (m.) So, in an action of dower, where blanks 
 were left in the count for the number of acres claimed, the 
 judgment was reversed after verdict, {n.^ So, in eject- 
 ment, the plaintiff declared for five closes of land, arable 
 and pasture, called Long Furlongs, containing ten acres; 
 upon not guilty pleaded the plaintiff had a verdict, and it 
 was moved, in arrest of judgment, that the declaration 
 was ill, because the quantity and quality of the lands were 
 not distinguished and ascertained, so as to show how many 
 acres of arable there were and how many of pasture. And 
 for this reason the declaration was held ill, and the judg- 
 ment arrested, (o.) 
 
 With respect to valv£, it is to be observed, that it should 
 be specified in reference to the current coin of the realm, 
 thus : " divers, to wit, three tables of great value, to wit, 
 the value of twenty pounds, of lawful money of Great 
 Britain." With respect to quantity, it should be specified 
 
 perhaps, now be held to be aided, after verdict, or cured, by the statutes of 
 jeofails ; and as the action was not merely for taking fish, but also for break- 
 ing the close, he doubts if the declaration would now be held bad, even on 
 special demurrer. (2 Saund., 74, n. 1.) And see Chamberlain v. Greenfield, 
 SWils., 292. 
 
 (k) Dale v. Phillipson, 2 Lutw., 1374. 
 
 (I.) Bertie v. Pickering, 4 Burr, 2455 ; Wiata. Essington, Ld. Ray., 1410,S.P, 
 
 (to.) Pope *. Tillman, 7 Taunt., 642. 
 
 (n.) Lawley v. Gattacre, Cro. Jac, 498. 
 
 (o.) Knight V. Symms, Garth., 204; see Appendix, note 65. 
 
RULES OF PLEADING. 283 
 
 by the ordinary measures of extent, weight, or capacity, 
 thus : " divers, to wit, fifty acres of arable land," " divers, 
 to wit, three bushels of wheat." 
 
 The rule in question, however, is not so strictly con- 
 strued, but that it sometimes admits the specification of 
 quality and quantity in a loose and general way. Thus, a dec- 
 laration in trover, for two packs of flax and two packs of 
 hemp, without setting out the weight or quantity of a pack, 
 is good after verdict, and, as it seems, even upon special 
 demurrer, (p.) So, a declaration in trover, for a library of 
 books, has been allowed, without expressing what they 
 were. So, where the plaintiff declared in trespass for enter- 
 ing his house, and taking several keys for the opening of the 
 doors of his said house, it was objected, after verdict, that 
 the kind and number ought to be ascertained. But it was 
 answered and resolved, that the keys are sufficiently ascer- 
 tained by reference to the house, [q.) So, it was held, upon 
 special demurrer, that it was sufficient to declare, in tres- 
 pass for breaking and entering a house, damaging the 
 goods and chattels, and wrenching and forcing open the 
 doors, without specifying the goods and chattels, or the 
 number of doors forced open ; for that the essential matter 
 of the action was the breaking and entering of the house, 
 and the rest merely aggravation, (r.) 
 
 There are also some kinds of action, to which the rule re- 
 quiring specification of quality, quantity, and value, does 
 not apply in modem practice. Thus, in actions of debt and 
 indebitatis assumpsit, (s,) (where a more general form of dec- 
 laration obtains than in most other actions,) if the debt is 
 claimed in respect of goods sold, &c., the quality, quantity, 
 or value of the goods sold, is never specified. The amount 
 
 (p.) 2 Saund., 94 b, n. 1. 
 
 (q.) Layton v. Grindall, 2 Salk., 643 ; and see many other instances, 2 
 Saund., 74 b, n. 1. 
 
 (r.) Chamberlain v. Greenfield, 3 Wils., 292. 
 
 (s.) Indebitatus assumpsit is that species of the action of assumpsit in 
 ■which the plaintifi first alleges a debt, and then a promise in consideration 
 of the debt. The promise bo laid is, generally, an implied one only. Sea 
 the form ot a Jeclaration in indebitatus assumpsit, for goods sold, supra, p. 72. 
 
2> 4 OE THE PKIlfCIPAL 
 
 of the debt, or sum of money due upon such sale, must, 
 however, be shown. 
 
 As with respect to place and time, so, with respect to 
 quantity and value, it is not necessary, when these matters 
 are brought into issue, that the proof should correspond with 
 the averment. The pleader may, in general, allege any 
 quantity and value that he pleases, (at least if it be laid un- 
 der a videlicet,) without risk from the variance, in the event 
 of a different amount being proved, {t.) But it is to be 
 observed, that a verdict cannot, in general, be obtained for a 
 larger quantity or value than is alleged. The pleader, there- 
 fore, takes care to lay them to an extent large enough to 
 cover the utmost case that can be proved. And it is also 
 to be observed, that, as with respect to place or time, so 
 with respect to quantity or value, there may be instances 
 in which it forms part of the substance of the issue ; and 
 there the amount must be strictly proved as laid. For ex- 
 ample, to a declaration in assumpsit for 10^. 4s., and other 
 sums, the defendant pleaded, as to all but 4i. 7s. M., the 
 general issue; and, as to the 41. 7s. 6d., a tender. The 
 plaintiff replied that, after the cause of action accrued, 
 and before the tender, the plaintiff demanded the said sum 
 of 4Z. 7s. 6d., which the defendant refused to pay; and on 
 issue joined, it was proved that the plaintiff had demanded 
 not 4,1. 7s. 6d., but the whole 101. 4s. This proof was held 
 not to support the issue, (u.) 
 
 "With respect to the allegation of quality, this generally 
 requires to be strictly proved as laid, {x.) 
 
 EULE IV. 
 
 THE PLEADINGS MUST SPECIFY THE NAMES OP PEESONS, (y.) 
 
 First, this rule applies to the parties to the suit. 
 
 The original writ and the declaration must both set forth 
 
 (<.) Crispin v. Williamson, 8 Taunt., 107. 
 (m.) Rivers v. Griffith, 5 Barn. & Aid., 630. 
 (,T.) See Appendix, note 66. 
 
 (2/.) Com. Dig., Abatemen* E. 18, E. 19, F. 17, F. 18; Com. Dig., Pleader 
 0. 18; Biact., 301b. 
 
KULBS OF PLEADING. 285 
 
 accurately the names of both parties, (z.) The plaiutiff 
 must be described by his Christian name and surname; 
 and, if either be mistaken or omitted, it is ground for plea 
 in abatement. The case is the same with respect to the 
 defendant. If either party have a name of dignity, such as 
 earl, &c., he must be described accordingly; and an omis- 
 sion or mistake in such description has the same effect as in 
 the Christian name and surname of an ordinary person, [a.) 
 
 Secondly, the rule relates to persons not parties to the 
 suit, of whom mention is made in the pleading. 
 
 The names of such persons, viz, the Christian name and 
 surname, or name of dignity, must in general be given; 
 but, if not within the knowledge of the party pleading, an 
 allegation to that effect should be made, and such allega- 
 tion will excuse the omission of name, (6.) 
 
 A mistake in the name of a party to the suit is ground for 
 plea in abatement only, and cannot be objected as a vari- 
 ance at the trial; but the name of a person not party, is a 
 point on which the proof must correspond with the aver- 
 ment, under peril of a fatal variance. Thus, where a bill 
 of exchange drawn by John Couch was declared upon as 
 drawn by John Crouch, and the defendant pleaded the 
 general issue, the plaintiff was nonsuited, (c.) So, where 
 the declaration stated that the defendant went before Ei ch- 
 ard Cavendish, Baron "Waterpark, of Waterfork, one of the 
 justices, &c., for the county of Stafford, and falsely charged 
 the plaintiff" vsdth felony, &c., and, upon the general issue, 
 it appeared in evidence that the charge was made before 
 Kichard Cavendish, Baron Waterpark, of Waterpark — this 
 was held a fatal variance in the name of dignity, {d.) 
 
 (2.) Com. Dig., Abatement, E. 18, E. 19, F. 17, F. 18; Com. Dig., Pleader, 
 C. 18 ; Bract., 301 b. 
 
 (a.) Com. Dig., Abatement, B. 20, F. 19. 
 
 \h.) Buckley v. Eice Thomas, Plowd., 128 a; Eowe v. Roach, 1 M. & S. 
 204. 
 
 (c^ Whitwell V. Bennett, 3 Bos. & Pull., 559; see also Bowditch v. Mawley, 
 I Camp., 195 ; Hutchinson v. Piper, 4 Taunt., 810. 
 
 (d) Walters v. Mace, 2 Barn. & Aid., 756. 
 
286 OF THE PRINCIPAL 
 
 EULE V. 
 
 THE PLEADIITGS MUST SHOW TITLE, (6.) 
 
 When, in pleading, any right or authority is set np in re« 
 spect of property, personal or real, some iiile to that prop- 
 erty must of course be alleged in the party, or in some other 
 person from whom he derives his authority, (/.) So, if a 
 party be charged with any liability, in respect of property, 
 personal or real, his title to that property must be alleged. 
 
 It is proposed, first, to consider the case of a party's 
 alleging title in himself, or in another whose authority he 
 pleads; next, that of his alleging it in his adversary. 
 
 I. Of the case where a party alleges a title m himself, or 
 in another whose authority he pleads. 
 
 1. It is often sufficient to allege a title of possession only. 
 
 The form of laying a title of possession, in respect of 
 goods and chattels, is either to allege that they were the 
 "goods and chattels of the plaintiff," or that he was "law- 
 fully possessed of them as of his own property," (g.) "With 
 respect to corporeal hereditaments, the form is, either to allege 
 that the close, &c., was the "close of" the plaintiff, (h,) or 
 that he was " lawfully possessed of a certain close," &c., (z.) 
 With respect to incorporeal heredita,ments, a title of possession 
 is generally laid by alleging that the plaintiff was possessed 
 of the corporeal thing, in respect of which the right is 
 claimed, and by reason thereof was entitled to the right at 
 the time in question; for example, that he "was possessed 
 of a certain messuage, &c., and by reason thereof, during 
 dU the time aforesaid, of right ought to have had common 
 of pasture," &c., {k.) 
 
 A title of possession is applicable, that is, wUl be suffi- 
 
 (e.) Com. Dig., Pleader, 3 M., 9; Bract., 372 b, 373 b. 
 
 (/.) Hid. 
 
 (^.) As in the examples, supra, pp. 74, 73, 
 
 (A.) As in the example, supra, p. 70. 
 
 (i.) See an example, 2 Chitty, 531, 1st edit. 
 
 (k) See an example, 2 Chitty, 354, 1st edit. 
 
RULES OF PLEADIKG. 287 
 
 ciently sustained by the proof, in all cases where the interest 
 is of a present and immediate kind. Thus, when a title of 
 possession is alleged, with respect to goods and chattels, the 
 statement will be supported by proof of any kind of pres- 
 ent interest in them, whether that interest be temporary and 
 special, or absolute in its nature; as, for example, whether 
 it be that of a carrier or finder only, or that of an owner 
 and proprietor, (I.) So, where a title in possession is 
 alleged in respect of corporeal or incorporeal hereditaments, it 
 will be sufficiently maintained by proving any kind of 
 estate in possession, whether fee simple, fee tail, for life, for 
 term of years, or otherwise. On the other hand, with 
 respect to any kind of property, a title of possession would 
 not be sustained in evidence by proof of an interest in 
 remainder or reversion only; and, therefore, when the inter- 
 est is of that description, the preceding forms are inappli- 
 cable, and title must be laid in remainder or reversion, 
 according to the fact, and, upon the principles that will be 
 afterwards stated, on the subject of alleging title in its full 
 and precise extent. 
 
 Where a title of possession is applicable, the allegation 
 of it is, in many cases, sufficient, in pleading, without show- 
 ing title of a superior kind. The rule on this subject is aa 
 follows : That it is sufficient to allege possession as against a 
 wrong-doer, (m;) or, in other words, that it is enough to lay 
 a title of possession against a "person who is stated to have 
 committed an injury to such possession, having, as far as 
 it appears, no title himself. Thus, if the plaintiff declares 
 in trespass, for breaking and entering his close, or in tres- 
 pass on the case, for obstructing his right of way, it is 
 enough to allege in the declaration, in the first case, that 
 it is the " close of the plaintiff," {n,) in the second case, 
 that "he was possessed of a certain messuage, &c., and, 
 
 (I.) 2 Saund., 47 a., n. 1. 
 
 (m.) Com. Dig., Pleader, 0. 39; C. 41 ; Taylor v. Eastwood, 1 East., 212; 
 Grimstead v. Mar] we, 4 T. K., 717 ; Greenhow v. Ilsley, Willes, 619 ; War- 
 ing V. Grifaths, 1 Burr., 440 ; Langford v. Webber, 3 Mod., 132. 
 
 («.) See the form of the declaration, supra, p. 70. 
 
288 OF THE PEINCIPAL 
 
 by reason of such possession, of right ought to have had a 
 certain way," &c. For, if the case was that the plaintiff, 
 being possessed of the close, the defendant having himself 
 no title, broke and entered it, or, that the plaintiff, being 
 possessed of a messuage and right of way, the defendant 
 being without title, obstructed it, then, whatever was the 
 nature and extent of the plaintiff's title, in either case, the 
 law will give him damages for the injury to his possession; 
 and it is the possession, therefore, only that needs to be 
 stated. It is true that it does not yet appear that the 
 defendant had no title, and, by his plea, he may possibly 
 set up one superior to that of the plaintiff; but as, on the 
 other hand, it does not yet appear that he hud title, the 
 effect is the same, and till he pleads he must be considered 
 as a mere wrong-doer, that is, he must be taken to have 
 committed an injury to the plaintiff's possession, without 
 having any right himself. Again, in an action of trespass 
 for assault and battery, if the defendant justifies, on the 
 ground that the plaintiff wrongfully entered his house and 
 was making a disturbance there, and that the defendant 
 gently removed him, the form of the plea is, that "the 
 defendant was lawfully possessed of a certain dwelling- 
 house, &c., and, being so possessed, the said plaintiff was 
 unlawfully in the said dwelling-house," &c. ; and it is not 
 necessary for the defendant to show any title to the house 
 beyond this of mere possessibn, (o.) For the plaintiff has, 
 at present, set up no title at all to the house; and, on the 
 face of the plea, he has committed an injury to the defend- 
 ant's possession, without having any right himself. So, in 
 an action of trespass for seizing cattle, if the defendant 
 justifies, on the ground that the cattle were damage-feasant 
 on his close, it is not necessary for him to show any title 
 to his close, except that of mere possession, {jp.) 
 It is to be observed, however, with respect to this rale, 
 
 (o.) 2 Chitty, 529, 1st edit. ; Skevil v. Avery, Cro. Car., 138. 
 {p.) 1 Saund., 221,n. l,34:6e.,n.2; 2 Saund.,285, n. 3; Anon., Salk., 643; 
 Searl v. Bunnion, 2 Mod., VO ; Osway v. Bristow, 10 Mod., 37 ; 2 Bos & Pull., 
 
RULES OF PLEADING. ''89 
 
 as to alleging possession against a wrong-doei, thai it 
 seems not to hold in replevin. For, in that action, it is 
 held not to be sufficient to state a title of possession, evt n 
 in a case where it would be allowable in trespass, by virtue 
 of the rule above mentioned. Thus, in replevin, if the 
 defendant, by way of avowry, pleads that he was possessed 
 of a messuage, and entitled to common of pasture, as 
 appurtenant thereto, and that he took the cattle damage- 
 feasant, it seems that this pleading is bad, and that it is 
 not sufficient to lay such mere title of possession in this 
 action, (q.) It is to be observed, too, that this rule has 
 little or no application in real or mixed actions ; for, in 
 these, an injury to the possession is seldom alleged; the 
 question in dispute being, for the most part, on the right 
 of possession, or the right of property. 
 
 Where this rule as to alleging possession against a 
 wrong-doer does not apply, there, though the interest be 
 present or possessory, it is, in general, not sufficient to state 
 a title of possession, but some superior title must be shown. 
 Thus, in trespass for breaking the plaintiff's close, if the 
 defendant's justification is that the close was his own copy- 
 hold estate of inheritance, his plea, as it does not make 
 the plaintiff a wrong-doer, but, on the contrary, admits 
 Ms possessory title in the close, and pleads in confession 
 and avoidance of it, must allege not merely a possession, 
 but a seizin in fee of the copyhold. So, in a similar ac- 
 tion, if the defendant relies on a right of way over the 
 plaintiff's close, it will not be sufficient to plead that he, 
 the defendant, was lawfully possessed of another close, and, 
 
 361, n. OS; Langford v. Webber, 3 Mod., 132; but see S.C. Garth., 9; 3 Salk,, 
 356. 
 
 N. B. — It is sometimes said, that the reason why it is sufficient to lay a 
 possessory title in such cases is, that the title is matter of indiicement only 
 to the main subject of the plea. But this doctrine, if well examined, resolves 
 itself into the broader and more satisfactory rule given in the text. 
 
 (q.) Hawkins v. Eccles, 2 Bos. & Pull., 359, 361, n. a; per Buller, J., Dov- 
 aston V. Payne, H. Bl., 530; 1 Saund., 346 e., n. 2; 2 Saund., 285, n. 3j 
 Saunders v. Hussey, 2 Lutw,, 1231 ; Garth., 9 ; Ld. Bay., 333, S. G. ; but set 
 Adams v. Cross, 2 Vent., 181 
 
 19 
 
290 OF THE PKINCIPAL 
 
 by reason of sucli possession, was entitled to a right of 
 way over the plaintiff's, but he must set forth some supe- 
 rior title to his close and right of way ; as, for example, 
 that of seizin in fee of the close, and a prescription in a 
 qm estate (r) to the right of way, (s.) With respect to the 
 manner of stating a superior title to that of possession, it 
 will be shown under the following head, relative to the 
 allegation of title, in its fuHl and precise extent. 
 
 2. Where a title of possession is, upon the principles 
 above explained, either not applicable, or not sufficient, 
 the title should, in general, be stated in its full and precise 
 extent, (i.) 
 
 Upon this head, two subjects of remark present them- 
 selves — the allegation of the title itself, and the statement of 
 its derivation. 
 
 With respect to the allegation of the title itself, there are 
 certain forms used in pleading, appropriate to each differ- 
 ent kind of title, according to all the different distinctions 
 as to tenure, quantity of estate, time of enjoyment, and number 
 of owners, (m.) These forms are too various to be here 
 stated, and it will be sufficient to refer the reader to the 
 copious stores in the printed precedents, {x.) 
 
 With respect to the derivation of the title, there are certain 
 rules of which it will be necessary to give some account. 
 
 There is a leading distinction, on this subject, between 
 estates in fee simple and particular estates. 
 
 In general, it is sufficient to state a seizin in fee simple per 
 se; that is, simply to state (according to the usual form 
 
 (r.) As to prescription in a que estate, see 2 Bl. Com., 264; 1 Saund., 346, 
 n. 3. 
 
 (s.) See the precedents, 2 Ohitty, 554, 573, 1st edit. But where copyhold- 
 ers claim common in the lord's soil by custom, it is not necessary to show 
 what estate they have in their several copyhold tenemeuts. (Hoskins v. 
 Eobins, 2 Saund., 320 ; Potter v. North, 1 Saund., 353.) 
 
 (<.) Therefore, to allege mere seizin, without showing whether in tee, ia 
 tail, or for life, is, in general, not sufficient. (Saunders v. Hnssey, Garth., 9- 
 2 Lutw , 1231; Ld. Ray., 333, S. C.) 
 
 (m.) Vide 2 Bl. Com., 103 ; 2 Chitty, 199-212, 1st edit. 
 
 {x.) See 2 Chitty, 199-212, Ist edit. 
 
RULES OF PLEADING. 291 
 
 of alleging that title) that the party was "seized in his 
 demesne as of fee of and in a certain messuage," &c., {y,) 
 without showing the derivation, or (as it is expressed in 
 pleading) the commencement of the estate, {z.) For, if it 
 were requisite to show from whom the present tenant 
 derived his title, it might be required, on the same prin- 
 ciple, to show from whom that person derived his, and so 
 ad infinitum. Besides, as mere seizin will be sufficient to 
 give an estate in fee simple, the estate may, for anything 
 that appears, have had no other commencement than the 
 seizin itself which is alleged. So, though the fee be con- 
 ditional or determinable on a certain event, yet a seizin ia 
 fee may be alleged, without showing the commencement 
 of the estate, {a.) 
 
 However, it is sometimes necessary to show the deriva- 
 tion of the fee; viz, where, in the pleading, the seizin has 
 already been alleged in another person, from whom the 
 present party claims. In such ease it must, of course, be 
 shown how it passed from one of these persons to the other. 
 Thus, in debt or covenant brought on an indenture of 
 lease by the heir of the lessor, the plaintiff, having alleged 
 that his ancestor was seized in fee and made the lease, 
 must proceed to show how the fee passed to himself, viz, 
 by descent, (6.) So, if, in trespass, the defendant plead 
 that E. F., being seized in fee, demised to G. H., under 
 whose command the defendant justifies the trespass on the 
 land, (giving color,) and the plaintiff, in his replication, 
 admits E. F.'s seizin, but sets up a subsequent title in 
 himself to the same land, in fee simple, prior to the alleged 
 demise, he must show the derivation of the fee from E. F. 
 to himself, by conveyance antecedent to the lease under 
 fcvhich G. H. claims, (c.) 
 
 With respect to particular estates, the general rule is, that 
 
 (y.) As in the examples, supra, pp. 66, 67, 181. 
 
 (2.) Co. Litt., 303 b ; Soavage v. Hawkins, Cro. Car., 571. 
 
 (a.) Doct. PI., 287. 
 
 (6.) As in the example, supra, p. 181. 
 
 (c.) See Tpper Bench Precedents, 196, cited 9 Went., Index, xl, xli. 
 
292 OF THE PRINCIPAt 
 
 the commencement of particular estates must he showii, [d.) If, 
 therefore, a party sets up in his own favor an estate tail, 
 an estate for life, a term of years, or a tenancy at will, 
 he must show the derivation of that title from its com- 
 mencement, that is, from the last seizin in fee simple; 
 and, if derived by alienation or conveyance, the substance 
 and effect of such conveyances should be precisely set 
 forth. For examples of the manner of thus showing the 
 commencement of particular estates, under all the differ- 
 ent kinds of conveyances, and other media of title, the 
 reader must again have recourse to the books of prece- 
 dents, (e.) 
 
 Under this rule, that the commencement of particular estates 
 must be shown, it is necessary to show the commencement 
 of a copyhold, even though it be copyhold of inheritance, (/.) 
 This is on the ground that a copyhold, even in fee, is in 
 the nature of a particular estate, in respect of the freehold 
 inheritance in the lord. And the difficulty that would arise, 
 if the title were to be deduced from the earliest or original 
 grantee, is obviated by the practice of going back to the 
 admittance of the last heir or surrenderee only; which 
 admittance is considered as in the nature of a grant from 
 the lord, and is so pleaded, {g.) It is in this manner that 
 the commencement of a copyhold estate is, in general, 
 alleged, namely, by stating it as a grant from the lord, {h.) 
 But, where an estate has been already laid in another copy- 
 holder, from whom the present party claims, and it becomes 
 
 (d.) Co. Litt., 303 b ; Pcilly v. Dally, 2 Salk., 562 ; Cartli., 444, S. C. ; Searl 
 V. Bunnion, 2 Mod., 70; Johns v. Whitley, 3 Wils., 72; Hendy v. Stephen- 
 son, 10 East., 60 ; East. Ent., 656 ; and the case of title derived from the 
 king is no exception. (1 Saund., 186 d, n. 1.) 
 
 (e.) See 2 Chitty, 213-232, 1st edit. 
 
 {/.) Pyster v. Hemling, Cro. Jac., 103 ; Shepheard's Case, Cro. Car., 190 ; 
 Eobinson v. Smith, 4 Mod., 346. 
 
 (jr.) See same cases, and Brown's Case, 4 Eep., 22 b ; Bao. Ab., Pleas, &c., 
 p. 422, 5th edit. 
 
 iji.) As to customary freeholds, see Croucher v. Oldfield, Salk., 365 ; Eoe «. 
 Vernon, 5 East., 51 ; Burrell v. Dodd, 3 Bos. & Pull., 378 ; 2 Chitty, 207, 1st 
 ■edit. 
 
RULES OF PLEADING. 293 
 
 necessary, therefore, to show how the estate passed from 
 one to the other, the conveyances between the copyhold 
 tenants, by surrender, and the admittance by the lord, &c., 
 must then be set forth according to the fact, {i.) 
 
 To the rule that the commencement of particular estates mitst 
 be shown, there is this exception, that it need not be shown 
 where the title is alleged by way of inducement only, (k.) 
 Thus, if au action of debt or covenant be brought on an 
 indenture of lease by the executor or assignee of a lessor, 
 who had been entitled for a term of years, it is necessary, 
 in the declaration, to state the title of the lessor, in order 
 to show that the plaintiff is entitled to maintain the action, 
 as his representative or assignee. But as the title is, in 
 that case, alleged by way of inducement only, (the action 
 being mainly founded on the lease itself,) and therefore it 
 is probable that the title may not come into question, the 
 particular estate for years, may be alleged in the lessor, 
 without showing its commencement. 
 
 On the subject of the derivation of title, the following 
 additional rules may be collected from the books : 
 
 First, v)here a party claims hy inheritance, he must, in gen- 
 eral, show how he is heir, viz, as son or otherwise, (J,) and if 
 he claims by mediate, not immediate, descent, he m'ost show the 
 pedigree; for example, if he claims as nephew, he must 
 show how nephew, (m.) 
 
 Secondly, where a farty claims by conveyance or alienation, 
 the nature of the conveyance or alienation miist, in general, be 
 stated; as whether it be by devise, feoffment, &c., {n.) 
 
 Thirdly, the nature of the conveyance or alienation should 
 
 (i.) See the forms, 2 C!liitty, 205, 229, 1st edit. 
 
 \k.) Com. Dig., Pleader, E. 19, C. 43 ; Bleckley v. Slater, Lutw., 120 ; Searl 
 V. Bunnion, 2 Mod., 70 ; Silly v. Dally, Garth., 444 ; Skevill v. Avery, Cro. 
 Car., 138 ; Lodge v. Frye, Cro. Jac, 52 ; Adams v. Cross, 2 Vent., 181 ; Wada 
 V. Baker, Ld. Ray., 130. 
 
 (Z.) Denham v. Stephenson, 1 Salk., 355 ; The Duke of Newcastle v. Wright, 
 1 Lev., 190; 1 Ld. Eaym., 202. See the example, supra, 182. 
 
 (wi.) Dumsday v. Hughes. 3 Bos. & Pull., 453 ; Blackborough v. Davis, 12 
 Mod., 619 ; and see Eoe v. Lord, 2 Black. Rep., 1099, and the cases there cited. 
 
 (n.) See Com. Dig , Pleader, E. 23, E. 24. 
 
294 OF THE PRINCIPAL 
 
 be stated aciiording to its legal effect, rather thar. its form of 
 words. This depends on a more general rule, which we 
 shall have occasion to consider in another place, viz, "that 
 things are to be pleaded according to their legal effect or 
 operation." For the present, the doctrine, as applicable 
 to conveyances, may be thus illustrated. In pleading a 
 conveyance for life, with livery of seizin, the proper form 
 is to allege it as a " demise " for life, (o,) for such is its 
 effect in proper legal description. So, a conveyance in 
 tail, with livery, is always pleaded, on the same principle, 
 as a "gift" in tail, {f,) and a conveyance of the fee, with 
 livery, is described by the term " enfeoffed," {q.) And such 
 would be the form of pleading, whatever might be the 
 words of donation, used in the instrument itself; which, in 
 all the three cases, are often the same, viz, those of " give" 
 and " grant," (r.) So, in a conveyance by lease and re- 
 lease, though the words of the deed of release be " grant, 
 bargain, sell, alien, release, and confirm," yet it should be 
 pleaded as a release only, for that is the legal effect, (s.) So, 
 a surrender (whatever words are used in the instrument) 
 should be pleaded with sursum reddidit, which alone, in 
 pleading, describes the operation of a conveyance as a sur- 
 render, {t.) 
 
 Fourthly, where the nature of the conveyance is such, that it 
 would, at common law, be valid without deed or writing, there 
 no deed or writing need be alleged in the pleading, though such 
 document may in fact exist; but where the nature of the con- 
 
 (o.) Rast. Ent., 647 a, 11 d. 
 
 (p.) See Co. Ent., tit. Formedon, &o., &c. 
 
 (?•) Upper Bench Free, 196 ; see 2 Chitty, 214, 1st edit. " Feoffment prop- 
 erly betokenetli a conveyance in fee ; and yet, sometimes improperly, it is 
 called a feoffment, when an estate of freehold only doth passe." (Co. Litt., 
 9 a.) Feoffare dioitur, qui feodum simplex feoffatorio confert ; donare, qui 
 feodum talliatum. (Speln.. Gloss., verbo feoffare.) And Lord Coke, in an- 
 other place, makes the distinction laid down in the text between feoffi ien<, 
 gift, and demise. (Vynior's Case, 8 Bep., 82 b.) 
 
 (r.) "Do, or dedi, is the aptest word of feoffment." (Co. Litt., 9 a.) 
 
 {$.) 2 Chitty, 220, ncte i, 1st edit. ; 1 Arch., 127; 3 Went., 483, 515. 
 
 (t.) 1 Saund., 235 b, n. 9. 
 
RULES OF PLEADING. 295 
 
 leyance requires, at common law, a deed, or other written instru- 
 m.ent, such instrument must be alleged, (u.) Therefore, a con- 
 veyance, with livery of seizin, either in fee, tail, or for 
 life, is pleaded, without alleging any charter, or other 
 writing of feoffment, gift, or demise, whether such instru- 
 ment, in fact, accompanied the conveyance or not. For 
 such conveyance might, at common law, be made by parol 
 only, (a;;) and though, by the statute of frauds, 29 Car. 11, 
 c. 3, s. 1, it will not now be valid unless made in writing, 
 yet tbe form of pleading remains the same as before the 
 act of parliament, (?/.) On the other hand, a devise of landa 
 (which, at common law, was not valid, and authorized only 
 by the statutes 32 Hen. VIII, c. 1, and 34 Hen. VHI, c. 5,) 
 must be alleged to have been made in writing, [z,) which is 
 the only form in which the statutes authorize it to be made. 
 So, if a conveyance by way of grant be pleaded, a deed 
 must be alleged, (a,) for matters that "lie in grant" (ac- 
 cording to the legal phrase) can pass by deed only, (b.) 
 
 There is one case, however, in which a deed is usually 
 alleged in pleading, though not necessary, at common law, 
 to the conveyance, and which, therefore, in practice, at 
 least, forms an exception to the above rule. For, in mak- 
 ing title under a lease for years, by indenture, it is usual 
 to plead the indenture, (e,) though the lease was good at 
 common law by parol ; and needs to be in writing only 
 where the term is of more than three years' duration, and 
 then only by the statute of frauds. 
 
 On the other hand, in the case where a demise by hus- 
 
 (u.) Vin. Ab., Faits or Deeds, M. a, 11. 
 
 (x.) Vin. Ab., Feoffment, Y, ; Co. Litt., 121 b. 
 
 (y.) This depends upon a more general rule, yiz, that regulations introduced 
 by statute do not alter the form of pleading at common law. This rule will 
 be noticed hereafter, in its proper place. (See Index to this work, tit. Stat- 
 ute.) 
 
 (z.) 1 Saund., 276 a, n. 2. 
 
 (o.) Porter v. Gray, Cro. Eliz., 245; 1 Saund., 234, n. 3 Lathbnry r. Ar- 
 nold, 1 Bing., 217. 
 
 (6.) Vin. Ab., tit. Grants, G. a. 
 
 (c.) See the .exaniple, 2 Chitty, 555, Ist edit. 
 
296 OF THE PRINCIPAL 
 
 band and wife is pleaded, it seems that it is not necessary 
 to show that it was by deed ; and yet the lease, if vsdthout 
 deed, is at common law void as to the wife, after the death 
 of the husband, and is not within the stat. 32 Hen. VIII, 
 0. 28, sect. 1, which gives efficacy to leases by persons hav- 
 ing an estate in right of their wives, &c., only where such 
 leases are " by v/riting indented, under seal." The reason 
 seems to be that a lease by husband and wife, though with- 
 out deed, is good during the life of the husband, (d.) 
 
 Thus far with respect to the allegation of title, in its 
 full and precise extent. Another mode, however, of laying 
 title, still remains to be considered. 
 
 3. Where a title of possession is inapplicable or insuffi- 
 cient, it is not always necessary to allege the title in its full 
 and precise extent; for in lieu of this, it is occasionally suf- 
 ficient to allege what may be called a general freehold title. 
 In a plea in trespass quare clausum fregit, or an avowry in 
 replevin, (e,) if the defendant claim an estate of freehold 
 in the locus in quo, he is allowed to plead generally that 
 the place is his "close, soil, and freehold." This is called 
 the plea or avowry of liberum tenemenium, and it may be 
 convenient here to give the form of it. 
 
 Of liberum tenementum, in trespass quare clausum fregit. 
 
 And for a further plea in this behalf, as to the breaking and entering the 
 eaid close, in which, &c., in the said declaration mentioned, and with feet in 
 walking, treading down, trampling upon, consuming, and spoiling the grass 
 and herbage then and there growing, the said C. D., by leave of the court 
 here for this purpose first had and obtained, according to the form of the stat- 
 ute in such case made and provided, says that the said A. B. ought not to 
 have or maintain his aforesaid action thereof against him, because, he says, 
 that the said close, in the said declaration mentioned, and in which, &c., now 
 is, and at the said several times when, &c., was the close, soil, and freehold of 
 him, the said G. D. Wherefc-re he, the said 0. D., at the said several times, 
 when, Ac, broke and entered the said close, in which, &o., and with feet in 
 
 (d) 2 Saund., 180 a, n. 9 ; Wiscot's Case, 2 Rep., 61 b. ; Bateman ii Allen, 
 Cro. Eliz., 438 ; Childes v. Westcot, ibid, 482 ; Dyer, 91 b. 
 (6.) 1 Saund., 347 d, n. 6. 
 
HULES OF PLEADING. 297 
 
 walking, trod down, trampled upon, oansnmed, and spoiled the grass and 
 herbage then and there growing, as he lawfully might, for the cause aforesaid, 
 which are the same trespasses in the introductory part of this plea mentioned, 
 and whereof the said A. B. hath above complained ; and this the said C. D. 
 ii ready to verify. Wherefore he prays judgment if the said A. B. ought to 
 have or maintain his aforesaid action thereof against him, (/.) 
 
 This allegation of & general freehold title \n\\ be sustained 
 by proof of any estate of freehold, whether in fee, in tail, 
 or for life only, and whether in possession or expectant on 
 the determination of a term of years, {g.) But it does 
 not apply to the case of a freehold estate in remainder or 
 reversion, expectant on a particular estate of freehold, nor 
 to copyhold tenure. 
 
 The plea of avowry of liberum tenementum is the only 
 case of usual occurrence in modern practice in which the 
 allegation of a general freehold title, in lieu of a precise alle- 
 gation of title, is sufficient, (A.) 
 
 In alleging a general freehold title, it is not necessary (as 
 appears by the above example) to shoio its commencement. 
 
 II. Having discussed the case where a party alleges title 
 in himself or some other, whose authority he pleads, next is to 
 be considered the case where a party alleges title in his 
 adversary. 
 
 The rule on this subject appears in general to be, that it 
 is not necessary to allege title more precisely than is sufficient to 
 show a liabiliiy in the party charged or to defeat his present 
 claim. Except as far as these objects may require, a party 
 is not compellable to show the precise estate which his 
 adversary holds, even in a case where, if the same person 
 
 (/) 2 Chitty, 551, 1st edit. 
 
 (jr.) See 5 Henry VII, 10 a., pi. 2, which shows, that where there is a leas* 
 for years it must be replied in confession and avoidance, and ia no ground for 
 traversing the plea of liberum tenementum. 
 
 (h.) See 1 Saund., 347 d., n. 6. . This form of allegation occurred, however, 
 in the now disused actions of assize, the count or plaint in which lays only 
 a general freehold title. (Doot. PI., 289.) It occurs also in the count on a writ 
 of entry sur disseizin, brought by tenant for life or in tail. (B&ath, 177 ; 33 
 Hen. VI, 14 b. ; ( ireswell v. Vanghan, 2 Saund., 30.; 
 
298 OF THE PRINCIPAL 
 
 were pleading his own title, sucli precise allegation would 
 be necessary. The reason of this difference is, that a party 
 must be presumed to be ignorant of the particulars of his 
 adversary's title, though he is bound to know his own, (i.) 
 
 To answer the purpose of showing a liability in the 
 party charged, according to the rule here given, it is, in 
 most cases, sufficient to allege a title of possession, the forms 
 of which are similar to those in which the same kind of 
 title is alleged in favor of the party pleading. 
 
 A title of possession, however, cannot be sustained in 
 evidence, except by proving some present interest in chattels 
 or actual possession of land, (k.) If, therefore, the interest 
 be by way of reversion or remainder, it must be laid 
 accordingly, and the title of possession is inapplicable. So, 
 there are cases, in which to charge a party with mere pos- 
 session would not be sufficient to show his liability. Thus, 
 in declaring against him in debt for rent, as assignee of a 
 term of years, it would not be sufficient to show that he 
 was possessed, but it must be shown that he was possessed 
 as assignee of the term. 
 
 Where a title of possession is thus inapplicable or insuf- 
 ficient, and some other or superior title must be shown, it 
 is yet not necessary to allege the title of an adversary with 
 as much precision as in the case where a party is stating 
 his own, (l;) and it seems sufficient that it be laid fully 
 enough to show the liability charged. Therefore, though 
 it is the rule, with respect to a man's own title, that the 
 commencement of particular estates should be shown, (m,) unless 
 alleged by way of inducement, (n,) yet, in pleading the title 
 of an adversary, it seems that this is, in general, not neces- 
 sary, (o.) So, in cases where it happens to be requisite to 
 
 (i.) Eider v. Smith, 3 T. R., 766 ; Derisley v. Custance, 4 T. E., 77 ; The 
 Attorney General v. Meller, Hardr., 459. 
 (i.) Vide supra, pp. 286, 287. 
 
 (2.) Com. Dig., Pleader, C. 42 ; Hill v. Saunders, 4 Barn. & Ores., 536. 
 (m.) Vide supra, p. 291. 
 (n.) Vide supra, p. 293. 
 (o.) Eiake v. Foster, 8 T. E., 487. 
 
RULES OP PLEADING, 299 
 
 show wheace the adversary derived his title, this may be 
 doue with less precision than where a man alleges his own. 
 And, in general, it is sufficient to plead such title by a que 
 estate; that is, to allege that the opposite party has the same 
 estate, or that the same estate is vested in him, as has been 
 precedently laid in some other person, without showing in 
 what manner the estate passed from the one to the other, {p.) 
 Thus, in debt, where the defendant is charged for rent, as 
 assignee of the term, after several mesne assignments, it 
 is sufficient, after stating the original demise, to allege 
 that, "after making the said indenture, and during the 
 
 term thereby granted, to wit, on the day of , 
 
 in the year , at , all the estate and interest of 
 
 the said K F." (the original lessee) " of and in the said 
 demised premises, by assignment, came to and vested in 
 the said C. D.;" without further showing the nature of the 
 mesne assignments, {q.) But, if the case be reversed, that 
 is, if the plaintiff, claiming as assignee of the reversion, 
 sue the lessee for rent, he must precisely show the convey- 
 ances, or other media of title, by which he became entitled 
 to the reversion; and to say, generally, that it came by 
 assignment, will not, in this case, be sufficient, without 
 circumstantially alleging all the mesne assignments, (n) 
 Upon the same principle, if title be laid in an adversary 
 by descent, as, for example, where an action of debt is 
 brought against an heir on the bond of his ancestor, it is 
 sufficient to charge him as heir, without showing how he is 
 heir, viz, as son, or otherwise, (s;) but if a party entitle 
 himself by inheritance, we have seen that the mode of 
 descent must be alleged, {t.) 
 
 {p.) As to making title by a que estate, see the Attorney General v. Meller, 
 Hardr., 459; Doct. PI., 302; Com. Dig., Pleader, E. 23, E. 24; Co. Litt., 
 121a. 
 
 (2.) 1 Saund., 112, n. 1 ; The Attorney General v. Meller, Hardr.. 459; Th« 
 Duke of Newcastle v. Wright, 1 Lev., 190; Derisley v. Custance, 4 T. R., 77; 
 2 Chitty, 196, 1st edit. 
 
 (r.) 1 Saund., 112, n. 1; Pitt v. Enssell, 3 Lev., 19. 
 
 (s.) Denham v. Stephenssn, 1 Salk., 355. 
 
 (t.) Vide supra, p. 293. 
 
300 OF THE PRINCIPAL 
 
 The manner of showing title, both where it is laid in 
 the party himself, or the person whose authority he pleads, 
 and where it is laid in his adversary, having been now 
 considered, it may next be observed, that the title so shown 
 must, in general, when issue is taken upon it, be strictly 
 proved. "With respect to the allegations of place, time, 
 quantity, and value, it has been seen, that when issue is 
 taken upon them, tliey, in most cases,, do not require to be 
 proved as laid — at least, if laid under a, videlicet. But 
 with respect to title, it is, ordinarily, of the substance of the 
 issue; and, therefore, according to the general principle 
 stated in the first chapter of this work, {u,) requires to be 
 maintained accurately by the proof. Thus, in an action 
 on the case, the plaintiff alleged, in his declaration, that he 
 demised a house to the defendant for seven years, and that, 
 during the term, the defendant so negligently kept his 
 fire, that the house was burned down; and the defendant 
 having pleaded non demisit modo et forma, it appeared 
 in evidence, that the plaintijff had demised to the defend- 
 ant several tenements, of which the house in question 
 was one; but that, with respect to this house, it was, by 
 an exception in the lease, demised at will only. The 
 court held, that, though the plaintifi' might have declared 
 against the defendant as tenant at will only, and the action 
 would have lain, yet, having stated a demise for seven 
 years, the proof of a lease at will was a variance, and 
 that in substance, not in form only; and, on the ground 
 of such variance, judgment was given for the defendant, 
 
 (X.) 
 
 The rule which requires that title should be shown 
 having been now explained, it will be proper to notice an 
 exception to which it is subject. This exception is, that 
 no title need be shown where the opposite party is estopped 
 from denying the title. Thus, in an action for goods sold 
 and delivered, it is unnecessary, in addition to the allega- 
 
 (it.) Suprx, p. 118, et vide supra, p. 199. 
 Ct.i Cudlip V. Bundle, Carlh., 202. 
 
RULES OF PLEADING. 301 
 
 tion that the plaintiff sold and delivered them to the de- 
 fendant, to state that they were the goods of the ■plaintiffs 
 {y;) for a huyer who has accepted and enjoyed the goods 
 cannot dispute the title of the seller. So, in deht or cov- 
 enant, hrought by the lessor against the lessee, on the 
 covenants of the lease, the plaintiff need allege no title to 
 the premises demised; because a tenant is estopped from 
 denying his landlord's title. On the other hand, how- 
 ever, a tenant is not bound to admit title to any extent 
 greater than might authorize the lease; and, therefore, 
 if the action be brought not by the lessor himself, but 
 by his heir, executor, or other representative or assignee, 
 the title of the former must be alleged, in order to 
 show that the reversion is now legally vested in the 
 plaintiff, in the character in which he sues. Thus, if he 
 sue as heir, he must allege that the lessor was seized in 
 fee; for the tenant is not bound to admit that he was 
 seized in fee; and, unless he was so, the plaintiff cannot 
 claim as heir. 
 
 Another exception to the general rule, requiring title to 
 be shown, has been introduced by statute, and is as follows: 
 In makingavowryorconusancein replevin, upon distresses, 
 for rent, quit-rents, reliefs, heriots, or other services^ the 
 defendant is enabled, by the provision of the act 11 Geo. 
 n, c. 19, s. 22, "to avow or make conusance generally 
 that the plaintiff in replevin, or other tenant of the lands 
 and tenements whereon such distress was made, enjoyed 
 the same, under a grant or demise, at such a certain rent, 
 during the time wherein the rent distrained for accrued, 
 which rent was then and still remains due, or that the 
 place where the distress was taken was parcel of such cer- 
 tain tenements held of such honor, lordship, or manor, for 
 which tenements the rent, relief, heriot, or other service 
 distrained for, was, at the time of such distress, and still 
 remains, due, without further setting forth the grant, ten- 
 ure, demise, or title of such landlord or landlords, lessor 
 
 Cv.) B. N. P., 139. 
 
302 OF THE PRINCIPAL 
 
 or lessors, owner or owners of such manor, any law or 
 usage to the centrary notwithstanding," (z.) 
 
 EULE VI. 
 
 THE PLEADINGS MUST SHOW AUTHOEITT, (a.) 
 
 In general, when a party has occasion to justify under a 
 writ, warrant, precept, or any other authority whatever, he 
 must set it forth particularly in his pleading. And he 
 ought also to show that he has substantially pursued such 
 authority. 
 
 Thus, in trespass for taking a mare, the defendant 
 pleaded that Sir J. S. was seized in fee of the manor of 
 £., and that he, and all those whose estate he had in the 
 said manor, had always held a lawful court twice a year, 
 to which the tenants of the manor used to resort; that 
 such as had right of common were appointed b^ the stew- 
 ard to be of the jury; that by-laws were accustomed to be 
 made there, and that such as had right of common obeyed 
 those laws or paid a forfeiture of a reasonable sum to be 
 imposed on them; that at one of these courts a jury was 
 sworn and a law made, that every person who had com- 
 mon should pay forty shillings for depasturing his cattle 
 on any place where corn was standing; that the plaintiff 
 had right of common, and permitted his sheep to depasture 
 on certain ground on which corn was standing; that such 
 offense was presented at the next court; and that the de- 
 fendant, being bailiff of the lord of the said manor, did take 
 the mare for the forfeiture, &c. Upon demurrer, the court 
 held the plea bad; "for the bailiff cannot take a forfeiture 
 ex officio. There must be a precept directed to him for 
 
 (z.) See remarks on this enactment and on the previous state of the law, 2 
 Saund., 284 c, n. 3. And see the form of any avowry under the statute, 2 
 Chitty, p. 512, 1st edit. 
 
 (a.) " Regularly, whensoever a man doth anything by force of a warrant 
 or authority, he must plead it." (Co. Litt., 283 a. ; Ibid, 303 b. ; Com. Dig., 
 Pleader, E. 17. ; 1 Saund., 298, n. 1 ; Lamb v. Mills, 4 Mod., 377; Matthews 
 V. Gary, 3 Mod., 137; Garth., 73, S. G.; Collet «. Lord Keith, 2 East., 260: 
 Relw., N. P. 826.) 
 
KULES OF PLEADING. 303 
 
 that purpose, which he must show in pleading," &c. And 
 judgment was given for the plaintiff, (6.) 
 
 So, in all cases where the defendant justifies under judi- 
 cial process, he must set it forth particularly in his plea, 
 and it is not sufficient to allege generally that he committed 
 the act in question by virtue of a certain writ or warrant 
 directed to him, (c.) But on this subject there are some im- 
 portant distinctions as to the degree of particularity which 
 the rules of pleading in different cases require: 1. It is not 
 necessary that any person, j ustifying under j udicial process, 
 should set forth the cause of action in the original suit in 
 which that process issued, {d.) 2. If the justification be by 
 the officer executing the writ, he is required to plead such 
 writ only, and not the judgment on which it was founded, 
 for his duty obliged him to execute the former, without 
 inquiring about the validity or existence of the latter. 
 But, if the justification be by a party to the suit, or by 
 any stranger, except an officer, the judgment, as well as 
 the writ, must be set forth, (e.) 3. Where it is an officer 
 who justifies, he must show that the writ was returned, if 
 it was such as it was his duty to return, and all mesne 
 process is of that description. But in general a writ of 
 execution need not be returned, and therefore no return 
 of it need in general be alleged, (/.) However, it is said 
 that, " if any ulterior process in execution is to be resorted 
 to to complete the justification, there it may be necessary 
 to show to the court the return of the prior writ, in order 
 
 (6.) Lamb v. Mills, 4 Mod., 377. 
 
 (c.) 1 Saund., 298, n. 1 ; Co. Litt., 303 b. 
 
 (d.) Rowland v. Veale, Cowp., 18 ; Belk v. Broadbent, 3 T. R., 183 ; 1 Saund., 
 92, n. 2. 
 
 (e.) Per Holt, C. J., Britton v. Cole, Garth, 443 ; 1 Salk., 408, S. C. ; Turner 
 V. Felgate, 1 Lev., 95; Cotes v. Michill, 3 Lev., 20; per De Grey, C. J., Bar- 
 ker V. Braham, 3 Wils., 368. But in Britton v. Cole, 1 Salk., 408, it is said 
 that the court "seemed to hold that, if one comes in aid of the officer at his 
 request, he may justify as the officer may do." (See Morse v. James, 122.) 
 
 (/.) Middleton v. Price, Str., 1184; 1 Wils., 17, S. C; Cheasley v. Barnes, 
 10 East., 73 ; Rowland v. "Veale, Cowp., 18 ; Hoe's Case, 5 Rep., 90 ; 1 Saund., 
 92, n. 2. 
 
304 OF THE PRINCIPAL 
 
 to warrant tlie issuing of the other," (g.) Again, there is 
 a distinction as to this point hetween a principal and a 
 subordinate officer: "The former shall not justify under 
 the process, unless he has obeyed the order of the court in 
 returning it; otherwise it is of one who has not the power 
 to procure a return to be made," (h.) 4. Where it is neces- 
 sary to plead the judgment, that may be done (if it was a 
 judgment of a superior court) without setting forth any 
 of the previous proceedings in the suit, (?,) 5. "Where the 
 justification is founded on process issuing out of an inferior 
 English court, or (as it seems) a court of foreign jurisdic- 
 tion, the nature and extent of the jurisdiction of such court 
 ought to be set forth, and it ought to be shown that the 
 cause of action arose within that jurisdiction, though a 
 justification founded on process of any of the superior 
 courts need not contain such allegations, (k.) And in 
 pleading a judgment of inferior courts, the previous pro- 
 ceedings are, in some measure, stated. But it is allowable 
 to set them forth with a taliter processum est; thus, that A. 
 B., at a certain court, &e., held at, &c., levied his plaint 
 against C. D., in a certain plea of trespass on the case, or 
 debt, &c., (as the case may be,) for a cause of action arising 
 within the jurisdiction, and thereupon such proceedings were 
 had, that afterwards, &c., it was considered by the said 
 court that the said A. B. should recover against the said 
 C. -D., &c., {I.) 
 
 ^Notwithstanding the genera] rule under consideration, 
 it is allowable, where an authority may be constituted 
 verbally and generally, to plead it in general terms. Thus, 
 in replevin, where the defendant makes conusance, con- 
 fessing the taking of the goods or cattle, as bailiff of 
 
 (jr.) Oheasley v. Barnes, 10 East, 73. 
 
 (ft.) Per Holt, 0. J., Freemen v. Blewett, Ld. Ray., 633 ; 1 Salk., 409, S. C; 
 Moore v. Taylor, 5 Taunt., 69. 
 
 (i.) See the precedents, 9 Went., 22, 53, 120, 351 ; 2 Ghitty, 584, let edit 
 
 (i.) Collet V. Lord Keitli, 2 East., 274 ; Moravia v. Sloper, Willes, 30. 
 
 (}.) 1 Saund., 92, n. 2 ; Rowland a.Veale, Cowp., 18 ; Moore a. James, WUles, 
 122 ; Johnson v. Warner, ibid, 528 ; Titley v. Foxall, ibid, 688. 
 
RULES OF PLEADING. 305 
 
 another person, for rent in arrear, or as damage feasant, 
 it is sufficient to say that, "as bailiff of the said E. T., he 
 well acknowledges the taking, &c., as for and in the name 
 of a distress," &c., without showing any warrant for that 
 purpose, (m.) 
 
 The allegation of authority, like that of title, must in gen- 
 eral be strictly proved as laid. 
 
 The above-mentioned particulars of place, time, quality, 
 quantity, and value, names of persons, title, and authority, 
 though, in this work, made the subject of distinct rules, 
 in a view to convenient classification and arrangement, 
 are to be considered but as examples of that infinite variety 
 of circumstances, which it may become necessary, in dif- 
 ferent cases and forms of action, to particularize, for the 
 sake of producing a certain issue ; for it may be laid down 
 as a comprehensive rule, that — 
 
 EULE vn. 
 
 IN GEHEEAX, 'WKATEVEE IS ALLEBED IN PLEADING, MUST BE ALLEGED WITH 
 
 OEKTAINIT, (n.) 
 
 This rule being very wide in its terms, it will be proper 
 to illustrate it by a variety of examples. 
 
 In pleading the performance of a condition or covenant, it is 
 a rule, though open to exceptions that will be presently 
 noticed, that the party must not plead generally that he 
 performed the covenant or condition, but must show spec- 
 ially the time, place, and manner of performance ; and 
 even though the subject to be performed should consist of 
 several different acts, yet he must show in this special way 
 the performance of each, (o.) Thus, in debt on bond, con- 
 
 (m.) MatthewffT). Gary, 3 Mod., 138. 
 
 (n.) Com. Dig., Pleader, G. 17, 0. 22, E. 5, F. 17. 
 
 (o.) Com. Dig., Pleader, E. 25, E. 26, 2 W., 33; Halsey v. Carpenter, Cro. 
 Jac., 359 ; Wimbleton v. Holdrip, 1 Lev., 303 ; Woodcock v. Cole, 1 Sid., 215 ; 
 Stone V. Bliss, 1 Bulst., 43 ; Fitzpatrick v. Eobinson, 1 Show., 1 ; Austin v. 
 Jervoise, Hob., 69, 77 ; Brown v. Bands, 2 Vent., 156 ; Lord Evers v. Buck- 
 ton, Benl., 65 ; Braban v. Bacon, Cro. Eliz., 916 ; Codner v. Dalby, Cro. Jac, 
 363 ; Leneret v. Eivet, ibid., 503 ; 1 Saund., 116, n. 1. 
 20 
 
306 OP THE PRINCIPAL 
 
 ditioned for the payment of SOL to S. S., I. S., and A. S., 
 tam cito as they should come to the age of twenty-one 
 years, the defendant pleaded that he paid those sums tam 
 cito as they came of age, and the plaintiff demurred, 
 because it was not shown when they came of age, and the 
 certain times of the payment. "And for this cause all the 
 court held the plea to be ill ; for although it be a good plea, 
 regularly, to the condition of a bond, to pursue the words 
 of the condition, and to show the performance, yet Coke 
 said there was another rule, that he ought to plead in cer- 
 tainty the time and place and manner of the performance 
 of the condition, so as a certain issue may be taken; other- 
 wise it is not good. Wherefore, because he did not plead 
 here in certainty, it was adjudged for the plaintiff. And 
 between the same parties, in another action of debt upon 
 an obligation, the condition being for performance of lega- 
 cies in such a will, he pleaded performance generally, and, 
 not showing the will, nor what the legacies were, it was 
 adjudged for the plaintiff." (p.) So, in debt on a bond?, 
 conditioned for the performance of several specific things, 
 "the defendant pleaded performavit omnia, &c. Upon 
 demurrer it was adjudged an ill plea; for, the particulars 
 being expressed in the condition, he ought to plead to 
 each particularly, by itself," {q). 
 
 Tet this rule, requiring performance to be specially 
 shown, admits of relaxation where the subject compre- 
 hends such multiplicity of matter as would lead to great 
 prolixity; and a more general mode of allegation is in 
 such cases allowable. It is open also to the following 
 exceptions : Where the condition is for the performance 
 of matters set forth in another instrument, and these mat- 
 ters are in an affirmative and absolute form, and neither in 
 the negative nor the disjunctive, a general plea of perform- 
 ance is sufficient. And where a bond is conditioned for 
 indemnifying the plaintiff from the consequences of a cer- 
 
 (p.) Halsey v. Carpenter, Cro. Jac, 359. 
 (g ) Wimbleton v. Holdrip, 1 Lev., 303. 
 
RULES OF PLEADING. 307 
 
 tain act, a general plea of non damnificoitus, viz, that he haa 
 not been damnified, is proper, without showing how the 
 defendant has indemnified him. These variations from 
 the ordinary rule, and the principles on which they are 
 founded, will be explained hereafter, (r.) 
 
 "When in any of these excepted cases, however, a gen- 
 eral plea of performance is pleaded, the rule under discus- 
 sion still requires the plaintiff io show particularly in his 
 replication in what way the covenant or condition has been 
 broken; for otherwise no sufficiently certain issue would be 
 attained. Thus, in an action of debt on a bond, conditioned 
 for performance of affirmative and absolute covenants 
 contained in a certain indenture, if the defendant pleads 
 generally (as in that case he may) that he performed the 
 covenants according to the condition, the plaintlflf cannot 
 in his replication tender issue with a mere traverse of 
 the words of the plea, viz, that the defendant did not per- 
 form any of the covenants, &c. ; for this issue would be 
 too wide and uncertain ; but he must assign a breach, show- 
 ing specifically in what particular, and in what manner, 
 the covenants have been broken, (s.) 
 
 N"ot only on the subject of performance, but in a variety 
 of other cases, the books affi3rd illustration of this general 
 rule. 
 
 Thus, in debt on bond, the defendant pleaded that the 
 instrument was executed in pursuance of a certain corrupt 
 contract, made at a time and place specified, between the 
 plaintiiF and defendant, whereupon there was reserved 
 above the rate of 5Z. for the forbearing of lOOL for a year, 
 contrary to the statute in such case made and provided. 
 To this plea there was a demurrer, assigning for cause, 
 that the particulars of the contract were not specified, nor 
 the time of forbearance, nor the sum to be forborne, nor 
 the sum to be paid for such forbearance. And the court 
 
 (r.) See Index to this work, tit. Performance. 
 
 («.) Flower v. Boss, 5 Taunt., 386; per Lord Mansfield, Say re v. Binns, 
 Cowp. 577; Com. Dig., Pleader, F. 14. 
 
808 OF THE PRINCIPAL 
 
 held that the plea was bad, for not setting forth particu" 
 larly the corrupt contract and the usurious interest; and 
 Bayley, J., observed, that he " had always understood that 
 the party who pleads a contract must set it out, if he be a 
 party to the contract," (t.) 
 
 To an action on the case for a libel, imputing that the 
 plaintiff was connected with swindlers and common inform- 
 ers, and had also been guilty of deceiving and defrauding 
 divers persons, the defendant pleaded that the plaintiff had 
 been illegally, fraudulently, and dishonestly concerned 
 with, and was one of, a gang of swindlers and common 
 informers, and had also been guilty of deceiving and de- 
 frauding divers persons with whom he had had dealings 
 and transactions. To this plea there was a special demur- 
 rer, assigning for cause, inter alia, that the plea did not state 
 the particular instances of fraud; and though the court of 
 common pleas gave judgment for the defendant, this judg- 
 ment was afterwards reversed upon writ of error, and the 
 plea adjudged to be insufficient, on the ground above men- 
 tioned, (m.) 
 
 In an action of trespass for false imprisonment, the de- 
 fendants pleaded, that before the said time, when, &c., 
 certain persons unknown had forged receipts on certain 
 forged dividend warrants, and received the money pur- 
 porting to be due thereon, in Bank of England notes, 
 amongst which was a note for 1001., which was afterwards 
 exchanged at the bank for other notes, amongst which was 
 one for 101., the date and number of which were afterwards 
 altered; that afterwards, and a little before the said time, 
 when, &c., the plaintiff was suspiciously possessed of the 
 altered note, and did in a suspicious manner dispose of the 
 same to one A. B., and afterwards, in a suspicious manner, 
 left England and went to Scotland ; whereupon the defend- 
 ants had reasonable cause to suspect, and did suspect, that the 
 plaintiff had forged the said receipts, and so proceeded to 
 
 (f.) Hill V. Montagu, 2 M. & S., 377 ; Hinton v. Roffey, 3 Mod., 35, S. P. 
 (m.) J'Anson 11. Stuart, 1 T. E., 748. 
 
RULES OF PLEADING. 309 
 
 justify the taking and detaining his person, to be dealt with 
 according to law. Upon general demurrer, this plea was 
 considered as clearly bad, because it did not show the 
 grounds of suspicion with sufficient certainty to enable the 
 court to judge of their sufficiency ; and it was held that the 
 use of the word suspiciously would not compensate that 
 omission, (x.) 
 
 In an action of trover, for taking a ship, the defendant 
 pleaded that he was captain of a certain man-of-war, and 
 that he seized the ship mentioned in the declaration as 
 prize; that he carried her to a certain port in the East 
 Indies; and that the admiralty court there gave sentence 
 against the said ship as prize. Upon demurrer, it was 
 resolved that it was necessary for the plea to show some 
 special cause for which the ship became a prize, and that 
 the defendant ought to show who was the judge that gave 
 sentence and to whom that court of admiralty did belong. 
 And for the omission of these matters the plea was adjudged 
 insufficient, (y.) 
 
 In an action of debt on bond, conditioned to pay so 
 much money yearly, while certain letters patent were in 
 force, the defendant pleaded, that from such a time to such 
 a time he did pay, and that then the letters patent became 
 void and of no force. The plaintiff having replied, it was 
 adjudged, on demurrer to the replication, that the plea was 
 bad, because it did not show how the letters patent became 
 void, (z.) 
 
 Where the defendant justified an imprisonment of the 
 plaintiff, on the ground of a contempt committed tam 
 factis quam verbis, the plea was held bad upon demurrer, 
 because it set forth the contempt in this general way, with- 
 out showing its nature more particularly, (a.) 
 
 With respect to all points on which certainty of allega- 
 
 {x.) Mure v. Kaye, 4 Taunt., 34. 
 
 (y.) Beak v. Tyrrell, Cartli., 31. 
 
 (2.) Lewis V. Preston, 1 Show., 290; Skin., 303, S. C. 
 
 (a.) Collet V. The Bailiffs of Shrewsbury, 2 Leo., 34. 
 
310 OF THE PRINCIPAL 
 
 tion is required, it may be remarked, in general, that the 
 allegation, when brought into issue, requires to be proved, 
 in substance, as laid; and that the relaxation from the 
 ordinary rule on this subject, which is allowed with re- 
 spect to place, time, quantity, and value, does not, generally 
 speaking, extend to other pajticulars. 
 
 Such are the principal rules which tend to certainty; 
 but it is to be observed, that these receive considerable 
 limitation and restriction from some other rules of a subor- 
 dinate kind, to the examination of which it will now be 
 proper to proceed. 
 
 1. It is not necessary in pleading to slate that which is merely 
 matter of evidence, (6.) 
 
 In other words, it is not necessary, in alleging a fact, to 
 state such circumstances as merely tend to prove the truth 
 of the fact. This rule may be illustrated by the following 
 case : In an action of replevin, for seventy cocks of wheat, 
 the defendant avowed under a distress for rent arrear. 
 The plaintiff pleaded in bar, that before the said time, 
 when, &c., one H. L. had recovered judgment against G. 
 8., and sued out execution; that G. 8. was tenant at will 
 to the defendant, and had sown seven acres of the premises 
 with wheat, and died possessed thereof as tenant at will; 
 that, after his death, the sheriff took the said wheat in exe- 
 cution, and sold it to the plaintiff; that the plaintiff suffered 
 the wheat to grow on the locus in quo till it was ripe and 
 fit to be cut; that he afterwards cut it, and made it into 
 cocks, whereof the said seventy cocks were parcel; that, 
 the said cocks being so cut, the plaintiff suffered the same 
 to lie on the said seven acres until the same, in the course 
 
 (6.) "Evidence shall never be pleaded, because it tends to prove matter in 
 fact; and therefore the matter in fact shall be pleaded." (Bowman's Case, 
 9 Rep., 9 b. ; and see 9 Ed. Ill, 5 b., 6 a., there cited; Eaton v. Southby, 
 Willes, 131; Jermy v. Jenny, Eaym., 8; Groenvelt v. Burnell, Carth., 491.) 
 See also 18 Ed. II, 614, where the pleader objects to an allegation, ceon'est 
 forsque un evidence a I'enqueste. 
 
RULES OF PLEADING. 311 
 
 of husbandry, \i ere fit to be carried away; and that, while 
 they were so lying, the defendant, of his own wrong, took 
 and distrained the same, under pretense of a distress, the 
 said wheat not then being fit to be carried away, accord- 
 ing to the course of husbandry, &c. The defendant demur- 
 red, and, among other objections, urged that it ought to have 
 been particularly shown how long the wheat remained on the 
 land after the cutting, that the court might judge whether 
 it were a reasonable time or not. But the court decided 
 against the objection. "For though it is said (in Co. Litt., 
 56 b) that, in some cases, the court must judge whether 
 a thing be reasonable or not, as in ease of a reasonable 
 fine, a reasonable notice, or the like, it is absurd to say 
 that, in the present case, the court must judge of the rea- 
 sonableness; for, if so, it ought to have been set forth in 
 the plea, not only how long the corn lay on the ground, 
 but likewise what sort of weather there was during that 
 time, and many other incidents, which would be ridiculous 
 to be inserted in a plea. We are of opinion, therefore, that 
 this matter is sufficiently averred, and that the defendant 
 might have traversed it, if he had pleased, and then it would 
 have come before a jury, who, upon hearing the evidence, 
 would have been the proper judges of it." (c.) 
 
 The reason of this rule is evident, if we revert to the 
 general object which all the rules, tending to certainty, 
 contemplate, viz, the attainment of a certain issue. This 
 implies (as has been shown) a development of the ques- 
 tion in controversy in a specific shape ; and the degree of 
 specification with which this should be developed it has 
 been elsewhere attempted, in a general way, to define, (d.) 
 But, so that that object be attained, there is, in general, no 
 necessity for further minuteness in the pleading; and, 
 therefore, those subordinate facts, which go to make up 
 the evidence by which the affirmative or negative of the 
 issue is to be established, do not require to be alleged, and 
 
 (c.) Eaton v. Southby, Willes, 131. 
 (d.) See Supra, pp. 153-155. 
 
312 OP THE PRINCIPAL 
 
 may be brought forward, for the first time, at the trial, 
 when the issue comes to be decided. Thus, in the above 
 example, if we suppose issue joined, whether the wheat 
 cut was afterwards suffered to lie on the ground a rea- 
 sonable time or not, there would have been sufficient cer- 
 tainty, without showing on the pleadings any of those 
 circumstances (such as the number of days, the state of 
 the weather, &c.) which ought to enter into the considera- 
 tion of that question. These circumstances, being matter 
 of evidence only, ought to be proved before the jury, but 
 need not appear on the record. 
 
 This is a rule so elementary in its kind, and so well 
 observed in practice, as not to have become frequently the 
 subject of illustration by decided cases; and (for that rea- 
 son, probably) is little, if at all, noticed in the digests and 
 treatises. It is, however, a rule of great importance, from 
 the influence which it has on the general character of 
 English pleading; and it is this, perhaps, more than any 
 other principle of the science, which tends to prevent that 
 minuteness and prolixity of detail, in which the allegations, 
 under other systems of judicature, are involved. 
 
 Another rule, that much conduces to the same effect, is 
 that 
 
 2. It is not necessary to state matter of which the court takes 
 notice ex officio, (e.) 
 
 Therefore it is unnecessary to state matter of law, (/,) for 
 this the judges are bound to know, and can apply for 
 themselves to the facts alleged. Thus, if it be stated in 
 pleading, that an ofiicer of a corporate body was removed 
 for misconduct, by the corporate body at large, it is un- 
 necessary to aver that the power of removal was vested in 
 such corporate body ; because that is a power by law inci- 
 dental to them, unless given by some charter, by-law, or 
 
 (e.) Co. Litt., 303 b. ; Com. Dig., Pleader, C. 78 ; Deybel's Case, 4 Barn. & 
 Aid., 243. 
 (/.) Doct. Fl ., 102, per Buller, J. ; The Kiag v. Lyme Regis, Dong., 159. 
 
RULES OP PLEADING. 313 
 
 other authority, to a select part only, {g.) Nor is it the 
 principles of the common law alone, which it is unnecessary 
 to state in pleading. The public statute law falls within the 
 same reason and the same rule ; as the judges are bound, 
 officially, to notice the tenor of every public act of Parlia- 
 ment, (A.) It is, therefore, never necessary to set forth a 
 public statute, [i.) The case, however, of private acta of 
 Parliament is different; for these the court does not offi- 
 cially notice, [k,) and therefore, where a party has occasion 
 to rely on an act of this description, he must set forth such 
 parts of it as are material, {I.) 
 
 It may be observed, however, that though it is in gen- 
 eral unnecessary to allege matter of law, yet there is some- 
 times occasion to make mention of it, for the convenience 
 or intelligibility of the statement of fact. Thus, in an ac- 
 tion of assumpsit on a bill of exchange, the form of the 
 declaration is to state that the bill was drawn or accepted 
 by the defendant, &c., (according to the nature of the case,) 
 and that the defendant, as drawer or acceptor, &c., became 
 liable to pay; and, being so liable, in consideration thereof 
 promised to pay. So, it is sometimes necessary to refer to 
 a public statute in general terms, to show that the case is 
 intended to be brought within the statute ; as, for example, 
 to allege that the defendant committed a certain act against 
 the form of the statute in such case made and provided; but 
 the reference is made in this general way only, and there 
 is no need to set the statute forth. 
 
 This rule, by which matter of law is omitted in the 
 pleadings, by no means prevents (it will be observed) the 
 attainment of the requisite certainty of issue. For even 
 though the dispute between the parties should turn upon 
 matter of law, yet they may evidently obtain a sufficiently 
 specific issue of that description without any allegation of 
 
 {g.) The King v. Lyme Regis, Doug., 148. 
 
 (A.) 1 Bl. Com., 85. 
 
 (i.) Boyce v. Whitaker, Doug., 97; Partridge ■». Strange, PIjt., 84. 
 
 (k) 1 Bl. Com., ibid.; Platte. Hill, Ld. Bay., 381. 
 
 (J ) Boyce v. Whitaker, Doug., 97. 
 
314 OF THE PEINCIPAli 
 
 law: for ex facto jus oritur; that is, every question of law 
 necessarily arises out of some given state of facts; and 
 therefore nothing more is necessary than for each party to 
 state, alternately, his case in point of fact ; and, upon de- 
 murrer to the sufficiency of some one of these pleadings, 
 the issue in law must at length (as formerly demonstrated) 
 arise. 
 
 As it is unnecessary to allege matter of law, so, if it be 
 alleged, it is improper (as it has been elsewhere stated) to 
 make it the subject of traverse, (m.) 
 
 Besides points of law, there are many other matters of 
 a public kind, of which the court takes official notice, and 
 with respect to which, it is, for the same reason, unneces- 
 sary to make allegation in pleading, such as matters ante- 
 cedently alleged in the same record, (n,) the time of the 
 king's accession, his proclamations, his privileges, the time 
 and place of holding Parliament, the time of its sessions 
 and prorogations, and its usual course of proceeding ; the 
 ecclesiastical, civil, and maritime laws ; the customary 
 course of descent in gavel-kind, and borough-English ten- 
 ure; the course of the almanac, (o;) the division of Eng- 
 land into counties, (p,) provinces, and dioceses; the mean- 
 ing of English words, and terms of art, (even when only 
 local in their use;) legal weights and measures, and the or- 
 dinary measurement of time; the existence and course of 
 proceeding of the superior courts at "Westminster, and the 
 other courts of general jurisdiction ; and the privileges of 
 the officers of the courts at "Westminster, {q.) 
 
 3. It is not necessary to' state matter which would come more 
 -properly from the other side, (r.) 
 
 (m.) Vide supra, p. 201. 
 
 (ra.) Co. Litt., 303 b. ; The King v. KnoUys, Ld. Bay., 13. 
 
 (o.) But see Mayor of Guilford v. Clarke, 2 Vent., 247. 
 
 (p.) But not the local situation and distances of the different places in a 
 county from each other. (Deybel's Case, 4 Barn. & Aid., 243.) 
 
 (g.) This enumeration in principally taken from 1 Chitty, 216-226, 1st 
 edit., -where further information on the subject will be found. 
 
 (t.) Com. Dig., Pleader, C, 81 ; Stowell v. Ld. Zouch, Plow., 376 ; Wal- 
 
RULES OP PLEADING. 315 
 
 This, which is the ordinary form of the rule, does not 
 fully express its meaning. The meaning is, that it is not 
 necessary to anticipate the answer of the adversary, which, 
 according to Hale, C. J., is "like leaping before one comes 
 to the stile," (s.) It is sufficient that each pleading should, 
 in itself, contain a good prima facie case, without reference 
 to possible objections not yet urged. Thus, in pleading a 
 devis e of land by force of the statute of wills, (32 Hen. 
 Vlii, c. 1,) it is sufficient to allege that such an one was 
 seized of the land in fee, and devised it by his last will, in 
 writing, without alleging that such devisor was of full age- 
 For, though the statute provides that wills made by femes 
 covert, or persons within age, &c., shall not be taken to be 
 effectual, yet, if the devisor were within age, it is for the 
 other party to show this in his answer, (i,) and it need not 
 be denied by anticipation. So, in a declaration of debt 
 upon a bond, it is unnecessary to allege that the defendant 
 was of full age when he executed it, (m.) So, where an 
 action of debt was brought upon the statute 21 Henry VI, 
 against the bailiff of a town, for not returning the plaintiff", 
 a burgess of that town, for the last Parliament, (the words 
 of the statute being that the sheriff shall send his precept 
 to the mayor,' and, if there be no mayor, then to the bail- 
 iff,) the plaintiff declared that the sheriff had made his 
 precept unto the bailiff, without averring that there was no 
 mayor. And, after verdict for the plaintiff, this was moved 
 in arrest of judgment. But the court was of opinion, 
 clearly, that the declaration was good, " for we shall not 
 intend that there was a mayor, except it be showed ; and 
 if there were one, it should come more properly on the 
 other side," (x.) So, where there was a covenant in a 
 
 gingham's Case, 564 ; St. John v. St. John, Hob., 78 ; Hotham v. East India 
 Company, 1 T. E., 638 ; Palmer v. Lawson, 1 Sid., 333 ; Lake v. Raw, Garth., 
 8 ; Williams v. Fowler, Str., 410. 
 
 in.) Sir Ealph Bovy's Case, 1 Vent., 217. 
 
 (t) Stowell V. Ld. Zouch, Plow., 376. 
 
 {u.) Walsingham's Case, Plow., 564; Sir Ealph Bov/s Case, 1 Vsnt., 217, 
 
 (x ) St. John V. St. John Hob., 78. 
 
316 OP THE PRINCIPAL 
 
 charter-party, "that no claim should be admitted, or allow 
 ance made for short tonnage, unless such short tonnage 
 were found and made to appear on the ship's arrival, on a 
 survey to be taken by four shipwrights, to be indifferently 
 chosen by both parties;" and, in an action of covenant, 
 brought to recover for short tonnage, the plaintiff had a 
 verdict, the defendant moved, in arrest of judgment, that 
 it had not been averred in the declaration that a survey 
 was taken, and short tonnage made to appear. But the 
 court held that, if such survey had no< been taken, this was 
 matter of defense, which ought to have been shown by the 
 defendants, and refused to arrest the judgment, (?/.) 
 
 But where the matter is such, that its affirmation or de- 
 nial is essential to the apparent or prima facie right of the 
 party pleading, there it ought to be affirmed or denied by 
 him in the first instance, though it may be such as would 
 otherwise properly form the subject of objection on the 
 other side. Thus, in an action of trespass on the case, 
 brought by a commoner against a stranger, for putting his 
 cattle on the common, per quod communiam in tarn amplo 
 modo habere non potuit, the defendant pleaded a license 
 from the lord to put his cattle there, but did not aver that 
 there was sufficient common left for the commoners. This 
 was held, on demurrer, to be no good plea, for, though it 
 may be objected that the plaintiff may reply that there was 
 not enough common left, yet, as he had already alleged 
 in his declaration that bis enjoyment of the common was 
 obstructed, the contrary of this ought to have been shown 
 by the plea, (z.) 
 
 There is an exception to the rule in question, in the 
 case of certain pleas, which are regarded unfavorably by 
 the courts, as having the effect of excluding the truth. 
 Such are all pleadings in estoppel, (a,) and the plea of alien 
 enemy. It is said that these must be certain in every particu- 
 
 {y.) Hotham v. East India Company, 1 T. R., 638. 
 
 {z.) Smith V. Feverell, 2 Mod., 6; 1 Freeman, 190, S. C. ; Greenhow v. Il»- 
 ley, Willes, 619. 
 (a.) Co. Litt , 352 b., 303 a. ; Doraston v. Payne, 2 H. Bl., 530. 
 
RULES OF PLEAD INU, 317 
 
 lar; which seems to amount to this, that they mi;et meet 
 and remove, by anticipation, every possible answer of the 
 adversary. Thus, in a plea of ahen enemy, the defendant 
 must state not only that the plaintiff was born in a foreign 
 country, now at enmity with the king, but that he came 
 here without letters of safe conduct from the king, (6;) 
 whereas, according to the general rule in question, such 
 safe conduct, if granted, should be averred by the plaintiff 
 in reply, and need not, in the first instance, be denied by 
 the defendant. 
 
 4. It is not necessary to allege circumstances necessarily im- 
 plied, (c.) 
 
 Thus, in an action of debt on a bond, conditioned to 
 stand to and perform the award of W. E., the defendant 
 pleaded that W. S. made no award. The plaintiff replied 
 that, after the making of the bond, and before the time for 
 making the award, the defendant, by his certain writing, 
 revoked the authority of the said W. S., contrary to the 
 form and effect of the said condition. Upon demurrer, it 
 was held that this replication was good, without averring 
 thatW! -5. had notice of the revocation, because that was 
 implied in the words "revoked the authority; " for there 
 could be no revocation without notice to the arbitrator; so 
 that, if W. H. had no notice, it would have been compe- 
 tent to the defendant to tender issue "that he did not 
 revoke in manner and form as alleged," (d.) So, if a foeff- 
 ment be pleaded, it is not necessary to allege livery of 
 seizin, for it is implied in the word " enfeoffed," (e.) So, 
 if a man plead that he is heir to A., he need not allege 
 that A. is dead, for it is implied, (/.) 
 
 (6.) Casseres v. Bell, 8 T. R., 166. 
 
 (c.) Vynior's Case, 8 Eep., 81 b. ; Bao. Ab., Pleas, &o., I. 7 ; Com. Dig., 
 Pleader, E. 9 ; Co. Litt., 303 b. ; 2 Saund., 305 a., n. 13 ; Eeg. Plac, 101 ; 
 Sheers v. Brooks, 2 H. Bl., 120; Handford v. Palmer, 2 Brod. & Bing., 361; 
 Marsh v. Bnlteel, 5 Barn. & Aid., 507. 
 
 (d.) Vynior's Case, 8 Eep., 81 b. ; Marsh «. Bulteel, 5 Barn. & Aid., 507, S. P, 
 
 (e.) Co. Litt., 303 b. ; Doct. PI., 48, 49 ; 2 Saund., 305 a., n. 13. 
 
 (/.) 2 Saund., 305 a. n. 13 ; Com. Dig., Pleader, E. 9 ; Dal., 67. 
 
318 OF THE PRINCIPAL 
 
 5. It is not necessary to allege what the law will presume, (g.) 
 Thus, in debt on a replevin bond, the plaintiffs declared 
 
 that, at the city of C, and within the jurisdiction of the 
 ^mayor of the city, they distrained the goods of W. H. for 
 rent, and that W. H., at the said city, made his plaint to 
 the mayor, &c., and prayed deliverance, &c., whereupon 
 the mayor took from him and the defendant the bond on 
 which the action was brought, conditioned that W. H. 
 should appear before the mayor or his deputy, at the next 
 court of record of the city, and there prosecute his suit, 
 &c., and thereupon the mayor replevied, &c. It was held 
 not to be necessary to allege in this declaration a custom 
 for the mayor to grant replevin and take bond, and show 
 that the plaint was made in court, because all these cir- 
 cumstances must be ^presumed against the defendant, who 
 executed the bond and had the benefit of the replevin, {h.) 
 So, in an action for slander, imputing theft, the plaintiff 
 need not aver that he is not a thief, because the law pre- 
 sumes his innocence till the contrary be shown, {i.) 
 
 6. A general mode of pleading is allowed where great prolixity 
 is thereby avoided, (k.) 
 
 It has been objected, with truth, that this rule is indefi- 
 nite in its form, (l.) Its extent and application, however, 
 may be collected with some degree of precision from the 
 examples by which it is illustrated in the books, and by 
 
 (g.) Wilson v. Hobday, 4 M. & S., 125 ; Chapmaa v. Piokeragill, 2 Wils , 
 147 ; 1 Chitty, 226, 1st edit. 
 
 (A.) Wilson V. Hobday, 4 M. & S., 125. 
 
 (i.) Chapman v. Piokersgill, 2 Wils., 147 ; 1 Chitty, 226, 1st edit. 
 
 (h.) Co. Litt., 303 b. ; 2 Saund., 116 b., 411, n. 4 ; Bao. Ab., Pleas, &o., 1, 3 ; 
 Jermy v. Jenny, Eaym., 8; Aglionby v. Towerson, Eaym., 400; Parkes v. 
 Middleton, Lutw., 421 ; Keating v. Irish, 590 ; Cornwallis v. Savery, 2 Burr., 
 772; Mints V. BetMl, Cro. Eliz., 749; Braban v. Bacon, 916 ; ChuTcbi). Brown- 
 wick, 1 Sid., 334; Cryps v. Bayaton, 3 Bulst., 31; Banks v. Pratt, Sty., 428; 
 Huggins 0. Wiseman, Carth., 110; Groenvelt ii. Bnmell, 491; J' Anson v. 
 Stuart, 1 T. E., 753; Shum v. Farrington, 1 Bos. & Pull., 640 ; Barton w. Webb, 
 8 T. R., 459; Hill v. Montagu, 2 M. & S., 378. 
 
 {I.) 1 Arch., 211. 
 
RULES OF PLEADING. 319 
 
 cousidering the limitations wMch it necessarily receives 
 from the rules tending to certainty, as enumerated in a 
 former part of this section. 
 
 In assumpsit, on a promise by the defendant to pay for 
 all such necessaries as his friend should be provided with 
 by the plaintiflF, the plaintiff alleged that he provided neces- 
 saries amounting to such a sum. It was moved, in arrest 
 of judgment, that the declaration was not good, because 
 he had not shown what necessaries in particular he had 
 provided. But Coke, C. J. said, "this is good, as is here 
 pleaded, for avoiding such multiplicities of reckonings;" 
 and Doddridge, J., "this general allegation, that he had 
 provided him with all necessaries, is good, without show- 
 ing in particular what they were." And the court gave 
 judgment unanimously for the plaintiff, (m.) So, in as- 
 sumpsit for labor and medicines, for curing the defendant 
 of a distemper, the defendant pleaded infancy. The 
 plaintiff replied that the action was brought for neces- 
 saries generally. On demurrer to the replication, it was 
 objected, that the plaintiff' had not assigned, in certain, 
 how or in what manner the medicines were necessary; but 
 it was adjudged that the replication, in this general form, 
 was good; and the plaintiff had judgment, {n.) So, in debt 
 on a bond, conditioned that the defendant shall pay, from 
 time to time, the moiety of all 6uch money as he shall 
 receive, and give account of it, he pleaded, generally, that 
 he had paid the moiety of all such money, &c. Et per 
 curiam, " This plea of payment is good, without showing 
 the particular sums, and that in order to avoid stuffing 
 ihe rolls with multiplicity of matter." Also, they agreed 
 that, if the condition had been to pay the moiety of such 
 money as he should receive, without saying from time to 
 time, the payment should have been pleaded specially, (o.) 
 
 (m.) Cryp» v. Baynton, 3 Bnlst., 31. 
 
 (n.) Hnggins v. Wiseman, Garth., 110. 
 
 (a.) Church v. Brownwick, 1 Sid., 334; and see Mints v. Bethil, Cro. Eliz, 
 
 749 
 
320 OF THE PRINCaPAL 
 
 In an action on a bond, conditioned that W. W., wlio 
 was appointed agent of a regiment, should pay all such 
 sum and sums of money as he should receive from the 
 paymaster general for the use of the regiment, and faith- 
 fully account to and indemnify the plaintiff, the defendant 
 pleaded a general performance, and that the plaintiff was 
 not damnified. The plaintiff replied, that W. W. received 
 from the paymaster general, for the use of the said regi- 
 ment, several sums of money, amounting in the whole to 
 1,400?., for and on account of the said regiment and of the 
 commissioned and non-commissioned officers and soldiers 
 of the same, according to their respective proportions, and 
 that he had not paid a great part thereof among the colo- 
 nel, officers, and soldiers, &c., according to the several 
 proportions of their pay. Upon demurrer, the court said, 
 that " there was no need to spin out the proceedings to a 
 great prolixity, by entering into the detail, and stating the 
 various deductions out of the whole pay, upon various 
 accounts, and in different proportions." (p.) So, in debt 
 on bond, conditioned that B. S. should render to the plaint- 
 iff a just account, and make payment and delivery of all 
 moneys, bills, &c., which he should receive as his agent, 
 the defendant pleaded performance. The plaintiff replied, 
 that It. S. received, as such agent, divers sums of money, 
 amounting to 2,0001., belonging to the plaintiff's business, 
 and had not rendered a just account, nor made payment 
 and delivery of the said sum, or any part thereof. The 
 defendant demurred specially, assigning for cause, that it 
 did not appear by the replication from whom, or in what 
 manner, or in what proportions, the said sums of money, 
 amounting to 2,000?., had been received. But the court 
 held the replication " agreeable to the rules of law and 
 precedents," {q.) 
 
 7. A general mode of pleading is often sufficient, where the 
 
 {p.) Cornwallis v. Savery, 2 Burr., 772. 
 
 (j.) Shum 0. Farrington, 1 Boa. & Pull., 640; and see a similar decision 
 Burton V. Webb, 8 T. E.,459. 
 
KULES OF PLEADING. 321 
 
 allegation on the other side must reduce the matter to ceriabi- 
 ty,{r.) 
 
 This rule comes into most frequent illustration in plead- 
 ing ^er/brma/ice, in actions of debt on bond. It has been seen 
 that the general rule as to certainty requires that the time, 
 place, and manner of such performance should be specially 
 shown, (s.) Nevertheless, by virtue of the rule now under 
 consideration, it may be sometimes alleged in general 
 terms only; and the requisite certainty of issue is in such 
 cases secured by throwing on the plaintifl" the necessity of 
 showing a special breach in his replication. This course, 
 for example, is allowed in cases where a more special form 
 of pleading would lead to inconvenient prolixity. Thus, 
 in debt on bond, conditioned that the defendant should at 
 all times, upon request, deliver to the plaintilf all the fat 
 and tallow of all beasts which he, his servants, or assigns, 
 should kill or dress before such a day, the defendant 
 pleaded that, upon every request made unto him, he deliv- 
 ered unto the plaintiff all the fat and tallow of all beasts 
 which were killed by him, or any of his servants or assignfs, 
 before the said day. On demurrer, it was objected, " that 
 the plea was not good in such generality; but he ought to 
 have said that he had delivered so much fat or tallow, 
 which was all, &c. ; or that he had killed so many beasts, 
 whereof he had delivered all the fat." But the court held 
 "that the plea was good; for where the matters to be 
 pleaded tend to infiniteness and multiplicity, whereby the 
 rolls shall be encumbered with the length thereof, the law 
 allows of a general pleading in the affirmative. And it 
 hath been resolved, by all the justices of England, that in 
 debt, upon an obligation to perform the covenant in an 
 indenture, it sufficeth to allege performance generally. So, 
 where one is obliged to deliver all his evidences, or to as- 
 sure all his lands, it sufficeth to allege that he hath delivered 
 
 {r.) Co. Litt., 303 b.; Mints v. BetMl, Cro. Eliz., 749; 1 Saund., 117, n. 1 ; 
 2 Sannd., 410, n. 3 ; Churo'- v. Brownwiok, 1 Sid., 334 
 (s.) Supra, p. 305. 
 
 21 
 
822 OF THE PRINCIPAL 
 
 all, &c., or assured all his lands, and it ought to come on the 
 other side to show the contrary in some particular," {t.) 
 
 Another illustration is aflforded by the plea of non damni- 
 jicatus, on an action of debt on an indemnity bond, or bond 
 conditioned "to keep the plaintiff harmless and indemni- 
 fied," &c. This is in the nature of a plea of performance, 
 being used where the defendant means to allege that the 
 plaintiff has been kept harmless and indemnified, accord- 
 ing to the tenor of the condition; and it is pleaded in gen- 
 eral terms, without showing the particular manner of the 
 indemnification. Thus, if an action of debt be brought 
 on a bond, conditioned that the defendant " do, from time 
 to time, acquit, discharge, and save harmless the church- 
 wardens of the parish of P., and their successors, &c.,from 
 all manner of costs and charges, by reason of the birth 
 and maintenance of a certain child;" if the defendant 
 means to rely on the performance of the condition, he may 
 plead in this general form : " That the churchwardens of 
 the said parish, or their successors, &c., from the time of 
 making the said writing obligatory, were not in any man- 
 ner damnified by reason of the birth or maintenance of 
 the said child," (m;) and it will then be for the plaintiff 
 to show in the replication how the churchwardens were 
 damnified. But with respect to the plea of non damnijka- 
 tus, the following distinctions have been taken : First, if, 
 instead of pleading in that form, the defendant alleges 
 affirmatively that he "has saved harmless," &c., the plea 
 will in this case be bad, unless he proceeds to show specifi- 
 cally how he saved harmless, (x.) Again, it is held that 
 if the condition does not use the words "indemnify," or 
 "save harmless," or some equivalent term, but stipulates 
 
 (t.) Mints I'. BetMl, Cro. Eliz., V49; and see Church v. Brownwick 1 Sid 
 334. 
 
 (u.) Eiohard v. Hodges, 2 Saund., 84 ; Hayes v. Bryant, 1 H. Bl., 253 ; 
 Com. Dig., Pleader, E. 25, 2 W., 33; Manser's Case, 2 Eep., 4 a.; 7 Went.i 
 Index, 615 ; 5 Went., 531. 
 
 (E.) 1 Saund., 117, n. 1 ; White v. Cleaver, Str., 681 ; HUlier v. Plympton. 
 422. 
 
RULES OF PLEADINa. 323 
 
 for tlie performance of some specific act, 11 tended to be by 
 way of indemnity, such as the payment of a sam of money 
 by the defendant to a third person, in exoneration of the 
 plaintiff's liability to pay the same sum, the plea of non 
 damnificatus will be improper; and the defendant should 
 plead performance specifically, as, "that he paid the said 
 sum," &c., [y.) It is also laid down that, if the condition 
 of the bond be to "discharge" or "acquit" the plaintiff 
 from a particular thing, the plea of non damnificatus will 
 not apply, but the defendant must plead performance spec- 
 ially, "that he discharged and acquitted," &c., and must 
 also show the manner of such acquittal and discharge, {z.) 
 But, on the other hand, if a bond be conditioned to " dis- 
 charge and acquit the plaintiff /rom any damage" by reason 
 of a certain thing, non damnificatus may then be pleaded, 
 because that is, in truth, the same thing with a condition 
 to "indemnify and save harmless," &c., {a.) 
 
 The rule under consideration is also exemplified in the 
 case where the condition of a bond is for performance of 
 covenants, or other matters, contained in an indenture, or 
 other instrument collateral to the bond, and not set forth in the 
 condition. In this case, also, the law often allows (upon the 
 same principle as in the last) a general plea of perform- 
 ance, without setting forth the manner, {b.) Thus, in an 
 action of debt on bond, where the condition is, that T. J., 
 deputy postmaster of a certain stage, "shall and will, truly, 
 faithfully, and diligently, do, execute, and perform all and 
 every the duties belonging to the said office of deputy 
 postmaster of the said stage, and shall faithfully, justly, 
 and exactly observe, perform, fulfill, and keep all and every 
 the instructions, &e., from his majesty's postmaster gen- 
 
 (y.) Holmes v. Rhodes, 1 Bos. & Pull, 638. 
 
 (z.) 1 Saund., 117, n. 1 ; Bret v. Audar, 1 Leon., 71 ; White v. Cleaver, 
 Str., 681 ; Leaeret v. Rivet, Cro. Jac, 503 ; Harris v. Prett, 5 Mod., 243 ; 
 Garth., 375, S. C. 
 
 (a.) 1 Saund., 117, n. 1. 
 
 (6.) Mints V. Bethil, Cro. Eliz., 749 ; Bac. Ab., Pleas, &o., I, 3 ; 2 Saund., 
 410, n. 3; 1 Saund., 117, n. 1 ; Com. Dig., Pleader, 2, V. 13; Earl of Kerry 
 V. Baxter, 4 East., 340. 
 
324 OF THE PKINCIPAL 
 
 eral," and such instructions are in an affirmative and ab 
 solute form, as follows: "You shall cause all letters and 
 packets to be speedily and without delay, carefully and 
 faithfully, delivered, that shall from time to time be sent 
 •jnto your said stage, to be dispersed there, or in the towns 
 and parts adjacent, that all persons receiving such letters 
 may have time to send their respective answers," &c., it is 
 sufficient for the defendant to plead (after setting forth 
 the instructions) "that the said T. J., from the time of 
 the making the said writing obligatory, hitherto hath well, 
 truly, faithfully, and diligently done, executed, and per- 
 formed all and every the duties belonging to the said office 
 of deputy postmaster of the said stage, and faithfully, 
 justly, and exactly observed, performed, fulfilled, and kept 
 all and every the instructions, &c., according to the true 
 intent and meaning of the said instructions," without 
 showing the manner of performance, as that he did cause 
 certain letters or packets to be delivered, &c., being all 
 that were sent, (c.) So, if a bond be conditioned for fal- 
 fiUing all and singular the covenants, articles, clauses, 
 provisos, conditions, and agreements, comprised in a 
 certain indenture, on the part and behalf of the defend- 
 ant, which indenture contains covenants of an affirma- 
 tive and absolute kind only, it is sufficient to plead (after 
 Betting forth the indenture) that the defendant always 
 hitherto hath well and truly fulfilled all and singular the 
 covenants, articles, clauses, provisos, conditions, and 
 agreements comprised in the said indenture, on the part 
 and behalf of the said defendant, [d.) 
 
 But the adoption of a mode of pleading so general as 
 in these examples will be improper, where the covenants, 
 or other matters mentioned in the collateral instrument, 
 are either in the negative or the disjunctive form, (ey) and, 
 
 (e.) 2 Saund., 403 b., 410, n. 3. 
 
 (d) Gainsford v. Griffith, 1 Saund., 55, IIV, n. 1; Earl of Kerry v. Baxter, 
 4 East., 340; 2 Chitty, 483, 1st edit. 
 
 (e.) Earl of Kerry v. Baxter, 4 East, 340; Oglethorpe v. Hyde, Cro. Eliz., 
 233 ; Lord Arlington v. Merricke, 2 Saund., 410, and n. 3, ibid. 
 
KULBS OF PLK4DING. 325 
 
 witk respect to such matters, the allegation of performance 
 should be more specially made, so as to apply exactly to 
 the tenor of the collateral instrument. Thus, in the ex- 
 ample above given, of a bond conditioned for the per- 
 formance of the duties of a deputy postmaster, and for 
 otasrving the instructions of the postmaster general, if, 
 besides those in the positive form, some of these instruc- 
 tions were in the negative, as, for example, "you shall not 
 receive any letters or packets directed to any seaman, or 
 unto any private soldier, &c., unless you be first paid for 
 the same, and do charge the same to your account as paid," 
 it would be improper to plead merely that T. J. faithfully 
 performed the duties belonging to the office, &c., and all 
 and every the instructions, &c. Such plea will apply suffi- 
 ciently to the positive, but not to the negative part of the 
 instructions, (/.) The form, therefore, should be as fol- 
 lows : " That the said T. J., from the time of making the said 
 writing obligatory, hitherto hath well, truly, faithfully, and 
 diligently executed and performed all and every the duties 
 belonging to the said office of deputy postmaster of the 
 said stage, and faithfully, justly, and exactly observed, 
 performed, fulfilled, and kept all and every the instruc- 
 tions, &c., according to the true intent and meaning of the 
 said instructions. And the said defendant further says, 
 that the said T. J., from the time aforesaid, did not receive 
 any letters or packets directed to any seaman, or private 
 soldier, &c., unless he, the said T. J., was first paid for the 
 same, and did so charge himself, in his account, with the 
 same as paid," &c., {g.) And the case is the same where 
 the matters mentioned in the collateral instrument are in 
 the disjunctive or alternative form; as, where the defendant 
 engages to do either one thing or another. Here, also, a 
 general allegation of performance is insufficient; and he 
 should showwhich of the alternative acts was performed, (A.) 
 
 (/.) Lord Arlington v. Merricke, 2 Saund., 410, and n. 3, ibid. 
 
 (g.) 2 Saund., ibid. 
 
 \h.) Oglethorpe v. Hyde, Cro. Eliz., 233. 
 
326 OF THE PRINCIPAL 
 
 The reasons wJiy the general allegation of performance 
 does not properly apply to negative or disjunctive matters 
 are, that, in the first case, the plea would be indirect or 
 argumentative in its form; in the second, equivocal; and 
 would, in either case, therefore, be objectionable, in refer- 
 ence to certain rules of pleading, which we shall have 
 occasion to consider in the next section. 
 
 It has been stated in a former part of this work {i) that 
 where a party founds his answer upon any matter not set 
 forth by his adversary, but contained in a deed, of which 
 the latter makes profert, he must demand oyer of such 
 deed, and set it forth. In pleading performance, therefore, 
 of the condition of a bond, where (as is generally the case) 
 the plaintiff has stated in his declaration nothing but the 
 bond itself, without the condition, it is necessary for the 
 defendant to demand oyer of the condition, and set it 
 forth, {k.) And in pleading performance of matters con- 
 tained in a collateral instrument, it is necessary not only to 
 do this, but also to make profert, and set forth the whole 
 substance of the collateral instrument, (Z,) for otherwise it 
 will not appear that that instrument did not stipulate for 
 the performance of negative or disjunctive matters, (m,) 
 and, in that case, the general plea of performance of the 
 matters therein contained would (as above shown) be im- 
 proper. 
 
 8. No greater particularity is required than the nature of the 
 thing pleaded will conveniently admit, (n.) 
 
 Thus, though generally, in an action for injury to goods, 
 the quantity of the goods must be stated, (o,) yet, if they 
 
 (i.) Supra, p. 102. 
 
 Ih.) 2 Saund., 410, n. 2. 
 
 (l.) Ibid. 
 
 (m.) See Earl of Kerry v. Baxter, 4 East., 340. 
 
 (n.) Bac. Ab,, Pleas, Ac, B. 5, 5, and p. 409, 5th edit. ; Buckley v. Bic* 
 Thomas, Plow., 118; WimbiBh v. Tailbois, 54; Partridge v. Strange, 85; 
 Plow., 118, 54, 85; Hartley v. Herring, 8 T. E., 130. 
 
 (o.) Vide supra, p. 281. 
 
RULES OF PLEADING. 327 
 
 cannot, under the circumstances of the case, be conve- 
 niently ascertained by number, weight, or measure, such 
 certainty will not be required. Accordingly, in trespass 
 for breaking the plaintiff's close, with beasts, and eating 
 his peas, a declaration, not showing the quantity of peas, 
 has been held sufficient; "because nobody can measure the 
 peas that beasts can eat," (p.) So, in an action on the 
 case for setting a house on fire, per qaod the plaintiff, 
 amongst divers other goods, ornatus pro equis amisit, after 
 verdict for the plaintiff, it was objected, that this was 
 uncertain; but the objection was disallowed by the court. 
 And, in this case, Windham, J., said, that if he had men- 
 tioned only diversa bona, yet it had been well enough, as 
 a man cannot be supposed to know the certainty of his 
 goods when his house is burnt; and added, that, to avoid 
 prolixity, the law will sometimes allow such a declaration, 
 (q.) So, in an action of deht brought on the statute 23 
 Hen. VI, c. 15, against the sheriff of Anglesea, for not 
 returning the plaintiff to be a knight of the shire in Par- 
 liament, the declaration alleged that the plaintiff " was 
 chosen and nominated a knight of the same county, &c., 
 by the greater number of men then resident within the 
 said county of Anglesea, present, &c., each of whom could 
 dispend 40s. of freehold by the year," &c. On demurrer, 
 it was objected that the plaintiff "does not show the cer- 
 tainty of the number; as to say, that he was chosen by 200, 
 which was the greater number; and thereupon, a certain 
 issue might arise, whether he was elected by so many, or 
 not." But it was held that the declaration was "good 
 enough, without showing the number of electors; for the 
 election might be made by voices, or by hands, or such 
 oUier way, wherein it is easy to tell who has the majority, 
 arid yet very difficult to know the certain number of them." 
 Jt nd it was laid down that, to put the plaintiff "to declare 
 s certainty, where he cannot, by any possibility, be pr«>- 
 
 (^.) Bao. Ab., ubi supra. 
 
 <j.) Bac Ab., Pleas, &c., 409, Stii edit. 
 
328 OF THE PEINCIPAL 
 
 sumed to know or remember the certainty, is not reason- 
 able nor requisite in our law," (r.) So, in an action for 
 false imprisonment, wbere the plaintiff declared that the 
 defendant imprisoned him until he made a certain bond, 
 by duress, to the defendant, "and others unknown," the 
 declaration was adjudged to be good, without showing the 
 names of the others; "because it might be that he could 
 not know their names; in which case, the law will not 
 force him to show that which he cannot," (s.) 
 
 9. Less particulanty is required, when the facts lie more in 
 the knowledge of the opposite party, than of the party plead- 
 ing, (t.) 
 
 This rule is exemplified in the case of alleging title in 
 an adversary, where (as formerly explained) a more gen- 
 eral statement is allowed, than when title is set up in the 
 party himself, (u.) So, in an action of covenant, the 
 plaintiff declared that the defendant, by indenture, demised 
 to him certain premises, with a covenant that he, the de- 
 fendant, had full power and lawful authority to demise 
 the same, according to the form and effect of the said 
 indenture ; and then the plaintiff assigned a breach, that 
 the defendant had not full power and lawful authority to 
 demise the said premises, according to the form and effect 
 of the said indenture. After verdict for the plaintiff, it 
 was assigned for error, that he had not in his declaration 
 shown, "what person had right, title, estate, or interest, in 
 the lands demised, by which it might appear to the court 
 that the defendant had not full power and lawful authority 
 to demise." But, " upon conference and debate amongst 
 the justices, it was resolved that the assignment of the 
 
 (r.) Buckley v. Rice Thomas, Plow., 118, 
 
 (s.) Cited ibid. See also Wimbish v. Tailbois, Plow., 54, 55 ; Partridge v. 
 Strange, Plow., 85. 
 
 («.) Eider v. Smith, 3 T. E., 766; Derisley v. Custance, 4 T. R., 77; Attor- 
 ney General v. Meller, Hard., 459; Denham v. StephensoUj 1 Salk., 355; 
 Robert Bradshaw's Case, 9 Eep., 60 b. ; Gale v. Read, 8 East., 80; Com. Dig., 
 Pleader, C. 26. 
 
 (u.) Vide supra, pp. 298, 299. 
 
RULES OP PLEADING. 329 
 
 breacli of covenant was good; for he has followed the words 
 of the covenant negatively, and it lies more properly in 
 the knowledge of the lessor, what estate he himself has 
 in the land which he demises, than the lessee, who is a 
 stranger to it," (x.) So, where the defendant had coven- 
 anted that he would not carry on the business of a rope- 
 maker, or make cordage for any person, except under 
 contracts for government, and the plaintiff", in an action 
 of covenant, assigned for breach, that after the making of 
 the indenture, the defendant carried on the business of a 
 rope-maker, and made cordage for divers and very many 
 persons, other than by virtue of any contract for gov- 
 ernment, &c.; the defendant demurred specially, on the 
 ground that the plaintiff" " had not disclosed any and what 
 particular person or persons for whom the defendant made 
 cordage, nor any and what particular quantities or kinds 
 of cordage the defendant did so make for them, nor in 
 what manner, nor by what acts, he carried on the said 
 business of a rope-maker, as is alleged in the said breach 
 of covenant." But the court held, "that as the facts 
 alleged in these breaches lie more properly in the knowl- 
 edge of the defendant, who must be presumed conusant 
 of his own dealings, than of the plaintiff"'s, there was no 
 occasion to state them with more particularity;" and gave 
 judgment accordingly, [y.) 
 
 10. Less partieularity is necessary in the statement of matter 
 of inducement, or aggravation, than in the main allegations, {z.) 
 
 This rule is exemplified in the case of the derivation of 
 title; where, though it is a general rule that the commence- 
 ment of a particular estate must be shown, yet an exception is 
 
 (x.) Robert Bradshaw's Case, 9 Eep., 60 b. 
 
 (y.) Gale V. Read, 8 East., 80. 
 
 (z.) Co. Litt., 303 a.; Bac. Ab., Pleas, &o., pp. 322, 348, 5th edit.; Com 
 Dig., Bleader, 0. 31, C. 43, E. 10, E. 18; Doct. PI., 283; Wetherell v. Clerk- 
 Bon, 12 Mod., 597 ; Chamberlain v. Greenfield, 3 Wils., 292; Alsope v. Sytwell, 
 Yelv., IV; Biggs v. BuUingham, Cro. Eliz., 715; Woolaston v. Webb, Hob., 
 18; Bishop of Salisbury's Case, 10 Kep., 59 b.; 1 Saund., 374, n 1. 
 
330 OF THE PRINCIPAL 
 
 allowed, if the title be alleged by way of mducem.ent only, 
 {a.) So, where, in assumpsit, the plaintiff declared that, 
 in consideration that, at the defendant's request, he had 
 given and granted to him, by deed, the next avoidance of 
 a certain church, the defendant promised to pay lOOZ., but 
 the declaration did not set forth any time or place at which 
 such grant was made; upon this being objected, in arrest 
 of judgment, after verdict, the court resolved, that "it 
 was but an inducement to the action, and therefore needed 
 not to be so precisely alleged;" and gave judgment for the 
 plaintiff, {b.) So, in trespass, the plaintiff declared that 
 the defendant broke and entered his dwelling-house, and 
 "wrenched and forced open, or caused to be wrenched and 
 forced open, the closet-doors, drawers, chests, cupboards, 
 and cabinets of the said plaintiff." Upon special demurrer, 
 it was objected, that the number of closet-doors, drawers, 
 chests, cupboards, and cabinets, was not specified. But it 
 was answered, "that the breaking and entering the plaint- 
 iff's house was the principal ground and foundation of the 
 present action; and all the rest are not foundations of the 
 action, but matters only thrown in to aggravate the dam- 
 ages; and on that ground need not be particularly speci- 
 fied." And of that opinion was the whole court; and 
 judgment was given for the plaintiff, (c.) 
 
 11. With respect to acts valid at common law, but regulated, 
 as to the mode of performance, by statute, it is sufficient to use 
 such certainty of allegation, as was sufficient before the statute, 
 (d.) 
 
 Thus, by the common law, a lease for any number of 
 years might be made by parol only; but, by the statute of 
 j-auds, (29 Car. 11, c. 8, s. 1, 2,) all leases and terms for 
 years made by parol, and not put into writing, and signed 
 
 (a.) Vide supra, p. 293. 
 (5.) Eiggs V. Bullingliain, Cro. Eliz., 715. 
 (c.) ChambeTlain v. Greenfield, 3 Wik., 292. 
 
 Id.) 1 Saund., 276, n. 2; 211, n. 2; Anon., 2Salk., 519; Bircli a Bellamy 
 \2 Mod., 540; Bac. Ab., Statute, L. 3; 4 Hen. VII. 8. 
 
RULES OP PLEADING. 331 
 
 by the lessors or their agents authorized by writing, shall 
 have only the effect of leases at will, except leases not 
 exceeding the term of three years from the making. Yet 
 in a declaration of debt for rent on a demise, it is sufficient 
 (as it was at common law) to state a demise for any num- 
 ber of years, without showing it to have been in writing, 
 (e.) So, in the case of a promise to answer for the debt, 
 default, or miscarriage of another person, (which was good 
 by parol, at common law, but by the statute of frauds, sec- 
 tion 4, is not valid unless the agreement, or some memo- 
 randum or note thereof, be in writing, and signed by the 
 party, &c.,) the declaration, on such promise, need not allege 
 a written contract, (/.) 
 
 And on this subject, the following difference is to be 
 remarked, that "where a thing is originally made by act 
 of Parliament, and required to be in writing, it must be 
 pleaded with all the circumstances required by the act; as 
 in the case of a will of lands, it must be alleged to have 
 been made in writing ; but where an act makes writing 
 necessary to a matter, where it was not so at the common 
 law, as where a lease for a longer term than three years is 
 required to be in writing by the statute of frauds, it is not 
 necessary to plead the thing to be in writing, though it 
 must be proved to be so, in evidence," {g.) 
 
 As to the rule under consideration, however, a distinc- 
 tion has been taken between a declaration and a plea ; and 
 it is said, that though in the former the plaintiff" need not 
 show the thing to be in writing, in the latter the defendant 
 must. Thus, in an action of indebitatus assumpsit, for 
 necessaries provided for the defendant's wife, the defend- 
 ant pleaded, that before the action was brought, the plaint- 
 iff and defendant, and one J. B., the defendant's son, 
 entered into a certain agreement, by which the plaintiff, in 
 discharge of the debt mentioned in the declaration, waa 
 
 (e.) 1 Sannd., 276, n. 1 ; vide supra, p. 295. 
 (/.) 1 Saund., 211, n. 2; Anon., 2 Salk., 519. 
 (c/.) 1 Saund., 276, d e., n. 2. 
 
332 OF THE PKIKCIPAL 
 
 to accept the said J. B. as her debtor for Ql., to be paid 
 when he should receive his pay as a lieutenant; and that 
 the plaintiff accepted the said J. B. for her debtor, &c. 
 Upon demurrer, judgment was given for the plaintiff, for 
 two reasons : first, because it did not appear that there was 
 any consideration for the agreement; secondly, that, ad- 
 mitting the agreement to be valid, yet, by the statute of 
 frauds, it ought to be in writing, or else the plaintiff could 
 have no remedy thereon; "and though, upon such an 
 agreement, the plaintiff need not set forth the agreement 
 to be in writing, yet when the defendant pleads such an 
 agreement in bar, he must plead it so as it may appear to 
 the court that an action will lie upon it; for he shall not 
 take away the plaintiff's present action, and not give her 
 another, upon the agreement pleaded," {h.) 
 
 SBOTION V. 
 
 OF RULES WHICH TEND TO PREVENT OBSCURITY AND CONFUSION 
 IN PLEADING. 
 
 RULE I. 
 
 PLEADINGS MUST NOT BE IHSENSIBLE NOE EEPnGKANT, (i.) 
 
 First, if a pleading be unintelligible, (or, in the language 
 of pleading, insensible,) by the omission of material words, 
 &c., this vitiates the pleading, [k.) 
 
 Again, if a pleading be inconsistent with itself, or rejpug- 
 nant, this is ground for demurrer. 
 
 Thus, where, in an action of trespass, the plaintiff de- 
 clared for taking and carrying away certain timber, lying 
 in a certain place, for the completion of a house then lately 
 
 (h.) Case v. Barber, Raym., 450. It is to be observed, that the plea was 
 at all events a bad one in reference to the first objection. The case is, per- 
 haps, therefore, not decisive as to the validity of the second. 
 
 (i.) Com. Dig., Pleader, C. 23; Wyat v. Aland, 1 Salk., 324; Bac. Ab., 
 Pleas, &c., I. 4; Nevilli). Soper, 1 Salk., 213; Butt's Case, 7 Eep., a.; Hutch 
 inson V. Jacksoc, 2 Lut., 1324 : Vin. Ab., Abatement, D. a. 
 
 (i.) Com. Dig., Pleader, <J. 23; Wyat v. Aland, 1 Salk., 324. 
 
RULES OF PLEADING. 333 
 
 built, — this declaration was considered as bad for repug 
 nancy; for the timber could not be for the building of a 
 house already built, (1) So, where the defendant pleaded 
 a grant of a rent, out of a term of years, and proceeded to 
 allege that, by virtue thereof, he was seized in his demesne, 
 as of freehold, for the term of his life, the plea was he A bad 
 for repugnancy, (m.) But there is this exception : that, if 
 the second allegation, which creates the repugnancy, ia 
 merely superfluous and redundant, so that it may be re. 
 jected from the pleading, without materially altering the 
 general sense and eflfect, it shall, in that case, be rejected, 
 at least, if laid under a videlicet, and shall not vitiate the 
 pleading; for the maxim is, utile, per inutile, non vitia» 
 tur, (n.) 
 
 RULE II. 
 
 PLEADIHGS MUST NOT BE AMBIQTJOUS, OE DOUBTFUL, TS MEANING ; AND WHBN 
 TWO DIFFEEENT MEANINGS PEESENT THEMSELVES, THAT C0NSTEU0TI08 
 SHALL BE ADOPTED, WHICH IS MOST UNPAVOEABLE TO THE PAETY PLBAJ-- 
 ING, (o.) 
 
 Thus, if in trespass quare clausum fregit, the defend- 
 ant pleads, that the locus in quo was his freehold, he must 
 allege that it was his freehold at the time of the trespass; 
 otherwise the plea is insufficient, (p.) So, in debt on a 
 bond, conditioned to make assurance of land, if the de- 
 fendant pleads that he executed a release, his plea is bad, if 
 it does not express that the release concerns the same land, {q.) 
 In trespass quare clausum fregit, and for breaking down 
 two gates and three perches of hedges, the defendant 
 
 (I.) Nevill V. Soper, 1 Salk., 213. 
 
 (to.) Butt's Case, 7 Eep., 25 a. 
 
 (n.) Gilb., C. P., 131-2 ; The King v. Stevens, 5 East, 255; Wyat v. Aland, 
 1 Salk., 324-6; 2 Saund., 291, n. 1; 306, n. 14; Co. Litt., 303 b. 
 
 (o.) Co. Litt., 303 b.; Purcell v. Bradley, Yelv., 36; Rose i;. Standen, 2 
 Mod., 295 ; Dovaston v. Payne, 2 H. Bl., 530 ; Thornton v. Adams, 5 M. & 
 S., 38; Lord Huntirigtower v. Gardiner, 1 Barn. & Ores., 297; Fletcher*, 
 Pogson, 3 Barn. & Ores., 192. 
 
 (p.) Com. Dig., Pleader, E. 5. 
 
 {q.) Com. Dig., ubi supra; Ma^iser'a Case, 2 Eep., 3. 
 
834 OF THE PKINCIPAL 
 
 pleaded that the said close was within the parish of i?., and 
 that all the parishioners there, from time immemorial, had 
 used to go over the said close, upon their perambulation 
 in rogation week; and because the plaintiff had wrong- 
 fully erected two gates and three perches of hedges, in the said 
 way, the defendant, being one of the parishioners, broke 
 down those gates and those three perches of hedges. On 
 demurrer, it was objected, that though the defendant had 
 justified the breaking down two gates and three perches 
 of hedges, it does not appear that they were the same gates 
 and hedges, in respect of which the plaintiff complained; 
 it not being alleged that they were the gates and hedges 
 "aforesaid," or the gates and hedges "in the declaration 
 mentioned." "And thereto agreed all the justices, that this 
 fault in the bar was incurable. For Walmsley said, that 
 he thereby doth not answer to that for which the plaintiff 
 chargeth him." And he observed, that the case might be, 
 that the plaintiff had erected four gates and six perches 
 of hedges; and that the defendant had broken down the 
 whole of these, having the justification mentioned in the 
 plea, in respect of two gates and three perches only, and 
 no defense as to the remainder; and that the action might 
 be brought in respect of the latter only, (r.) 
 
 A pleading, however, is not objectionable, as ambiguous 
 or obscure, if it be certain to a common intent, (s ;) that is, if 
 it be clear enough, according to reasonable intendment 
 or construction, though not worded with absolute precis- 
 ion, [t.) Thus, in debt on a bond, conditioned to procure 
 A. S. to surrender a copyhold to the use of the plaintiff, — 
 
 (r.) Goodday v. Micliell, Cro. Eliz., 441. 
 
 (s.) Com. Dig., Pleader, B. 7, F. 17; 1 Saund., 49, n. 1 ; Long's Case, 5 Eep., 
 121 a.; Doct. PI., 58; ColthirstB. Bejushin, Plow., 26, 28, 33; Fulmerston ?;. 
 Steward, ibid., 102; Cooper v. Monke, Willes, 52; The King v. Lyme Eegis, 
 1 Doug., 158 ; Hamond v. Dod, Cro. Car., 5 ; Poynter v. Poynter, Hid., 194 ; 
 Dovaston v. Payne, 2 H. Bl., 530 ; Jacobs v. Nelson, 3 Taunt., 428. 
 
 (t.) It will be observed, that the word " certain" is here used, not in the 
 sense of particular or specific, as in former parts of this work, — but in its 
 other meaning, of clear or distinct. See the double use of this word, noticed 
 tupra, p. 1 53. 
 
RULES OB PLEADING. 335 
 
 a plea that A. S. surrendered and released the copyhold to 
 the plaintiff, in full court, and the plaintiff accepted it, 
 without alleging that the surrender was to the plaintiff's use, 
 is sufficient; for this shall be intended, (m.) So, in debt 
 on a bond, conditioned that the plaintiff shall enjoy certain 
 land, &c., — a plea that after the making of the bond, until 
 the day of exhibiting the bill, the plaintiff did enjoy, is 
 good, though it be not said, that always after the making, 
 until, &c., he enjoyed; for this shall be intended, (x.) 
 
 It is under this head, of ambiguity, that the doctrine of 
 negatives pregnant appears most properly to range itself. A 
 negative pregnant is such a form of negative expression as 
 may imply, or carry within it, an affirmative. This is con- 
 sidered as a fault in pleading; and the reason why it is so 
 considered, is, that the meaning of such a form of expres- 
 sion is ambiguous. In trespass, for entering the plaintiff's 
 house, the defendant pleaded, that the plaintiff's daughter 
 gave him license to do so; and that he entered by that 
 license. The plaintiff replied, that he did not enter by her 
 license. This was considered as a negative pregnant; and it 
 was held, that the plaintiff should have traversed the entry 
 by itself, or the license by itself, and not both together, (y.) 
 It will be observed that this form of traverse may imply, 
 or carry within it, that a license was given, though the 
 defendant did not enter by that license. It is, therefore, 
 in the language of pleading, said to be pregnant with that 
 admission, viz, that a license was given, (z.) At the same 
 time, the license is not expressly admitted; and the effect, 
 therefore, is to leave it in doubt whether the plaintiff 
 means to deny the license or to deny that the defendant 
 entered by virtue of that license. It is this ambiguity 
 which appears to constitute the fault, (a.) The following 
 
 (m.) Hamond v. Dod, Cro. Car., 6. 
 (x.) Harlow v. Wright, ibid., 195. 
 (y.) Myn v. Cole, Cro. Jac, 87. 
 (z.) Bac. Ab., Pleas, &o., p. 420, 5tli edit. 
 
 (a.) 28 Hen. VI, 7; Slade v. Drake, Hob., 295; Styles' Praot. Eeg., tit 
 Negative Pregnant. See Appendix, note 67. 
 
336 OP THE PRINCIPAL 
 
 is another example. In trespass, for assault and battery, 
 the defendant justified, for that he, being master of a ship, 
 commanded the plaintiff to do some service in the ship; 
 which he refusing to do, the defendant moderately chas- 
 tised him. The plaintiff traversed, with an absque hoc, 
 that the defendant moderately chastised him; and this traverse 
 was held to be a negative pregnant; — for, while it appar- 
 ently means to put in issue only the question of excess, 
 (admitting, by implication, the chastisement) it does not 
 necessarily and distinctly make that admission; and is, 
 therefore, ambiguous in its form, (6.) If the plaintiff had 
 replied that the defendant immoderately chastised him, the ob- 
 jection would have been avoided; but the proper form of 
 traverse would have been de injuria sua propria absque tali 
 coMsa, (c.) This, by traversing the whole " cause alleged," 
 would have distinctly put in issue all the facts in the plea; 
 and no ambiguity or doubt, as to the extent of the denial, 
 would have arisen. 
 
 This rule, however, against a negative pregnant, ap- 
 pears in modern times, at least, to have received no very 
 strict construction. For many cases have occurred in 
 which, upon various grounds of distinction from the gen- 
 eral rule, that form of expression has been held free from 
 objection, [d.) Thus, in debt on a bond, conditioned to 
 perform the covenants in an indenture of lease, one of 
 which covenants was that the defendant, the lessee, would 
 not deliver possession to any but the lessor, or such per- 
 sons as should lawfully evict him, the defendant pleaded, 
 that he did not deliver the possession to any but such as lawfully 
 evicted him. On demurrer to this plea, it was objected, 
 that the same was ill, and a negative pregnant; and that he 
 ought to have said that such a one lawfully evicted him, 
 to whom he delivered the possession; or that he did not 
 deliver the possession to any; — but the court held the plea, 
 
 (5.) Auberie v. James, Vent., 70; 1 Sid., 444; 2 Keb., 623, S. 0. 
 (c.) Auberie v. James, Vent., 70. See, as to the traverse de injuria, sripra, 
 p 179.) 
 (d.) See several instances, mentioned in Com. Dig., Pleader, E. 6. 
 
RULES OF PLEADING. 337 
 
 as pursuing the words of the covenant, good — ^being in the 
 negative— and that the plaintiff ought to have replied, 
 and assigned a breach; and therefore judgment was given 
 against him, (e,) 
 
 RULE III. 
 
 PLBADIHGS MUST NOT BE AEGUMENTATIVB, {f.) 
 
 In other words, they must advance their positions of 
 fact in an absolute form, and not leave them to be col- 
 lected by inference and argument only. 
 
 Thus, in an action of trover, for ten pieces of money, 
 the defendant pleaded that there was a wager between the 
 plaintiff and one C, concerning the quantity of yards of 
 velvet in a cloak; and the plaintiff and C. each delivered 
 into the defendant's hand ten pieces of money, to be deliv- 
 ered to C. if there were ten yards of velvet in the cloak, 
 and if not, to the plaintiff; and proceeded to allege that, 
 upon measuring of the cloak, it was found that there were ten 
 yards of velvet therein; whereupon the defendant delivered 
 the pieces of money to C. Upon demurrer, " Gawdy held 
 the plea to be good enough; for the measuring thereof is 
 the fittest way for trying it : and when it is so found by the 
 measuring, he had good cause to deliver them out of his 
 hands, to him who had won the wager. But Fenner and 
 Popham held that the plea was not good; for it may be 
 that the measuring was false; and therefore he ought to 
 have averred, in fact, that there were ten yards, and that 
 it was so found upon the measuring thereof," (g.) So, in 
 an action of trespass, for taking and carrying away the 
 plaintiff's goods, the defendant pleaded that the plaintiff 
 never had any goods. " This is an infallible argument, that 
 
 (e.) Pullin «. Nicholas, 1 Lev., 83; see Com. Dig., Pleader, P.,. 6; Semb., 
 coat. Lea v. Luthell, Cro. Jac, 559. 
 
 (/.) Bao. Ab., Pleas, &c., I. 5 ; Com. Dig., E. 3; Co. Litt., 303 a. ; Dyer, 43 
 a. ; Wood V. Butts, Cro. Eliz., 260 ; Ledesbam v. Lubram, ibid. 870 ; Black- 
 more V. Tidderley, 11 Mod., 38 ; 2 Salk., 423 S. C. ; Murray v. East India 
 Company, 5 Barn & Aid., 215. 
 
 (g.) Ledesham v. Lubram, Cro. Eliz., 870. 
 
 22 
 
338 OF THE PRINCIPAL 
 
 the defendant is not guilty, and yet it is no plea," {h.) 
 Again, in ejectment, the defendant pleaded a surrender of 
 a copyhold, by the hand of Fosset, then steward of the 
 manor. The plaintiff traversed that Fosset was steward. 
 All the court held this to be no issue, and that the traverse 
 ought to be that he did not surrender; for if he were not 
 steward, the surrender is void, (i.) The reason of this 
 decision appears to be, that to deny that Fosset was stew- 
 ard could be only so far material as it tended to show 
 that the surrender was a nullity; and that it was, therefore, 
 an argumentative denial of the surrender; which, if intend- 
 ed to be traversed, ought to be traversed in a direct form. 
 It is a branch of this rule that two affirmatives do not make 
 a good issue, {L) The reason is, that the traverse by the 
 second affirmative is argumentative in its nature. Thus, 
 if it be alleged by the defendant that a party died seized 
 in fee, and the plaintiff allege that he died seized in tail, 
 this is not a good issue, (l,) because the latter allegation 
 amounts to a denial of a seizin in fee, but denies it by 
 argument or inference only. It is this branch of the rule 
 against argumentativeness that gave rise (as in part already 
 explained) (m) to the form of a special traverse. Where, 
 for any of the reasons mentioned in a preceding part of 
 this work, it becomes expedient for a party traversing to 
 set forth new affirmative matter tending to explain or 
 qualify his denial, be is allowed to do so; but as this, 
 standing alone, will render his pleading argumentative, he 
 is required to add to his affirmative allegation an express 
 denial, which is held to cure or prevent the argumenta- 
 tiveness, (/I.) Thus, in the example last given, the plaintiff 
 
 (h.) Doct. PI., 41 ; Dyer, 43 a. 
 
 (i.) Wood V. Butts, Cro. Eliz., 260. 
 
 (k.) Com. Dig., Pleader, E. 3 ; Co. Litt., 126 a ; per Bdler, J., Chandler v. 
 Eoberts, Dong., 60; Doct. PL, 43, 360; Zouohand Bamfield's Case, 1 Leon., 77. 
 
 (I.) Doct. PI., 349; 5 Hen. VII, 11, 12. 
 
 (m.) Supra, p. 191. 
 
 (ra.) Bac. Ab., Pleas, &c., H. 3; Courtney v. Phelps, Sid., 301; Herring ». 
 Blacklow, Cro. Eliz., 30; 10 Hen, VI, 7, pi. 21. 
 
KULES OP PLEADING. 839 
 
 may allege, if he pleases, that the party died seized in tail; 
 but then he must add, absque hoe, that he died seized in fee, 
 and thus resort to the form of a special traverse, (o.) The 
 doctrine, however, that two affirmatives do not make a 
 good issue, is not taken so strictly but that the issue will, 
 in some cases, be good, if there is sufficient negative and 
 affirmative in effect, though, in the form of loords, there be 
 a double affirmative. Thus, in debt on a lease for years, 
 where the defendant pleaded that the plaintiff had nothing 
 at the time of the lease made, and the plaintiff replied 
 that he was seized in fee, this was held a good issue, (p.) 
 
 Another branch of the rule against argumentativeness 
 is thai two negatives do not make a good issue, {q.) Thus, if 
 the defendant plead that he requested the plaintiff to deliver 
 an abstract of his title, but that the plaintiff did not, when 
 so requested, deliver such abstract, but neglected so to 
 do, the plaintiff cannot reply that he did not neglect and 
 refuse to deliver such abstract, but should allege affirma- 
 tively that he did deliver, (r.) 
 
 RULE IV. 
 
 PLEADINGS MUST NOT BE IN THE ALTEENATIVE, (s.) 
 
 Thus, in an action of debt against a jailor for the escape 
 of a prisoner, where the defendant pleaded that if the 
 said prisoner did, at any time or times after the said com- 
 mitment, &c., go at large, he so escaped without the knowl 
 edge of the defendant, and against his will; and that, if 
 any such escape was made, the prisoner voluntarily returned 
 into custody before the defendant knew of the escape, 
 &c.; the court held the plea bad: for "he cannot plead 
 hypothetically that if there has been an escape there has 
 
 (o.) Doct. PI., 349. 
 
 (p.) Co. Litt., 126 a. ; Beg. Plac, 297, 298; and see Tomlin v. Burlaoe, 1 
 Wils., 6. 
 
 (q.) Com. Dig., Pleader, E. 3. 
 
 (r.) Martin v. Smith, 6 East, 557. 
 
 (s.) Griffiths v. Eyles, 1 Bos. & Pul., 413 ; Cook v. Cox, 2 M. & S., 114; The 
 King V. Brereton, 8 Mod., 330; Witherley v. Sarsfield, 1 Show., 127. 
 
340 OF THE PRINCIPAL 
 
 also been a return. He must either stand upon an aver- 
 ment that there has been no escape, or that there have 
 been one, two, or ten escapes, after which the prisoner 
 returned," (t.) 
 
 So, where it was charged that the defendant wrote and 
 published, or caused to be written and published, a certain 
 libel, this was considered as bad for uncertainty, (m.) 
 
 RULE V. 
 
 PLEADINGS MUST HOT BE BY WAY OF EEOITAL, BUT MUST BE POSITIVE IS THEIE 
 
 POBM, {X.) 
 
 The following example may be adduced to illustrate 
 this kind of fault. If a declaration in trespass, for assault 
 and battery, make the charge in the following form of 
 
 expression: "and thereupon the said A. B., by , 
 
 his attorney, complains, for that whereas the said C. £>. 
 heretofore, to wit, &c., made an assault," &c., instead of 
 "for that the said C. D. heretofore, to wit, &c., made an 
 assault," &c. — this is bad; for nothing is positively 
 affirmed, (?/.) 
 
 So, where a deed or other instrument is pleaded, it is in 
 general not proper to allege (though in the words of the 
 instrument itself) that it is witnessed {testatum existit) that 
 such a party granted, &c.; but it should be stated abso- 
 lutely and directly that he granted, &c. But as to this 
 point, a difference has been established between declarar 
 tions and other pleadings. In the former (for example, in 
 a declaration of covenant) it is sufficient to set forth the 
 
 (t.) Griffith V. Eyles, 1 Bos. & Pul., 413. 
 
 (m.) The King v. Brereton, 8 Mod., 330. 
 
 (s.) Bac. Ah., Pleas, &c., B. 4; Sherland v. Heaton, 2 Bulst., 214; Wetten- 
 hall V. Sherwin, 2 Lev., 206 ; Mors v. Thacker, i6id, 193 ; Hore v. Chapman, 
 2 Salk., 636; Dunstall v. Dunstall, 2 Show., 27; Gourney v. Fletcher, ibid, 
 295; Dobbs v. Edmunds, Lord Ray., 1413; Wilder v. Handy, Str., 1151; Mar- 
 shall 11. Eiggs, ibid, 1162. 
 
 (y ) See the authorities last cited. It will be observed, however, that ia 
 trespass on the case, the "whereas" is unobjectionable, being used only as 
 introductory to some subsequent positive allegation. See the same cases and 
 Uie forms ol declaration in the first chapter. 
 
RULES OF PLEADING. 341 
 
 instrument with a testatum exisiii, though not in the lattei. 
 And the reason given is, that, in a declaration, such state- 
 ment is merely inducement; that is, introductory to some 
 other direct allegation. Thus, in covenant, it is introduc 
 tory to the assignment of the breach, {z.) 
 
 RULE VI. 
 
 THINGS AEE TO BE PLEADED ACCOEDING TO THEIR lEOAL EFFECT OE OFEBA- 
 
 TION, (a.) 
 
 The meaning is, that in stating an instrument or other 
 matter in pleading, it should be set forth, not according 
 to its terms, or its form, but according to its effect in law ; 
 and the reason seems to be, that it is under the latter 
 aspect that it must principally and ultimately be consid- 
 ered; and therefore, to plead it in terms or form only, is 
 an indirect and circuitous method of allegation. Thus, if 
 a joint tenant conveys to his companion by the words 
 "gives," "grants," &c., his estate in the lands holden in 
 jointure, this, though in its terms a grant, is not properly 
 such in operation of law, but amounts to that species of 
 conveyance called a release. It should therefore be pleaded, 
 not that he "granted," &c., but that he " released," &c., (6.) 
 So, if a tenant for life grant his estate to him in reversion, 
 this is, in effect, a surrender, and must be pleaded as such, 
 and not as a grant, (c.) So, where the plea stated that A. 
 was entitled to an equity of redemption, and, subject 
 thereto, that B. was seized in fee, and that they, by lease 
 and release, granted, &c., the premises, excepting and 
 reserving to A. and his heirs, &c., a liberty of hunting, 
 &c., it was held upon general demurrer, and afterwards 
 
 (z.) Bultivant v. Holman, Cro. Jac, 537; 1 Saund., 274, n. 1. (See the form 
 of declaring ■with a testatum existit. (3 Went., 352, 523.) 
 
 (a.) Bac. Ab., Pleas, &o., I. 7; Com. Dig., Pleader, C. 37; 2 Saund., 97, and 
 97 b., n. 2; Barker v. Lade, 4 Mod., 150; Howel v. Richards, 11 East., 633; 
 Moors V. Earl of Plymouth, 3 Bam. <fc Aid., 66; Stroud v. Lidy Gerard, 1 
 Salk., 8 ; 1 Saund., 235 b., n. 9. 
 
 (i.) 2 Saund., 97; Barker v. Lade, 4 Mod., 150, 151. 
 
 (c.) Barker v. Lade, 4 Mod, 151. 
 
342 OF THE PRINCIPAL 
 
 upon writ of error, that as A. had no legal interest in the 
 land there could be no reservation to him ; that the plea, 
 therefore, alleging the right (though in terms of the deed) 
 by way of reservation was bad; and that if (as was con- 
 tended in argument) the deed would operate as a grant of 
 the right, the plea should have been so pleaded, and should 
 hare alleged a grant and not a reservation, (d.) 
 
 The rule in question is, in its terms, often confined to 
 deeds and conveyances. It extends, however, to all instru- 
 ments in writing, and contracts, written or verbal; and, 
 indeed, it may be said, generally, to all matters or transac- 
 tions whatever which a party may have occasion to allege 
 in pleading, and in which the form is distinguishable from 
 the legal effect, (e.) But there is an exception in the case 
 of a declaration for written or verbal slander, where (as the 
 action turns on the words themselves) the words them- 
 selves must be set forth; and it is not sufficient to allege 
 that the defendant published a libel, containing false and 
 scandalous matters, in substance as follows, &c., or used 
 words to the effect following, &c,, (/.) 
 
 RULE VII. 
 
 PLEADINSS SHOULD OBSBEVE THE KNOWN AND ANCIENT POEMS OF EXPRES- 
 SION, AS CONTAINED IN APPBOVED PEECEDENIS, (jT.) 
 
 Thus, so long ago as in the time of Bracton, in the count 
 on a writ of right there were certain words of form, be- 
 
 (d.) Moore v. Earl of Plymouth, 3 Barn. & Aid., 66; et vide supra, p. 293. 
 
 (e.) Stroud v. Lady Gerard, 1 Salk., 8. 
 
 (/.) Wright V. Clements, 3 Barn. & Aid., 503 ; Cook v. Cox, 3 M. & S., 110; 
 Newton v. Stubbe, 2 Show., 435. See an example of the manner in which 
 a libel is set forth, supra, p. 73. But in an action for a malicious prosecu- 
 tion, if the declaration states merely that the defendant, without reasonable 
 or probable cause, indicted the plaintiff for perjury, without setting forth the 
 indictment, this is sufficient after verdict. (Pippet v. Hearn, 5 Barn. & Aid., 
 634.) See also Blizard v. Kelly, 2 Barn. & Cres., 283 ; Davis v. Noake, 6 M. & 
 S., 33. 
 
 (jr.) Com. Dig., Abatement, Q. 7; Buckley v. Eice Thomas, Plow., 123; 
 Dally V. King, 1 H. BL, 1 ; Slade v. Dowland, 2 Bos. & Pul., 570; Dowland 
 V. Slade, 5 East, 272; King v. Eraser, 6 East, 351; Dysterc. Battye, 3 Barn. 
 & Aid., 448; per Abbott, C. J., Wright v. Clements, ibid, 507. 
 
BULES OP PLEADING. 343 
 
 sides those contained in the writ, which were considered 
 as essential to be inserted. It was necessary to allege 
 "the seizin" of the ancestor "in his demesne as of fee"— 
 and "of right"— "by taking the esplees"— "in the time 
 of such a king" — and (if the seizin were alleged at a pe- 
 riod of civil commotion) " in time of peace," {h.) And all 
 this is equally necessary in framing a count on a writ of 
 right at the present day; and no parallel or synonymous 
 expressions will supply the omission, (i.) So, too, the 
 general issTies are examples of forms of expression fixed by 
 ancient usage from which it is improper to depart. And 
 another illustration of this rule occurs in the following 
 modern case. To an action on the case, the defendants 
 pleaded the statute of limitations, viz, thai they were not 
 guilty within six years, §-c. The court decided, upon special 
 demurrer, that this form of pleading was bad, upon the 
 ground that "from the passing of the statute to the pres- 
 ent case the invariable form of pleading the statute to an 
 action on the case for a wrong has been to allege that the 
 cause of action did not accrue within_sjxyegrs^J^;'' and that 
 "it was important to the administration of justice that 
 the usual and established forms of pleading should be 
 observed," (k.) 
 
 It may be remarked, however, with respect to this rule, 
 that the allegations to which it relates are of course only 
 those of frequent and ordinary recurrence ; and that even 
 as to these, it is rather of uncertain application, as it 
 must be often doubtful whether a given form of expression 
 has been so fixed by the course of precedent as to admit 
 of no variation, [1.) 
 
 Another rule, connected in some measure with the last, 
 and apparently referable to the same object, is the fol- 
 lowing: 
 
 (h.) Bract., 373 a. b. 
 
 (i) Slade V. Dowland, 2 Boa. &Pul., 570; Dilly ii. King, 1 H. Bl. 1; Dow- 
 land V. Slade, 5 East, 272. 
 (k) Dyster v. Battye, 3 Barn. & Aid., 448. 
 (I.) See Appendix, note 68. 
 
844 or THE PRINCIPAL 
 
 BULE VIII. 
 
 PLEADIBOS BHODLD HAVE TH£IB FBOI'EB FOBUAL COWiZSOEHSJSna AND OOV- 
 
 OLnsioirs, (to.) 
 
 This rule refers to certain formulse occurring at the 
 commeMemmt of pleadings subsequent to the declaration, 
 and to others occurring at the conclusion. 
 
 A formula of the latter kind, inasmuch as it prays the 
 judgment of the court for the party pleading, is often 
 denominated the prayer of judgment, and occurs (it is to 
 be observed) in all pleadings that do not tender issue, but 
 in those only. 
 
 A PLEA TO THE JURISDICTION has usually no commence- 
 ment of the kind in question, (n.) Its conclusion is as fol- 
 lows: 
 
 — the said C. D. prays judgment if the court of our lord the king here will 
 or ought to have further cognizance of the plea (o) aforesaid. 
 
 or (in some cases) thus : 
 
 — ^the said 0. D. prays judgment if he ought to be compelled to answer to th« 
 said plea here in court, (p.) 
 
 A PLEA IN SUSPENSION secms also to be in general pleaded 
 without a formal commencement, (q.) Its conclusion (in the 
 case of a plea of nonage) is thus : 
 
 — the said O. D. prays that the parol may demur (or that the said plea may 
 stay and be respited) until the full age of him the said 0. D., &c., (r.) 
 
 (to.) Co. Litt., 303 b. ; Com. Dig., Pleader, E. 27, E. 28, E. 32, E. 33, P. 4,, 
 F. 5, G. 1 ; Com. Dig., Abatement, I. 12 ; 2 Saund., 209, n. 1 ; per Holt, 0, Z.^ 
 Bowyer v. Cook, 5 Mod., 145. 
 
 (n.) 1 Chitty, 450, 1st edit. But sometimes it has such commencement. 
 (See ihid.) 
 
 (o.) 1 Went., 49; 3 Bl. Com., 303; Powers v. Cook, Lord Bay., 53. 
 
 (p.) 1 Went., 41, 49 ; Bac. Ab., Pleas, &c., E. 2; Per Holt, C. J., Bowyer ». 
 Cook, 5 Mod., 146 ; Powers v. Cook, Ld. Pay., 63. 
 
 (q.) 2 Chitty, 472, 1st edit. ; Plaaket v. Beeby, 4 East, 485. 
 
 (r.) Ihid, and 1 Went., 43. As to the form, in other pleat in suspension, 
 see Lib. Plac, 9, 10 ; 1 Went., 15 ; 1 Saund., 210, n. 1 ; John Trollop's Case 
 8 Eep., 69; Reg. Plac, 180; Onslow v. Smith, 2 Bos. t Pul., 384; 1 Chitty 
 450, Ist edit. 
 
RULES OF PLEADING. 345 
 
 A PLEA IN ABATEMENT is also usually pleaded without a 
 ibrmal commencement, within the meaning cf this rule, (a.) 
 The conclusion is thus : 
 
 is case of plea to the wrii or bill, 
 
 — prays judgment of the said writ and declaration, (or bill,) and that the same 
 may be quashed, (t.) 
 
 in case of plea to the person, 
 
 — sprays judgment if the said A. B. ought to be answered to his said declarv 
 tion {or bill,) (m.) 
 
 A PLEA IN BAR has thls commencement : 
 
 — says that the said A. B. ought not to have or maintain his aforesaid action 
 against him, the said C. D., because, he says, &c. 
 
 This formula is commonly called actio non. 
 The conclusion is, 
 
 — prays judgment if the said A. B. ought to have or maintain his aforesaia 
 
 action against him. 
 
 A REPLICATION TO A PLEA TO THE JURISDICTION has this 
 
 comm,enccment: 
 
 — says that notwithstanding anything by the said C. D. above alleged, the 
 
 («.) 2 Saund., 209 a., n. 1 ; 1 Arch., 305 ; Lutw., 11, (Qu.? See the prece- 
 dents, 2 Chitty, 1st edit., tit. Pleas in Abatement ; 1 Went, tit. Abatement.) 
 But if a matter apparent on the face of the writ be pleaded (a thing which does 
 not occur in modern practice, vide supra, p. 87) there should be a commence- 
 ment. See this matter explained, Saund. and Arch., ibid., to which the reader 
 is referred generally for the learning on the subject of these formula parts of 
 pleas in abatement. 
 
 {t) Powers V. Cook, Ld. Bay., 63 ; 2 Saund., 209 a., n. 1 ; Com. Dig., Abate- 
 ment, I. 12 ; 2 Chitty, 414, 1st edit. Yet in some instances, it seems, it may 
 be si curia cognoscere velit. {Ibid., 411 ; Chatland v. Thornly, 12 East., 544.) 
 In proceedings by bill, it seems that it is informal to pray judgment of the 
 declaration, or of the bill and declaration. (1 Chitty Rej ., 706 n., a.) 
 
 {u.) Co. Litt., 128 a; Com. Dig., Abatement, I. 12; 1 Went., 58, 62. Sea 
 Appendix, note 69. 
 
346 OF THE PRINCIPAL 
 
 court of our lord the king here ought not to he precluded from having farther 
 cognizance of the plea aforesaid, because, he says, &c., (e.) 
 
 or this : 
 
 —says that the said 0. D. ought to answer to the said plea hew in court, 
 because, he says, &c., (y.) 
 
 and this corwlusion: 
 
 — ^wherefore he prays judgment, and that the court here may take cognizance 
 of the plea aforesaid, and that the said 0. D. may answer over, &o., (s.) 
 
 A REPLICATION TO A PLEA IN SUSPENSION (in the case of a 
 plea of nonage) has this commencement : 
 
 — says that notwithstanding anything by the said C. D. above alleged, the 
 parol ought not farther to demur, {or, the said plea ought not further to stayi 
 or be respited,) because, he says, &o., (a.) 
 
 And (if there be any case in which such replication does 
 not tender issue) it should probably have this conclusion: 
 
 — wherefore he prays judgment if the parol ought further to demur, (or, if 
 the said plea ought further to stay, or be respited,) and that the said O. B 
 may answer over. 
 
 A REPLICATION TO A PLEA IN ABATEMENT haS this CVm- 
 
 mencement: 
 
 where the plea was to the writ or bill, 
 
 — says that his said writ and declaration, {or bill,) by reason of anything in 
 the said plea alleged, ought not to be quashed; because, he says, Ac., (6.) 
 
 where the plea was to the person, 
 
 — says that notwithstanding anything in the said plea alleged, he, the said 
 
 (».) 1 Went., 60; Lib. Plac, 348. 
 (y.) 1 Went., 39. 
 
 (2.) Lib. Plac, 348; 1 Went., 39. 
 (a.) Liber Intrat. 
 
 (6.) 2 Chitty, 589, 1st edit; 1 Arch., 309; East. Ent., 126 a.; Sabiae • 
 Xohnstone, 1 Bos. & Pnl., 60. 
 
RULES OF PLEADING. 347 
 
 A. B., Du^ht to b« answered to his said declaration, (or bill ;) becanse he says, 
 
 The conclusion, in most cases, is thus: 
 where the plea was to the writ or Ull, 
 
 — ^wherefore he prays judgment, and that the said writ and declaration (o» 
 bill) may be adjudged good, "and that the said 0. D. may answer over, &c. 
 
 where the plea was to the person, 
 
 — wherefore he prays judgment, and that the said G. D. may answer over, 
 &c., (d.) 
 
 A REPLICATION TO A PLEA IN BAR has this Commence- 
 ment: 
 
 — says that by reason of anything in the said plea alleged he ought not to 
 be barred fi:om having and maintaining his aforesaid action against him, the 
 said C. D. ; because, he says, &c. 
 
 This formula is commonly called precludi non. 
 The conclusion is thus : 
 
 in deM, 
 
 — wherefore he prays judgment, and his debt aforesaid, together with his 
 damages by him sustained by reason of the detention thereof, to be adjudged 
 to him. 
 
 in covenant, 
 
 — wherefore he prays judgment, and his damages by him sustained by reason 
 of the said breach of covenant, to be adjudged to him. 
 
 in trespass, 
 
 — wherefore he prays judgment, and his damages by him sustained by reason 
 of the committing of the said trespasses, to be adjudged to him. 
 
 (c.) 1 Went., 42; 1 Arch., 309. 
 
 (d.) 1 Went., 43, 45, 54 ; 1 Arch., 309 ; East. Bnt., 126 a. ; Bisse v. Har- 
 court, 3 Mod., 281; 1 Salk., 177 ; 1 Show., 155; Garth., 137, S. C. As to the 
 cases in which the eonclvMmi should be different, and should pray damages, 
 see 2 Saund., 211, n. 1 ; Medina v. Stoughton, Ld. Bay., 594 ; Co. Eat, 160 
 »; I.il. Ent., 123 ; Lib. Plac, 1. 
 
348 OF THE PEINCIPAL 
 
 in trespass on the case, in assumpsit, 
 
 — wherefore he prays judgment, and his damages by hiifl sustained by teasoii 
 of the not performing of the said several promises and nndertakings, to be 
 adjudged to him. 
 
 in trespass on the case in general, 
 
 — wherefore he prays judgment, and his damages by him sustained by reason 
 of the committing of the said several grievances, to be adjudged to him. 
 
 And so, in all other actions, the replication concludes with 
 1 prayer of judgment for damages or other appropriate 
 *^edress, according to the nature of the action, (e.) 
 
 "With respect to pleadings subsequent to the replica- 
 TtON, it will be sufficient to observe, in general, that those 
 on the part of the defendant follow the same tbrm of com- 
 mencement and conclusion as the plea; those on the part of 
 the plaintiff, the same as the replication. 
 
 These forms are subject to the following variations. 
 
 First, with respect to pleas in abatement. Matters of abate- 
 ment, in general, only render the writ abatable upon plea; 
 but there are others, such as the death of the plaintiff or 
 defendant before verdict or judgment by default, that are 
 said to abate it de facia; that is, by their own immediate 
 effect, and before plea; the only use of the plea, in such 
 cases, being to give the court notice of the fact, (/.) Where 
 the writ is merely abatable, the forms of conclusion above 
 given are to be observed; but, when abated de facto, the 
 conclusion must pray, "whether the court will further pro- 
 ceed;" for the writ being already, and ipso facto, abated, 
 it would be improper to pray " that it may be quashed," {g.) 
 
 Again, when a plea in bar is pleaded puis darreign con- 
 tinuance, (h,) it has, instead of the ordinary actio non, a comr 
 
 (e.) See the forms, 2 Chitty, 615, 628, 630, 641, Ist edit. ; 1 Arch., 410, 442. 
 
 (/.) Bac. Ab., Abatement, K., G., F. ; Com. Dig., Abatement, E. IV ; 2 
 Saund., 210, n. 1. 
 
 {g.) Com. Dig., Abatement, H. 33, I. 12 ; 2 Saund, 210, n. 1 ; Hallowes v 
 Lucy, 3 Lev., 120. 
 
 (h.) Aa to this kind of plea, see supra, p. 97. 
 
RULES OF PLEADING. 349 
 
 mencemeni and conclusion of actio non ulterius; as in the 
 example, {supra, p. 98.) 
 
 So, if a plea in bar be founded on any matter arising 
 afier the commencement of the action, thougb it be not pleaded 
 after a previous plea, and therefore not puis darreign con- 
 tinuance, yet it pursues, in that case also, in its commence- 
 rnent and conclusion, the same form of actio non ulterius, 
 instead of actio non generally, (i;) for the actio non is taken 
 to refer, in point of time, to the commencement of the 
 suit, and not to the time of plea pleaded, and would, 
 therefore, in the case supposed, be improper, (k.) 
 
 Again, all pleadings by way of estoppel have a com- 
 mencement and conclusion peculiar to themselves. A plea in 
 estoppel has the following commencement: "says that the 
 said A. B. ought not to be admitted to say," (stating the 
 allegation to which the estoppel relates;) and the following 
 conclusion: "wherefore he prays judgment if the said J.. 
 jB. ought to be admitted, against his own acknowledgment, 
 by his deed aforesaid," (or otherwise, according to the 
 matter of the estoppel,) "to say that," (stating the alle- 
 gation to which the estoppel relates,) {I.) A replication, by 
 way of estoppel, to a plea, either in abatement or bar, has 
 this commencement: "says that the said C. D. ought not to 
 be admitted to plead the said plea by him above pleaded; 
 because, he says, &c., {m.) Its conclusion, in case of a plea 
 in abatement, is as follows: "wherefore he prays judgment 
 if the said C. D. ought to be admitted to his said plea, con- 
 trary to his own acknowledgment, &c., and that he may 
 answer over," &c., {n.) In case of a plea in bar: where- 
 fore he prays "judgment if the said C. D. ought to be 
 admitted, contrary to his own acknowledgment, &c., to 
 plead, that," (stating the allegation to which the estoppel 
 
 (i.) Le Bret v. Papillon, 4 East, 502 ; 2 Chitty, 421, 1st edit. 
 
 \k) Le Bret v. Papillon, 4 East, 602 ; Evans v. Prosser, 3 T. R., 186 ; Selw., 
 
 Ni. Pri., 138. 
 {I.) 1 Arch., 202; Veale v. Warner, 1 Saund., 325; 3 Ed. Ill, 21. 
 (m.) Took V. Glascock, 1 Saund., 257; 2 Chitty. 590, 592, let edit, 
 (ra.) 2 Chitty, 590. 
 
350 CF THE PRINCIPAL 
 
 relates,) (o.) Bgoinders and subsequent pleadings follow the 
 forms of pleas and replications respectively, (p.) 
 
 Again, if any pleading be intended to apply to part only 
 of the matter adversely alleged, it must be qualified accord- 
 ingly, in its commencement and conclusion, {q.) 
 
 Another variation occurs in the action of replevin. Avow- 
 ries and cognizances, instead of being pleaded with actio 
 non, commence thus: an avowry, that the defendant "well 
 avov)s; " a cognizance, that he "well acknowledges" the tak- 
 ing, &c.; and conclude thus: that the defendant "prays 
 judgment and a return of the said goods and chattels, 
 together with his damages, &c., according to the form of 
 the statute in such case made and provided, to be adjudged 
 to him," &c. And the subsequent pleadings have corres- 
 pondent variations, (r.) 
 
 Lastly, when, in an action of debt on bond, some matter 
 is pleaded in bar, tending to show that the plaintiff never 
 had any right of action, and not matter in discharge of a right 
 once existing, (as, for example, when it is pleaded that the 
 bond was void for some illegality,) the plea in that case, 
 instead of actio non, has the following commencement, cona- 
 monly called onerari non: "says that he ought not to be 
 charged with the said debt, by virtue of the said supposed 
 writing obligatory, because, he says," &c. And the conclu- 
 sion is thus: "wherefore he prays judgment if he ought 
 to be charged with the said debt by virtue of the said sup- 
 posed writing obligatory," (s.) 
 
 While pleadings have thus, in general, the formal com- 
 mencements and conclusions, {t,) there is an exception (as 
 already noticed) in the case of all such pleadings as tender 
 issue. These, instead of the conclusion with a prayer of 
 
 (o.) 2 Chitty, 592, 1st edit. 
 {p.) Veale v. Warner, 1 Saund., 325. 
 
 (g.) Weeks v. Peach, 1 Salk., 179. (See the example, supra, p. 262.) 
 (r.) See examples, 8 Went., 106, 107, 109, 112, &c. 
 
 (s.) Com. Dig., Pleader, B. 27; Brown v. Cornish, SUlk., 516; Bennet * 
 Filkins, 1 Saund., 14 b. ; ibid, 290, n. 3. 
 (i.) See Appendix, note 70. 
 
RULES OF PLEADING. 36X 
 
 judgment, as in the above forms, conclude (in the case of 
 the trial by jury) to the country; or (if a different mode of 
 trial be proposed) with other appropriate formulae, as 
 explained under the second rule of the first section, (u.) 
 Pleadings which tender issue have, however, the formal 
 commencem-ents, with the exception of the general issues, 
 which have neither formal commencement nor conclusion, 
 in the sense to which the present rule refers. 
 
 In general, a defect or impropriety in the commencement 
 and conclusion of a pleading is ground for demurrer, (x.) 
 But if the commencement pray the proper judgment, it seems 
 to be sufficient, though judgment be prayed in an improper 
 form in the conclusion, («/.) And the converse case, as to 
 a right prayer in the conclusion, with an improper commence- 
 ment, has been decided the same way, (z.) So, if judgment 
 be simply prayed, without specifying what judgment, it is 
 said to be sufficient; and it is laid down that the court 
 will, in that case, ex officio, award the proper legal conse 
 quence, (a.) It seems, however, that these relaxationn 
 from the rule do not apply to pleas in abatement; the court 
 requiring greater strictness in these pleas, with a view to 
 discourage their use, (6.) 
 
 It will be observed that the commencement and conclusion 
 of a plea are in such form as to indicate the view in which 
 it is pleaded, and to mark its object and tendency, as being 
 either to the jurisdiction, in suspension, in abatement, or 
 in bar. It is therefore held that the class and character 
 
 (u.) Supra, p. 227. 
 
 (a;.) Nowlan v. Geddea, 1 East, 634; Wilson v. Kemp, 2 M. & S., 549. Le 
 Bret V. Papillon, 4 East, 502 ; Com. Dig., Pleader, E. 27; Weeks v. Peach, 1 
 Salk., 179 ; Powell v. FuUerton, 2 Bos. & Pul., 420. But in some cases, a 
 bad conclusion makes tlie plea a mere nullity, and operates as a diioon- 
 tinuance. (Bisse v. Harcourt, 3 Mod., 281; 1 Salk., 177; 1 Show., 155; 
 Garth., 137, S. C. ; Weeks v. Peach, 1 Salk., 179.) 
 
 (2/.) Street v. Hopkinson, Eep. Temp. Hard., 345. 
 
 (z.) Talbot V. Hopewood, Fort., 335. 
 
 (a.) 1 Chitty, 445, 539, 1st edit. ; Le Bret v. Papillon, 4 East, 602; 1 Sannd., 
 97, n. 1. 
 
 (b.) Ths King v. Shakespeare, 10 East, 83; Attwood v. Davis, 1 Barn. & 
 Aid., 172. See Appendix, note 71. 
 
352 OP THE PRINCIPAL 
 
 of a plea depend upon these its formula parts, whieh is 
 ordinarily expressed by the maxim, conclusio faeit placi- 
 tum, (c.) Accordingly, if it commence and conclude as 
 in bar, but contain matter sufficient only to abate the writ, 
 it is a bad plea in bar, and no plea in abatement, (d.) And, 
 on the other hand, it has been held that if a plea com- 
 mence and conclude, as in abatement, and show matter in 
 bar, it is a plea in abatement and not in bar, (e.) 
 
 As the commencement and conclusion have this effect of 
 defining the character of the plea, so they have the same 
 tendency in the replication and subsequent pleadings. For 
 example, they serve to show whether the pleading be 
 intended as in confession and avoidance or estoppel, and 
 whether intended to be pleaded to the whole or to part. 
 From these considerations, it is apparent that they are 
 forms which, on the whole, materially tend to clearness 
 and precision in pleading; and they have, for that reason, 
 been considered under this section. 
 
 In connection with the rule last mentioned, and in a 
 view to the same objects of clearness and precision, is 
 established the following rule: 
 
 RULE IX. 
 A PLEADHra ■which is bad in past is bad altoqetheb, (/.) 
 
 The meaning of this rule is that, if in any material part 
 of a pleading, or in reference to any of the material things 
 which it undertakes to answer, or to either of the parties 
 answering, the pleading be bad, though in other respects 
 it be free from objection, the whole of it is open to demur- 
 
 (c.) Street v. Hopkinson, Eep. Temp. Hardw., 346 ; Medina v. Stoughton, 1 
 Ld. Bay., 593 ; Talbot v. Hopewood, Fort., 335. 
 
 {d) Nowlan v. Geddes, 1 East, 934 ; Wallia v. Savil, 1 Lutw., 41 ; 2 Sannd., 209 
 d., n. 1, per Littleton, J. ; 86 Hen. VI, 18 ; Medina v. Stoughton, 1 Ld. Bay., 593. 
 
 (e.) Medina v. Stoughton, 1 Ld. Ray., 593 ; Godson v. Good, 6 Taunt., 587. 
 See Appendix, note 72. 
 
 (/.) Com. Dig., Pleader, E. 36, F. 25; 1 Saund., 28, n. 2; Webb v. Martin, 
 1 Lev., 48 ; Rowe v. Tutte, Willes, 14; Trueman ». Hurst, 1 T. E., 40; Web- 
 ber V. Tivill, 2 Saund., 127 ; Duffield v. Scott, 3 T. R., 374; Hedges v. Chap- 
 man, 2 Ring., 523 ; Earl of St. Germains v. Willan, 2 Barn. & Ores., 216 
 
RULES OF PLEADING. 353 
 
 rer; bo that, if the ohjection he good, the whole pleading 
 in question is overruled, and judgment given accordingly. 
 Thus, if in a declaration of assumpsit tM-o different prom- 
 ises be alleged in two different counts, and the defend- 
 ant plead in bar to both counts conjointly the statute of 
 limitations, viz, that he did not promise within six years, 
 and the plea be an insufficient answer as to one of the 
 counts, but a good bar to the other, the whole plea is bad, 
 and neither promise is sufficiently answered, {g.) So, 
 where to an action of trespass for false imprisonment 
 against two defendants, they pleaded that one of them, ^., 
 having ground to believe that his horse had been stolen 
 by the plaintiff, gave him in charge to the other defendant, 
 a constable, whereupon the constable and A., in his aid 
 and by his command, laid hands on the plaintiff, &c., the 
 plea was adjudged to be bad as to both defendants, because 
 it showed no reasonable ground of suspicion : for A. could 
 not justify the arrest without showing such ground; and 
 though the case might be different as to the constable, 
 whose duty was to act on the charge, and not to deliberate, 
 yet as he had not pleaded separately, but had joined in 
 A.'s justification, the plea was bad as to him also, (h.) 
 
 This rule seems to result from that which requires each 
 pleading to have its proper formal commencement and 
 conclusion. For by those forms (it will be observed) the 
 matter which any pleading contains is offered as an entire 
 answer to the whole of that which last preceded. Thus, 
 in the first example above given, the defendant would al- 
 lege, in the commencement of his plea, that the plaintiff 
 "ought not to have or maintain his action" for the reason 
 therein assigned; and, therefore, he would pray judgment, 
 &c., as to the whole action in the conclusion. If, there- 
 fore, the answer be insufficient as to one count, it cannot 
 avail as to the other; because, if taken as a plea to the 
 latter only, the commencement and conclusion would be wrong. 
 It is to be observed that there is but one plea, and conse- 
 
 (g.) Webb v. Martin, 1 Lev., 48. 
 
 {h.) Hedges v. Chapman, 2 Bing., 523. 
 
 23 
 
354 OP THE PBINCIPAL 
 
 quently but one commencement and conclusion; but if 
 the defendants should plead the statute in bar to the first 
 count separately, and then plead it to the second count 
 with a new commencement and conclusion, thus making 
 two pleas instead of one, the invalidity of one of these 
 pleas could not vitiate the other. 
 
 As the declaration contains no commencement or con- 
 clusion of the kind to which the last rule relates, so, on 
 the other hand, the declaration does not fall within the rule 
 now in question. Therefore, if a declaration be good in 
 part, though bad as to another part relating to a distinct 
 demand divisible from the rest, and the defendant demur to 
 the whole, instead of confining his demurrer to the faulty 
 part only, the court will give judgment for the plaintiff, (i) 
 It is also to be observed that the rule applies only to ma- 
 terial allegations; for where the objectionable matter is 
 mere surplusage, and unnecessarily introduced, (the an- 
 swer being complete without it,) its introduction does not 
 vitiate the rest of the pleading, {k.) 
 
 SECTION VI. 
 
 ON RULES WHICH TEND TO PREVENT PROLIXITY AND DELAY IN 
 
 PLEADING. 
 
 RULE I. 
 
 IHEEE MUSI BE SO DEPAEIUEE IN PLEADIHO, (2.) 
 
 A departure takes place when, in any pleading, the party 
 deserts the ground that he took in his last antecedent plead- 
 ing, and resorts to another, (m.) 
 
 (i.) 1 Saund., 286, n, 9 ; Bac. Ab., Pleas, &o., B. 6; Cutfortliay v. Taylor, 
 Eaym., 395; Judin v. Samuel, 1 New Eep., 43; Benbridge v. Day, 1 Salk., 
 218; Powdiok v. Lyon, H East, 565 ; Amory v. Brodriek, 5 Bam. & Aid., 712. 
 
 (i.) Duffield V. Soott, 3 T. E., 377. 
 
 Q.) Co. Litt.,304; Eiohards v. Hodgea, 2 Saund., 84; Dudlow v. Watoh- 
 orn, 16 East, 39; Tolputt v. Wells, 1 M. & S., 395; Fishery;. Pimbley, 11 
 East, 188 ; Winstone v. Linn, 1 Barn. & Ores., 460. And see the numeroua 
 authorities collected in Com. Dig. Pleader, F. 7, F. 11 ; Bae. Ab., Pleas, 
 (fee, L.; Vin. Ab., tit. Departure; 1 Arch., 247, 253, See Appendix, note 73 
 
 (m.) Co. Litt., 304 a.; 2 Saund., 84. n. 1. 
 
RULES OP PLEADING. 355 
 
 A departure obviously can never take place till tho repli- 
 cation. 
 
 Of departure in the replication the following is an exam- 
 ple. In assumpsit the plaintiffs, as executors, declared on 
 several promises alleged to have been made to the testator in 
 his lifetime. The defendant pleaded that she did not prom- 
 ise within six years before the obtaining of the original 
 writ of the plaintiffs. The plaintiffs replied that, within six 
 years before the obtaining of the original writ, the letters 
 testamentary were granted to them, whereby the action 
 accrued to them, the said plaintiffs, within six years. The 
 court held this to be a departure ; as in the declaration 
 they had laid promises to the testator, but in the replica- 
 tion alleged the right of action to accrue to themselves as 
 executors, (n.) They ought to have laid promises to them- 
 selves, as executors, in the declaration, if they meant to 
 put their action on this ground. 
 
 But a departure does not occur so frequently in the rep- 
 lication as in the rejoinder. 
 
 In debt on a bond conditioned to perform an award, so 
 that the same were delivered to the defendant by a certain 
 time, the defendant pleaded that the arbitrators did not make 
 any award. The plaintiff replied that the arbitrators did 
 make an award to such an effect, and that the same was 
 tendered by the proper time. The defendant rejoined that 
 the award was not so tendered. On demurrer, it was objected 
 that the rejoinder was a departure from the plea in bar; 
 " for, in the plea in bar, the defendant says that the arbi- 
 trators made no award ; and now, in his rejoinder, he has 
 implicitly confessed that the arbitrators have made an 
 award, but says that it was not tendered according to the 
 condition ; which is a plain departure : for it is one thing 
 not to make an award and another thing not to tender it 
 when made. And although both these things are neces- 
 sary by the condition of the bond to bind the defendant 
 to perform the award, yet the defendant ought only to rely 
 
 (».) Hickraaa v. Walker, Willes, 27. 
 
356 OF THE PRINCIPAL 
 
 upon one or the other by itself," &c. " But if the truth 
 had been that although the award was made, yet it was not 
 tendered according to the condition, the defendant should 
 have pleaded so at first in his plea," &c. And the court 
 gave judgment accordingly, (p.) So, in debt on a bond 
 conditioned to keep the plaintiffs harmless and indemni- 
 fied from all suits, &c., of one Thomas Cook, the defend- 
 ants pleaded thai they had kept the plaintiffs harmless, (p,) &c. 
 The plaintiffs replied that Cook sued them, and so the 
 defendant had not kept them harmless, &c. The defend- 
 ants rejoined that they had not any notice of the damnification. 
 And the court held, first, that the matter of the rejoinder 
 was bad, as the plaintiffs were not bound to give notice ; 
 and, secondly, that the rejoinder was a departure from the 
 plea in bar ; " for, in the bar, the defendants pleaded that 
 they have saved harmless the plaintiffs, and, in the re- 
 joinder, confess that they have not saved harmless, but 
 they had not notice of the damnification ; which is a plain 
 departure," (q.) So, in debt on a bond conditioned to per- 
 form the covenants in an indenture of lease, one of which 
 was that the lessee, at every felling of wood, would make 
 a fence, the defendant pleaded that he had not felled any 
 wood, &c. The plaintiff replied that he felled two acres of 
 wood, but made no fence. The defendant rejoined thai he 
 did make a fence. This was adjudged a departure, (r.) 
 
 These, it will be observed, are eases in which the party 
 deserts the ground, in point of fact, that he had first taken. 
 But it is also a departure if he puts the same facts on a 
 new ground in point of law ; as if he relies, on the effect 
 of the common law in his declaration, and on a custom 
 in his replication ; or on the effect of the common law in 
 his plea, and a statute in his rejoinder. Thus, where the 
 
 (o.) Roberts v. Mariett, 2 Saund., 188. 
 
 (j>.) Thia plea was bad, for not stowing how they had kept harmless, (1 
 Saund., 117, n. 1, supra, p. 322 ; but the court held the fault cured hj plead 
 ing over. Vide supra, p. 162. 
 
 (g.) Cutler v. Southern. 1 Saund., 116. 
 
 (r.) Dyer, 253 b. 
 
RULES OF PLEADING. 357 
 
 plaintiff declared in covenant on an indenture of appren- 
 ticeship, by which the defendant was to serve him for seven 
 years, and assigned, as breach of covenant, that the de- 
 fendant departed within the seven years, and the defend- 
 ant pleaded infancy, to which the plaintiff' replied that, by 
 the custom of London, infants may bind themselves appren- 
 tices, this was considered as a departure, (s.) Again, in 
 trespass, the defendant made title to the premises, pleading 
 a demise for fifty years made by the college of R. The 
 plaintiff replied that there was another prior lease of the 
 same premises, which had been assigned to the defendant, 
 and which was unexpired at the time of making the said 
 lease for fifty years ; and alleged a proviso in the act of 31 
 Henry VIII, c. 13, avoiding all leases by the colleges to 
 which that act relates made under such circumstances as 
 the lease last mentioned. The defendant, in his rejoinder, 
 pleaded another proviso in the statute, which allowed such 
 leases to be good for twenty-one years, if made to the same 
 person, &c. ; and that, by virtue thereof, the demise stated 
 in his plea was available for twenty-one years at least. 
 The judges held the rejoinder to be a departure from the 
 plea ; " for, in the bar, he pleads a lease of fifty years, and, 
 in the rejoinder, he concludes upon a lease for twenty-one 
 years," &c. And they observed that "the defendant might 
 have shown the statute and the whole matter at first," {t.) 
 
 To show more distinctly the nature of a departure, it 
 may be useful, on the other hand, toigive some examples 
 of cases that have been held not to fall within that objec- 
 tion. 
 
 In debt on a bond conditioned to perform covenants, 
 one of which was that the defendant should account for 
 all sums of money that he should receive, the defendant 
 pleaded performance. The plaintiff replied that 26?. came 
 to his hands for which he had not accounted. The defend- 
 ant rejoined that he accounted modo sequente, viz, that 
 
 («.) Mole V. Wallis, 1 Lev., 81. 
 
 («.) Folmerston v. Steward, Plowd., 102; Dyer, 102 b., S. C. 
 
358 OF THE PKINOIPAL 
 
 certain malefactors broke into his counting-K)us« and 
 stole it, wherewith he acquainted the plaintiff. And it 
 was argued on demurrer " that the rejoinder is a depart- 
 ure; for fulfilling a covenant to account cannot be intended 
 but by actual accounting; whereas the rejoinder does not 
 show an account, but an excuse for not accounting." But 
 the court held that showing he was robbed is giving an 
 account, and therefore there was no departure, (u.) So, in 
 debt on a bond conditioned to indemnify the plaintiff from 
 all tonnage of certain coals due to W. B., the defendant 
 pleaded non damnifieatus ; to which the plaintiff replied 
 that for bl. of tonnage of coals due to W. B. his barge 
 was distrained; and the defendant rejoined that no tonnage 
 was due to W. B. for the coals. To this the plaintiff de- 
 murred, " supposing the rejoinder to be a departure from 
 tne plea; for the defendant having pleaded generally that 
 the plaintiff" was not damnified, and the plaintiff having 
 assigned a breach, the matter of the rejoinder is only by 
 way of excuse, confessing and avoiding the breach; which 
 ought to have been done at first, and not after a general 
 plea of indemnity. On the other side, it was insisted that 
 it was not necessary for the defendant to set out all his 
 case at first, and it suffices that his bar is supported and 
 strengthened by his rejoinder. And of this opinion was 
 the court," {x.) Again, in an action of trespass on the case, 
 for illegally taking toll, the plaintiff", in his declaration, set 
 forth a charter of 26 Henry YI, discharging him from toll. 
 The defendant pleaded a statute resuming the liberties 
 granted by Henry VI. The plaintiff replied that by the 
 statute 4 Henry VII such liberties were revived. And this 
 was held to be no departure, {y.) Again, in an action of 
 debt on a bond conditioned for the performance of an 
 award, the defendant pleaded that the arbitrators dM not 
 make any award : the plaintiff replied that they duly made 
 
 (m.) Vere v. Smith, 2 Lev., 5 ; 1 Vent., 121, S. C. 
 
 (x.) Owen V. Reynolds, Fort., 341 ; cited Bac. Ab., Pleas, Ac, p. 452, 5th edit, 
 
 (y.^ Wood V. Hawkshead, Yelv.. 131 
 
RULES OF PLEADING. 359 
 
 their award, setting part of it forth; and the defendant, in 
 his rejoinder, set forth the whole award verbatim; by which 
 it appeared that the award was bad in law, being made as 
 to matters not within the submission. To this rejoinder 
 the plaintiff demurred, on the ground that it was a depart- 
 ure from the plea; for by the plea it had been alleged that 
 there was no award, which meant no award in fact ; but by 
 the rejoinder it appeared that there had been an award in 
 fact. The court, however, held that there was no depart- 
 ure ; that the plea of no award meant no legal and valid 
 award, according to the submission; and that consequently 
 the rejoinder, in setting the award forth, and showing that 
 it was not conformable to the submission, maintained the 
 plea, (z.) So, in all cases where the variance between the 
 former and the latter pleading is on a point not material, 
 there is no departure. Thus, in assumpsit, if the declara- 
 tion, in a case where the time is not material, (a,)' state a 
 promise to have been made on a given day ten years ago, 
 and the defendant plead that he did not promise within 
 six years, the plaintiff may reply that the defendant did 
 promise within six years without a departure, (6,) because 
 the time laid in the declaration was immaterial. 
 
 The rule against departure is evidently necessary to pre- 
 vent the retardation of the issue. For while the parties 
 are respectively confined to the grounds they have fi rst taken 
 in their declaration and plea, the process of pleading will, 
 as formerly demonstrated, exhaust, after a few alternations 
 of statement, the whole facts involved in the cause, and 
 thereby develop the question in dispute, (c.) But if a new 
 ground be taken in any part of the series, a new state of 
 
 (z.) Fisher v. Pimbley, 11 East, 188; and see Dudlow v. Watohorn, 16 East, 
 29. N. B. The first of these cases seems, in effect, to have overruled soma 
 foriner decisions. See Morgan v. Man, 1 Sid., 180; Eaym., 94, S. C. ; Hard- 
 ing V. Holmes, 1 Wils., 122; Praed v. Duchess of Cumberland, 4 T. R., 585; 
 2 E. BL, 280. 
 
 (o.) Vide supra, p. 278. 
 
 (6.) Lee v. Eogers, 1 Lev., 110; Cole -». Hawkins, 10 Mod., 348, 8. P. 
 
 (c.) Svpra, pp. 93, 94. 
 
360 OF THE PRINCIPAL 
 
 facts is iLtroduced, and the resiilt is consequently post, 
 poned. Besides, if one departure were allowed, the parties 
 miglit, on the same principle, shift their ground as often as 
 they pleased; and an almost indefinite length of alterca- 
 tion might, in some cases, be the consequence, (d.) 
 
 RULE II. 
 
 WHEEE A PLEA AMOUNTS TO THE QENEEAL ISSUE IT SHOULD BE SO PLEADED, (e.) 
 
 It has been explained, in a former part of the work, that 
 in most actions there is an appropriate form of plea, called 
 the general issue, fixed by ancient usage as the proper 
 method of traversing the declaration, when the pleader 
 means to deny the whole or the principal part of its alle- 
 gations, (/.) The meaning of the present rule is, that if, 
 instead of traversing the declaration in this form, the party 
 pleads in a more special way matter which is construct- 
 ively and in effect the same as the general issue, such plea 
 will be bad, and the general issue ought to be substituted. 
 
 Thus, to a declaration in trespass for entering the plaint- 
 iff's garden, the defendant pleaded thai the plaintiff had no 
 such garden. This was ruled to be " no plea, for it amounts 
 to nothing more than not guilty; for if he had no such gar- 
 den, then the defendant is not guilty." So the defendant 
 withdrew his plea, and said not guilty, [g.) So, in trespass 
 for depasturing the plaintiff's herbage, non depaseit herbas is 
 no plea : it should be, not guilty, (h.) So, in debt for the price 
 of a horse sold, that the defendant did not buy is no plea, 
 for it amounts to nil debet, {i.) Again, in trespass for enter- 
 
 (i.) Vide 2 Saund., 84 a, n. 1. 
 
 (e.) Co. Litt., 303 b; Doct. & Stud., 271, 272; Com. Dig., Pleader, E. 14; 
 Bao. Ab., Pleas, &o., p. 370-376, 5tli edit.; 10 Hen. VI, 16; 22 Hen. VI, 37; 
 Holler V. Bush, Salk., 394; Birch v. Wilson, 2 Mod., 277; Lynnet v. Wood 
 Oro. Car., 157; Warner v. Wainsford, Hob., 127; Anon., 12 Mod., 537; Saun- 
 ders's Case, ibid., 513 ; Hallet v. Byrt, 5 Mod., 252. 
 
 (/.) Supra, p. 168. 
 
 (g.) 10 Hen. VI, 16. 
 
 Ih.) Doct. PL, 42, cites 22 Hen. VI, 37. 
 
 (i.) Vin. Ab., Certainty in Pleadings, E. 15, cites Bra Triverse, &c., pi. 
 375: 22Rdw. IV, 29 
 
BULBS OF PLEADING. 361 
 
 ing the plaintiff's house, and keeping pos&^ssion thereof 
 for a certain time, the defendant pleaded that J. S. was 
 seized in fee thereof, and, being so seized, gave license to the 
 defendant to enter into and possess the house till he should 
 give him notice to leave it; that thereupon the defendant 
 entered and kept the house for the time mentioned in the 
 declaration, and had not any notice to leave it all the time. 
 The plaintiff demurred specially, on the ground that this 
 plea amounted to the general issue, not guilty; and the 
 court gave judgment, on that ground, for the plaintiff, {k.) 
 So, in an action of trover for divers loads of corn, the 
 defendant in his plea entitled himself to them as tithes 
 severed. The plaintiff demurred specially, on the ground 
 that the plea "amounted but to not guilty;" and the court 
 gave judgment for the plaintiff', [1.) So, in trespass for 
 breaking and entering the plaintiff's close, if the defendant 
 plead a demise to him by the plaintiff, by virtue whereof 
 he, the defendant, entered and was possessed, this is bad, 
 as amounting to the general issue, not guilty, (m.) So, in 
 debt on a bond, the defendant by his plea confessed the 
 bond, but said that it was executed to another person, and 
 not to the plaintiff"; this was bad, as amounting to non est 
 factum,, (n.) 
 
 These examples show that a special plea, thus improperly 
 substituted for the general issue, may be sometimes in a 
 negative, sometimes in an affirmative form. "When in the 
 negative, its argumentativeness (o) will often serve as an addi- 
 tional test of its faulty quality. Thus, the plea in the first 
 example, " that the plaintiff had no such garden," is evi- 
 dently but an argumentative allegation that the defendant 
 did not commit, because he could not have committed, the 
 trespass. This, however, does not universally hold; for, 
 in the second and third examples, the allegations that the 
 
 (/t.) Saunders's Case, 12 Mod., 513. 
 
 (l.) Lynnet v. Wood, Cro. Car., 157. 
 
 (ot.) Jaques's Caae, Sty., 355. 
 
 (n.) Gifford v. Perkins, 1 Sid., 450; 1 Vent., 77, S. C. 
 
 (o.) See the rule against argumentativeness, supra, p. 337. 
 
362 OF THE PRINCIPAL 
 
 defendant " did uot depasture," and " did not buy," seem 
 to be in as direct a form of denial as that of not guilty. If 
 the plea be in the affirmative, the following considerations 
 will always tend to detect the improper construction If 
 a good plea, it must (as formerly shown) be taken either as 
 a traverse, or as in confession and avoidance, {p.) ISTow. 
 taken as a traverse, such a plea is clearly open to the objec- 
 tion of argumentativeness; for two affirmatives make an 
 argumentative issue, {q.) Thus, in the fourth example, the 
 allegations show that the house in question was the house 
 of J. 8. ; and they therefore deny argumentatively that it 
 was the house of the plaintiff, as stated in the declaration. 
 On the other hand, if a plea of this kind be intended by 
 way of confession and avoidance, it is bad /or want of color, 
 (r,) for it admits no apparent right in the plaintifl". Thus, 
 in the same example, if it be true that J. S. was seized in 
 fee, and gave license to the defendant to enter, who entered 
 accordingly, this excludes all title of possession in the 
 plaintiff; and without such a title he has no color to main- 
 tain an action of trespass, (s.) So, in the example where 
 the defendant pleads the plaintiff"'s own demise, the same 
 observation applies ; for if the plaintiff demised to the de- 
 fendant, who entered accordingly, the plaintiff would then 
 cease to have any title of possession; and he consequently 
 has no color to support an action of trespass. 
 
 The fault of wanting color being in this manner connected 
 with that of amounting to the general issue, it is accordingly 
 held that a plea will be saved from the latter fault where 
 express color is given, {i.) Thus, in the example of express 
 color given in a former part of this work, (m,) the plea is 
 cured, by the fictitious color of title there given to the 
 
 (p.) Vide supra, pp. 156, 157. 
 (g.) Vide supra, p. 338, 
 (r.) Vide supra, pp. 205, 206. 
 (s.) See Holler v. Bush, Salk., 394. 
 
 (i.) Anon., 12 Mod., 537; Saunders's Case, ibid., 513 j Lynnet v. Wood, Cro. 
 Car., 157; Birch v. Wilson, 2 Mod., 274. 
 (it.) Supra, pp. 210-2i3. 
 
RULES OP PLEADING. 303 
 
 plaintiff, of the objection to which it would otherwise be 
 subject, that it am(,Mnt8 to not guilty. So, where sufficient 
 implied color is given, a plea will never be open to this 
 kind of objection. And it is further to be observed that, 
 where sufficient implied color is given, the plea will be 
 equally clear of this objection, even though it consist of 
 matter which might, by a relaxation of practice, he given in 
 evidence under the general issue. The relaxation here referred 
 to is that formerly noticed, by which defendants are allowed, 
 in certain actions, to prove, under this issue, matters in the 
 nature of confession and avoidance; as, for example, in 
 assumpsit, a release or payment, {x.) In such cases the 
 plaintiff, (as formerly stated,) {y,) though allowed, is not 
 obliged to plead non assumpsit, but may, if he pleases, plead 
 specially the payment or release; and if he does, such plea 
 is not open to the objection that it amounts to the general 
 issue, [z.) 
 
 It is said that the court is not bound to allow this ob- 
 jection, but that it is in its discretion to allow a special 
 plea, amounting to the general issue, if it involve such 
 matter of law as might be unfit for the decision of a jury, 
 (a.) It is also said that as the court has such discretion, 
 the proper method of taking advantage of this fault is not 
 by demurrer, but by motion to the court to set aside the 
 plea and enter the general issue instead of it, (6.) It ap- 
 pears from the books, however, that the objection has 
 frequently been allowed on demurrer. 
 
 As a plea amounting to the general issue is usually 
 open also to the objection of being argumentative, or that 
 of wanting color, we sometimes find the rule in question 
 discussed as if it were founded entirely in a view to those 
 
 (a.) Supra, p. 175. 
 
 \y.) Supra, p. 177. 
 
 (z.) Holler v. Bush, Salk., 394; Hnssey v. Jacob, Carth., 356; Carr ». 
 Hinchliff, 4 Barn. & Ores., 547. 
 
 (a.) Bac. Ab., Pleas, Ac, p. 374, 5tli edit. ; Birch v. Wilson, 2 Mod., 274 ; 
 Carr v. Hinchliff, 4 Bam. & Ores., 547. 
 
 (6.) Warner v. Wainsford, Eab., 127; Ward & Blunt's Case, 1 Leon., 178. 
 
364 OF THE PRINCIPAL 
 
 objections. This, however, does not seem to be a Buffi- 
 ciently wide foundation for the rule; for there are instances 
 of pleas which are faulty, as amounting to the general 
 issue, which yet do not (as already observed) seem fairly 
 open to the objection of argumentativeness, (c,) and which, 
 on the other hand, being of the negative kind or by way 
 of traverse, require no color. Besides, there is express 
 authority for holding that the true object of this rule is 
 to avoid prolixity, and that it is therefore properly classed 
 under the present section. For it is laid down that "the 
 reason of pressing a general issue is not for insufficiency 
 of the plea, but not to make long records when there is 
 no cause," [d.) 
 
 EULE III. 
 
 STJEPLUSAaE IS TO BE AVOIDED, (e.) 
 
 Surplicsage is here taken in its large sense, as including 
 unnecessary matter of whatever description, (/.) To com- 
 bine with the requisite certainty and precision the greatest 
 possible brevity is now justly considered as the perfection 
 of pleading. This principle, however, has not been kept 
 uniformly in view at every era of the science. For al- 
 though it appears to have prevailed at the earliest periods, 
 it seems to have been nearly forgotten during a subsequent 
 interval of our legal history, {g;) and it is to the wisdom 
 of modern judges that it owes its revival and restoration. 
 
 1. The rule as to avoiding surplusage may be consid- 
 ered, first, as prescribing the omission of matter wholly 
 foreign. An example of the violation of the rule in this 
 sense occurs when a plaintiflr', suing a defendant upon 
 one of the covenants in a long deed, sets out, in his decla- 
 
 (c.) Supra, p. 361. 
 
 (d.) Warner v. Wainsford, Hob., 127; see also Com. Dig., Pleader, E. 13. 
 
 (e.) Bristow v. WrigKt, Doug., 667 ; 1 Saund., 233, n. 2 ; Yates v. Carlisle 
 1 Black. Eep., 270. 
 
 (/.) In its more strict and confined meaning, it imports matter wholly lor 
 •ign and irrelevant. 
 
 (y.) See the remarks iif Sir M. Hale, Hist, of Com. Law, ch. via, viii. 
 
RULES OF PLEADING. 365 
 
 lation, not only the covenant on which he s leS) but all the 
 other covenants, though relating to matters wholly irrele- 
 vant to the cause, (A.) 
 
 2. The rule also prescribes the omission of matter which, 
 though not wholly foreign, does not require to be stated. Any 
 matters will fall within this description which, under 
 the various rules enumerated in a former section as tend- 
 ing to limit or qualify the degree of certainty, («,) it is 
 unnecessary to allege; for example, matter of mere evi- 
 dence, matter of law, or other things which the court officially 
 notices, matter coming more properly from the other side, mat- 
 .er necessarily implied, &c. 
 
 3. The rule prescribes, generally, the cultivation of 
 brevity, or avoidance of unnecessary prolixity, in the man- 
 ner of statement. A terse style of allegation, involving a 
 strict retrenchment of unnecessary words, is the aim of 
 the best practitioners in pleading, and is considered as 
 indicative of a good school. 
 
 Surplusage, however, is not a subject for demurrer; the 
 maxim being that utile, per inutile, non vitiatur, (k.) But 
 when any flagrant fault of this kind occurs and is brought 
 to the notice of the court, it is visited with the censure of 
 the judges, (1.) They have also, in such cases, on motion, 
 referred the pleadings to the master, that he might strike 
 out such matter as is redundant and capable of being 
 omitted wdthout injury to the material averments; and, in 
 a clear case, will themselves direct such matter to be struck 
 out. And the party offending will sometimes have to pay 
 the costs of the application, (m.) 
 
 (h.) Dundase v. Lord Weymonti, Cowp., 665; Price v. ii'letcher, ibul, 727; 
 Phillips V. Fielding, 2 H. Bl., 131. 
 
 (i.) Vide supra, pp. 310-332. 
 
 (k.) Co. litt., 303 b. 
 
 (l.) Yates V. Carlisle, 1 Black., 270 ; Price v. Fletcher, Cowp., 727. 
 
 (m.) Price v. Fletcher, Cowp., 727 ; Bristow v. Wright, Doug., 667 ; 1 Tidd, 
 667, 8th edit.; Nichol v. Wilton, 1 Chitty Bep.., 449, 450; Carmack v. Qnn- 
 dry, 3 Bam. & Aid., 272; Brindley ». Dennett, 2 Bing., 184. 
 
£66 OF THE PRINCIPAL 
 
 This is not the only danger arising from surplusage. 
 
 Though traverse cannot be taken (as elsewhere shown) 
 on an immaterial allegation, (n,) yet it often happens that 
 when material matter is alleged, with an unnecessary detail 
 of circumstances, the essential and non-essential parts of 
 the statement are, in their nature, so connected as to be 
 incapable of separation ; and the opposite party is there- 
 fore entitled to include, under his traverse, the whole 
 matter alleged, (o.) The consequence evidently is that 
 the party who has pleaded with such unnecessary particu- 
 larity has to sustain an increased burden of proof, and 
 incurs greater danger of failure at the trial. 
 
 Most of the principal rules of pleading have now been 
 classed in reference to certain common objects which 
 each class or set of rules is conceived to contemplate, and 
 have been explained and illustrated in their connection 
 with these objects and with each other. But there still 
 remain certain rules, also of a principal or primary charac- 
 ter, which have been found not to be reducible within this 
 principle of arrangement, being, in respect of their ob- 
 jects, of a miscellaneous and unconnected kind. These 
 will form the subject of the following section 
 
 SECTION VII. 
 
 OP CERTAIN MISCELLANEOUS RULES. 
 
 These rules relate either to the declaration, the plea, or 
 pleadings in general, and shall be considered in the order 
 thus indicated. 
 
 EULE I. 
 
 THE DECLAEAIION SHOULD OOMMEITOE WITH A EEOITAL OP THE OEIQUTAL 
 
 WEIT, (p,) 
 
 The commencement of the declaration, in personal ac- 
 tions, generally consists of a short recital of the ordinal writ 
 
 (n.) Supra, p. 236. 
 
 (o.) Vide supra, p. 240. 
 
 {p.) Com. Dig., Pleader, C. 12. 
 
RULES OP PLEADING. 367 
 
 Accordiugly, where the writ directB the sheriff to summon 
 the defendant, as in deht and covenant, {q,) the declaration 
 begins, " C. D. was summoned to answer A. B. of a plea," 
 &c., (r.) On the other hand, where by the writ the defend- 
 ant is required to be put by gages and safe pledges, as in tres- 
 pass and trespass on the case, (s,) the commencement is, 
 "CD. was attached to answer J.. jB. of a plea," &c. , {t.) The 
 declaration then proceeds further to recite the writ, by 
 showing the nature of the particular requisition or exigency 
 of that instrument; as, for example, (in debt,) "of a plea 
 
 that he render to the said A. B. the sum of pounds," 
 
 &c. For further example, the reader may be referred to 
 the different specimens of declaration given in the first 
 chapter. From these it will appear that in debt, cove- 
 nant, detinue, and trespass, nearly the whole original writ 
 is recited; but not in trespass on the case. The course 
 was formerly the same in the latter action also; but as 
 this led to an inconvenient prolixity, it was by rule of 
 court (m) provided, that in that and some other actions 
 it shall be sufficient to mention generally the nature 
 of the action ; thus : " a plea of trespass upon the case," 
 &c. ; and such summary form has accordingly been since 
 used. 
 
 In real and mixed actions, the writ is, in general, not so 
 formally recited. Thus, in the writ of right the count be- 
 gins, "J.. B. demands against C. D.," &c.; and the case is 
 the same in formedon and dower, {x.) In general, however, 
 it will be observed that this commencement comprises a 
 repetition of the tenor of the writ ; and in some actions, 
 as in quare impedit, {y,) the writ is as formally recited as 
 in actions personal. 
 
 (2.) &wpra, pp. 46, 47. 
 
 (r.) Vide supra pp. 67, 68. 
 
 (e.) Vide supra pp. 48, 50. 
 
 It.) Vide supra, pp. 70, 72. 
 
 (m.) 1 Tidd., 435, 8th edit.; 1 Saund., 318, n. 3. 
 
 {x.) See the forms of thesa counts in the first chapter, lupra, pp. 66, 66 
 
 (y.) Supra, p. 66. 
 
368 OF THE PRINOIPAI. 
 
 The recital of the writ is a form which the declaration 
 has borrowed from the style in which it was entered on 
 record; for the declaration itself, when actually pronounced 
 in court, began, in general, with the words, Ceo vous mon- 
 stre, &c., (z.) 
 
 Though the writ, as recited at the commencement of the 
 declaration, appear to be erroneous, yet that is no ground 
 for demurrer to the declaration; for the court will not 
 judge of any defect in the original writ without examina- 
 tion of the instrument itself, (a.) 
 
 The rule under consideration of course does not apply 
 where the proceeding is by bill; but in that case also the 
 declaration has its proper formal commencement. 
 
 The declaration by bill commences with the following 
 formula: "A. B. complains of C. D." &c.; and in the 
 king's bench proceeds, in general, to allege that the de- 
 fendant is " in the custody of the marshal of the marshal- 
 sea of our lord the now king, before the king himself," (6;) 
 viz, that he is a prisoner of the court ; but, in case of an 
 action against an attorney or officer of the court, it alleges 
 the defendant to be such attorney or officer, without stat- 
 ing him to be in custody, &c. In the common pleas, the 
 capacity of the defendant, as attorney or officer, is in a sim- 
 ilar manner alleged ; and in the exchequer, the declara- 
 tion commences by describing the plaintiff as " a debtor 
 to our sovereign lord the king." Of the meaning of these 
 different forms, some explanation may be collected from 
 the first chapter of this work, (c;) but it will be found 
 more copiously in treatises which profess to consider at 
 large the origin of the respective jurisdictions of the su- 
 perior courts, {d.) 
 
 (z.) See Appendix, note 80. 
 
 (a.) Com. Dig., Pleader, C. 12; 1 Saund., 318, n. 3; Helliotw. Selby.Salk., 
 
 vol. 
 
 (5.) Com. Dig., Pleader, C. 8 ; vide mpra, p. 80. 
 (c.) Vide mpra, pp. 74-82. 
 
 (d) And see the forms of commencement by original, and by bill, in the 
 iiffejant courts, given at large, 2 Chitty, 1-4, 1st edit. ; 1 Arch., 72. 
 
RULES OF PLEADING. 369 
 
 RULE II. 
 
 THB DECLAEATION MTTST BE CONFORMABLE TO THE OEISINAL WEIt, («.) 
 
 This is a rule of high antiquity, being laid down by 
 Bracton, (/,) who wrote in the reign of Henry HI, a period 
 at which the system of pleading was in a very rude and 
 imperfect state. It may be exemplified as follows : In det- 
 inue, where the writ stated the value of the goods which 
 were the subject of action to be 20^., and the declaration 
 alleged 401., the variance was, in an old case, considered 
 as a ground for reversing the judgment upon writ of error, 
 (g.) And in trespass, where the writ charged the defend- 
 ant with breaking the close of the plaintiff, and the decla- 
 ration with breaking his doses, the decision was the same, 
 {h.) 
 
 The rule is to be taken, however, subject to this qualifi- 
 cation : that the declaration in general may, and does, so 
 far vary from the writ, that it states the cause of action 
 more specially, (i.) This the reader may see exemplified 
 in the specimens of writs and declarations given in the ' 
 first chapter, though it is more observable with respect to 
 the writs of debt and covenant, &c., which are in a general 
 form, than the writs of a special kind, such as trespass and 
 trespass on the case. 
 
 Though it has been thought desirable to notice this rule, 
 it is, at the same time, to be observed that it has lost much 
 of its practical importance, as it can rarely now be enforced. 
 For, if the declaration varied from the original, the only 
 modes of objecting to the variance (unless the feult hap- 
 pened to appear by the recital in the commencement of 
 the declaration) were by plea in abatement or by writ of 
 
 (e.) Com. Dig., Pleader, C. 13; Bac. Ab., Pleas, Ac, B. 4; Co. Litt., 303 a,; 
 Bract., 431 a., 435 b. 
 (/.) Bract., ubi supra, 
 (ff.) Young V. Watson, Cro. Eliz., 308. 
 (h.) Edward v. Watkin, iMd., 185. 
 
 (i ) Com. Dig. Abatement, G. 8, Pleader, C. 15, Go. Litt., 303 b. 
 24 
 
370 OF THE PRINCIPAL 
 
 . erroT^ (k.) But by a change of practice, explained in the 
 first chapter, a plea in abatement, in respect of such vari- 
 ance, can now no longer be pleaded, [I;) and, by the stat- 
 utes of jeofails and amendments, the objection cannot now 
 be taken by way of writ of error after verdict; nor, if 
 the variance be in a matter of form only, can it be taken 
 after judgment by confession, nil dicit, or non sum infor- 
 matus, (m.) However, the effect of the rule is still felt in 
 pleading; for its long and ancient observance had fixed 
 the frame and language of the declaration in conformity 
 with the original writ in each form of action; and, by a 
 rule which has already been considered, to depart from the 
 known and established tenor of pleadings is a fault, {n;) 
 consequently a declaration must still be framed in con- 
 formity with the language of the original writ appropriate 
 to the form of action, as much as when a variance from 
 the writ actually sued out might have become the subject 
 of a plea in abatement. 
 
 In proceedings by bill, the rule in question is, of course, 
 inapplicable; yet, even in these, the declaration pursues 
 the same forms of expression as if founded on an original 
 writ in the same form of action. Thus, the declaration 
 in debt by bill is worded exactly in the same manner as 
 the declaration in debt by original, (o,) the formal com- 
 mencement only excepted; and the case is the same in all 
 other actions. 
 
 RULE III. 
 
 THE DEOLABAIIOH SHOULD, IN CONOLUSION, LA7 DAUAGES, KSD ALLESIi FSO- 
 DUOTION or SUIT. 
 
 First, the declaration must lay damages. 
 
 In personal and mixed actions (jp) the declaration must 
 
 (*.) 1 Saund., 318, n. 3. 
 \l) Supra, p. 88. 
 
 (ot.) 5 Geo. I, c. 13; 21 Jao. I, c. 13; 4 Ann., c 16; See 2 Tidd, 958, 959, 
 8tli edit.; 1 Saund., 318, n. 3. 
 (n.) Vide supra, p. 342. 
 (o.) Vide supra, pp. 67, 80. 
 (p.) But penal actions are an exception. 
 
RULES OP PLEADING, 371 
 
 allege, in conclusion, that the injury is to the damage of the 
 plaintiff, and must specify the amount of that damage, {q.) 
 In persffml actions, there is the distinction formerly ex- 
 plained between actions that sound in damages and those 
 that do not, {r;) but in either of these cases it is equally 
 the practice to lay damages. There is, however, this dif- 
 ference: that in the former case damages are the main 
 object of the suit, and are, therefore, always laid high 
 enough to cover the whole demand; but in the latter the 
 liquidated debt or the chattel demanded being the main 
 object, damages are claimed in respect of the detention only 
 of such debt or chattel, and are, therefore, usually laid at 
 a small sum. 
 
 The plaintiff cannot recover greater damages than he 
 has laid in the conclusion of his declaration, (s.) 
 
 In real actions, no damages are to be laid; because, in 
 these, the demand is specifically of the land withheld, and 
 damages are in no degree the object of suit. 
 
 Secondly, the declaration should also conclude with the 
 production of suit. 
 
 This applies to actions of all classes — ^real, personal, and 
 mixed. 
 
 In ancient times the plaintiff was required to establish 
 the truth of his declaration, in the first instance, and be- 
 fore it was called into question upon the pleading, by the 
 simultaneous production of his secta, that is, a number of 
 persons prepared to confirm his allegations, {t) The prac- 
 tice of thus producing a secta gave rise to the very ancient 
 formula, almost invariably used at the conclusion of a dec- 
 
 (j.) Com. Dig., Pleader, C. 84; Robert Pilford's Case, 10 Rep., 116 b., 117 
 a. b. 
 
 (r.) Vide supra, p. 133. 
 
 (s.) Com. rig., Pleader, C. 84; Vin. Ab., Damages, R.; Robert Pilford's 
 Case, 10 Rep., 117 a. b. 
 
 (t.) See Bract., 214 b. Et inde statim produoat (i. e., after the declaration 
 in an action of prohibition) sectam suffioientem, duos ad minus, vel tres, vel 
 plures, si possit. (J&itZ., 410 a.) " Producit sectam, was proffering to the court 
 the testimony of the witnesses or followers." (Gilb. 0. P., 48.) See Appendix, 
 note 75. 
 
872 OF THE PRINCIPAL 
 
 laration as entered on record: et inde producit sectam, 
 (m;) and though the actual production has for many cen- 
 turies fallen into disuse, the formula still remains, (x.) 
 Accordingly, except the count on a writ of right and in 
 dower, all declarations constantly conclude thus: "And 
 therefore he brings his suit," &c. The count on a writ of 
 right did not, in ancient times, conclude with the ordinary 
 production of suit, but with the following formula, peculiar 
 to itself: "et quod tale sit jus suum offert disrationare per 
 corpus talis liberi hominis," &c., {y;) and it concludes at 
 the present day with an abbreviated translation of the 
 same phrase: "And that such is his right, he offers," &c. 
 The count in dower is an exception to the rule in ques- 
 tion, and concludes without any production of suit; a pe- 
 culiarity which appears always to have belonged to that 
 action, {z.) 
 
 "We may take occasion to notice, in this place, that sub- 
 joined to the declaration, in proceedings by bill, there is 
 an addition of the names of two persons, now fictitious 
 ones, as pledges for the prosecution of the suit, (a.) By the 
 old law, it was necessary that, before the sheriff executed 
 the original writ, the plaintiff should give him seeurily 
 that he would pursue his claim, (6.) This regulation seems 
 to have been extended to proceedings by bill also ; but, 
 in these proceedings, the security would appear to have 
 been given, not to the sheriff, bat to the court itself, and 
 the time for giving it was apparently that of filing the bill. 
 
 {u.) See tlie entries in the Placitorum Abbrevialio, passim, temp., Eio. I, 
 Ed. II. 
 
 (a.) As early as 7 Ed. II it had become a mere form ; for it is said in a 
 case reported of that year, cest court (i. e., the common pleas) ne soeffre mye 
 la sute estre examine. (7 Ed. II, 242.) 
 
 (y.) Bract., 372, b. Glanville gives it thus: Et hoc promptus sum prob*re 
 per hunc liberum meum hominem, &c. (Glan. Lib., 2, c. 3.) 
 
 (z.) Booth, and Co. Ent., tit. Dower. 
 
 (a.) Vide the example, p. 80. 
 
 (6.) Hussey v. More, Cro. Jac, 414; 3 Bulst., 279, S. C; Sel. Introd., xlviii. 
 This praciice is still indicated by the form of the original writs, which always 
 tontain the clause of site fecerit securum. See the forms in the first chapter. 
 
KULBS OF PLEADING. 373 
 
 Hence the practice in question of entering pledges at the 
 foot of declarations by bill. These pledges, however, are 
 now, in all cases, a mere matter of form; no such security 
 being actually given in proceedings either by bill or orig- 
 inal, (c.) 
 
 BULE IV. 
 
 PLEAS MUST BE PLEADED IN DDE OEDEB, (d.) 
 
 The order of pleading, as established at the present day, 
 is as follows : 
 
 Pleas. 
 
 1. To the jurisdiction of the court. 
 
 2. To the disability of the person: { \ % ttutnt 
 
 3. To the count or declaration. 
 '' CI. For matter ap- 
 
 1. To the form | PAl"''.*. ?.^ *^® 
 of the writ: 
 
 4. To the writ: 
 
 face of it. 
 2. For matter de- 
 hors the writ. 
 ^ 2. To the action of the writ. 
 5. To the action itself in bar thereof, (e.) 
 
 In this order the defendant may plead all these kinds 
 of pleas successively. Thus, he may first plead to the 
 jurisdiction, and, upon demurrer and judgment of respon- 
 deat ouster thereon, (/,) may resort to a plea to the disa- 
 bility of the person; and so to the end of the series. 
 
 But he cannot plead more than one plea of the same 
 kind or degree. Thus, he cannot offer two successive pleas 
 to the jurisdiction, or two to the disability of the per- 
 son, {g.) 
 
 So he cannot vary the order ; for by a plea of any of 
 
 (c.) See Appendix, note 76. 
 
 {d.) Co. Litt., 303 a. ; Longueville u. Thistlewortli, Ld. Ray., 970. 
 
 (e.) Com. Dig.. Abatement, C. ; 1 Chitty, 425. See Appendix note 77. 
 
 (J.) Ab to this judgment, vide supra, p. 133. 
 
 (ff.) Com. Dig., Abatement, I. 3 ; Bac. Ab., Abatement, 0. 
 
374 OF THE PRINCIPAL 
 
 these kinds lie is taken to waive or renounce all pleas of 
 a kind prior in the series. 
 
 And, if issue in fact be taken upon any plea, though of 
 the dilatory class only, the judgnaent on such issue (as else 
 where explained) either terminates or (in case of a plea of 
 suspension) suspends the action, (A;) so that he is not a» 
 liberty, in that case, to resort to any other kind of plea. 
 
 RULE V. 
 
 PLEAS MUST BE PLEADED WITH DEFENSE, (i.) 
 
 Defense here signifies a certain form of words by which 
 the plea is introduced. 
 
 This form varies in some degree according to the nature 
 of the action. 
 
 In the writ of right, where the demandant claims on his 
 own seizin, it is thus: "And the said C. D., by E. F., his 
 attorney, comes and defends the right of the said A. B., 
 and his seizin, when, &c., and all, &c., and whatsoever, &c., 
 and chiefly of the tenements aforesaid, with the appurten- 
 ances, as of fee and right, &c., and says;" and then the 
 matter of the plea is stated, {k.) In a writ of right, when 
 the demandant claims on the seizin of his ancestor, it is thus : 
 "And the said C. JD., by JS. F., his attorney, comes and 
 iefends the right of the said A. B., and the seizin of the 
 said G. B., (the ancestor,) when, &c., and all, &c., and what- 
 soever, &c., and chiefly of the tenements aforesaid, with 
 the appurtenances, as of fee and right, &c., and says," [l.) 
 
 In formedon the defense is : "And the said Q. B., by F. 
 F., his attorney, comes and defends his right, when, &c., 
 and says," (m.) 
 
 Qi.) Vide supra, pp. 133, 134. 
 
 (i.) Co. Litt., 127 b. ; Tampian v. Newsam, Yelv., 210 ; Hampson v. Bill, 3 
 Lev., 240. 
 
 (k) 3 Bl. Com., Appendix, No. I, sec. 5. 
 
 (I.) Booth, 94; Co. Ent., 181 b.; 3 Chitty, 652, 1st edit. 
 
 (m.) Bootb, 148. Defondit jus suum, &c., is the Latin phrase ; but this ia 
 nngrammatically put, as Blackstone conjectures, for tjus, and refers to tb* 
 Tight of the demcmdant. (See 3 Bl. Com., 297.) 
 
RULES OP PLEADING. 375 
 
 The action of doioer is an exception to tlie rule, and in 
 this suit defense is not made, {n.) 
 
 In qmre impedit the defense is: "And the said C. -D., 
 by M F., his attorney, comes and defends the wrong and 
 injury, when, &c., and says." 
 
 In trespass: " And the said C. D., by K F., his attorney, 
 comes and defends the force and injury, when, &c., and 
 says." 
 
 In other personal actions: "And the said C. D., by F. F., 
 his attorney, comes and defends the wrong andinjury, when, 
 &c., and says," (o.) 
 
 The word " comes " expresses the appea/rance of the de- 
 fendant in court. It is taken from the style of the entry 
 of the proceedings on the record, and formed no part of 
 the viva voce pleading. It is accordingly not considered 
 as in strictness constituting a part of the plea, {p.) 
 
 The word "defends," as used in these formulse, has not 
 its popular sense. It imports denial, being derived from 
 the law Latin dsfendere, or the law French defendre, (both 
 of which signify to deny,) (q;) and the effect of the ex- 
 pression is that the defendant denies the right of the 
 plaintiff, or the force or wrong charged, (r.) This denial, 
 however, is mere matter of form ; for the defense is used, 
 not merely when the plea is by way of denial or traverse, 
 but when by confession and avoidance also; and, even 
 when the plea does deny, other words are employed for 
 that purpose,, as we have seen, besides those of the formal 
 defense. 
 
 The (fee's supply the place of words which were formerly 
 inserted at length. In a personal action, for example, the 
 form, if fully given, would be as follows : " And the said 
 0. -D.jby F. F^his attorney, comes and defends the force" 
 (or "wrong") and "injury, when and where it shall bo- 
 
 (n.) East. Ent., 228. 
 
 (o.) See examples of defense in tlie different pleaa in the firs'; chapter 
 
 (p.) 1 Chittj-, 411, 1st edit. ; Stephens v. Arthur, Salk., 544. 
 
 (q.) See Appendix, note 78. 
 
 (r.) See Appendix, note 79. 
 
.376 OF THE PRINCIPAL 
 
 hoove him, and the damages, and whatsoever else he ought 
 to defend, and says," (s.) 
 
 At a time when this formula was more considered than 
 it now is, particular effects were assigned to these its dif- 
 ferent clauses. It was said that, by defending " when and 
 where it shall behoove him," the defendant impliedly ac- 
 knowledged the jurisdiction of the court; and, by defend- 
 ing the " damages, and whatsoever else he ought to de- 
 fend," he in effect admitted the competency of the plaintiff 
 to sue ; that by the former words, therefore, he was excluded 
 from proceeding to plead to the jurisdiction, and by the 
 latter from pleading to the disability of the plaintiff. 
 Hence arose a distinction between "full defense" and 
 " half defense," the former being that in which all the 
 clauses were inserted; the latter being abridged thus : 
 " And the said C. D., by S. F., his attorney, comes and 
 defends the force" (or "wrong") "and injury, and says." 
 Half defense was used where the defendant intended to 
 plead to the jurisdiction or in disability, and full defense 
 in other cases. All this doctrine, however, is now, in effect, 
 superseded by the uniform practice of making defense with 
 an ^c, as in the forms first above given; it having been 
 decided that such method will operate either as full de- 
 fense or half defense, as the nature of the plea may re- 
 quire, (i.) 
 
 Defense is used in almost all actions. It has been seen, 
 however, that dower is an exception ; and the case is the 
 same with an assize; the form of commencing the plea in 
 these actions being merely " comes and says," and not 
 " comes and defends," (u.) 
 
 Defense is used, too, in almost every description of pleas 
 in those actions in which it obtains, (x.) 
 
 (s.) Bao. Ab., Pleas, &o., D. 
 
 (t.) Co. Litt., 127 b. ; Alexander v. Mawman, Willes, 40 ; Wilkes v. Williams, 
 8 T. E., 633 ; 2 Saund., 209 c, n. 1 ; 1 Chitty, 413, 414, 1st edit. 
 
 (m.) Booth, 118. In eeire facias also no defense is made. (R»o. Ab., Pleas 
 &c., D.) 
 
 (a ) See the few exceptions noticed 1 Chitty, 413, 1st edit. 
 
RULES OF PLEADING. 377 
 
 This formula can, perhaps, be considered in uo other 
 light than as one of those verbal subtleties, by which the 
 science of pleading was, in many instances, anciently dis- 
 graced. It is at least difficult to discover in what solid 
 view much consideration could be attached to the use of 
 these technical words, (?/.) Yet they have been formerly 
 held essential, (z;) are still constantly used ; and cannot, in 
 general, with safety be omitted, (a.) 
 
 EULE VI. 
 
 PLEAS IN ABATEMEKT MUST GIVE THE PLAINTIFF A BETTBE WEIT OE BILL, (6.) 
 
 The meaning of this rule is, that in pleading a mistake 
 of form in abatement of the writ or bill, the plea must, 
 at the same time, correct the mistake, so as to enable the 
 plaintiff to avoid the same objection in framing his new 
 writ or bill, (c.) Thus, if a misnomer in the Christian name 
 of the defendant be pleaded in abatement, the defendant 
 must, in such plea, show what his true Christian name is, 
 and even what is his true surname, (d;) and this though 
 the true surname be already stated in the declaration, lest 
 the plaintiff should a second time be defeated by error in 
 the name. For these pleas, as tending to delay justice, are 
 not favorably considered in law, and the rule in question 
 was adopted in a view to check the repetition of them. 
 
 This condition of requiring the defendant to give a bet- 
 ter writ is often a criterion to distinguish whether a given 
 matter should be pleaded in abatement or in bar, (e.) The 
 latter kind of plea, as impugning the right of action alto- 
 gether, can of course give no better writ ; for its effect is 
 to deny that, under any form of writ, the plaintiff could 
 
 (y.) See Appendix, note 80. 
 
 (z.) Co. Litt., 127 b. ; Hampaon v. Bill, 3 Lev,, 240. 
 (a.) 1 Chitty, 412, 1st edit. ; 1 Arcli., 162. 
 
 (6.) Com. Dig., Abatement 1, 1 ; Evans v. Stevens, 4 T. R., 227 ; Maia- 
 waring v. Newman, 2 Bos. & PuL, 120 ; Hawortb v. Spraggs, 8 T, E., 5, 15. 
 (c.) See Appendix, note 81. 
 (A) Hawortb v. Spraggs, 8 T. E., 515. 
 («.) 1 Saund., 284 n. 4 Evans v. Stevens, 4 T. E., 227. 
 
378 OF THE PRINCIPAL 
 
 recover in such action. If, therefore, a oetter writ can be 
 given, this shows that the plea ought not to be in bar, but 
 in abatement. 
 It may also be laid down as a rule that — 
 
 BULE VII. 
 
 DILATORY PLEAS MUSI BE PLEADED AT A PEELIMINAET STA&B OP THE SUII. 
 
 For dilatory pleas are in general not allowable after fuU 
 defense, (/;) nor after a general imparlance, (g;) nor after oyer 
 {h) or a view, (i;) nor after voucher, {k;) nor after a plea in 
 bar, (I.) And, besides these, there are other proceedings 
 also which have the effect of excluding a subsequent dil- 
 atory plea ; but, being of a less ordinary and general kind, 
 it is not necessary here to notice them more distinctly, (m.) 
 
 EULE VIII. 
 
 ALL AFFIRMATIVE PLEADINGS WHICH DO HOT CONCLUDE TO THE COTTNTEY MUST 
 CONCLUDE -WITH A VERIFICATION, (w.) 
 
 Where an issue is tendered to be tried by jury, it has 
 been shown that the pleading concludes to the country, (o.) 
 In all other cases pleadings, if in the affirmative form, 
 must conclude with a formula of another kind, called a 
 verification or an averment. The verification is of two kinds, 
 common and special. The common verification is that which 
 applies to ordinary cases, as in the following form : " And 
 this the said J.. JB." (or "C. J>.") "is ready to verify," {p.) 
 The special verifications are used only where the matte? 
 
 (/.) Com. Dig., Abatement, I, 16. 
 Ig.) Ibid., I. 20. 
 {h.) lUd., I. 22. 
 (i.) Ibid., I. 25. 
 (4.) Ibid., I. 28. 
 {I.) Ibid., I. 23. 
 
 (m.) See the instances, Com. Dig., Abatement, I. 26, <Sbc. See Appendix, 
 note 82. 
 (n.) Com. Dig., Pleader, E. 32, E. 33 ; Co. Litt., 303 a. ; Finch, Law, 359. 
 (o.) Vide supra, p. 228. 
 (p.) See the various examples of pleadings given in the course of this work, 
 
KULES OF PLEADING. 879 
 
 pleaded is intended to be tried by record, or hj some other 
 method than a jury. They are in the following forms : 
 "And this the said A. B." (or "C. D.") "is ready to verify 
 by the said record," or, "And this the said A. B." (or "C. 
 D") " is ready to verify, when, where, and in such man- 
 ner as the court here shall order, direct, or appoint," (q.) 
 
 The origin of this rule is as follows : 
 
 It was a doctrine of the ancient law, little, if at all, 
 noticed by modern writers, that. every pleading affirma- 
 tive in its nature must be supported by an offer of some 
 mode of proof, (r;) and the reference to a jury (who, as 
 formerly explained, were in the nature of witnesses to the 
 fact in issue) (s) was considered as an offer of proof 
 within the meaning of that doctrine, (t.) When the proof 
 proposed was that by jury, the offer was made in the viva 
 voce pleading, by the words prcst d'averrer, or prest, ^c, (u,) 
 which in the record was translated, M hoc paratus est veri- 
 fcare, (x.) Ou the other hand, where other modes of 
 proof were intended, the record ran, St hoc paratus est 
 verificare per recordum, or Et hoc paratus est verificare quo- 
 cunque modo curia consideraverit, [y.) But while these were 
 the forms in general observed, there was the following ex- 
 ception, that on the attainment of an issue to be tried by 
 jury, the record marked that result by a change of phrase, 
 and substituted for the verification the conclusion, adpat- 
 riam, to the country, {z.) The written pleadings (which, 
 it will be remiembered, are framed in the ancient style of 
 the record) {a) still retain the same formulae in these differ- 
 ent cases, and with the same distinctions as to their use. 
 
 (j.) Vide supra, p. 229. 
 (r.) See Appendix, note 83. 
 («.) Vide ivjpra, p. 153. 
 (i.) See Appendix, note 84. 
 («.) See Appendix, note 85. 
 
 (ar.) See 10 E. Ill, 23 ; itnd., 25, and the Year Books, passim. 
 (y.) In the pleading this was expressed thus: Prest d'averrer oi dtvomut 
 40 E. Ill, 20. 
 (2.) See 10 E. Ill, 25, 26, (fee. 
 (o.) Vide supra, p. 63. 
 
380 OF THE PRINCIPAL 
 
 They preserve the conclusion to the country, to mark the 
 attainment of an issue triable by jury, but in other cases 
 conclude with a translation of the old Latin phrase, Bt hoc 
 paratus, &c.; and hence the rule, that an affirmative 
 pleading that does not conclude to the country must con- 
 clude with a verification, (6.) 
 
 As the ancient rule requiring an offer of proof extend- 
 ed only to affirmative pleadings, (those of a negative kind 
 being in general incapable of proof,) so the rule now in 
 question now applies to the former only, no verification 
 being in general necessary in a negative pleading, (c;) but 
 it is nevertheless the practice to conclude with a verifica- 
 tion all negative as well as affirmative pleadings that do 
 not conclude to the country. 
 
 EULE IX. 
 
 IN ALL PLEADIN&S WHEEE A DEED IS ALLEG-ED, UNDEE WHICH THE PAETT 
 CLAIMS OE JUSTIFIES, PEOFEKT OP SUCH DEED MUST BE MADE, (d) 
 
 Where any party pleads a deed, and claims or justifies 
 under it, the mentioia of the instrument is accompanied 
 with a formula to this effect: "One part of which said 
 indenture," (or other deed,) "sealed with the seal of the 
 
 said , the said now brings here into court, the 
 
 date whereof is the day and year aforesaid," (e.) 
 
 This formula is called making ■proferi of the deed. /Its 
 present practical import is, that the party has the instru- 
 ment ready for the purpose of giving oyer, (/;) and at the 
 time when the pleading was viva voce, it implied an actual 
 
 (J}.) "Every plea or bar, replication, &o., must he offered to heproved true, 
 by saying in the plea, Et hoe paratus est verificare, which we call an aver- 
 ment." (Finch, Law, 359.) This gives confirmation, it will be observed, to 
 th« account of the origin of th<s rule contained in the text. 
 
 (.c.) Co. Litt., 303 a.; Millner v. Orowdall, 1 Show., 338. 
 
 (d) Com. Dig., Pleader, 0. 1 ; Leyfield's Case, 10 Rep., 92 a. 
 
 (e.) See the example, supra, p. 68. 
 
 ( f.) As to oyer, see p. 100. 
 
RULES OF PLEADING. 381 
 
 production of the instrument in open court for the same par- 
 pose. 
 
 The rule, in general, applies to deeds only. 'Eo profert, 
 therefore, is necessary of any written agreement or other 
 instrument not under seal, [g,) nor of any instrument 
 which, though under seal, does not fall within the techni- 
 cal definition of a deed; as, for example, a sealed will or 
 award, (A.) This, however, is subject to exception in the 
 case of letters testamentary and letters of administration; 
 executors and administrators being bound, when plaintiffs, 
 (i,) to support their declaration by making profert of these 
 instruments. 
 
 The rule applies only to cases where there is occasion to 
 mention the deed in pleading. When the course of allegation 
 is not such as to lead to any mention of the deed, a profert 
 is not necessary, even though in fact it may be the foun- 
 dation of the case or title pleaded. 
 
 The rule extends only to cases where the party claims 
 under the deed, or Justifies under it; and therefore, when 
 the deed is mentioned only as inducement or introduction 
 to some other matter, on which the claim or justification 
 is founded, or alleged not to show right or title in the 
 party pleading, but for some collateral purpose, no profert 
 is necessary, (k.) 
 
 The rule is confined, too, to cases where the party relies 
 on the direct and intrinsic operation of the deed, (l.) Thus, in 
 pleading a conveyance under the statute of uses, it is not 
 necessary to make profert of the lease and release, because 
 it is the statute that gives efiect to the conveyance, and the 
 deeds do not intrinsically establish the title. 
 
 (_g.) Com. Dig., Pleader, 0. 3; Aylesbury v. Harvey, 3 Lev., 205. 
 
 (h.) Com. Dig., Pleader, O. 3; 2 Saund., 62 b., u. 5. 
 
 (i.) But semb. that they are not bound to make profert where they have 
 occasion to plead the letters testamentary, &o., as defendants. (See Marsh v 
 Newman, Popham, 163-4, cites 36 Hen. VI, 36.) 
 
 {t) Bellamy's Case, 6 Eep., 38 a.; Holland v. Shelley, Hob., 303; Baifill 
 ». Leigh, 8 T. E., 571 ; Com. Dig., Pleader, 0. 8, 0. 16 ; 1 Saund., 9 a., n. 1. 
 
 (i.) BanfiU V. Leigh, 8 T. R., 573 ; Bead v. Brookman, 3 T. E., 156. 
 
382 OF THE PRINCIPAL 
 
 Another exception to the rule obtains where the deed is 
 lost or destroyed through time or accident, or is in the pos- 
 session of the opposite party, (m.) These circumstances dis- 
 pense with the necessity of a profert, and the formula is 
 then as follows : " Which said writing obligatory" (or other 
 deed) "having been lost by lapse of time," (or "destroyed 
 by accidental fire," or " being in the possession of the said 
 
 ,") "the said cannot produce the same to the 
 
 court here," (w.) 
 
 The reason assigned for the rule requiring profert is, that 
 the court may be enabled by inspection to judge of the suf- 
 ficiency of the deed, (o.) The author, however, presumes 
 to question whether the practice of making profert origi- 
 nated in any view of this kind. It would be recollected 
 that, by an ancient rule, all affirmative pleadings were for- 
 merly required to be supported by an offer of some mode 
 of proof, {p.) As the pleader, therefore, of that time con- 
 cluded in some cases by offering to prove by jury or by the 
 record, so, in others, he maintained his pleading by pro- 
 ducing a deed as proof of the case alleged. In so doing he 
 only complied with the rule that required an offer of proof. 
 Afterwards, the trial by jury becoming more universally 
 prevalent, it was often applied (as at the present day) to 
 determine questions arising as to the genuineness or valid- 
 ity of the deed itself so produced; and from this time a 
 deed seems to have been no longer considered as a method 
 of proof, distinct and independent of that by jury. Conse- 
 quently it became the course to introduce, as well in plead- 
 ings where the party relied on a deed as in other cases, 
 the common verification or offer to prove by jury; and the 
 true object of the profert was in this manner not only 
 superseded, but forgotten, though in practice it still con- 
 tinued to be made, {q.) 
 
 (m.) Bead v. Brookman, 3 T. R., 156 ; Carver v. Pinkney, 3 Lev , 82. 
 
 in.) 2 Chitty, 153, 1st edit. 
 
 (o.) Leyfield's Case, 10 Eep., 92 b. ; Co. Litt., 35 b. 
 
 (p.) Vide supra, p. 379. 
 
 (j ) Sea Appendix, note 86. 
 
RULES OF PLEADING. 383 
 
 EULE X. 
 
 ALl PLEADINQS MUST BE PKOPEELT ENTITLED 01 THE OOUBT ASD TEEM, (r.) 
 
 "With respect to the title of the court, it consists, in gen ■ 
 eral, of a superscription of the name of the court, thus : 
 "In the king's bench," "In the common pleas," or "In the 
 exchequer," (s.) But in a declaration by bill in the king's 
 bench it consists of a superscription of the name of the 
 prothonotary, (i.) 
 
 With respect to the title of the term, it is either general, 
 thus : " Trinity term, in the fourth year of the reign of King 
 George the Fourth," {u;) or special, thus: "Monday next, 
 after fifteen days of the Holy Trinity, in the fourth year 
 of the reign of King George the Fourth." 
 
 Such title refers to the time when the party is supposed 
 to deliver his oral allegation in open court ; and as it was 
 only in term time that the court anciently sat to hear the 
 pleading, it is therefore always of a term that the pleadings 
 are entitled, though they are often in fact filed or delivered in 
 vacation time. The term of which any pleading is entitled 
 is usually that in which it is actually filed or delivered, (x;) 
 or, where this takes place in vacation time, the title is of 
 the term last preceding. 
 
 The most frequent practice is to entitle generally, (accord- 
 ing to the first form above given.) But it is to be observed 
 that a pleading so entitled is by construction of law pre- 
 sumed, unless proof be given to the contrary, to have been 
 
 (r.) 1 Chitty, 261, 527, 528, 1st. edit. ; 1 Arch., 72, 162; Topping v. Fuge, 1 
 Marsh., 341. 
 
 (s.) 1 Chitty, 262, 527, 1st. edit. ; Com. Dig., Pleader, C. 7. See the examples, 
 supra, pp. 65, 67, &o. 
 
 (t.) See the example, supra, p. 80. 
 
 (u.) See the examples, supra, p. 65, &o. 
 
 (x.) But dilatory pleas, though pleaded in a term subsequent to that of which 
 the declaration is entitled, (as is sometimes the case,) must yet always be en- 
 titled of the same term with the declaration, unless pleaded with a special or 
 general special imparlance. See this further explained, 1 Chitty, 422, 447, 
 1st edit. 
 
384 OF THE PBINCIPAL 
 
 pleaded on the frst day of the term. And the eflfeet of this 
 is, that if a general title be used, it will sometimes occa- 
 sion an apparent objection. Thus, in the case of a declara- 
 tion so entitled, it may appear in evidence on the trial that 
 the cause of action arose in the course and after the first 
 day of the term of which the declaration is entitled, or this 
 may appear on the face of the declaration itself; and, in 
 either case, this objection would arise, that the plaintiff 
 would appear to have declared before his cause of action 
 occurred; whereas the cause of action ought of course 
 always to exist at the time the action is commenced, (y.) 
 The means of avoiding this difficulty is to entitle specially 
 (according to the second form above given) of the partic- 
 ular day in the term when the pleading was actually filed 
 or delivered. 
 
 RULE XI. 
 
 ALL PLEADINGS OUGHT TO BE TEITB, (z.) 
 
 While this rule is recognized, it is at the same time to 
 be observed, that in general there is no means of enforc- 
 ing it as a rule of pleading, because in general there is no 
 way of proving the falsehood of an allegation till issue 
 has been taken and trial had upon it. 
 
 It may also be observed, that notwithstanding this rule, 
 a practice has prevailed of what is called sham 'pleading; 
 that is, pleading, for the mere purpose of delay, a matter 
 which the pleader knows to be false. There are certain 
 pleas of this kind which, in consequence of their having 
 been long and frequently used in practice, have obtained 
 toleration from the courts, and, though discouraged, are 
 tacitly allowed; as, for example, the common plea of judg- 
 ment recovered, viz, that judgment has been already recov- 
 ered by the plaintiff for the same cause of action. But in 
 
 (y.) But where this objection arises on the trial, it may be answered by 
 giving evidence that the declaration was actnally filed on a subsequent day 
 in the term. (Granger v. George, 5 Barn. & Ores., 149.) 
 
 (z.) Bac. Ab., Pleas, &o., G. 4; Slade v. Drake, Hob., 295; Smith v. Yeo- 
 mans, 1 Saund., 316. 
 
RULES OF PLEADING. 385 
 
 Other cases a sham plea, when ascertained to be so, is not 
 allowed. It is true that, as already observed, it cannot in 
 general, and in the regular course, be proved that a plea is 
 false till the trial; but where a plea is not in the usual and 
 tolerated form of a sham plea, and the matter pleaded is at 
 the same time very improbable, and presumably intended 
 as a plea of that description, the court will, on motion, sup- 
 ported by affidavit of its falsehood, allow judgment to be 
 signed by the plaintiff as for want of plea, and make the 
 defendant or his attorney pay the costs, (a.) And the court 
 has in all cases power to punish for sham pleading, and has 
 often strongly censured the practice. 
 
 Lastly, there is an exception to the rule in question, in 
 the case of certain fictions established in pleading for the 
 convenience of justice. Thus, the declaration in ejectment 
 always state a fictitious demise made by the real claimant 
 to a fictitious plaintiff; and the declaration in trover uni- 
 formly alleges, though almost always contrary to the fact, 
 that the defendsmt found the goods in respect of which the 
 action is brought. 
 
 (a.) Thomas v. Vandermoolen, 2 Barn. & Aid., 197; Bartley v. Godslate, 
 ibid., 199; Shadwell v. Berthoud, 5 Barn. & Aid., 750, 751; Eichley v. 
 Proone, 1 Bam. & Ores., 286 ; Merington v. Becket, 2 Barn. & Ores., 81 ; 
 BeU V.Alexander, 6 M. & S. 133 ; Young v. Qadderer, 1 Bing., 380. 
 
 25 
 
CONCLIJSION. 
 
 To the view that has been taken in this work of the 
 principles of the system of pleading, it may be useful to 
 subjoin a few remarks on the merits of that system, con- 
 sidered in reference to its effects in the administration of 
 justice. 
 
 When compared with other styles of proceeding, it has 
 been shown (a) to possess this characteristic peculiarity, 
 that it produces an issue; that is, it obliges the parties so to 
 plead as to develop, by the effect of their own allegations, 
 some particular question, as the subject for decision in the 
 cause. With respect to the degree of particularity with 
 which such question or issue is developed, we have seen, 
 in the first place, that it is always distinctly defined, as 
 consisting either of fact or law, because, in the former case, 
 it arises on a traverse; in the latter, it presents itself in the 
 very different shape of a demurrer. But, independently 
 of this distinction, it will be remembered that the issue 
 produced is required to be certain or specific, {b.) It is 
 true that some issues are framed with much less certainty 
 than others. Thus the general issue, in assumpsit and 
 other actions of trespass on the case, presents a question 
 abundantly more general than that on the execution of a 
 release by duress, which occurred, by way of example, in a 
 former part of this work, (c;) and, with respect to the 
 whole class of general issues, it will be observed that they 
 raise questions much less circumstantial than those which 
 occur after special pleas. Still, however, it is the universal 
 property of all issues to define the question for decision in 
 a shape more or less specific. Even the general issue in 
 
 (o.) Supra, p. 148. 
 
 (6.) Vide supra, pp. 152-155. 
 
 (c.) Vide supra, p. 95. 
 
 386 
 
CONCLUSION. 387 
 
 assumpsit, which is one of the most indefinite in its nature, 
 raises this question, viz, whether the defendant be liable 
 to the demand circumstantially stated in the declaration, 
 and thus presents to the mind a distinct and practical, 
 though general, idea of the matter to be tried. 
 
 That prior to the institution of any proceeding for the 
 purpose of decision, the question to be decided should be 
 by some means publicly adjusted, as consisting either of 
 fact or law, and this, too, with some certainty or specifica- 
 tion of circumstances, is evidently required by the nature 
 of the English common-law system of jurisprudence. For, 
 by the general principles of that system, questions of law 
 are determinable exclusively by the judges, while questions 
 of fact (some few instances excepted) can be decided only 
 by a jury, and in those excepted cases are referred to other 
 appropriate modes of trial. Unless, therefore, some public 
 adjustment of the kind above described took place between 
 the parties, they would be unable, after the pleading had 
 terminated, to pursue further their litigation. For they 
 might disagree upon the very form of the proceeding by 
 which the decision was to be obtained; or, if they both 
 took the same view of the general nature of the question, 
 so that they both referred their controversy to the same 
 method of determination, for example, trial by jury, they 
 might yet differ as to the shape of the question to be re- 
 ferred. 
 
 A public adjustment of the point for decision, of the 
 specific kind above described, being for this reason neces- 
 sary, there are two ways in which it might conceivably be 
 effected : either by a retrospective selection from the plead- 
 ing, or by the mere operation of the pleading itself. The 
 law of England, in producing an issue, pursues the latter 
 method. For, as has been shown, the alternate allegations 
 are so managed that, by the natural result of that conten- 
 tion, the undisputed and immaterial matter is constantly 
 thrown off, until the parties arrive at demurrer or traverse, 
 upon which a tender of issue takes place, on the one hand, 
 and an acceptance of it on the other, and the question in- 
 
388 CONCLUSION. 
 
 volved in the demurrer or traverse is thus mutually referred 
 to decision. 
 
 The production of an issue, when thus defined and ex- 
 plained, appears to be attended with considerable aidvantage 
 in the administration of justice, for the better comprehen- 
 sion of which it will be useful to advert to those styles of 
 juridical proceeding in which no issue is produced. 
 
 In almost every plan of judicature with which we are 
 acquainted, except that of the common law of England, 
 the course of proceeding is to make no public adjustment 
 whatever of the precise question for decision. For, as all 
 matters, whether of law or fact, are decided by the judge, 
 and by him alone, upon proofs adduced on either side by 
 the parties, the necessity upon which that practice has been 
 shown to be founded in the English common-law system 
 does not arise. Consequently the mutual allegations are 
 allowed to be made at large, as it may be called; that is, 
 with no view to the exposition of the particular question 
 in the cause, by the effect of the pleading itself. The liti- 
 gants, indeed, before they proceed to proof, must explore 
 the particular subject in controversy, in order to ascertain 
 whether any proof be required, and to guide them to the 
 points to which their proof is to be directed. And, upon 
 the hearing of the cause, the judge must of course also 
 ascertain for his own information the precise point to be 
 decided, and consider in what manner it is met by the 
 evidence. But, in these proceedings, neither the court nor 
 the parties have any public exposition of the point in con- 
 troversy to guide them, and they judge of it, as a matter 
 of private discretion, upon retrospective examination of 
 the pleadings, [d.) 
 
 {d.) The practice of the courts of equity in this country forms no exception 
 to this general statement. For though the common replication offers a formal 
 contradiction to the answer, a contradiction which imitates in some measure 
 the form of an issue in the common law, and borrows its name, yet, in sub- 
 stantive effect, the two results are quite different; for the contradiction to 
 which the name of an issue is thus given in the equity pleading is of the most 
 general and indefinite kind, and develops no particular question as the sub- 
 ject for decisi-jn in the cause. 
 
coNCLUSiosr. 389 
 
 This, as jJready stated, is the almost universal method; 
 but there is another which also requires notice, viz, that 
 which at present prevails in the Scottish judicature. Since 
 thQ trial by jury in civil causes has been engrafted upon 
 the juridical system of Scotland, it has of course been found 
 necessary to adjust and settle publicly between the parties 
 the particular question or questions on which the decision 
 of the jury is to be taken. But, instead of eliciting such 
 question (called by analogy to the law of England the 
 issue) by the mere effect and operation of the pleading 
 itself, according to the practice of the English courts, the 
 the course taken has been to adjust or settle the issue re- 
 trospectively from the allegations by an act of court, and 
 these allegations have consequently continued to be made 
 at large, according to the definition of that term already 
 given, (e.) 
 
 Now, the English common law method, as compared with 
 either of those that have been just described, possesses this 
 advantage, that the undisputed or immaterial matter, which 
 every controversy more or less involves, is cleared away by 
 the effect of the pleading itself; and therefore, when the 
 allegations are finished, the essential matter for decision 
 necessarily appears. But under the rival plans of proceed- 
 ing by which the statements are allowed to be made at large, 
 it becomes necessary, when the pleading is over, to analyze 
 the whole mass of allegation, and to effect for the first time 
 the separation of the undisputed and immaterial matter, in 
 order to arrive at the essential question. This operation 
 will be attended with more or less difficulty, according to 
 the degree of vagueness or prolixity in which the pleaders 
 
 (5.) It is to be understood, however, that the issues are not extracted from 
 the pleadings in the full latitude of allegations sometimes allowed to them 
 by the Scottish law, but from allegations of a more succinct and specific char- 
 acter, called condescendences and answers, which the parties are directed to 
 give in as the materials from which the court are to adjust the issue. Yet 
 even these oondescendenoes and answers are pleadings at large, in the sense 
 in which the author uses that term, for they do not develop the point in 
 controversy by their intrinsic operation. 
 
390 CONCLUSION. 
 
 have been allowed to indulge; but where the allegations 
 have not been conducted upon the principle of coming to 
 issue, or in other words, have been made at large, it follows 
 from that very quality that their closeness and precision can 
 never have been such as to preclude the exercise of any dis- 
 cretion in extracting from them the true question in contro- 
 versy ; for this would amount to the production of an issue. 
 Therefore it will always be in some measure doubtful, or n 
 point for consideration, to what extent and in what exact 
 sense the allegations on one side are disputed on the other, 
 and also to what extent the law relied upon by one of the 
 parties is controverted by his adversary. And this difficult^-, 
 while thus inherent in the mode of proceeding, will be oftea 
 aggravated, and present itself in a more serious form, from 
 the natural tendency of judicial statements, when made at 
 large, to the faults of vagueness and prolixity. For where 
 the pleaders state their cases, in order to present the mate- 
 rials from which the mind of the judge is afterwards to in- 
 form itself of the point in controversy, they will of course 
 be led to indulge in such amplification on either side as 
 may put the case of the particular party in the fullest and 
 most advantageous light, and to propound the facts in such 
 form as may be thought most impressive or convenient, 
 though at the expense of clearness or precision. On the 
 other hand, it is evident that, upon the English common law 
 method, the pleaders, having no object but to produce the 
 issue, are without the least inducement either to an uncer- 
 tain or a too copious manner of statement; and, on the con- 
 trary, have a mutual interest to effect the result at which 
 they aim in the shortest and most direct manner. 
 
 The difficulty that must thus be always, in some measure, 
 found under the method of pleading at large, in ascertain- 
 ing the precise extent of the mutual admissions of fact or 
 law, is attended with this obvious inconvenience : that a 
 party may be led to proceed to proof or trial upon matters 
 not disputed, or not considered as material to be disputed, 
 on the other side, or to omit the proof or trial of matters 
 which are meant to be disputed, and which are, in fact, 
 
CONCLUSION. 391 
 
 essential to the final determination of the (..aase. The judge 
 may conseqaettly find, upon examination of the whole proc- 
 ess, and hearing the further allegations and arguments of 
 the paicies, that the investigation of fact has either been 
 redundant, and therefore attended with useless expense and 
 dela}-, or defective, so as not to present him with the mate- 
 rials on which he can properly adjudicate. On the other 
 hand, these evils are unknown to the English system of 
 judicature, except in a very partial degree; and to that 
 degree they arise, as will be afterwards explained, in con- 
 sequence of the latitude of some of the general issues; in 
 other words, from a partial abandonment of its own peculiar 
 principle. 
 
 On the whole, then, it may be fairly concluded that the 
 system of pleading is not only distinguished from other 
 methods of judicial allegation, by its production of an 
 issue, but is in this respect advantageously distinguished 
 from them, and derives from this singularity of proceed- 
 ing considerable protection from inconveniences to which 
 they are severally subject. 
 
 It also appears to deserve high praise, in respect of such 
 of its rules as are classed in this work, by their tendency 
 to prevent obscurity or confusion, frolixity or delay, (/.) 
 Here, indeed, the objects pursued are not peculiar to the 
 English system; for the avoidance of such faults is of 
 course in some measure the aim of every enlightened plan 
 of judicature. But in general there is either a want of 
 regulation to enforce the object, or the regulation is found 
 tx) be ineffectual. On the contrary, the system of pleading 
 has various rules, specifically designed to promote precis- 
 ion and brevity in the method of allegation ; rules exclus- 
 ively its own, and extremely strict and efiicacious in their 
 character. Accordingly, it has ever been proverbially 
 fomous for the former of these qualities; and in modern 
 times, and under the influence of enlightened judges, the 
 principle of avoiding the introduction of unnecessary mat- 
 
 (/.) Bwpra, pp. 332-354. 
 
392 CONCLUSION. 
 
 ter (g) has been so rigorously applied, and the cases of 
 unnecessary allegation have been so well defined and un- 
 derstood, (h,) as very considerably to remove its no less 
 ancient and notorious reproach of amplification and pro- 
 lixity. 
 
 "While the system of pleading is thus in general distin- 
 guished for the excellence of its structure, it cannot be 
 denied that there are points on which its merit is question- 
 able. 
 
 1. There is something not satisfactory in its tendency to 
 decide the cause upon points of mere form. 
 
 It will be observed that in general, whenever a demur- 
 rer occurs in respect of insufficiency in the manner of 
 statement, and not for insufficiency in substance, or where 
 an issue, either in fact or law, is joined upon a plea in 
 abatement, the issue joined in such cases involves a ques- 
 tion of form only. And as the issue, whatever be its na- 
 ture, is in general decisive of the fate of the cause, (i,) it 
 follows, that where issue is so joined the action must com- 
 monly be decided upon a point of form, and not upon the 
 merits of the case; a result that seems inconsistent with 
 sound justice. Thus, if the plaintiff, in an action of tres- 
 pass, should happen to omit in his declaration to state the 
 day or time at which the trespass was committed, and the 
 defendant should demur specially for this omission, and 
 the issue joined on this demurrer should be decided (as it 
 would be) in favor of the defendant, by the regular conse- 
 quence judgment would be also given for the defendant, 
 and the plaintiff's claim would be defeated by the omission 
 of a few words in his declaration. Yet we have seen that 
 the time, if alleged, need not have been proved as laid, (k;) 
 and its omission, therefore, is a fault of the most strictly 
 
 (g.) Vide supra, p. 364. 
 
 {h.) This is by tha effect of the rules tending to limit or restrain the degres 
 of certainty in allegation, tide supra, pp. 309-332. 
 (i.) Vide supra, p. 133. 
 (4.) Vide supra, p. 278. 
 
CONCLUSION. 39:j 
 
 formal kind. Again, if the defendant should plead in 
 abatement that he is sued by a wrong Christian name, and 
 the plaintiff should choose to take issue in fact upon the 
 plea, and go to trial, the verdict, if given for the plaintiff, 
 entitles him to judgment quod recuperet, and he conse- 
 quently recovers his demand, {I.) On the other hand, if 
 given for the defendant, it is followed by judgment of breve 
 (or billa) casseter (m/) and thus the action in one case, and 
 in the other both the action and the demand itself, are dis- 
 posed of upon a mere question relating to the Christian 
 name of the defendant. 
 
 But if any objection attach on this ground to the sys- 
 tem of pleading, its weight at least is much diminished by 
 the liberality with which amendments are allowed in the 
 modern practice. Thus, in the case of demurrer above 
 supposed, if the plaintiff should imprudently join in de- 
 murrer, (instead of applying, as he ought, for leave to 
 amend,) the court would nevertheless, after joinder in de- 
 murrer, and even after the demurrer had come on to be 
 argued, allow him to amend; and the only inconvenience 
 that be would suffer would be the payment of costs. The 
 second case, indeed, viz, that in which an issue in fact is 
 joined upon a plea in abatement, is such as would not 
 allow of amendment, unless applied for before the cause 
 had come on for trial. But even in this instance it is not 
 probable that any hardship or injustice would arise by the 
 final determination of the cause upon the point of form, 
 for if the imsuccessfal party had had any substantial case 
 upon the merits, he would presumably have applied to 
 amend, without hazarding the trial. 
 
 2. Again, some doubt may reasonably be felt with 
 respect to the advantage of that part of the system which 
 relates to the singleness of the issue; provided only that 
 
 {l.) Vide supra, p. 133. 2 Wils., 367. The case is otherwise, however, if ths 
 plaintiff succeeds on aa issue in law on a plea in abatement, for there the judg- 
 ment is respondeat ouster only. Ibid. 
 
 (m.) Vide sw^ira, p. 134. 
 
394 CONCLUSION. 
 
 a party be restrained from raising issues inconsistent with 
 each other, or such as he knows to be without foundation 
 in fact, it may be questioned whether any sufficient con- 
 siderations of utility or convenience can be urged at the 
 present day in favor of the object of singleness. At all 
 events, some presumption must arise against the value of 
 this object in modern pleading, when we recollect that the 
 long-permitted use of several counts, in respect of the same 
 cause of action, and the provision of the statute of Anne 
 allowing the use of several pleas, have declared it as the 
 sense both of the bench and the legislature, that if the 
 original principle deserved to be retained, it required at 
 least material mitigation. However, it is clear that the 
 principle of singleness, is so far, at least, a right and valu- 
 able one, as it may tend to prevent the parties from offering 
 inconsistent allegations, or such as they may know to be false. 
 For, though the interests of justice seem to require, in 
 many cases, the allowance of several counts or pleas in 
 respect of the same demand, they are, on the other hand, 
 directly opposed to the allowance of repugnant ones ; and 
 where one of the matters alleged must evidently be false, 
 the party should, of course, be obliged to make his elec- 
 tion between them ; and so, in allowing a party to make 
 different allegations, he ought, if possible, to be excluded 
 from such as (whether inconsistent or not with what has 
 been previously pleaded) he must know to be without 
 foundation in fact. Yet these, which are perhaps the only 
 beneficial results that can flow from the principle of single- 
 ness, the present state of the law against duplicity, unfortu- 
 nately, fails to produce. For, first, a plaintiff is at liberty 
 to adopt as many counts as he pleases, however apparent 
 it may be that the cases which they respectively state can- 
 not all be true. So a defendant is allowed, under the pro- 
 vision of the statute of Anne, to plead, with scarcely any 
 exception, matters directly inconsistent with each other; 
 for example, he may plead, in trespass for assault and bat- 
 tery, not guilty, (namely, that he did not commit the tres- 
 passes;) and also son assault demesne, (viz, that he commit- 
 
CONCLUSION. 395 
 
 ted tliem in self-defense, (n;) or in debt on bond non est fac- 
 tum, (viz, that be did not execute tbe deed,) and also that 
 he executed it under duress of imprisonment, (o.) Again, 
 a party is not restrained by tbe present system from adding 
 to his true case another, that, though inconsistent with it, 
 he knows to be false. And accordingly a defendant, at 
 the same time that he pleads a special plea founded on his 
 real matter of defense, almost always resorts also to the 
 general issue, or some other plea, by way of traverse, in 
 order to put the plaintiff to the proof of his declaration, 
 without having, in truth, the least reason to deny the alle- 
 gations which it contains. The statute of Anne, indeed, 
 provides a check against this, by a provision of which the 
 general effect is as follows : that where the defendant has 
 pleaded several pleas, and the issue upon any one of them 
 is found for the plaintiff, the court may give the plaintiff 
 the costs of every such issue, unless the judge of nisi prius 
 shall certify that the defendant had probable cause to plead 
 the matter found against him. But the construction and 
 effect given to this provision in practice seem to have ren- 
 dered it inadequate to the object which it contemplates, (p.) 
 
 3. Another feature of doubtful character in the system 
 of pleading is, the wide effect which belongs, in certain 
 actions, to the general issue. In debt on simple contract, 
 in assumpsit, and trespass on the case in general, the gen- 
 eral issue embraces almost every ground of defense to 
 which the defendant, at the trial, may choose to resort; the 
 questions offered by these issues being, in effect, nearly 
 these : whether the defendant be indebted to the plaintiff, 
 as alleged in the declaration, or whether he be liable to 
 the plaintiff's demand, as set forth in the declaration, {q.) 
 "Sfow, these questions are so general and vague, as to pro- 
 
 (n.) 1 Arch., 226. 
 
 (c.) Ibid; and see other instances cpen in sane measure to the earn* 
 objection of inconsistency, svpra, p. 265. 
 (p.) See 11 East, 263; 2 Burr., 753. 
 iq.) Vide supra, pp. 172, 176, 177 
 
396 CONCLUSION. 
 
 duce but in a limited and inferior degree the advantages 
 which attend the production of a more strict and special 
 issue. For, first, they do not fully effect the separation ol 
 matter of fact from matter of law. To understand this, it 
 must be considered that, though the parties cannot go 
 to trial on a mere question of law, (a traverse of matter of 
 law not being allowable,) (r,) yet it is in the nature of many 
 issues in fact to involve some subordinate legal question, 
 the decision of which is essential to the decision of the 
 issue. And the wider and more general the form of the 
 issue, the more likely it is to comprise these subordinate 
 questions of law. For example : In an action of debt on 
 simple contract, or assumpsit, if the defendant rely on a 
 release executed by the plaintiff, he may give this in evi- 
 dence under the general issue, (nil debet, or non assump- 
 sit,) because it tends to show that he is not indebted, or is 
 not liable, as alleged; and if the plaintiff''s answer to the re- 
 lease be that it was obtained by duress, this will of course 
 be also offered in evidence under the same issue. Upon 
 this point of duress two questions may be supposed to 
 arise : first, whether the execution of the deed under duress 
 would defeat the effect of the deed ; secondly, whether the 
 deed were, in fact, executed under duress. Before the jury 
 can find a verdict either for the plaintiff or defendant, both 
 these questions must be disposed of. But the first is a 
 question of mere law, and their decision upon it must be 
 guided by the direction of the judge. Here, then, is a ques- 
 tion of law involved under the issue in fact. E"ow, if, on 
 the other hand, a form of action be supposed, in which the 
 [)leading is more special, and the general issue less com- 
 prehensible, for example, the action of covenant, this very 
 same question will be distinctly developed as a point of 
 law upon the pleading by way of demurrer. For the 
 defendant cannot, under non est factum, (which is the gen- 
 eral issue in that action,) set up the release, but must plead 
 it specially, and the plaintiff must consequently plead the . 
 
 t" — 
 
 (1 ,) Vide supra, p. 201. 
 
CONCLUSION. 397 
 
 duress in reply; and then, if the defendant disputes the 
 legal consequence of the duress, his course is to dfcmur to 
 the replication. Of such demurrer, occurring in the very 
 case here imagined, the reader has already seen an exam- 
 ple in the course of this work, (s,) and to this he may be 
 again referred for further illustration. 
 
 It thus appears, then, that it is the effect of the wider 
 general issues to render less complete than it otherwise 
 would he the separation of fact from law. And the iacon- 
 venience of this is felt in the great frequency with whict 
 difficult legal questions arise for the opinion of the judga 
 at nisi prius, the numerous motions for new trials conse. 
 quently made in the court in banc, to obtain a revision of 
 such opinions, and the delay and expense necessarily attend- 
 ant on a proceeding of this kind, when compared with the 
 regular method of demurrer. 
 
 Again, it is an inconvenience arising from general issues 
 of this description that they tend to conceal from each 
 party the case meant to be made by his adversary at the 
 trial. Thus, in the instance above supposed, the plaintiff" 
 would have no notice, from the nature of the issue, nil 
 debet or non assumpsit, that the defendant meant to set 
 up a release, nor would the defendant, on the other hand, 
 have any intimation that it was to be met by the allegation 
 of duress. And thus is defeated, in some measure, another 
 of the advantages otherwise attendant on the production 
 of an issue, viz, that of apprizing the parties of the pre- 
 cise nature of the question to be tried, and enabling them 
 to shape their proofs without danger of redundance on the 
 one hand or deficiency on the other. 
 
 4. Another objection to the system of pleading, and one 
 more formidable, perhaps, than any that has been above 
 suggested, is to be found in the excessive subtlety and need- 
 less precision by which some parts of it are characterized. 
 The existence of these faults cannot fairly be denied, nor 
 
 (s.) Vide supra, p. 96. 
 
398 CONCLUSION. 
 
 that they bring upon suitors the frequent necessity of ex 
 pensive amendments, and sometimes occasion an absolute 
 failure of justice upon points of mere form. Tet is their 
 inconvenience less severely felt in practice at the present 
 day than a mere theoretical acquaintance with the subject 
 would lead the student to suppose. Many of the intricacies 
 and mysteries of pleading — those, for example, which relate 
 to color and special traverses, long discouraged by the courts — 
 are rapidly falling into disuse, and, on the whole, have but 
 little effect in the actual operation of the system; and, with 
 respect to the science in general, it may be remarked that 
 its increasing cultivation has made the course of practice 
 more uniformly correct than in former times, and the occa- 
 sion for formal objection considerably less frequent. 
 
 Such are the principal observations which a long practi- 
 cal acquaintance with pleading has suggested to the author 
 on the merits of that celebrated system of allegation. 
 Founded as they are on experience, he does not hesitate to 
 offer them to the public, though the limits which he has 
 prescribed to himself in this part of the work have obliged 
 him to condense them into a form more summary than 
 befits the interest, the importance, and the difficulty of the 
 subject. 
 
APPENDIX. 
 
 Note 1. (See p. 37.) 
 
 Plei in French, in English plea, were anciently used to 
 signify suit or action. While used in this sense they gave 
 rise respectively to the words pUder, and to plead, of which 
 the primary meaning was, accordingly, to litigate,hvit which, 
 in the later English law, have been taken in the more lim- 
 ited sense of making allegation in a case. Hence the name 
 of that science of pleading, to which this work relates. 
 
 This variable word, to plead, has indeed still another and 
 more popular use, importing the forensic argument in a 
 cause ; but it is not so employed by the profession. 
 
 Whether plee and pleder were derived from the parallel 
 Latin terms placitum and placitare is somewhat doubtful, (a.) 
 If so, it must have been through the gradation of the more 
 ancient French word plaids, which, according to Houard, 
 (6,) at first signified the assemblies of the kings and great 
 men of the realm, and was afterwards applied to ordinary 
 courts of justice. With respect to placitum itself, it is most 
 probably of Koman origin, for it is clear that both the re- 
 scripts of the emperors and the judicial decisions in the 
 Roman empire had that name, (e.) It has, however, been 
 considered by some writers as derived from plats, (a Ger- 
 man word for campus,) quod in eampo tenereniur phcita, (d.) 
 Either of these, though a less amusing, is, perhaps, a more 
 
 (a.) Spelman considers the word plea as of Saxon origin, (see Spelm. Gloss. ;) 
 but the almost universal derivation of our juridical terms from the language 
 of the Normans would seem to render this exception an improbable one. 
 
 (J.) Anoiennes Loii des Francois, &c., sec. 10. 
 
 (c.) See Brisson, de verbormn signif. 
 
 Id.) Ducange, Gloss., verbo Placitum. 
 
 i-{399) 
 
li APPENDIX. 
 
 satisfactory conjecture than that which derives pladtum 
 from placendo; quia bene placitare super omnia placet, (e.) 
 
 IS'oTB 2. (See p. 43.) 
 
 This part of our juridical system, viz, the use of brevia 
 or writs, as essential formulae for the institution of a suit, 
 is not only connected with the whole scheme of actions, 
 but will presently appear to have an important relation to 
 pleading in particular. It is also remarkable, as being, in 
 modern times at least, unknown to the practice of the 
 courts of other countries, and a peculiarity of the national 
 law. These circumstances naturally excite some curiosity 
 to investigate its origin ; yet the subject is involved in con- 
 siderable obscurity. 
 
 Thoiigh we know that some of the brevia are at least as 
 ancient as the time of Henry II, being found in the work of 
 Glanville, who wrote in that king's reign, the student will 
 in vain search the books of the science for any distinct and 
 satisfactory account of their original invention. It is said, 
 on high authority, that the more common and ordinary 
 writs were " de communi consilio totiiis regni concessa et 
 approbata," (/;) and also that some writs existed " long 
 before the Conquest," (g;) while another learned writer 
 asserts that the more ancient of th0m were brought from 
 Normandy, {h;) and these vague and somewhat inconsistent 
 statements seem to constitute the whole substance of the 
 information to be derived from pr6fessional sources on this 
 subject. If we turn, for further elucidation, to the anti- 
 quarians, we shall find little beyond vague conjecture, and 
 even in this a great discordance, both as to the origin of 
 the instrument and the derivation of its name. While one 
 
 (e.) Co. Litt., 17 a. 
 
 (/.) Bract., 413 b. 
 
 (y.) Co., Pref. to 10 Eep. This proposition of Lord Coke's seems to have 
 been satiafaotorily refuted by Hickes. See the Dissertatio Epistolaris in his 
 Thesaurus. 
 
 (h.) Gilb. Hist, of C. P., 2, C. 
 
APPENDIX. lii 
 
 learned writer refers the origin of the term breve to a new- 
 application among the Normans of a word derived from 
 their Scandinavian ancestors, signifying a letter or epistle, 
 (i,) others speak of it as borrowed from the imperial and 
 pontifical constitutions, and as ultimately derived from the 
 word brevis, (k.) Again, the language of these instruments 
 is supposed, on great authority, (l,) to have owed much to 
 the Roman forms ; though, on the other hand, an illus- 
 trious antiquarian declares that it has the most remote 
 English extraction, and has hardly a word derived from 
 the Csesarean law, (m.) 
 
 Whatever may be the authority for the opinion that 
 brevia, for the institution of suits, were in existence in this 
 country before the Conquest, it is at least certain that there 
 is no mention of them in the laws of the Anglo-Saxons 
 now extant, (n) ; but that they were in use, both in substance 
 and in name, in the ancient laws of Normandy, is a fact well 
 known to all who have looked into the Grand Coustumier. 
 On this, however, as on the many other features common 
 to the laws of England and Normandy, the doubt has been 
 to which of the two nations the original invention is to be 
 ascribed; for it seems to be clear that, if the English at first 
 received the institutions of their conquerors, they, in turn, 
 began to impart their own improvements; and the Grand 
 Coustumier is confessedly of date long posterior to the treat- 
 ise of Glanville, (o.) The remark of a learned foreigner 
 not only tends to decide this question, but at the same time 
 throws more light on the ulterior origin of the brevia than 
 can be obtained from any writer of our own country. It 
 is well known that the use of forensic formulae obtained 
 among the semi-barbarous tribes who governed Europe 
 
 (t.) Hickes, Thes. Diss. Epist., in notis, p. 3. 
 
 (*.) Spebn. Gloss., tit. Breve ; Cragii, Jus. Feud., lib. ii, D. 17, 23, 25; Sd- 
 don's notes on Hengham. 
 (I.) Barrington on the Ancient Statutes, 88, 90. 
 (m.) Seld. Diss., ad Pletam, c. 9, sec. 1. 
 (n.) Hickes, Thes. Diss. Epist., p. 3. 
 (o.) See Hale's Hiet. of Com. Law, ch. vi. 
 26 
 
IV APPENDIX. 
 
 during the middle ages, at least among the French and 
 Lombards; nations both distinguished among their neigh- 
 bors by the superior refinement of their jurisprudence, (p.) 
 The author in question, who speaks of the brevia of Glan- 
 ville as Brefs Anglo-Normands, from their equal adoption in 
 both countries, points out their similarity to certain forms 
 preserved by Marculphus, and which, under the different 
 names of proeceptiones and indicuU, were used among the 
 Franks during the two first races of the monarchy, (q.) 
 The resemblance, in their general conception, will be found 
 strong enough to lead, with great probability, to the infer- 
 ence that the English brevia were derived, through Nor- 
 mandy, from a Francic source; an inference confirmed by 
 the fact, elsewhere stated by the same author, that at this 
 early period the judicial usages of Normandy were, in the 
 main, the same with those of France at large, (r.) The 
 reader may judge of the degree of similarity between the 
 brevia of Glanville and the prseceptiones of the Franks, by 
 comparing the following formulary, from Marculphus, with 
 the first of the English specimens given in the text, viz, the 
 writ of right, (p. 44.) "Ille rex, vir inluster, illo comiti, 
 Fidelia Deo propitio, noster ille, ad prsesentiam nostram 
 veniens, clementise regni nostri suggessit eo quod pagensis 
 vester ille, eidem, terram suam in loco nuncupante illo, 
 per fortiam tulisset, et post se retineat injuste, et nuUam 
 justitiam ex hoc, apud ipsum, consequi possit. Propterea 
 ordinationum presentem ad vos direximus, per quam om- 
 nino jubemus, ut ipso illo taliter constringatis, qualiter, si 
 ita agitur, banc causam contra jam dicto illo, legibus studeat 
 emendare. Certe si noluerit, et ante vos recte, non finitur, 
 memorato illo, tultis fide jussoribus, Kalendas illas, ad nos- 
 tram eum omnimodis dirigere faciatis prsesentiam," (s.) 
 
 (p.) J. G. Heinec.c, Blem. Germ., lib. iii, tit. ii, sec. Ixxxii, Ixxziii. 
 
 (q.) Houard, Ano. Loix des Franc, &o., vol. ii, pp. 9-16. 
 
 (r.) Houard, Diet. Analytique, Ac, verbo Droit. 
 
 (s.) Marculphi Formularum, lib. i, 23. The reader who wishes to compara 
 with this the Anglo-Norman formula, in the original Latin, will find it in 
 Glanville, lib. i, o. 6. And it may be remarked that it has a decided advan- 
 
APPENDIX. 
 
 The following will be fouad to have a close affinity with 
 %Le Anglo-Norman writ of irespa)>sfor an assault, which see, 
 {supra, p. 48.) 
 
 ^ " nie rex, vir inluster, illi. Fidelis noster ille ad prsesen- 
 tiam nostram veniens, nobis suggessit quod vos eum, nulla 
 manente causa, in via adsalissetis et graviter livorassetis, et 
 rauba sua in solidos tantos, eidem tulissetis, vel post vos 
 retineatis indebite, et nullam justitiam ex hoc, apud vos, 
 eonsequere possit. Propterea, prsesentem indiculum ad vos 
 direximus, per quern omnino jubemus ut ^ taliter agitur, 
 de prsesente hoc contra jam dicto illo, legibus studeatis 
 emendare. Certe si nolueritis, et aliquid contra hoc habu- 
 eritis quod opponere, non aliter fiat nisi vosmet ipsi per 
 hunc indiculum commoniti, Ealendas illas proximas, ad 
 nostram veniatis prsesentiam, eidem ob hoc, integrum et 
 legale dare responsum," (i.) 
 
 The opinion that the English brevia are of French ex- 
 traction is not peculiar to Houard. It is held, as has been 
 .ilready observed, by L. C. B. Gilbert; and a writer on the 
 feudal law, the learned Craig, observes of them : Usum in 
 Gallia, antiquissimum puto; in IsTormannia, adhuc in usu 
 sunt. Gulielmus Conqucestor cum armis, etiam legea Nor- 
 mannicas, Angliae intulit; inde factum, ut omnes fere causae 
 in Anglia, adhuc per Brevia deducantur, (m.) 
 
 To attempt to trace them further may appear superflu 
 ous; yet it may be observed that one of the earliest refine- 
 ments in forensic science was that of classifying the various 
 subjects of litigation, and alloting to each class an appro- 
 priate formula of complaint or claim; a method devised in 
 a view, probably, to the more certain definition of the na- 
 ture of those injuries for which the law affi)rded redress, 
 and perhaps, also, to save the trouble of inventing new 
 modes of expression for each particular case of wrong, as it 
 might arise. Whatever the object, it is certain that such 
 
 tage over the French model in point of Latinity and precision of phrase; tha 
 latter being, indeed, in such a barbarous dialect as to be scarcely intelligible. 
 
 (t.) Marc. Form., lib. i, 29. 
 
 \u.) Crag . Jus. Feud., lib. ii, D. 17, 23, 25. 
 
VI APPJENDIX. 
 
 was the practice of ancient Rome, and that from a period 
 almost as early as the introduction of the laws of the twelve 
 tables, (x;) and so severely were these formulae observed, 
 that any deviation from them was fatal to the cause, (y.) 
 This strictness evidently tended to injustice; and we ac- 
 cordingly find that it was banished from the Roman law 
 by Constantine, who abolished the judicial formulse, (z.) 
 Yet form was not altogether extirpated. Certain general 
 distributions of the subjects of litigation were recognized 
 under the title of actions, (a;) and considerable attention 
 continued to be paid to the frame and wording of the com- 
 plaint, (b.) When, therefore, we find the rude judicature 
 of the nations who were in possession of Europe at the 
 fall of the Roman empire, exhibiting at a very remote 
 period the same contrivance of fixed judicial formulse, we 
 are naturally led to refer it to an imitation either of the an- 
 cient or more modern system of their predecessors. Yet, 
 whether it were the result of such adoption or the fruit of 
 original invention, it is certainly not easy, nor perhaps very 
 important, to decide. 
 
 Note 3. (See p. 53.) 
 
 Ejectment, however, has been latterly often ranked as a 
 mixed action, (c,) because the plaintiff has judgment for 
 specific recovery of the term itself, as well as nominal dam. 
 ages for the ejection. With deference, how6ver, it is con- 
 ceived that the class of an action depends not on the form 
 of judgment, but on the form of writ and declaration; 
 and that the question is not whether specific recovery be 
 adjudged, but whether it be claimed in the form of the pro- 
 ceeding. (See the definition of real and mixed actions, 
 
 (x.) Dig., lib. i, tit. 2 ; Cic. pro. Eosc. Com., c. 8, &o. 
 
 (y.) Quinctil., lib. vii, c. 3 ; Brisson de Forinul., lib. v, xl. 
 
 (z.) Brisson, ibid., lib. v, xl, liii ; Voet. ad Pandect., lib. ii, tit. xiii, seo. 9. 
 
 (a.) Inst., lib. 4, tit. 6 ; Car. Sigon. de Judioiis. 
 
 (5.) Vide Inst, and Voet., ubi supra. 
 
 (c.) Vide 3 Bl. Com., 199. 
 
APPENDIX. VU 
 
 supra, p. 39. ) l^ow, it is clear that, in the form of writ and 
 declaration, an ejectment is no more than a species of the 
 action of trespass; and as such it has been most anciently 
 considered. Ejectione firmse n'est que un action de tres- 
 pass en son nature, &c. (Fitz. Abr,, tit. Eject., firm. 2, cited 
 3 Bl. Com., 200.) 
 
 Note 4. (See p. 58.) 
 
 The mode of making the objection of the want of an 
 original writ is by writ of error on the judgment; but no 
 writ of error will lie in respect of such objection if the 
 judgment was obtained upon a verdict. 
 
 It is to be observed, that when this objection occurs in 
 the common pleas, (where the praecipe and capias are 
 framed as in trespass,) an original writ, prepared according 
 to such praecipe and capias, will not suffice, unless the ac- 
 tion brought be really trespass; but an original, adapted to 
 the action, must be obtained, which (as there is no prsscipe 
 to warrant it) can only be done by petition to the master 
 of the rolls, (d.) 
 
 Note 5. (See p. 68.) 
 
 That the appearance was actual in the time of Henry 
 H seems sufficiently proved by the following passages in 
 Glanville: TJtroque litigantium, apparente in curia., petens 
 ipse loquelam suam et clameum ostendat, in hunc modum 
 Peto versus isium H., &c. Audita vero loquela et clameo 
 petentis,in electione ipsius tenentis erit, se versus petentem 
 defendereper duellum, &c., (e.) Utroque ^rflEse/ife in curia, 
 is qui petit, jus suum in haec verba versus adversarium 
 suum proponat, Feto, &c. Audita autem clameo, &c., (/.) 
 The forms of expression which occur in Bracton, in the 
 time of Henry III, everywhere lead to the same conclu- 
 
 {d.) 1 Sel. Pract., 69; ibid., Introd., xliv, per Pawell J.; Brown v. Bab- 
 bmgton, Lord Eay., 883. 
 (e.) Glan., lib. 2, c. 3. 
 (J.) Ibid. lib. 4, c. 6. 
 
VUl APPENDIX. 
 
 sion. For example, comparentibus tarn petente qv.am ten- 
 ente, petens actionem qua agere velit, et intentionem suam, 
 proponere debet coram jusiitiariis, &c. Et audita brevi de 
 recto, dieat sic petens vel ejus advoeatus in prsesentiam jus- 
 titiariorum pro tribunal! residentium. Hoc ostendit vobis 
 A., &c., (g.) 
 
 It was said that it was the statute of "Westminster 2 (13 
 Edward I, c. 10) which first gave the general liberty to all 
 persons of suing and defending by attorney ; and that, be- 
 fore that statute, a special warrant from the crown for 
 that purpose was required, (h.) It seems, however, that 
 this is only to be understood of appearance by attorney, 
 and not to the conduct of the suit by attorney, after appear- 
 ance once made. For it is clear that, long prior to the 13 
 Edward I, and even in the time of Glanville, a party 
 might, upon appearance first made by himself in person, 
 appoint a responsalis (whose office, though in some respects 
 different, was, in substance, the same with that of an attor- 
 ney) to represent him during the subsequent progress of 
 the cause; "ad lucrandum vel perdendum pro eo," {i.) 
 And it is not said by Glanville that this required a war- 
 rant from the crown, {k.) 
 
 Note 6. (See p. 59.) 
 
 For proof that in the time of Henry 11 and Henry IQ 
 the pleading was oral, it will be sufficient to refer to the 
 passages cited from Glanville and Bracton in the last 
 note, and to observe, that not the least allusion is made 
 in either author to the use of written pleadings, the intro- 
 duction of which is generally supposed not to have taken 
 place till the reign of Edward HI, {I.) 
 
 (jr.) Bract., 372 b.; and see 10 Ed. Ill, 19, pi. 21. 
 
 (A.) 1 Tidd, 54, 8th edit.; Gilb., 0. P., 32, 33; 2 Reeves, 169. 
 
 (i.) Glan., lib. 11, c. 1. 
 
 (%.) See Beecher'e Case, 8 Bep,, 58 b., ace. 
 
 (I.) 3 Beeves, 95. 
 
APPENDIX. ix 
 
 Note 7. (See p. 59.) 
 
 As to the practice of oral pleading among the Lombards, 
 see Muratori, in a note to his edition of the Leges Lango- 
 bardicse, (m,) where he says that the pleadings among that 
 nation appear to have been non scripto, judici tradita, sed 
 petitione verbali pronunciata coram judicibus. As to the 
 German tribes in general, (comprising the Franks,) see the 
 Elementa Juris Germanici (n) of Heineccius, who says, 
 formulas non scriptas offerebant, sed viva voce prsecinebant. 
 
 IJJ'OTE 8. (See p. 59.) 
 
 The use of professional pleaders or advocates may be 
 traced among some of the continental nations to a period 
 extremely remote. The Lombards had the following law: 
 Si forsitan aliquis per simplicitatem suam, causam agere 
 nescit, veniat ad placitum, et si rex aut judex prseviderit 
 quod Veritas sit, tunc debeat dare ei hominem qui causam 
 ipsius agat, (o.) 
 
 In the Francic Formulae apud Lindenborg, contained in 
 the Capitularies by Baluzius, there is a record of a cause 
 between a bishop and a private individual, where the bishop 
 pleads by his advocate, and the other in his own person. 
 
 In the Assizes de Jerusalem, one of the most curious and 
 important relics of the j urisprudence of the middle age, and 
 fully recognized as an authentic compilation from the laws 
 of France, made towards the close of the eleventh century, 
 {^,) we have a full account of the office, duties, and proper 
 qualifications of a pleader. Doit chascun de ceausqui veont 
 pleideer en la haute court, demander conseill au seignor, 
 avant que il comance a pleideer. II doit demander, au seig- 
 
 (m.) Murat Script. Eer. Ital., vol. i. 
 
 («.) Lib. iii, tit. iv, sec. olvi. 
 
 (o.) Leges Langobard, apud Lindenbrog., 650. 
 
 (p.) Ouvrage prfcieux, says Mabley, (in hia Observations sur I'Histoire d« 
 France, vol. ii, p. 346,) et trds propre a nous donner des lumiSres sur I'epoque 
 de I'origine de nos differentes coutumes. 
 
X APPENDIX. 
 
 nor, a conseil , ] e meillor pleideoir de la court a son escieat, se 
 il est pleideoir ou se il ne I'est; pour se que se il ne est plei- 
 deoir, que son conseill li sache sa raison garder et sa querele 
 des reigner de ce dont il est requeroir, et deffendre de ce dont 
 il est deffendoir, et se il est pleideoir, pour ce que il ait plus 
 de conseil, qu'il n'est nul si sage pleideoir, qui ne puisse 
 bien souvent estre averti el plait de ce que bon li est, par 
 un autre pleideoir o lui; que deus pleideoirs savent plus 
 que un, &c., cb. ix. Qui a conseill et se veaut clamer d'ome 
 ou de feme qui est present en la court, il doit faire dire par 
 son conseill, au seignor, si que celui de qui il se clame ou 
 veaut clamer, I'oye, Sire tel se clame a vous de tel chose, 
 et en veaut avoir droit par vous et par la court ; et le nome, 
 et die de quoi il se clame, et as plus briefves paroles que il 
 pora, face son clame, &c., cb. xxvii. II convient a celui que 
 est bon pleideoir et soutill, que il soit sage de son naturel, et 
 que il ait esprit sein, et soutill engin, et que il ne soit doutif, 
 ne esbay, ne hontous, ne hatif, ne non chaillant elplait, ne 
 que il ait s'entente ne sa pencee aillors tant com il pleidoie, 
 et que il se garde dese trop corroucer ne agrier ne ehmouvoir 
 en pleidoiant, cb. xxiv. As a translation of this barbarous 
 dialect may save the reader some trouble, the following very 
 literal one is offered : "Every person about to plead in the 
 supreme court ought, before he begins, to pray the lord 
 to appoint him counsel. He ought to pray, for his coun- 
 sel, the best pleader in the court; and this, whether he is 
 himself a pleader or not; because, in the latter case, he will 
 need counsel to defend his right and establish his claim or 
 defense ; and even in the former he will do well to have 
 counsel, since there is no pleader so wise that he may not 
 be often advised on his pleading by another pleader, as twc 
 pleaders know more than one, &c. He who has counsel, 
 and wishes to make claim on some man or woman present 
 in court, ought to say by his counsel to the lord, so that the 
 other party may hear : Sir, such an one makes before you 
 such a claim, and hopes to obtain justice in that behalf from 
 you and the court; and then he should say what he claims, 
 and in the shortest wav possible, &c. A good pleader ought 
 
 I 
 I 
 
APPENDIX. XI 
 
 to ha\ e good sense, a sound understanding, and a subtle 
 genius; he should be free from the faults of indecision, 
 timidity, false shame, haste, and nonchalance; while he 
 pleads, he should keep his attention from wandering to any- 
 other subject, and should also take care to avoid undue 
 heat and asperity." Some of these admonitions seem to 
 deserve the attention of the nineteenth no less than the 
 eleventh century. 
 
 The use of advocates was not confined to the Franks and 
 Lombards. It obtained, at the same period, among the 
 continental nations in general. Heineccius speaks of them 
 as generally allowed throughout the German tribes, though 
 under permission to be previously obtained from the judge, 
 which, as he incidentally observes, explains the modern 
 practice of not allowing all persons indiscriminately to plead 
 causes, but confining the privilege to a certain number ap- 
 pointed by authority, [q.) "With respect to the Franks in 
 particular, he says, in foro litigantibus eo magis opus erat 
 jurisperitorum auxilio, quo pluribus formularum ac sol- 
 lemnitatum tricis, implicata erat eorum jurisprudentia; et 
 quo facilius in his verbis labi possunt homines plebeii, et 
 aliis distract! negotiis, (r.) He makes a similar remark as 
 to the Lombards: Quum enim et hoc gens paullo plus 
 tribueret juri subtiliori et formulario, homines plebeii et 
 harum rerum imperiti vix poterant advocatorum jurisperi- 
 torum opera carere, (s.) 
 
 Hachenberg also lays it down as a general feature in the 
 judicial system of the Germans of the middle ages: Ade- 
 rant in judicio advocati, — quos Clamatores et Ferandarios 
 priscse leges vocant, — qui causas litigantium nuda simplici- 
 que oratione, sine ullo verborum circuitu, tractare ;^ ubeban- 
 tur, (i!.) 
 
 In England, though the particular degree and denomina- 
 tion of barrister is supposed by Blackstone (1 Bl. Com., 23) 
 
 (q.) Elem Jur. Germ., lib. iii, tit. ii, sec. xoix. 
 (r.) Ibid., sec. Ixzxii. 
 . (s.) Ibid., sec. Ixxxiii. 
 
 (8.) Each. Germ. Media, p. 97. 
 
XU APPENDIX. 
 
 not to be more ancient than 20 Edward I, yet it appears that 
 there were persons learned in the law and skilful in plead- 
 ing causes at least as early as the reign of "William Eufus, 
 (w;) and Bracton makes express mention of counsel, plead- 
 ers, and advocates in the reign of Henry III, {x.) And not 
 only were such professional persons employed, but (as 
 stated in the text) the rule seems to have been already 
 established excluding all but regular advocates from plead- 
 ing in causes in which they were not personally concerned. 
 This point appears to be sufficiently proved even by the 
 following extract from the Placitorum Abbreviatio, a com- 
 pilation published a few years since from our earliest judi- 
 cial records: Abell. de Sancto Martino venit et narravit 
 pro Episcopo. Et nonfuii Advoeaius. Ideo in Misericordia, 
 Ousiodiaiur, {y.) And additional evidence of the same 
 proposition is supplied by the following curious passage 
 in the Vitse viginti trium Sancti Albani Abbatum, by the 
 historian Matthew Paris, written about the same period 
 with the preceding extract. After complaining of certain 
 oppressions which the abbey had sustained from a person 
 protected and encouraged by John Mansel, the historian 
 proceeds: Nee quicquam juris vel ultionis assistente memo- 
 rato Johanne Regis lateribus et conciliis, potuimus obtinere. 
 Quinimo, metus et persuasio ipsius Johannis, omnium Jus- 
 ticiariorum et placitantium advocatorum {quos JBaticin/irraiores, 
 vulgariter appeUamus) ora penitus obturavit. Ita ut multo 
 totiens oportuit Dominum "Willielmum tunc cellarium 
 (virum scilicet circumspectum et facundum) suum sermo- 
 nem et querelam in persona propria coram Justiciariis, 
 imo etiam coram Eege et Barnagio proponere. Et protes- 
 tati sunt Justiciarii, secretins in aure dicti Domini Willi- 
 elmi instillantes, quod duo tunc temporis in regno domi- 
 nabantur, scilicet Comes B-ichardus et Johannes Mansel, 
 contra quos non audebant sententiare, {z.) 
 
 (u.) 1 Beeves, 228. 
 
 (x.) Bract., 412 a., 372 b. 
 
 (y.) Plac. Ab., 137 ; Kane, rot. 22, temp. 38 Hen. IIL 
 
 (,j.) Matt. Par. Hist., p. 1077. 
 
APPENDIX. XIU 
 
 FoTE 9: (See p. 59.) 
 
 All the authorities prove that questions of law have at 
 all times been the exclusive province of the judges. Thus, 
 in the Placitorum Abbreviatio there is an entry, in the 
 sixth year of Eichard I, that sub judidbus lis et contentio 
 fait, utrum carta prsedicta debit teneri versus puerum qui 
 infra setatum, {a.) 
 
 And again in the fourth year of King John the jury 
 upon an inquisition declare, non pertinet ad eos de jure 
 discernere, [b.) 
 
 Note 10. (See p. 60.) 
 
 This phrase, of issue, occurs at the very commencement 
 of the Tear-Books, viz, 1 Edward 11; but the author has not 
 traced it to an earlier period. In some instances the 
 expression isser d'empler occurs, which may be translated, 
 to get out of or finish the pleading, and clearly marks the 
 meaning and derivation of the term issue. 
 
 In the reign of Edward IV we find the Latin term thus 
 regularly defined: Exitus idem est quod finis, sive deter- 
 minatio placiti, (Year-Book, 21 Ed. IV, 35.) 
 
 It is observable that the parallel word^Ji appears to have 
 been used in the same sense in Normandy. (See Commen- 
 tary de Terrien, lib. ix, c. xxvii.) 
 
 The terms issue en ley and issu£ en fet occur as early as 
 the third year of Edward II. ( See the Year-Book, 3 Ed. 
 n, 59.) 
 
 Note 11. (See p. 61.) 
 
 Lord Coke defines a record as a "memorial or remem- 
 brance in rolls of parchment of the proceedings or acta 
 of a court of justice," &c., and observes that "the rolls 
 
 (a.) Plao. Ab., 5 Warr., temp. 6 Rich. 1. 
 (6.) Plac. Ab., 40 Line, temp. 4 Joban. 
 
XIV APPENDIX. 
 
 being the records or memorials of the judges of the courts 
 of record, import in them such incontrollable credit and 
 verity, as they admit no averment, plea, or proof to the 
 contrary," (Co. Litt., 260 a.) The origin of the practice 
 of recording (another peculiarity of the English law) ap- 
 pears to have eluded our legal antiquarians as much as 
 that of the Brevia, but it is no doubt referable to the 
 same source. The term record is itself, in its immediate 
 derivation, French, and the law of records is copiously dis- 
 cussed under that name in the Grand Coustumier, the most 
 ancient depository of the ]!iforman customs. The manner 
 in which it is there treated might alone be sufficient to 
 show that France was its native soil, and that it had not 
 been adopted from the English courts ; not only because 
 no allusion is there made to any recent introduction of the 
 practice, but because the practice appears in the Norman 
 courts in a shape obviously more consonant with the orig- 
 inal meaning and derivation of the term than that which 
 it bears in England. For it appears that in the I^orman 
 law recorder anciently signified to recite or testify on recol- 
 lection, as occasion might require, what had previously 
 passed in court, and that this was the duty of the judges 
 and other principal persons who presided at the Placitum, 
 thence called reeordeurs. On the other hand, we find faint 
 vestiges only of this the proper and ancient meaning exist- 
 ing in England. Of these vestiges one example occurs in 
 our phrase of recorder, as applied to a borough judge, which 
 is plainly a derivative or secondary application of the Nor- 
 man word recordeicr; and another that may be mentioned 
 is the principle anciently recognized, that the record is prop- 
 erly not in the parchment, but in the breast of the judge. Thus 
 we find it said in the Year-Book, 7 Henry VI, p. 29 : Le re- 
 cord est tout temps en les eoeurs de justices, et le roll n'est 
 forsque remembrance pur le melior suerty. But what de- 
 cisively removes all doubt as to the national character of 
 this judicial practice, is that, while no trace of it is to be 
 discovered among the Anglo-Saxons, (for their loose his- 
 torical notices, now extant, of some few important contro- 
 
APPENDIX. XV 
 
 versies, are evidently of a quite different kind,) (c,) it existed 
 in tlje-iaw of France at large at least as early as at the Nor- 
 nlan conquest, and in a shape exactly similar to that which 
 it bore in E"ormandy. It is one of the directions given to 
 litigants in the Assizes de Jerusalem, (compiled as early as 
 1099, and presumably referring to a state of lav? some time 
 established,) that they should collect as many of their own 
 friends as possible in court, and request them to f)e atten- 
 tive to what is said, with a view of enabling themselves to 
 retain and record it properly at the time of judgment on 
 trial. Qui veaut tost son plait atteindre, il doit faire estre 
 en la court, tant de ses amis com il pora, et prier les, que il 
 soient ententis as paroles qui seront dites as plais, et bien 
 entendre et retenir, si que il sachent bien le recorder, as 
 esgars et as connoissances, se mestir li est, [d.) It is also 
 recommended that if there should be an adjournment of 
 the proceedings, and a further day appointed for the hear- 
 ing of the parties, both the plaintiff and defendant should 
 take care to jput down in writing the nature of the claim that 
 has been made, the day and place of the adjournment, and 
 the names of those who were present at the first hearing; 
 and the plaintiff is advised to rehearse this writing before 
 the adjournment day to such of those persons as he con- 
 sidered most friendly to himself, in order to refresh their 
 memories and enable them to testify (recorder) at the ad- 
 journed meeting, if it should be necessary, both the day 
 and place of the adjournment, and the words in which the 
 claim or other allegations were first made; it being assigned 
 as a reason for this particularity that a variance from the 
 claim first made would entitle the defendant to a new en- 
 largement of the time for answering, (e.) It is easy to con- 
 
 (c.) See the Apographum Saxonicum, published by Hiokes, (Thes. Diss. 
 Epist., p. 2,) and the observations on that instrument by Hallam, (vol. ii, p. 
 141.) See also the plea in the county court, between Gundulf and Pichot, 
 (Hickes, Thes. Diss. Epist., 33,) and the plea of Pinenden, in the county court, 
 in the reign of William I, mentioned by Lord Coke, (preface to 9 Eep.,) th« 
 narratives of which are all in the same style. 
 
 {d.) Assises de Jerusalem, xliv. 
 
 (e.) Ihid, xlix 
 
XVI APPENDIX 
 
 ceive, though not to trace, the progress by which the occa. 
 Bional memorandum thus drawn up by the Francic pleader, 
 to confirm the recollection of his judges, took the shape of 
 an official contemporaneous minute of the proceedings, and 
 no longer merely subordinate to a record or judicial re- 
 port, became itself invested vv^ith that name and character. 
 "WhethQT this change had fully taken place at the date of 
 Q-lanville's treatise, (in the reign of Henry 11,) that work 
 does not enable us accurately to decide. He speaks, indeed, 
 frequently of records, and lays down the maxim that the 
 curia regis, and no other court, was properly and generally 
 a court of record, (/;) but it is not clear whether the writ- 
 ten memorial, though already designated as the record, and 
 officially prepared, was made contemporaneously with the 
 proceedings themselves, or considered as intrinsic evidence 
 of them, or in any other light than as an aid to the mem- 
 ory of judicial reporters. However, we find that at least 
 very shortly after this period the practice of recording, in 
 the present sense of the term, was in full operation. The 
 series of records now extant begins vpith the reign of Rich- 
 ard I, [g.) Curious extracts from some of the earliest of 
 them have been printed, and are to be seen in the Placito- 
 rum Abbreviatio. 
 
 The following passage in an able publication confirms 
 the account that the author has above given of the origin 
 and true meaning of recording. In reference to the laws of 
 the Scandinavians, it is observed : " E"o record or register 
 authenticated the judgment of the court, which was pre- 
 served only by the recollection and knowledge of the judges 
 who pronounced the decree, or of the assembled people who 
 ratified the sentence. This usage of oral pleadings, and 
 of proving legal proceedings by oral testimony, might be 
 thought to be inconsistent with the assumption of the an- 
 tiquity of written laws in Scandinavia, did we not know 
 
 (/.) Sciendum quod nulla curia recordum habet generaliter praater ouriana 
 domiui regis. (Glan., lib. 8, c. 9.) 
 
 (ff.) See tbe Report of the Commissionera on Public Beoords, and 1 Reeves 
 218. 
 
APPENDIX. XVll 
 
 that the same practice was adopted by other systems of 
 jurisprudence which are more familiar to us, such as the 
 Custumal of Normandy and the assizes of the kingdom of 
 Jerusalem. In Normandy, a judgment pronounced by the 
 king, sitting as duke of Normandy, was recorded by his tes- 
 timony, added to that of one witness ; or the royal judge 
 might substitute three other witnesses in his stead ; seven 
 witnesses were required for the record of the exchequer of 
 the assize. In these proofs it is clear that the compilers 
 of the Custumal did not contemplate the production of any 
 written document as evidence of past decrees or proceed- 
 ings. The recorders swore as to what they had heard and 
 what had been said," &c. [Edinhurg Review for Au^itst, 
 1820.) 
 
 Note 12. (See p. 62.) 
 
 It is to be observed, on the subject of suing, appearance, 
 or defending by attorney, that there are certain persons, 
 viz, infants, married women, (when sued without their 
 husbands,) and idiots, who are incapable of appointing an 
 attorney to appear for them in court. The appearance and 
 pleadings of such persons must consequently not purport 
 to be by attorney, nor be so entered on record, whether 
 an attorney be in fact employed or not. As for the mode 
 in which the appearance and pleadings of such persons 
 should be entered. (See 1 Tidd, 87, 88, 94, 8th edit. ; 1 Arch. 
 Pract., 22.) 
 
 Note 13. (See p. 62.) 
 
 There can be no pleading till appearance is effected. 
 And in a personal action, there can till then be no jvdg- 
 ment given nor other act done in court beyond the issuing 
 of the process. But in a real action, if the tenant hold 
 out against the process and fail to appear, judgment will 
 pass against him, and the demandant will recover the land. 
 (See Booth, 12, 19, 24, &c. ; Com. Dig., Pleader,T; 2 Saund. 
 43, n. 1. 
 
xviii APPjaiDix. 
 
 IS'oTE 14. (See p. 64.) 
 
 Besides these changes in the practical method of con 
 ducting the pleadings, it may he proper to notice the alter 
 ations that have taken place in the tongue or hmgyage used. 
 
 It has been the general opinion {h) that among the badges 
 of servitude imposed by the Conqueror was the introduc- 
 tion of the French language, by his command, into the 
 courts of justice; but an ingenious and learned writer (i)ha8 
 controverted this notion with great plausibility, and even 
 doubts whether that language were used in the courts till 
 a much later period. That the French was not introduced 
 by command, his arguments render extremely probable ; but, 
 on the other hand, when the history of the Conquest is 
 recollected, there are many obvious reasons for supposing 
 that the curia regis, or superior court of justice, (which 
 was itself of Norman introduction,) {k,) would follow, in its 
 pleadings, the language of the conquerors; and the con- 
 siderations adduced by this author are not sufficient to 
 outweigh the probability of that supposition. 
 
 It is, however, clear beyond dispute, that whatever was 
 the most ancient language of the pleading, the record was, 
 from the earliest period to which that kind of document 
 can be traced, in the Latin language. For this it is suffi- 
 cient to refer to the still extant series of records from whence 
 the Placitorum Abbreviatio is extracted; though Black- 
 stone seems to have fallen into an error on this subject, 
 and to have supposed that the enrollment in Latin began 
 with the statute 36 Edward m, c. 15, and in pursuance 
 of its provisions, (I.) 
 
 It is clear, too, that the pleading was in French, if not 
 from the Conquest, at latest from the time of John or 
 Edward I, (m;) and so remained till, by the stat. 36 Edward 
 
 (h.) 2 Reeves, 449; 4 Bl. Com., 416. 
 (i) See Law Tracts, by Mr. Luders. 
 (k.) 1 Reeves, 46. 
 [l.) See 3 Bl. Com., 318, 319. 
 (m.) Luders, ubi supra. 
 
APPENDIX. XIX 
 
 m, St. 1, c. 15, it was enacted that henceforth the pleading 
 should be no longer in French but in English, and should 
 continue to be enrolled or recorded in Latin. Afterwards, 
 on the introduction of paper pleadings, they followed, in 
 the language as well as in other respects, the style of the 
 record, and were therefore drawn up in Latin. This con- 
 tinued to be the practice till a period so late as 4 George 11, 
 c. 26, when it was provided that both the pleadings and the 
 record should thenceforward be framed in English; audit lain 
 this language that they have since been drawn; the ancient 
 terms of art and forms of expression, which had been so long 
 knowTi exclusively in a French and Latin dress, being now 
 literally translated into English, but with that exception 
 remaining undisturbed. 
 
 Note 15. (See p. 64.) 
 
 The practice of framing the allegations in the cause 
 according to technical rule and method, or, in other words, 
 the science of pleading, was no doubt derived from the same 
 system of jurisprudence with the writ itself, viz, from that 
 of Normandy. {Vide swpra, note 2.) It is certain, at least, 
 that the use of stated forms of pleading is not to be traced 
 among the Anglo-Saxons ; and the general account given 
 by the learned Hickes of their manner of litigation is as 
 follows : Quisque causam suam sine solennioribus juris form- 
 ulis, vel ipse agebat, vel causidicum et patronum sibi ad- 
 scivit; quern amicitia, quem propinquitas quem charitas, aut 
 benevolentia, vel denique quem sors ipsa, nonnunquam, 
 obtulerit, {n.) And the specimen he gives of the proceed- 
 ings in a country court, in the time of Canute, (o,) strongly 
 corroborates the opinion that they were strangers to any 
 regular or artificial forms of statement. On the other 
 hand, it appears that such forms were known among that 
 great family of continental tribes, of which the Franks 
 stood foremost in forensic refinement. Actor breviter 
 
 (n.) Hickes, Thes. Diss. Bpist-.p. 8. 
 (o.) Ibid., p. 3. 
 27 
 
XX APPENDIX. 
 
 proponebat actionem, simili fere formula qua olim Romani 
 uti solebant. Quemadmodum enim hi non prolixis libel- 
 lis actiones intentabant, sed formulis utebautur, quas vel 
 jure-consulti vel prsetores prodiderant; e. g., aio hunc fun- 
 dum qui in Campania est, meum esse ex jure Quiritium — 
 aio Titium mihi centum ex mutuo dare opotere, &c., ita 
 simili brevitate magnopere deleetatos esse animadvertimus 
 majores nostros. Tales sane sunt formulae agendi in lege 
 Alam, &c., {p.) 
 
 Note 16. (See p. 81.) 
 
 An anonymous author in Hargrave's Law Tracts ob- 
 serves on this subject: "I do not blame them" (theK.B.) 
 " for the latitat, or the exchequer for the quo minus ; but 
 I must say, the first invention of these tricks was neither 
 honest nor justifiable. However, they are established," &c. 
 
 He afterwards observes that these usurpations grew by 
 slow degrees, and crept silently into practice. " Who can 
 show the time when this writ" (the quo minus) " first issued 
 upon a mere surmise, or who can tell that man's name who 
 was first arrested by a latitat, &c. ? If these fictions had, 
 in their beginnings, been opposed and withstood, I cannot 
 think it possible that the judges would have countenanced 
 so gross a falsehood," {c[.) Lord Holt says that "North, 
 C. J., of the common pleas, made a complaint of latitats in 
 Parliament, and the matter suffered great agitation in Par- 
 liament ; but at last the latitats were approved, as they are 
 also by 27 Elizabeth, c. 8, which gives a writ of error in 
 the exchequer chamber, but excepts errors to be assigned 
 for want of jurisdiction in the K. B." (Per Lord Holt, 
 Brown v. Babbington, Lord E,ay., 882.) 
 
 Note 17. (See p. 82.) 
 
 A demurrer cometh from the Latin word " demorari, to 
 abide ; and therefore he which demurreth in law is said 
 
 ijp.) Heineoc. Elem. Jur. Germ., lib. iii, tit. iv, sec. clvi. 
 (g.) Harg. Law Tracts, p. 422. 
 
APPENDIX. XXi 
 
 he that abideth in law: moratur or demorature in lege," 
 (r.) 
 
 We find from the Year-Books that the pleaders some- 
 times put themselves upon the judgment of the court, upon 
 a matter of law, in the following form of words : " Nous 
 demurroins en vos discretions si nous etions met a respond," 
 &c., (s.) Sometimes in the following: "Sur ceo demurro- 
 mus en jugement," &c., {t.) These expressions clearly indi- 
 cate the manner of the derivation. 
 
 Note 18. (See p. 83.) 
 
 This, it will be observed, is a narrower sense of the term 
 to plead than it otherwise bears ; for, in its more general 
 meaning, as elsewhere stated, {%,) it imports making any 
 allegation in the cause, and, so taken, would include the case 
 of a demurrer or a declaration. 
 
 Note 19. (See p. 83.) 
 
 Exceptionum qusedam sunt dilatorise, qusedam peremp- 
 torise et hsec est prima et brevis divisio, (a;.) This division 
 was borrowed from the canon or civil law. Thus, it is said 
 by the canonists, est summa exceptionum divisio, quad aut 
 sunt dilatorise, aut peremptorise, (?/.) And it is laid down 
 in the Digest, exceptiones aut perpetuse et peremptorise 
 sunt aut temporajes et dilatorise, (2.) 
 
 Note 20. (See p. 83.) 
 
 " Pleas are variously distinguished. The more general 
 division of them is that of being dilatory or peremptory. 
 Of these are, first, pleas in abatement; secondly, such as 
 
 (r.) Co. Litt., 71 b. 
 
 («.) 1 Ed. II, 8. 
 
 («.) 10 Ed. Ill, 23. 
 
 (w.) Vide ewpra, note 1. 
 
 (x.) Bract., 399 b. 
 
 (y.) Corvin., Jus. Canon., lib. 3, tit. 32. 
 
 (z.) Dig., lib. 44, tit. i, S90. 3. 
 
XXU APPENDIX. 
 
 mspetid the action; or, thirdly, such as bar the action 
 forever, {a.) 
 
 "The plea is either to the juritdiction oiih.Q court, or sus' 
 pending the action, as in the case of parol demurrer, or in 
 abatement, or in bar of the action," (6.) 
 
 The pleas to Hhe jurisdiction are frequently mentioned as 
 pleas in abatement, but inaccurately; for in their form they 
 are not pleaded as grounds for abating the writ, but for refus- 
 ing to answer in the court in which the action is brought. It 
 is true that, in their effect, they abate the writ, for they 
 defeat the action ; but the case is the same with pleas in 
 bar, which are yet essentially distinguished from pleas in 
 abatement. "A plea to the jurisdiction is not properly a 
 plea in abatement, though in its consequence it be so; and 
 therefore is to have its proper conclusion, as respondere non 
 debet, or si curia cognoscere velit, and not quod billa cassetur," (c.) 
 
 All dilatory pleas, including those in suspension, as well as 
 pleas to the jurisdiction, are sometimes inaccurately classed 
 as pleas in abatement. 
 
 Note 21. (See p. 84.) 
 
 Parol demurrer may be founded on the nonage of either 
 party in some real actions. In personal actions, it extends 
 to the case of the deferuiant only, and that in very few 
 instances. (See as to parol demurrer, Bae. Ab. , tit. Infancy 
 and Age, L.) 
 
 Another plea which operates in suspension of the suit 
 is that of aid prayer; as to which see Com. Dig., Aide, B. 
 5, B. 6; Booth, 60; Lightfoot v. Lenet, Cro. Jac, 421; 
 Onslow V. Smith, 2 Bos. & Pul., 384. 
 
 Excommunication of the plaintiff is another plea in sus- 
 pension. (See 1 Chitty, 450, Ist edit.; Reg. Plac, 179, 
 180.) 
 
 (o.) Bac. Ab., Pleas, &c., A. 
 
 (b. 1 Chitty, 243, 1st edit. ; see also Bac. Ab., uhi supra; Bract., 399 b. 
 (c.) Bac. Ab., Pleas, &c., E. 2. See Bowyer v. Book, 5 Mod., 146; Garth, 
 iSS; 1 Salk.. 297, S. C. 
 
APPENDIX. xxiii 
 
 Note 22. (See p. 85.) 
 
 A plea in abatement is called by Bracton exceptio ad 
 breve prostemendum, (d;) and is described about the same 
 time in French as exception pur brefe abatre, (e;) whence 
 the words abate and abatement. 
 
 Cassare was another word applied, as well as prosternere, 
 to express the abatement of the writ, (/;) and from cassare 
 is derived to quash; as to abate, from abattre. 
 
 Note 23. (See p. 86.) 
 
 Originally the pleas to the person were not considered 
 as pleas in abatement of the writ; for they are classed by 
 Bracton and others as distinct from the exceptiones ad 
 breve prostemendum; and, indeed, at this day they are 
 pleaded (as observed in the text) not as reasons for abating 
 the writ, but for not answering, [g;) and it seems, therefore, 
 that they are improperly classed as pleas in abatement. 
 In more modern times, however, they have been uniformly 
 so ranked and considered, (A;) and they have the same 
 effect, and are subject to the same rules, with pleas in 
 abatement properly so called. 
 
 Note 24. (See p. 89.) 
 
 We may here take occasion to notice two rules, not 
 properly of pleading, but of practice, by which the use of 
 dilatory pleas is considerably restrained. 
 
 First, they must be verified by affidavit; or, at least, 
 some probable matter must be shown to the court to induce 
 it to believe that the fact of the plea is true. This is by 
 
 (d.) Brae, 431 b. 
 (e.) Britton, 48. 
 {J.), See Hengham's Snmma. 
 
 {g) Co. Litt., 128 a.; Com. Dig., Abatement, L 12; and see i^e example, 
 p. 86. 
 {h.) See Doct Pl^ 1. 
 
SMV APPENDIX, 
 
 4 Anne, c. 16, s. 11. Secondly, they must be pleaded 
 within four days, inclusive after delivery or notice of dec- 
 laration, unless the declaration be delivered or filed after 
 term, or so late in the term that the defendant is not bound 
 to plead to it in that term ; in both which cases the defend- 
 ant may plead within the first four days, inclusive, of the 
 next term. This is by different rules of court, (i.) 
 
 SToTB 25. (See p. 89.) 
 
 A plea in bar is called by Bracton, after the civilians, 
 exceptio peremptoria. In the French of Britton it is de- 
 scribed as an exception, pur barrer le pleintyfe de sa demaunde, 
 (k.) It is observable that the terms barrer and barre were 
 in common use in the law language of France in the year 
 1270, (l;) which is about the same period when they first 
 made their appearance in the English pleading. 
 
 Note 26. (See p. 89.) 
 
 Traverse is the most proper and ancient term, (m.) In 
 the modern language of pleading, however, deny is often 
 substituted for it; and pleas in denial is a term often used, 
 instead of pleas by way of traverse. The reason is, that 
 traverse is a word that also occurs in a more limited sense, 
 being often applied to a particular form of denial, of which 
 there will be occasion, in the course of this work, to speak; 
 and the word deny, as preventing confusion, is, therefore, 
 usually adopted as the more convenient expression for the 
 general idea. In this treatise, however, denial in general 
 is called by its proper appellation of traverse; and the par- 
 ticular kind of denial above mentioned is denominated by 
 the appropriate phrase, viz, a special or formal traverse. 
 
 (i.) 1 Tidd, 691, 8th edit.-, 2 Aroh. Praot., 1, 2. 
 (i.) Britton, 92. 
 
 (Z.) Duoange Gloss., verbo BarrsB. 
 
 (m.) See 1 Chitty, 676, 1st edit., and the authorities there cited ; Bac. Ab.. 
 Pleas, &c., H.; Finch Law, 396, 397. 
 
APPENDIX. XXV 
 
 Any confusion is thus sufficiently avoided, ani the regular 
 and ancient terms of art are preserved. 
 
 Note 2T. (See p. 93.) 
 
 As a party who makes a statement of fact is said to 
 flead, by way of distinction from demurring, so such state- 
 ment or allegation is in strictness called a plea; and, when 
 opposed to the declaration, is denominated a flea to the 
 jurisdiction, in suspension, in abatement, or in bar; at subse- 
 quent stages a plea by way of reply, by way of rejoinder, 
 &c., according to the stage at which it occurs. But as the 
 name of plea is, in practice, generally understood to refer 
 to that particular answer in fact which the defendant op- 
 poses to the declaration, and to that only, the word plead- 
 ing will, to avoid ambiguity, be substituted in this work to 
 express a statement of fact in general, as opposed to a de- 
 murrer. 
 
 Note 28. (See p. 94.) 
 
 The civilians and canonists described their pleadings in a 
 similar manner, viz, as inteniio, exceptio, replicatio, &c. (Dig., 
 lib. 44, tit. 1, see. 2; Corv. Jus. Canon., lib. 3, tit. 32.) 
 
 Note 29. (See. p. 96.) 
 
 Nothing has been here attempted but a praAical explana- 
 tion of the manner of coming to issue. If considered in 
 a view to its abstract principle, it will be found to consist in 
 an application of that analytical process by which the mind, 
 even in the private consideration of any controversy, arrives 
 at the development of the question in dispute. For this 
 purpose it is always necessary to distribute the mass of 
 matter into detached contending propositions, and to set 
 them consecutively in array against each other, till, by this 
 logical conflict, the state of the question is ultimately as- 
 certained. This ranks, in the present day, fcmong those 
 ordinary logical operations which it is easiei to practice 
 
XXVI APPENDIX. 
 
 tlian to define, and which it would be superfluous to at. 
 tempt to reduce to scientific rule. It was, however, as ap- 
 plied to the purpose of forensic disputation, a very favorite 
 topic with the ancient writers on dialectics and rhetoric : 
 and there was no subject connected with these sciences 
 on which they bestowed more elaborate attention. Status 
 excogitandi, (says Sigonius,) atque eo probationes omnes 
 conferendi, artificium, in libris oratoriis, multis verbis est 
 demonstratum ; neque enim in aliis prseceptis, antiqui rhet- 
 ores, tarn Grseci, quam Latini, plus studii aut operas con- 
 sumpserunt, (n.) The question in controversy is described 
 among these writers by the different terms xpti-o/xeKi.', summa 
 qusestio, res de qua agitur, qusestio ex qua causa nascitur, 
 judicatio, and others of similar import, all expressive of 
 the same general idea, though slightly distinguished from 
 each other in their particular application, (o.) When this 
 question was developed, there was said to be a status or 
 constitutio catisce. 
 
 Of these status there were many classes, according to 
 the different kinds of questions which might arise, involv- 
 ing not only the distinction recognized in our pleading 
 between questions of fact and of law, (status conjecturales 
 et legales,) but additional distributions into status finitivse, 
 translativse, and many others, corresponding with the vari- 
 ous logical divisions under which the different subjects of 
 civil dispute may be considered. As a specimen of this 
 obsolete but curious learning, and, at the same time, as 
 the best illustration of what is the natural progress of the 
 mind in effecting that development of which we have 
 spoken, the following passage of Quinctilian deserves at- 
 tention. In that part of his work which relates to the dis- 
 positio, or the art of oratorical division and arrangement, 
 after noticing the importance of a prudent selection of the 
 point of argument, and a discreet statement of the general 
 
 (n.) Car. Sigonius de Judiciis. See also Quinctil., lib. 3,e. 6; Cic. in lopio, 
 e. 25 ; Ger. Yossius, Instil, Oiat. 
 (o.) Quinctil. et Cic, vhi eupra. 
 
APPENDIX. XXVll 
 
 question, and observing that the choice should he determ- 
 ined by the nature of the case which the orator was to 
 support, he proceeds: "I will explain my own method in 
 this particular, which I attained partly by precept and partly 
 by the natural deductions of reason, and of which I never 
 attempted to make a mystery. In all forensic controver- 
 sies I took care, in the first place, to inform myself of all 
 the different matters involved in the cause. T say in for- 
 ensic controversies, for as to the disputes of the schools the 
 operation is unnecessary, as they consist merely in the dis- 
 cussion of a few questions distinctly discriminated at the 
 outset as the subjects for declamation, and denominated 
 St/iara by thc Grccks, by Cicero proposiia. After thus plac- 
 ing, then, the whole matter of the controversy distinctly in 
 my view, it was my habit to analyze it, as well on the part of 
 my adversary as on my own. And, first, I applied myself 
 to that which, though easily described, requires a peculiarly 
 attentive performance ; I mean, I ascertained what case it 
 was the object of either party to make, and by what allega- 
 tions such cases might be respectively supported. With 
 this view, I began by considering what might be alleged by 
 the plaintiff. This statement would necessarily either be 
 admitted or denied on the part of the defendant. If ad- 
 mitted, no question could, at that stage, arise. I therefore 
 proceeded to consider what would be the defendant's ans- 
 wer ; and to this I applied the same dilemma of admission 
 or denial by the plaintiff. Accordingly, sometimes the 
 matter of the answer would be admitted, but at all events 
 there would, at some period of the process, arise a contra- 
 diction between the parties ; and it is then that the ques- 
 tion in the cause is first ascertained. For example : You 
 killed such a man. Admitted. We proceed: The defendant 
 must now assign some reason for this act. It was lawful to 
 kill Mm, as surprised in adultery with my wife. There is no 
 doubt of the law ; we must therefore seek in some other 
 point the subject of contention. The parties surprised were 
 not committing adultery. They were. This, then, is the ques- 
 tion, and it is a question of fact," (conjectura, i. e., status 
 
XXVm APPENDIX. 
 
 conjectuialis.) " In some cases, however, there might be 
 a further admission. They were in adultery, but you had no 
 nght to kill him, for you were an exile and infamous person. 
 And here arises a question of law. On the other hand, if 
 to the first allegation, you killed, it had been answered, Idid 
 not kill, the question had been ascertained at the outset. 
 By this kind of process is the matter in dispute or main 
 question in the cause to be investigated," (p.) 
 
 This oratorical analysis of Quinctilian exhibits exactly 
 the principle of the English pleading; and when it is con- 
 sidered that the logic and rhetoric of antiquity were the 
 favorite studies of the age in which that science was prin- 
 cipally cultivated, and that the judges and pleaders were 
 doubtless men of general learning, according to the fashion 
 of their times, it is, perhaps, not improbable that the 
 method of developing the point in controversy was im- 
 proved from these ancient sources. On the other hand, 
 however, it seems not to have been wholly derived from 
 them; for the same method will appear in one of the fol- 
 lowing notes {q) to have been substantially in the possession 
 of the barbarous Franks and Lombards, with whom it was 
 presumably a native invention. " Whatever merit," says 
 Gibbon, " may be discovered in the laws of the Lombards, 
 they are the genuine fruit of the reason of the barbarians, 
 who never admitted the bishops of Italy to a seat in their 
 legislative councils," (r.) 
 
 ]SroTB 30. (See p. 114.) 
 
 Trial has been long used to express the investigation and 
 decision of fact only, but would appear to have originally 
 signified decision in general. For by Bracton, in the reign 
 of Henry III, the word triare seems to be taken in that 
 larger sense : Nunc dicendum ubi triandcB sunt actiones civ- 
 iles, &c., (5.) And Britton applies the French word trier in 
 
 {p.) Quinctil., lib. vii, c. \. 
 
 (g.) Vide post, note 40. 
 
 (r.) Deolino and Fall, Ac, vol. viii, p. 167. 
 
 {s.) Bract., 105 a. 
 
APPENDIX. Xxix 
 
 the same way. Thus, in speaking of the assize of dai-reign 
 presentment, h e says : Se il aveigne q^ue ils se consentent en 
 un clerke, sans faire trier le droit, &c., {t.) As for the origin 
 of the word trial, it appears by these quotations that it is, 
 like almost every term of the English law, of French ex- 
 traction, being derived from trier, (m.) Indeed, on this sub- 
 ject we shall find the observation of the learned Craig 
 perpetually verified : Omnia vocabula, quae vocabula artis 
 dicuntur, quibusque hodie in foro Angli utuntur, Gallica 
 sunt; nihilque cum Saxonica lingua habent affine, (x.) 
 
 Note 31. (See p. 116.) 
 
 Originally an action was triable only in the court where 
 it was brought. But it was provided by Magna Charta, in 
 ease of the subject, that assizes of novel disseizin and mortan- 
 cesior (which were the most common remedies of that day) 
 should thenceforward, instead of being tried at "Westmins- 
 ter, in the superior court, be taken in their proper counties; 
 and for this purpose justices were to be sent into every 
 county once a year, to take these assizes there, (y.) These 
 local trials, being found convenient, were soon applied not 
 only to assizes but to other actions ; for by the statute of 
 nisi prius (13 Ed. I, c. 30) it is provided, as the general 
 course of proceeding, that writs of venire for summoning 
 juries to the superior courts shall be in the foil owing form: 
 Prsecipimus tibi quod venire facias coram justitiariis nos- 
 tris apud Westm. in octabis Scti. Michaelis, nisi talis et talis, 
 tali die et loco ad partes illas venerint, duodecim, &c. Thus 
 che trial was to be had at Westminster only in the event 
 of its not previously taking place in the county, before the 
 justices appointed to take the assizes. This clause of nm 
 or nisi prius is not now retained in the venire, but it occurs 
 
 («.) Britton,92. 
 
 (m.) It ia said by one writer, however, to be derived from the Saxon. (See 
 Dncange, Glosn,, verbo Triare.) 
 (a;.) Craig, Jus. Feud., lib. 1, d. 7. 
 {y.) 1 Beeves, 246. 
 
XXX APPENDIX. 
 
 in a subsequent part of the proceedings. (See tlie Entry 
 of Judgment, p. 139.) And it is this provision of the 
 statute of nisi prius, enforced by a subsequent statute of 14 
 Edward III, c. 16, which authorizes, at the present day, a 
 trial before the justices of assize in lieu of the superior 
 court, and gives it the name of a trial at nisi prius, {z.) 
 
 Note 32. (See p. 126.) 
 
 The ancient law, indeed, provided one means of appeal 
 from the verdict of a jury in certain cases, viz, by writ of 
 attaint, upon which there was a kind of new trial by twenty- 
 four new jurors, {a.) But this proceeding is now obsolete, 
 and, indeed, is applicable only to a case where the jury 
 knowingly and willfully give a false verdict. 
 
 Note 33. (See p. 126.) 
 
 The statutes of jeofails are so called from fay faMU, an 
 expression used by the pleader of former days when he 
 perceived a slip in his proceeding, (6.) The statutes of jeof- 
 ails and amendments are 14 Ed. Ill, c. 6.; 9 Hen. V, c. 
 4; 4 Hen. VI, c. 3; 8 Hen. VI, c. 12, 15; 32 Hen. VIH, c. 
 30; 18 Eliz., c. 14; 21 Jac. I, c. 13; 16 and 17 Car. H, c. 8; 
 4 and 5 Ann., c. 16; 9 Ann., c. 20; 5 Geo. I, c. 13, (c.) 
 
 Note 34. (See p. 129.) 
 
 "Without entering into the well-contested field of contro- 
 versy on the question whether the method of trial byjurywaB 
 of Anglo-Saxon or of E"orman origin, it may be sufficient to 
 sum up the result of the dispute thus : There is, on the one 
 hand, some evidence of the occasional existence of an in- 
 quisitio patriae, or inquisition by a jurata of twelve, in Eng- 
 
 (z.) For further information on this subject, see 3 Bl. Com., 58 ; 1 Eeeves, 
 845,382; 2 Eeeves, 170. 
 (a.) See 3 Bl. Com., 402; 1 Reeves, 370; 2 Eeeves, 117 434; 4 Eeeves, 26a 
 lb.) 3 Bl. Com., 407. Termes de ley. 
 (a) 3 Bl. Com., 407 ; 2 Tidd. 954, 8th edit. 
 
AVPENDIX. XXXI 
 
 and before the Conquest, though with what fiequencj it 
 may have occurred it is very difficult to determine. On the 
 other hand, it clearly existed as an ordinary mode of decision 
 among the Scandinavian ancestry of the ISTorman invaders, 
 {d.) The same species of inquisition also existed among 
 the Normans themselves, (e,) and was in force in Normandy 
 at least as late as the year 1654; for, in the Commentaires 
 de Terrien, published in that year, it is said, Unquesie est re- 
 cognoissant de verite de la chose de quoy est, par le serment 
 de douze chevaliers, ou de douze autres preudes hommes 
 {probos homines) ereables, et qui ne soyent pas soup§onneux, 
 (/.) And the same author observes, Par la coustume du pays^ 
 un faict ne chet point en enqueste, en tel cas {i. e., matiere 
 heredital) s'il n' est ou peut estre notoire au voisine, (^f.) 
 
 Whatever may have been the ultimate origin of this 
 method of decision, it is at all events clear that it was oc- 
 casionally in use in this country at least as early as the 
 reign of Henry 11; for it is expressly mentioned by Glan- 
 ville, under the name of jurata patriae sive visineti, (A.) 
 But it is equally clear, on the same authority, that it was not 
 then in ordinary use. Prior to a certain law of Henry H, 
 not now extant, it seems that this mode of decision had be- 
 longed only to a few specific cases, the enumeration of all 
 or most of which may be found in Glanville. But in the 
 
 (d.) Hffic Nembdae ratio etiam hodie, non in Dania tantum, sed etiam in 
 Anglia superstes est, ex eo procnl dubio jure quod Dani et Normanni olim in 
 Angliam invexerunt. (Stiernhook de Jure Sue. et Goth., lib. i, c. 4.) Apud 
 veteres Danos, Suecos et Norwegos multa de hoc instituto, quod Namd vel 
 Naemd nunc Nembd vocant, legnntur. Namd autem, i. e., nominatio, vocatur 
 apud eos duodecim viralis juratorum nnmerus, &c. (Hickes, Thea. Diss. 
 Epist., 39.) The latter author at the same time combats the opinion that the 
 method was known among the Anglo-Saxons, and attempts to show that the 
 passages cited in support of that opinion have been misunderstood. In this, 
 however, he opposes himself to Coke, Spelman, and Selden ; and the author- 
 ity of these great names is fortified by the coincident opinion of Mr. J. Black- 
 stone. 
 
 («.) Vidt the Grand Coustumier, Ixxxiv, &c. 
 
 (/.) Comment, de Terrien, liv. ix, ch. zxxiii. 
 
 (g.) Ibid., lib. ix, ch. xivii. 
 
 (h.) Glan., lib. ix, c. 11; lib. vii, c. 16;' lib. v, c. i. 
 
XXXll APPENDIX. 
 
 reign of that monarcli the law above mentioned passed, 
 authorizing the application of the jurata patriae, or inqui- 
 sition of twelve men, to certain questions of seizin, which 
 ^appear before that time to have been decided by wager of 
 battel only. This ordinance, like other laws of that day, (?,) 
 was called assiza, or an as ize, and, when an inquisition by a 
 jurata patriae took place by virtue of its provisions, such in- 
 quisition was called a recognition of assize. The recognition of 
 assize became so popular, that suitors were led to adopt the 
 same method by mutual oanscnt, or by advice of the court, 
 {k,) even for the decision of questions for which the ordi- 
 nance of Henry 11 did not provide, and which they would 
 otherwise have been obliged to settle by wager of battel. 
 The proceeding, when thus instituted by consent of the par- 
 ties or advice of the court, was called jwrato ex consensu, to 
 distinguish it from the regular recognition of assize appointed 
 by law. This jurata ex consensu, which is the modern 
 trial by jury, continually increased in favor from the time of 
 Glanville, and at the date of Bracton's work had beeom.e 
 the most ordinary method of deciding fact, {I.) 
 
 Note 35. (See p. 130.) 
 
 The question of mere right was from the earliest period 
 decided by wager of battel, and at one time could be de- 
 cided in no other manner. Afterwards, in the reign of 
 Henry H, the assize or law of that monarch, referred to in 
 the last note, gave the tenant in a writ of right the alter- 
 native of having this question tried either by wager of bat- 
 tel or a recognition by jurors, to be selected by four 
 knights, (m,) while it appointed for questions of seizin (as 
 
 (i.) See Co. Litt., 159 b. 
 
 {k.) Tunc ex consensu ipsarum partium, tunc etiam de consilio cniise. (Glan., 
 lib. xiii, c. 2.) And see Plac. Ab., 146; Berk., 147, Suht, &c. 
 
 Q) The same account of the establishment of trial by jury is given by Mr. 
 Beeves, vol. i, 1Y7, 334, and is perhaps stated in no other work with sufficient 
 precision. A careful perusal of Glanville and Bracton will leave no d3abt ai 
 to its correi^tness. 
 
 (m.) Glan., lib. ii, c 7, 11 ; 1 Reeves, 125. 127. 
 
APPENDIX. XXXm 
 
 already mentioned) a recognition of a more ordinary kind; 
 and as the latter obtained the name of a recognition of 
 assize, so the former was called, by way of distinction from 
 it, the grand assize, {magna assisa.) The question of mere 
 right from this time continued to be exclusively determ- 
 inable by battel or the grand assize; and, either from its so- 
 lemnity or the difficulty that attended it in point of proof, 
 (n,) was never allowed to be tried by a common jury. 
 
 Note 36. (See p. 132.) 
 
 The possibility of being exposed to this disadvantageous 
 method of decision — ^the wager of law — has long led plaint- 
 iffs to avoid the forms of action in which it is allowed. 
 Accordingly, debt on simple contract and detinue are much 
 less frequently used than in ancient times, and have been 
 nearly supplanted by assumpsit and trover, which are forms 
 of remedy respectively applicable to the same cases, but 
 not admitting that mode of trial. 
 
 The wager of law (vadiatio legis) which, under different 
 naines and in different forms, prevailed over all Europe in 
 the middle ages, was fully established not only among the 
 Normans, but the Anglo-Saxons. The name, however, is 
 clearly of Norman derivation; for in the old law of Nor- 
 mandy, lex signified a mode of proof or trial, and vadiare 
 was to give pledge to produce such proof or to meet such 
 trial. Thus, the Coustumier speaks of the lex apparens, the 
 lex probabilis, the lex simplex, (otherwise called deraisnia,) 
 as so many modes of deciding causes, (o.) Now it appears, 
 by the account given of the lex simplex, that it was equiva- 
 
 (n.) See Bract., 318 b. 
 
 (o.) For example, it is said. Sciendum est quod omnis querela de mobili poa- 
 sessione cum res in causa deducta, decern solidorum usualis monetae precium 
 non excedat, per legem simpUcem habet terminari. Si vero dictum excedil 
 precium, per legem deduoiter appouremtem. (Grand Coust., Ixiivii.) And 
 again: Est q laedam lex quse probabilis sive Tnonstralis in laicali curia nuncu- 
 pater. Ibid., oxzv. See also Ducange Gloss., verbo Lex., where it appears that 
 t^e wager of battel was sometimes called lex duelli. 
 
XXXIV APPENDIX. 
 
 lent to our w&ger of law, (p;) and that the party who 
 adopted this proceeding was said vadaire legem simplicem, 
 or, more shortly, vadiare legem, (q;) whence undoubtedly 
 the term vidiaiio legis, or wager of law, as used in the English 
 courts. Though this deduction of the name be clear and 
 indisputable, Lord Coke (whose derivations do not always 
 satisfy the antiquarian) gives the following origin of the 
 phrase, in which he is followed by Blackstone : "It is called 
 wager of law, because of ancient time he put in surety to 
 make his law at such a day; and it is called making of his 
 law, because the law doth give such a special benefit to the 
 defendant to bar the plaintiff for ever in that case," (r.) 
 
 H"0TB 37. (See p. 132.) 
 
 Such of the different modes of trial now in use as are 
 of extraordinary and limited application are the relics of 
 a very ancient system of deciding fact, established before 
 the full introduction of trial hyjury, (s.) Though it would 
 be foreign to the present purpose to attempt to explain fully 
 the meaning and policy of this curious system, yet there is 
 one general observation which throws so much light on 
 that subject that it may, without impropriety, be here 
 introduced. The observation relates to the defective state, 
 during those barbarous ages, when the foundations of this 
 system were laid, of the proper and rational sources of 
 judicial proof. 
 
 In times when the arts of reading and writing were 
 comparatively rare, and when parchment had not yet been 
 superseded by the invention of paper, written documents 
 were of course by no means so frequently in use as the 
 
 {p.) Grand Coustum., Ixxxiv, cxivi. 
 
 (g.) Ihid., oxxvi. 
 
 (r.) Co. Litt., 294 b., 295 a.; and see 3 Bl. Com., 341. 
 
 (s.) Considerable insight into tbis ancient system of trial may be obtained 
 by an attentive perusal of tbe work of GlanviUe, the earliest and best au- 
 thority. It is a subject, however, that has never yet been thoroughly eluci- 
 dated. 
 
APPENDIX. XXXV 
 
 occasions of life would require, even after making due 
 allowance for the comparative paucity, at that period, of 
 commercial transactions. This circumstance at once in- 
 creased the necessity for resorting to living witnesses, and, 
 at the same time, by rendering perjury less open to con- 
 viction, must have tended to diminish the security of that 
 mode of proof Whatever the cause, the fact is certain, 
 that perjury was at this era a crime of peculiarly frequent 
 occurrence, and consequently oral testimony a species of 
 evidence of the lightest and most doubtful kind. It seems 
 evident, too, that in a scanty population there must have 
 been considerably less publicity than in the present day in 
 almost every kind of occurrence; and that while witnesses 
 were, on the one hand, less to be depended upon, so, on 
 the other, they were less easily to be found. In this state 
 of things it is not surprising that attempts should be made 
 to strengthen this, the ordinary mode of judicial investi- 
 gation, by such corroborative tests as the opinions and 
 manners of the times might approve, or to supply the 
 want of it by other kinds of probation. Thus, the oath of 
 the defendant himself, in opposition to the claim of his ad- 
 versary, would, under such circumstances, naturally have 
 but little weight. At the same time, he might be unpro- 
 vided with writing or witness. He was, therefore, by 
 way of suppletory expedient, required to support his own 
 oath by wager of law, that is, by the adduction of many 
 other persons, as his compurgators, who, though unac- 
 quainted with the transaction itself, knew the character of 
 the party, and had sufficient confidence in it to swear that 
 they believed his assertion true. Thus, too, when this 
 proof by wager of law was, from the importance of the 
 question, or for other reasons, deemed inapplicable, and 
 that by witnesses alone considered insufficient, resort was 
 often had to jtcdicial combat, as the best means that offered 
 itself for deciding between opposite assertions, ( t.) 
 
 (<.) In the time of Glanville the wager of battel was applied not only to 
 the question of mere right, but to a great variety of other oases, and was 
 
 28 
 
XXXVl APPENDIX. 
 
 "With respect to the great prevalence of peijury at this 
 period, the latest and one of the most able and accurate 
 delineators of the middle ages thus notices that feature in 
 the morals of the day : 
 
 " One crime, as more universal and characteristic than 
 others, may be particularly noticed. All writers agree in 
 the prevalence of judicial perjury. It seems to have almost 
 invariably escaped human punishment; and the barriers 
 of superstition were in this, as in every other instance, too 
 feeble to prevent the commission of crimes. Many of the 
 proofs, by ordeal were applied to witnesses as well as 
 those whom they accused; and undoubtedly trial by com- 
 bat was preserved in a considerable degree, on account of 
 the difficulty experienced in securing a just cause against 
 the perjfiry of witnesses. Robert, king of Prance, perceiv- 
 ing how men foreswore themselves upon the relics of saints, 
 and less shocked apparently at the crime than at the sacri- 
 lege, caused an empty reliquary of crystal to be used, that 
 those who touched might incur less guilt in fact, though 
 not in intention. Such an anecdote characterizes both the 
 man and the times," (u.) 
 
 Note 38. (See p. 147.) 
 
 The only material authorities on the subjects of pleading, 
 of date prior to the reign of Edward I, are the treatise of 
 Glanville, in the time of Henry 11; that of Bracton, in the 
 latter end of the reign of Henry IH ; and the Placitorum 
 Abbreviato, which contains extracts from the records 
 from Richard I to Edward II inclusive, (x.) From these 
 authorities it would appear that the manner of pleading 
 was extremely imperfect, and many of the most import- 
 one of the most general and ordinary modes of deciding fact. Thus, he says, 
 Prohari solet res debita ex empto, vel ex commodato, generali probandi modb 
 in curia, scilicet per scriptum vel per duellum. (Glan., lib. 10, c. 17.) 
 
 («.) Hallam's View of the State of Europe During the Middle Ages, vol. ii, 
 D. 456, 1st edit. 
 
 (ffi.) As to the Mirror, it is not to be relied upon as authority in respect to 
 any period prior to Ed. I. (See Eeeves' Hist., vol. ii, 359.) 
 
APPENDIX. XXXVU 
 
 ant rules of the science either unknown or but partially 
 observed in practice so late as the end of the reign of 
 Henry m. On the other hand, the very earliest reports 
 in the Year-Books (which begin with the reign of Edward 
 n) exhibit proofs that the pleading was by that time in a 
 comparatively perfect state. It is therefore that the author 
 has been led to consider the reign of Edward I as the era 
 at which the manner of allegation may be said to have 
 been first methodically formed and cultivated as a science. 
 
 It would be easy to produce numerous proofs that the 
 pleading was very imperfectly regulated till the end of the 
 reign of Henry HI, but the following will suffice : 
 
 Glanville gives scarcely any rule that can, strictly be 
 considered as a rule of pleading, though he is copious on 
 subjects which would have led him to notice such rules 
 had they existed, (?/.). 
 
 In the time of John we find instances of pleas which 
 neither traverse nor confess. Thus, in answer to a fine, it is 
 pleaded quod si finis ille f actus fuii per deceptiouem et frau- 
 dum, factus fuit, &c., (z.) Again, where a defendant had 
 pleaded a deed made by the father of the plaintifi", the 
 plaintift" replies, quod cartam quam profert sub nomine 
 patrissui, nee dedicit, nee concedit, &c., sed qualiter carta ilia 
 facta fuit vel a quo, semper postquam facta fuit, present- 
 avit pater ejus personam, &c., (a.) 
 
 In the same reign numerous examples of the fault of 
 duplicity (i. e., pleading several allegations in answer to the 
 same matter) are to be found. Thus, in assize of mort- 
 ancestor, the tenant pleads that the demandant was seized 
 himself post obitum of the ancestor, and by fine, of which 
 he produces the chirograph, quit-claimed, &c., the land. 
 The demandant replies, quod ipse nunquam fuit seisitvs de 
 terra quam petit, nee unquam earn tenuit. Bt inde ponit 
 Be super asisam, &c. Et cum habuerit seisinam, talem, &c., 
 
 (y.) Glan., lib. 12, c. 14. 
 (z.) Plao. Ab.,38; Bedd., rot. 4. 
 
 (a.) Plac Ab., 92 Kent rot. 15; and see 48 Line, rot. 7, 39; North, rot, 
 6, &o. 
 
XXXVm APPENDIX. 
 
 bene osteudet quod eoncordiam iUam non fecit, necfacerevotwiX, 
 Et petit sibi allocari quod chirographum illud, non esi fac- 
 tum in forma aliorum cbirographorum, &c., and so argues 
 against its genuineness, (6.) 
 
 In the same reign the fault of argumeniativeness appears 
 to have been common. Of this the following entry may 
 serve as an example : Dicit quod Eanulphos non potuit dare 
 illam terram in maritagio, quia obiit inde seisitus. Et inde 
 ponit se super juratam, (c.) 
 
 All these are clear \dolations of rules of pleading sub- 
 sequently established and still in force, and appear to have 
 encountered no objection from the opposite party. 
 
 In the reign of Henry III much attention certainly ap- 
 pears to have been paid to the manner of pleading; and 
 Bracton not only makes constant reference to that subject, 
 but has a division of his work expressly allotted to it, under 
 the head De Exceptionibus. Yet, on careful perusal of that 
 work, the most convincing proofs may be found that the 
 regular and methodized plan of allegation, which we find 
 soon afterwards established, and which has since received 
 the name of the system of pleading, was in his time not fully 
 formed. For besides that the very title, De Exceptionibus, 
 is borrowed from the Pandects, and is rather applicable to 
 the nature of the Roman than the English pleading, and 
 that he often uses appellations peculiar to the civil law, {d,) 
 it will be found that scarcely any of the more important and 
 fundamental rules of the present system are noticed by the 
 author. Even the word "issue" does not occur, and in- 
 stead of it is used the civil-law term litis-contestatio, (e;) a 
 phrase by no means exactly parallel, though expressive of 
 the same general idea. The rule against duplicity, indeed, 
 is given, but in such a form as to raise a doubt whether its 
 
 (5.) Plao. Ab., 88; Sussex, rot. 22; and see 48 Lino., rot. 7; 50 Buck. rot. 2; 
 59 Line, rot. 5, &c. 
 
 (c.) Ibid., 19; Warr., rot. 2. 
 
 (d.) For example, exceptio judicis non sui — ezceptio falsi procaratozia, 
 (Bract., 400 a.) 
 
 («.) Bract., 373 a., 172 a., 436 h. 
 
APPENDIX. XXXIX 
 
 true extent and object were understood by the writer. Si 
 plures peremptorise (exceptiones) actionum concurrant, 
 unam debet tenens proponere et probare, &c., quia si tenens 
 cum duas peremptorias proponeret vel plures exceptiones, 
 in probatione unius deficeret, posset recursum habere ad 
 alias, et probare, sicut posset se pluribus baculis defenders.; 
 quod esse non debet cum ei sufficere debeat tantum pro- 
 batio unius, (/.) Again, it may be observed that neither 
 the rule obliging the pleader to traverse or confess, nor that 
 against argumentative pleading, appears to have been per- 
 fectly established in the time of this author. Thus he men- 
 tions it as one of the pleas to an appeal of rape : Quod 
 anno et die quo hoc fieri defuit, fuit alibi extra regnum, 
 vel in provincia, in tam remotis partibus, quod verisimile esse 
 non potent, quod hoc quod ei imponitur, fieri posset per 
 ipsum, [g.) And again, among the pleas to an assize, the 
 following is mentioned: Liberum tenementum habere non 
 potuit, quia non tenuit tenementum illud, nisi ad terminum 
 annorum, &c., (h.) 
 
 While there are these reasons for holding that in the 
 reign of Henry HI even the more fundamental principles 
 of pleading were as yet imperfectly settled, a careful perusal 
 of the Tear-Books will prove that not only had these prin- 
 ciples become well established in the time of Edward II, but 
 that many of its more subtle and artificial rules were be- 
 ginning in that reign to be observed. Thus, the doctrine 
 and practice of pleadings in estoppel and of protestation 
 will be found distinctly developed in 17 Edward 11, 534; 
 and the objection as to negatives pregnant occur in 7 Ed- 
 ward n, 213, and again, ibid. 226. 
 
 With respect to the subsequent history of the science, 
 Mr. Reeves holds that it was in a state of progressive ad- 
 vance till the reigns of Henry VI and Edward IV, when it 
 was "cultivated with so much industry and skill, that it was 
 
 ( f.) Bract., 400 b. SometMng seems to be omitted in this passage, which 
 renders its construction imperfect. 
 (g.) Bract., 148 a. 
 (A.) Go litt., 126 a. 
 
xl APPENDIX. 
 
 raised to a sudden perfection in the course of a few years,' 
 (/.) Sir M. Hale, however, complains that at that period 
 the judges and pleaders had already become "somewhat 
 too curious, and that the science had degenerated from its 
 piimitive simplicity; which how these later times have 
 improved the length of the pleadings, the many and un- 
 necessary repetitions, the many miscarriages of causes upon 
 small and trivial niceties in pleading, have too much wit- 
 nessed." And both that author and Sir E. Coke commend 
 the reign of Edward III as the period when pleading had 
 attained its highest point of excellence, (k.) The excessive 
 refinement and prolixity of which Sir M. Hale complains 
 were abuses which continued to exist till long after his day, 
 and, though in modern times much checked and discour- 
 aged, are not yet entirely extirpated. 
 
 Note 39. (See p. 148.) 
 
 The issue is thus defined by Lord Coke: "Issue, (exitus,) 
 a single, certain, and material point, issuing out of the alle- 
 gations or pleas of the plaintiff and defendant, consisting 
 regularly upon an affirmative and negative, to be tried by 
 twelve men," [l;) and thus by Heath, C. J. : " That point of 
 matter depending in suit whereon the parties join and put 
 their cause to the trial of the jury," (m.) These definitions,' 
 besides being too narrow, as extending only to- questions 
 of fact, and to such questions of fact as are referred to one 
 particular mode of trial, viz, that by jury, seem to be also 
 defective in clearness and precision. The definition of 
 the issue by Mr. Justice Blackstone (followed by Sir M. 
 Hale) is as follows: "When, in the course of pleading, 
 they come to a point which is affirmed on one side and 
 denied on the other, they are then said to be at issue," (n.) 
 
 (i.) 3 Beeves, 424. 
 
 (k.) Hale'8 Hist., 173, 176; 1 Inst., 304 b. 
 
 {I.) Bract., 268 a. 
 
 (m.) Heath's Maxims, eh. iv. 
 
 {n.) 3 Bl. Com., 313 ; Hale's Analysis, sect. 50. 
 
APPENDIX. xli 
 
 Even this does not appear to be perfectly accurate, for it 
 would include a point contradicted by protestation, (o.) The 
 definition by Finch is more unexceptionable: "An issue 
 is, when both the parties join upon somewhat that they 
 refer unto a trial to make an end of the plea," {i. e., suit,) 
 
 Note 40. (See p. 149.) 
 
 "We find in the Assizes de Jerusalem (as to which, vide 
 supra, p. ix) the following directions to the pleader on the 
 subject of brevity and precision. As plus briefves paroles 
 que il pora, die sa parole; car les plus briefves paroles et 
 entandaument dites, sont means entendues et retenues et re- 
 cordees et jugees, et quant mestier, que les autres, i. e., let 
 the pleader make his claim in the shortest form of words 
 possible, and let him speak as intelligibly as he can, for 
 the' shortest and most intelligible expressions are the best 
 heard, and retained, and recorded, and adjudged upon, (q.) 
 
 The remark in the text may also be illustrated by the 
 following curious specimens of the manner of pleading 
 among the Lombards, as preserved in a compilation of 
 undoubted authenticity: 
 
 "Petre, te appellat Martinus, quod tu malo ordine (i. e., 
 injuste) tenes terram in tali loco positam. Ilia terra mea 
 propria est, per successionem patris mei. I^on debes ei 
 succedere, quia habuit te ex sua an cilia, vere; sed fecit 
 eam widerbora [i. e., liberam) sicut est edictum, et tulit ad 
 uxorem. Approbet ita, aut amittat," {r.) 
 
 "Petre, te appellat Martinus, quod terra quse in tali loco 
 est, sit sua; tu eam detines. Etiam, quia possedi per xxx 
 annos. Vere possedisti, sed per chartam falsam quam dix- 
 isti patrem meum fecisse tibi. Fon est verum. Ita. — Pro- 
 bate," (s.) 
 
 (o.) As to Protestation, vide mpra, p. 217. 
 
 (jp.) Finoli Law, 396. 
 
 Iq.) Assizea de Jerus., zxi. 
 
 (r.) Leges Langobard., ap. Muratori ; Leges Lintpran, lib. vi, 63. 
 
 («.) Ibid., Leges Liutpran lib. vi, 62. 
 
xlii APPENDIX. 
 
 "Petre, te appellat Martinus, quod tu dedisti sibi vadia 
 te dare sibi unum solidum, HI Kalend. Angusti. Non 
 dedi ipsa vadia. Tunc ipse qui appellat, probet. Si non 
 potuerit, ipse qui appellatus est, juret quod in tali tenore 
 vadia non dedit," (t.) 
 
 The following specimen is of a somewhat later era, when 
 Lombardy had fallen under the Francic dominion : 
 
 " Petre, te appellat Martinus, quod tu tenes malo ordine, 
 terram in tali loco. Ipsa terra mea propria est, per char- 
 tam quam tu mihi fecisti; et ecce chartam. Ego feci ipsam 
 chartam, sed per virtutem, {i. e., vim.) Non fecisti. Vis 
 ei probare? Volo. Vadiate pugnam," (u.) 
 
 These specimens of the pleading of a barbarous nation 
 have drawn from a foreign writer of superior taste a warm 
 eulogium : " Le formole dell' intentar le liti," says De- 
 nina, " erano si semplici, e si spiecie, e si chiare, che non 
 cedevano a quella si giustamente lodata forma del proce- 
 dere che regna tuttavia in alcuni tribunali dell' et^ nostr4," 
 
 {X.) 
 
 Note 41. (See p. 150.) 
 
 Omnia hsec (says Heineccius, speaking of the pleadings of 
 the civilians and canonists, as opposed to those of ancient 
 Germany) non viva voce proferebant, sed scripta offerebant 
 judici; ex eoque nata est ingens actor um forensium moles, 
 quum ssepe integris voluminibus, causam suam tueantur 
 litigantes, quam olim, paucissimis verbis, non minus dex- 
 tre perorabant, {y.) 
 
 In France written pleadings were in use at least as early 
 as 1364. By an ordinance of Charles Y, of that date, (art. 
 3,) another of Charles VII, in 1446, (art. 24 and 37,) and 
 
 (i.) Leges Langobard., Leges Rachis, c. 1. 
 
 (u.) Ibid., Leges Ottonis II, o. 5. The above extracts are taken from tha 
 Leges Lagobardicffi, with the Formulse Veteres annexed, as published from 
 ancient MSS. by Muratori, in his Scrip. Eer. Italic, vol. 1. These laws had 
 been previously published by Lindenbrog, but without the formulse. 
 
 (x.) Sivoluzioni d'ltalia di Denina, vol. i, p. 316. 
 
 (y.) J. G. Heinecc, Elem. Jur. Germ., lib. iii, tit. iv, sect, clviii. 
 
APPENDIX. xliii 
 
 another of Charles VIII, in 1490, (art. 92,) advocates are 
 required to draw up their writings in as concise a manner 
 as possible. (Domat., vol. ii, book ii.) 
 
 Note 42. (See p. 151.) 
 
 In Bracton (as observed in a former note) the attainment 
 of the issue is called litis coniestatio, which is a word used 
 by the civilians to express the same general idea. Thus 
 he says, usque ad Uiis contesiaiionem, scilicet quousque fuerit 
 prsecise responsum intention! petensis, et ita quod tenens se 
 posuerit in magnam assisam, vel defenderit per duellum, 
 (2.) And in another place, non tenetur aliquis hseres de 
 facto, scilicet de disseysina antecessoris sui, quoad pcenam 
 disseysinse, licet teneatur ad restitutionem ? et hoc nisi lis 
 coniesiata fuerit cum suo antecessore, &c., (a.) 
 
 It may be worth while to observe here that Blackstone's 
 idea of the meaning of this term of the civil law is inaccu- 
 rate. He considers it as "a general assertion that the 
 plaintiff hath no ground of action," (b.) This, however, 
 is not the sense in which it is properly or commonly used 
 in the civil law, though it may occasionally have that mean- 
 ing. It is clear that its usual signification is exactly that 
 in which it is used by Bracton, viz, the development of 
 the point in controversy; or, as it is now expressed, the 
 coming to issue. "In common parlance, denying the truth 
 of the defendant's exception, or, indeed, whenever parties 
 come to direct affirmance on one side and denial on the 
 other, is called a contestation of suit," (c.) Litis contesta- 
 tio non aliud est quam intentio actoris, et contradictio seu 
 depulsio rei; adeo ut ex actione et opposita peremptoria 
 exceptione, consurgat; et comprehendat illud in quo tota 
 controversia consistat, (d.) And Fortescue is express to 
 
 (z.) Bract., 373 a. 
 
 (a.) Ibid., 172 a. 
 
 (6.) 3 Bl. Com., 296. 
 
 (c.) Brown's Civil Law 
 
 (d.) Voet ad Pandect., lib. v, tit, 1, sec. 144. 
 
Xliv APPENDIX. 
 
 the point, for, in treating of the method of proof iu the 
 civil law, he says: Si coram judice contendentes ad litis 
 perveniant contestationem, super materia facti, quam legia 
 Anglise periti exitum placiti (the issue) appellant, exitus 
 hujusmodi Veritas, per leges civiles, testium depositione, 
 probari debet, (e.) 
 
 Note 43. (See p. 153.) 
 
 That juries were originally composed of witnesses or 
 persons cognizant of their own knowledge of the fact in 
 question seems to be sufficiently proved by the following 
 authorities : 
 
 In an assize of darreign presentment, in the reign of 
 Richard I, the jurors find a special verdict in these terms: 
 
 Assisa dicunt quod numquam viderunt aliquam personam 
 prsesentari ad ecclesiam de Duneston, sed semper tenuerunt 
 personse, persona in personam, ut de patre in filium, usque 
 ad ultimam personam quae ultimo obiit, (/.) 
 
 In an assize of novel disseizin, in the same reign, there 
 is the following entry: 
 
 Assisa venit recognitura si Adam de Greinvill et Williel- 
 mus de la Folic dissaisaverunt injuste et sine judicio Will- 
 ielmum de Weston de libero tenement© suo in Suto, post 
 primam coronationem Domini Regis. Juratores dicunt 
 quod non viderunt unquam alium saisitum de tenement© 
 illo, nisi Willielum de la Folic. Et quod nesciunt si "Will- 
 ielmus de la Folic dissaisisset cum inde vel non. Cmisid- 
 eratum est quod alii juratores eligantur qui melius sciani rei 
 vertatem. Dies datus est eis ad diem Mercurii, (g.) 
 
 In the reign of John there is the following entry: 
 
 Juratores dicunt quod ecclesia Sanctse Helenas de Gt. 
 nunquam fuit capella pertinens ad ecclesiam Sancti Mi- 
 chaelis super Wir, quae est de donatione Dom. Regis; sed 
 
 (e.) Fortesoue de Laud, c. 20. 
 (/.) Plac. Ab., 3, Norfolc. 
 (g.) Plao. Ab., 11, Wiltesir. 
 
APPENDIX. xW 
 
 semper temporibus suis judicaverunt illam esse matricem eccle^ 
 siam, (h.) 
 
 So, upon a question whetKer the plaintiff, claiming to be 
 tenant by the courtesy, had issue by his wife, Bracton says : 
 
 Si dicant juratores quod bene viderunt eum seysitum et 
 postea ejectum per tenentem, sed aliquo puero nihil sciunt, 
 quia mater obiit in pariendo extra comitatum, in remotis, 
 quia eorum veredictum insufficiens est, et quia ipsi ignorare 
 possunt ea qucejiant in remotis, recurrendum erit ad comitatum 
 et ad vidnetum ubi mater obiit; et ibi facta iuquisitione de 
 veritate, terminetur negotium, (i.) 
 
 And see 2 Reeves, 270, where the doctrine in support of 
 which these authorities are cited is distinctly laid down. 
 
 It may also be observed, as affording confirmation of 
 this doctrine, that the award of a venire facias still directs 
 the jury to be summoned to recognize, &c., {vide supra, 113,) 
 that is (properly) to declare upon their recollection. That 
 the word was anciently used in that sense appears from 
 many entries. For example, in the reign of John we find 
 a jury declaring, quod ipsi recognoverunt quod interfue- 
 runt ubi Eicardus de "W. coram ipsis et pluribus aliis &c., 
 propria voluntate vendidit terram suam, &c., (k.) 
 
 Note 44. (See p. 156.) 
 
 The author being the first who has attempted to develop 
 the principles on which the system of pleading is founded, 
 he is unable to cite any direct authority, either for the 
 enumeration contained in the text of the objects which 
 that system contemplates, or even for the account there 
 given of the properties or qualities required in the issue. 
 
 Yet passages sufficient to justify both the one and the 
 other may be easily collected from the books. 
 
 First, as to the properties of the issue. 
 
 Lord Coke defines the issue to be " a single, certain, and 
 
 (h.) Plac. Ab., 94. Lane, rot. 3. 
 
 (i.) Bract., 216 a. 
 
 Ik.) Plac. Ab., Dorset, rot. 20, 
 
Xlvi APPENDIX. 
 
 material point, iesuing out of the allegations or pleas of the 
 plaintiff and defendant," (l.) He considers these proper- 
 ties, therefore, to be of the very definition of the term, 
 though perhaps they are more properly incidental to the 
 issue than of its essential nature. So, it is laid down in 
 Comyn's Digest, that "the issue must be upon a material 
 point," (m,) and "must be upon a single and certain point," 
 (n.) So it is said by Lord Coke that the law "prefers 
 and favors certainty, as the mother of quiet and repose, to 
 the intent that either the court shall adjudge thereupon, if 
 the plaintiff demurs, or that a certain issue may be taken 
 upon one certain point," &c., (o.) So in the Year-Books 
 we find the court interrupting the pleader with this re- 
 mark: "Vous dites chose que veot avoir deux issues; tenez 
 vous al une, (p.) 
 
 With respect to the doctrine that the system of pleading 
 contemplates the different objects enumerated in the text, 
 and that these form the secret foundation of most of its 
 principal rules, the author must refer, for his chief author- 
 ity, to the intrinsic evidence arising from the consideration 
 of the rules themselves, as subsequently explained in this 
 work. In treating, however, of these different rules, he 
 will be able occasionally to offer some citations from the 
 books in a great measure confirmatory of the same view. 
 
 Note 45. (See p. 159.) 
 
 The general effect of these statutes relative to special de- 
 murrer is well expressed by Lord Hobart, who says, in ref- 
 erence to the 27 Eliz., c. 5 : " The moderation of this statute 
 is such, that it does not utterly reject /orm, for that were a 
 dishonor to the law, and to make it in effect no art ; but 
 requires only that it be discovered, and not used as a secret 
 
 (I.) Co. litt., 126 a. 
 (m.) Com. Dig., Pleader, R. 8. 
 (n.) Com. Dig., Pleader, E. 4. 
 (o.) I'eyfield's Case, 10 Rep., 90 a. 
 {p.) 1 Edward II, 14. 
 
APPENDIX. xlvii 
 
 snare to entrap. And that discovery must not be confused 
 and obscure, but special,- therefore, it is not sufficient to 
 say that the demurrer i% for form, but he must express what 
 is the point and specialty of form that he requires." (q.) 
 
 IJ^'OTE 46. (See p. 168.) 
 
 It is true that in the writ of right the mise on the mere right 
 (as to which see pp. 129, 130) is usually considered as the 
 general issue, and in dower that name is often given to the 
 plea of ne ungues seisie que.dower. But though these pleas 
 resemble the general issues in their frequent use and ex- 
 tensive application, they appear not to fall within the strict 
 definition of that term, as they deny neither the whole nor 
 the principal part of the count. In fact, though they ten- 
 der a kind of issue, they do not contain, in terms, any de- 
 nial or traverse of the count, and are therefore anomalies 
 or exceptions in the system of pleading. The reason is, 
 perhaps, to be found in the great antiquity of these actions, 
 (the writ of right and of dower,) which were in full use at 
 least as early as the time of Grlanville, a period consider- 
 ably anterior to the complete establishment of the doctrine 
 of issue ajid of the rules by which it is produced. 
 
 Note 47. (See p. 183.) 
 
 Where the plaintiff alleges a seizin in fee in his father, 
 the lessor, from whom he claims by descent, the defendant 
 has the option of traversing either that at the time of mak- 
 ing the lease the father was seized in fee, or that the rever- 
 sion in fee belonged to the father after making the lease, 
 or that the reversion descended to the plaintiff; for all these 
 allegations are contained in the declaration, and the denial 
 of any of them is a sufficient answer, (r.) 
 
 (q.) Heard v. Baskerville, Hob., 232. 
 (r.) Brudnell v. Roberts, 2 Wils., 143. 
 
Xlviii APPENDIX. 
 
 Note 48. (See p. 189.) 
 
 1 Mr. Reeves, in hie able history of the English law, haa 
 treated of the origin of special traverses, but not in such a 
 manner as to form any exception to the remark made in 
 the text ; for his account relates rather to the manner in 
 which they were invented and introduced than to their use 
 and object, (s.) 
 
 Note 49. (See page 191.) 
 
 Our earliest records present many instances of what may 
 be considered as special traverse in a crude and imperfect 
 form. As these tend to illustrate the origin and meaning 
 of the regular formula afterwards adopted, and confirm the 
 views taken in the text of the reasons and manner of its 
 introduction, a few specimens shall here be inserted. 
 
 In an assize of mortancestor the tenant pleads quod terra 
 ilia pertinet ad ecclesiam suam, quam habet ex douo Regis 
 Rieardi, et ecclesia inde est seisita, &c. The plaintiff then 
 denies the seizin of the church in this form : Robertus dicit 
 quod pater suus inde fuit seisitus in dominico suo, die qua 
 Rex Ricardus illam ecclesiam dedit prsedicto Herberto ; ita 
 quod ecclesia ilia tunc non fuit seisita, nisi de serviciis illius 
 terrse, (t.) 
 
 In trespass for entering the plaintiff's court and taking 
 away his ward, John, the defendants deny the trespass, but 
 add an explanation : dicunt quod curiam prsedictam non 
 ingressi fuerunt, nee prsedictam Johannem ibi ceperunt, 
 &c. Sed verum volunt dicer e; quod ipsi fuerunt versus 
 Oxon, et tunc viderunt prsedictum puerum, et puer percepit 
 quod prsedicta Isabella (one of the defendants) fuit mater 
 sua, et secutus est earn, usque domum suam, et adhuc mo- 
 ram facit cum ea; sed ipsi eum non duxerunt, &c., (m.) On 
 
 (s.) 3 Reeves, 432. 
 
 (i.) Plac. Ab , 44, Staff., rot 6, temp. Johan. 
 
 (m.) Plac. Ab., 184, Berk., rot. 16, temp. Hen. III. 
 
APPENDIX. Xlix 
 
 the circumstances so disclosed the court decide that the de- 
 fendants, in point of law, are guilty of taking away the 
 ward. 
 
 In trespass for fishing in the plaintiff's libera piscaria, 
 the defendants, instead of generally denying the trespass, 
 plead that they fished there as in a fishery where their an- 
 cestors and themselves had fished as of their common of 
 fishery ; et non in propria piscaria et libera ipsius Nicholai, 
 
 (X.) 
 
 Note 50. (See p. 192.) 
 
 The principle upon which the absque hoc was introduced 
 is well illustrated by the following case from the Year- 
 Books. In a writ of account, brought against a woman as 
 guardian in socage, she pleaded " that the ancestor of the 
 infant held of the defendant by service of chivalry, and 
 that therefore she took the infant as guardian in chivalry," 
 and prayed judgment. To this it was objected, "That is 
 no plea, unless you go on to say, without this, thai he held in 
 socage; for your plea, at present, is merely argumentative." 
 The plea was then proposed in this form: "He held the 
 land of us by service of chivalry, without this, that we occupy 
 the land as guardians in socage." To which it was objected, 
 "Tour plea is still no plea; you ought to say. Without 
 this, that he held in socage; for though the defendant occupy 
 the land as in her own right, she shall still be charged, 
 under these circumstances, as guardian in socage." On 
 this the defendant took the following issue: ^'ihat he held 
 by service of chivalry, without this, that he held in socage," [y.) 
 
 With respect to the wording of this formula, absque hoc 
 quod, it may be observed that absque hoc quod and sine hoc 
 quod in the record, and sans ceo que in the viva voce plead- 
 ing, were used as common terms of denial at a very early 
 period. Thus, as early as the fifteenth year of John, we 
 find the phrase sine hoc quod so occurring in the Placito- 
 
 (s;,) Plac. AJx, 136, Bnik., temp. Hen. III. 
 (2/.) 10 Hen VI, VII. 
 
1 APPENDIX. 
 
 rum Abbreviatio, (z.) They were not, however, originally 
 appropriate (as the parallel English words, "without this, 
 that" now are) to the case of a special traverse, for they 
 were sometimes used where the denial was not of that kind, 
 and, on the other hand, in cases of special traverse, we 
 sometimes find a substitution of other synonymous expres- 
 sions, such as et non, (a.) 
 
 IS'oTB 51. (See p. 206.) 
 
 Color a rhetoribus appellatur,probabilis alicujus rei causa, 
 qua quod falsum aut turpe est, velamus, (6.) 
 
 And the following passage in Juvenal will readily recur 
 to the reader's recollection : 
 
 Quia color, et quod sit causes genua, atque nbi summa 
 QusBstio, quse venient diveraa parte aagittas, 
 Scire volunt omnea ; mercedem aolvere nemo, (o.) 
 
 See the observations formerly made on the degree of 
 connection which the method of pleading seems to have 
 with the rules of the ancient logic and rhetoric. Supra, 
 note 29. 
 
 Note 52. (See p. 207.) 
 
 The same quality of admitting an apparent right in the 
 opposite party belonged to the pleadings in the Homan 
 law. Interdum evenit ut exceptio quse prima facie justa 
 videtur, tamen inique noceat; quod cum accidit, alia alle- 
 gatione opus est, adjuvandi actoris gratia, quse replicatio 
 vocatur; quia per eam replicatur, atque resolvitur jus ex- 
 ceptionis. Eursus interdum evenit, ut replicatio quse prima 
 facie justa est, inique noceat — quod cum accidit, alia allega- 
 tions opus est, adjuvandi rei gratia, qua duplicatio vocatur. 
 Et si rursus ea prima facie justa videtur, sed propter aliquam 
 
 (z.) Plac. Ab., 90, Ebor., rot. 23, temp. Johan. 
 (a.) Plac. Ab., 136, Buck., cited mpra, p. xlix. 
 (5.) Turneb. in notis ad Quinctil. 
 Co.) Juv. Sat., yii. 
 
APPENDIX. h 
 
 causam, actori inique noceat, rursus alia allegatione opus 
 est, qua actor adjuvetur; quae dicitur triplicatio, (d.) 
 
 Note 53. (See p. 213.) 
 
 The reason of the fiction of cobr is in some measure 
 explained in Doct. and Stud., 271; and the explanation, as 
 far as it goes, is conformable with the account given in the 
 text. In this, and in most of the treatises, indeed, color is 
 said to be necessary in a view to prevent the plea from amount- 
 ing to the general issue. It will, however, appear in a subse- 
 quent part of this work, (e,) that this is, in fact, only an 
 imperfect way of expressing the same doctrine that is laid 
 down in the text. 
 
 It should also be observed that Mr. Reeves assigns as a 
 motive with the ancient pleaders in giving color, and in- 
 deed as the secret origin of the practice, the wish to inter- 
 pose delay, by preventing the more summary decision 
 which the general issue would produce, (/.) 
 
 Note 54. (See p. 217.) 
 
 This important rule, " that every pleading is taken to 
 admit such traversable matters alleged on the other side 
 as it does not traverse," appears not to have existed in the 
 civil law. "Non utique existimatur confiteri de intentione, 
 adversarius quo cum agitur, quia exceptione utitur," {g,) 
 "Non ad effectum exceptionis pertinet, quod reus excipiens, 
 hoc ipso fateri videretur de intentione actoris," [h.) On 
 the other hand, we find it established in the practice of the 
 courts of Normandy. For it is laid down in the commen- 
 taries de Terrien, Quand les parties procedent, Tun afierme 
 faicts — si la partie contre qui lesfaiets sont affermez, n'en donne 
 
 (d) Inst., lib. iv, tit. ziv. 
 (e.) See pp. 362-364. 
 (/.) See 3 Beeves, 24. 
 {g.) Dig., lib. 44, tit. 1, s. 9. 
 (h.) Voet ad Pandectas. 
 29 
 
lii APPENDIX. 
 
 neance, lesfaieis affermez, demeurent pour confessez, («.) And 
 it may be observed here, that the analogous principle by 
 which a demurrer is held to admit matters of fact also pre- 
 vailed in the Iforman law. Thus, it is laid down in the 
 same work, II est defendu de dire, je denie vostre faict, et 
 neantmoins je le defens; qui est a dire que quand prouve 
 seroit, je le soustiens impertinent. Et se faut arrester k 
 I'une des fins, (that is, the party must make his election of 
 one of these issues,) c'est k dire, ou k le neir, (au quel cas 
 s'il est prouve, encores qu'il soit impertinent, le prouvant 
 gaigne sa cause,) ou k le defendre et soustenir qui'il est im- 
 pertinent, et n'infere la conclusion du demandeur, {au quel 
 cas le faict demeure pour cognu,) ou k soustenir que le faict 
 qu'on afferme au coutraire, est plus pertinent. Au quel 
 cas aussi les faicts demeurent pour cognus d'une et d'aus- 
 tre; et s'assiet le judgment de droict sur la pertinence ou 
 impertinence des dits faicts, (Jc.) 
 
 N'OTE 55. (See p. 229.) 
 
 It may be observed that the question for decision by 
 the grand assize is not properly an issue; for it is not in 
 the form of a traverse or negative on one side, and affirma- 
 tive on the other, but of an alternative proposition, " whether 
 the tenant has greater right to hold, &c., or the demandant 
 to have," &c. And for the same reason, the tenant, in put- 
 ting himself upon the grand assize, cannot strictly be said 
 to tender issue, though the two proceedings are analogous. 
 Accordingly, the term issue is not generally applied to this 
 case, but the word mise is substituted; and the tenant who 
 pleads in this manner, is not said to tender an issue, but to 
 pin the mise, {I;) the word mise being apparently derived 
 from mettre, and having allusion to the words " puts himself 
 on the grand assize," &c. The truth is, that this form of 
 question was established in practice as early as the time 
 
 (i.) Commentaires de Terrien, 1654, liv. ix, ch. zzviL 
 (k.) Comment, de Terrien, liv. ix, ch. xxvii. 
 (I.) Finch Law, 398. 
 
APPENDIX. liil 
 
 of Glanville, i. e., before the doctrine of issues was well 
 founded, (m,) and is a relic of an earlier system than that 
 to which the ordinary issues belong. ( Vide supra, note 46.) 
 
 Note 56. (See p. 244.) 
 
 In the report of the case in Carthew it seems to be sup- 
 posed the duplicity is in general no objection to pleas in 
 abatement; but this is not law, (n.) The mistake probably 
 originated in a misapprehension of what is said by Lord 
 Coke, (o;) but what he says evidently applies, not to du- 
 plicity in its proper sense, but to the use of several dila- 
 tory pleas successively in their proper order, which, as will be 
 hereafter seen, (p,) the rules of pleading allow. 
 
 Note 57. (See p. 254.) 
 
 This rule against double pleading (peculiar at the pres- 
 ent day, it is believed, to our own country) is not referable 
 to the sources of the civil or the canon law, in both of 
 which the defendant was allowed to use as many excep- 
 tions as he pleased, (q.) Nor has its origin been hitherto 
 traced. It may not, therefore, be unacceptable to the 
 reader to be informed that this rule, to a certain extent 
 at least, very anciently obtained among the pleaders in 
 Normandy, and was considered as a peculiarity in their 
 plan of allegation. In the Commentaries de Terrien we 
 find the following passage : En Normandie Ten ne plaide 
 qu' k unefin, &c., {i. e., a single issue.) And afterwards, De 
 
 (m.) See Glan., lib. 2, c. 3, 11. 
 
 (n.) See Bao. Ab., Abatement, P. 
 
 (o.) Co. Litt., 304 a. 
 
 {p.) See p. 373. 
 
 (q.) Qui exoipit, non propterea confitetur agentis inlentionem, cum eidem 
 non solum unam, sed et plures exoeptiones etiam contrarias, proponere liceat; 
 quas, si legitime fueiint, si judex noa admiserit, potest appellari; judex 
 vero punitur. (Corv. Jus. Canon, lib. 3, tit. 32.) Pluribus defensionibus uti 
 permittitur. (Dig., lib. 44, tit. 1, s. 5.) Nemo probibetur pluribus excep- 
 tionibus uti, quamvis di-versse sunt. {Ibid., s. 8.) 
 
liv APPENDIX. 
 
 la regie dessus dite qu'on ne plaide qu'A une fin, s'ensuit, 
 que combien que de disposition de Droit (i. e., of the civil 
 law) nuUus pluribus defensionibue uti proMbeatur, toutes- 
 fois cette regie souffre limitation ■par nostre usoffe et pratique, 
 en ce qu'on ne peut user de defense de fait denii, et de fait, 
 defendu, (r,) &e., that is, a party cannot at once plead and 
 demur to the same matter. 
 
 After tbe proofs, given in some of the preceding notes, 
 of the derivation of so much of our judicial system from 
 that of our continental neighbors, the reader will perhaps 
 have no difficulty in adjusting between the two nations the 
 priority of claim to the regulation now in question. 
 
 It is farther observable that this rule seems to have been 
 unknown in England (at least not observed in practice) 
 up to the date of Bracton's treatise, for it is not mentioned 
 in the work of Glanville; and during the whole interval 
 between these two authors the Placitorum Abbreviatio 
 abounds with instances of the use of several pleas to the 
 same matter, (s.) 
 
 So far with respect to the origin of this rule. With 
 respect to its principle, or object, it was that of avoiding sev- 
 eral issues. Thus, in the first year of Edward 11, the court 
 interrupt the pleader vsdth this remark : Vous dites chose 
 que veot avoir deux issues ; tenez vous al une, (t.) So, in 
 the same year, a similar admonition occurs: II covient que 
 vous tenez al une, quar chescun de eux prent diverse issue, 
 (u.) Again, in the reign of Edward III, one of the judges 
 asks: Si jeo port un assise devers vous, et vous dites que 
 vouz n'aves rien sinon a terme d'ans, et puis dites ouster 
 que la terre est auncien demesne, averes vous cestes deux 
 plees ? quasi diceret non : et la cause est pur ceo que deux 
 issues purroient estre pris sur les plees, {x.) 
 
 (r.) Comment, de Terrien, liv. ix, c. xxvii. 
 
 (8.) See Plac. Ab., 8 Hertf., rot. 26; 9 Suff., rot. 22; 48 Line, rot. 7; 50 
 Buck., rot. 2; 88 Sussex rot. 22; 92 Line, rot. 14. {Vide supra, note 38.) 
 («.) 1 Ed. II, 14. 
 [u) Ibid., 8. 
 (a.) 40 Ed. Ill, 45. 
 
APPENDIX. lY 
 
 As for the reason why several issues were thus avoided 
 by the early pleaders, it was no doubt the wish to abbre- 
 viate and simplify, as much at possible, the process of the 
 legal contention. 
 
 While the explanation of the rule appears to be thus sim- 
 ple, it is not easy to account for the fantastic illustration of 
 its meaning, given by Bracton, as cited in a former note, {y.) 
 Indeed, it may be observed that the reasons ojBFered for it 
 by later writers, though less quaint, are not quite satisfac- 
 tory. Thus it is said in Bacon's Abridgment, (z.-) " The 
 reasons why duplicity in pleading is a fault are, that the 
 party being eflfectually barred by one single point, it is 
 unnecessary and vexatious to put him upon litigating any 
 other; and though he might take issue on any one point, 
 yet must he be at a loss which the material point is, so as 
 to traverse the same, and thereby put an end to the cause ; 
 whereas, the party pleading such double matter must be 
 presumed conusant of his own strength, and therefore 
 ought to put his defense on that single point which will 
 ]»ut an end to it. Besides, the jury ought not to be charged 
 ■\vith a multiplicity of things, when finding any one of 
 them contrary to their evidence, lays them liable to the 
 severity of an attaint." Another writer gives as the reason 
 why a party is confined to one matter of defense, " that the 
 twelve men are commonly rude and ignorant; and so, con- 
 Bequently, not proper to be troubled with too many things 
 at once." (a.) 
 
 Note 58. (See p. 254.) 
 
 On this point of practice, viz, the joinder of different 
 demands in the same action, it may be worth remark that 
 the canon law differed from the imperial institutions. 
 
 Plures actiones, says Yoet, (quoting the Digest,) uno 
 
 (y.) See note 38. 
 (z.) Bac. Ab., Pleas, &c., K. 1. 
 
 la.) Smith Eepublic, Ang., lib. 2, c. 13, p. 57, cited in System of Pleading, 
 p. 197 
 
Ivi APPENDIX. 
 
 libello cumulari nequeunt . . . Sed usu hodierno invaluit, 
 plures uno libello actiones cumulari posse, ex Juris Canon- 
 ici dispositione, quoties ex diversis causis, ad diversa ten- 
 dentibus, agitur . . . Cavendum tamen, ne tales cumulentur 
 quse sibi invicem contrarise sunt . . . Won etiam cumulandse 
 plures actiones ex eadem causa, et ad idem tendentes, 
 veluti actio ex testamento, et rei vindicatio, ad consequen- 
 dam eandem rem legatam, eo quod altera intentata, alteram 
 perimit. Nee plures actiones contra diversos, ex diversis 
 causis, debitores, &c.,{b.) 
 
 The English courts, it will be observed, have adopted 
 the same rule with the canonists; but whether by deriva- 
 tion from them, or from some other source, does not appear. 
 
 Note 59. (See p. 255.) 
 
 Count is also used, in a real action, as the name for the 
 whole declaration. It is from the French conte, (narrative;) 
 and it is worth notice that in the law of Normandy this 
 word conte had a more extensive meaning, and one, there- 
 fore, more conformable to its popular and original sense of 
 narrative than those which it now bears in the English law; 
 being applied to any of the allegations of fact in the cause, 
 at whatever part of the pleading it might occur. In the 
 Commentaires de Terrien is cited an ordinance, under 
 date A. D. 1462 and 1497, in the following terms : La court 
 a ordonne et ordonne que dorenavant apres que les parties 
 auront este ouys verbalement en leurs raisons et conclu- 
 sions, et ecrit en propos, responee, replique, et duplique (es 
 quels quatre conies, les dites parties seront tenuis mettre 
 et escrire tous leurs faicts, neances, oflfres, et raisons, et 
 faire production de toutes leurs escritures quils seront ten- 
 ues dater et produire) les dites parties pourront outre la 
 duplique, mettre et eslire leurs conclusions en deux petita 
 eonies, &c., (c.) 
 
 (5.) Yoet ad.Pandeotas, lib. ii, tit. xiii, sec. 14. 
 (c.) Comment, de Terrien, liv. ix, o. ixvii. 
 
APPENDIX. Ivii 
 
 The observation of Craig, that the terms of art in the 
 English law are all derived from the French tongue, and 
 have no affinity with the Saxon, has been already cited, 
 {d.) And perhaps when the reader considers how many 
 proofs have been afforded in the preceding notes of the de- 
 rivation not only of our legal language, but of our formsio 
 usages, from the same source, he will be inclined to accoAe 
 (with certain qualifications) to another still broader posi- 
 tion of the same author. Certem est jus omne, quo Angli 
 hodie utuntur, a ISTormannis, sou potius a Gallis, ad eos 
 emanasse, (e.) That our system of •pleading at least waa 
 borrowed from the !N"ormans, with some early and slight 
 admixture of the principles of the civil and canon law, 
 there seems the strongest reasons to believe. 
 
 Note 60. (See p. 271.) 
 
 Such was the general state of the law on the subject of 
 venue; but many nice questions arose as to the place from 
 which the venue should come in particular cases. This 
 appears to have been a matter in some measure in the dis- 
 cretion of the court, and we accordingly find the judges, 
 in some cases, departing from the ordinary course, and di- 
 recting the venue to come, not from the place where the 
 matter in issue arose, but where the action was laid, or to 
 come from more counties than one, or from different places 
 in the same county, (/.) In one case, in consequence of 
 doubts that had risen whence the venue should come upon 
 a plea of villenage, it appears that the judges suspended 
 the issue of the venire till they had consulted Parliament 
 whether the venue should be of the county where the vil- 
 lenage was alleged, or where the writ was brought, {g.) 
 
 {d.) Vide supra, note 30. 
 («.) Crag. Jus. Fend., lib, 1, d. 7. 
 
 (/.) Plac. Ab., Suff., 67; 86 Bedf., rot. 7; 94 Northuin,, wt4; 95 Bedt, 
 rot. 2; 3 Beeves, 107-112. 
 (q.) 3 Reeves, 108. 
 
Iviii APPENDIX, 
 
 Note 61. (See p. 272.) 
 
 Lord Coke says, that by the common law four of the hun- 
 dred were required in actions, real, mixed, and personal, 
 {h.) He probably by this expression means only the law 
 as anterior to the statute which altered the number in per- 
 sonal actions to two, (viz, 27 Eliz., c. 6 ;) for it seems clear, 
 that by the common law (if by that phrase be understood 
 the state of law anterior to any of our existing statutes) 
 the jury was to consist wholly of persons from the imme- 
 diate venue, and neither four, nor any other number of mere 
 hundredors, would suffice. Indeed, the form of the venire 
 facias, as it existed even down to the time of Elizabeth and 
 later, is alone sufficient to prove this. Prsecipimus, &c., 
 quod venire facias. 12 liberos et legales homines de vinei- 
 neto de B., <&c., {i.) The law, with its usual adherence to 
 old usages, retained this form of direction to the sheriff, 
 though in fact his duty had at the time of that statute long 
 been confined to summoning some of the jurors from the 
 hundred only in which B. was situate, and the remainder 
 from the county at large; but the form serves to show the 
 nature of the more ancient practice upon which it had 
 been originally framed. 
 
 The same point is yet more distinctly proved by the still 
 existing rule, that a hundred is not a sufficient venu£ to lay in the 
 pleading, (k;) a rule that seems quite inconsistent with the 
 supposition that a summons of hundredors only was origi- 
 nally sufficient. 
 
 FoTE 62. (See p. 274.) 
 
 Lord Coke seems to hold that this distinction between, 
 local and transitory matters, and the maxim by which 
 it is expressed — debitum, et contractus, &c., sunt nuUius 
 
 {h) Co. Litt., 157 a. 
 
 (i) 27 Eliz., c. 6. 
 
 Ih) Co. Litt., by Harg., 125 a., n. 1. 
 
APPENDIX. lis 
 
 loci— prevailed at the common law, (l.) Yet it is dilficult 
 to conceive this to have been the case, when the character 
 of the original institution of trial by jury is considered, 
 because the practice of observing the true venue, in transi- 
 tory as weU as local matters, seems necessarily consequent 
 upon the nature of that institution, according to its most 
 ancient form; that is, when the jurors consisted of persons 
 cognizant of the fact on their own knowledge, (m.) Per- 
 haps the expressions of Lord Coke, when fairly construed, 
 do not mean more than to trace the prevalence of this dis- 
 tinction to a very early period, and are not to be taken as 
 declaring the original state of the law on this point. 
 
 It is to be observed, that Lord 0. B. Gilbert lays down 
 on this subject propositions strongly confirmatory of the 
 view taken in this work, and irreconcilable with the sup- 
 posed doctrine of Lord Coke, if that doctrine be under- 
 stood to imply an original distinction between local and 
 transitory matters. " The venire was to bring up the pares 
 of the place where the fact was laid in order to try the issue; 
 and originally every fact was laid in the place where it was 
 really done; and therefore the written contracts bore date at 
 a certain place," &c., (n.) 
 
 Note 63. (See p. 275.) 
 
 It has been said that the practice of changing the venue 
 rests on the equity of the statute 6 Richard 11, stat. 1, c. 2, 
 (o.) On examination, however, of that statute, this doc- 
 trine wiU be found to be attended with great difficulties; 
 and if the view taken in the last note be a correct one, the 
 practice of changing the venue may be more simply and 
 satisfactorily referred to the ancient principle of the com- 
 mon law requiring the jurors in all cases to be summoned 
 from the true neighborhood. 
 
 (1.) Bulwer's Case, 7 Eep., 3 a.; and see 1 Saund., 74, n. 2. 
 
 (m.) See note 43. 
 
 (n.) Gilb. Hist. C. P., 84. 
 
 (o.) Vide 1 Saund., 74, n. 2 ; Santler v. Heard, 2 Black. Rep., 1033^ 
 
IX APPENDIX. 
 
 Note 64. (See p. 279.) 
 
 The objection of an impossible or inconsistent date, 
 even where the time is necessarily alleged, will in many 
 cases be aided, after verdict, by the effect of the verdict it- 
 self, {p.) And as well after verdict as after judgment by 
 confession, nil dicit, or non sum informatus, it will in many 
 cases be cured by the statutes of jeofails and amendments, 
 (q,) 16 and 17 Charles II, c. 8, sec. 1, and 4 Anne, c. 16, 
 sec. 2, by which it is provided that judgment shall not be 
 stayed or reversed for mistaking the day, month, or year 
 when the right day, month, or year is once truly and 
 rightly alleged in the record. 
 
 N'oTB 65. (See p. 282.) 
 
 Though in some of the preceding examples the judgment 
 was arrested after verdict, on the ground of the omission of 
 quality, quantity, or value, yet it must be observed that 
 the objection is now rarely perhaps available at that stage 
 of the cause. For in many cases the fault would no doubt 
 be considered as aided by the effect of the verdict itself. 
 Thus, if the jury find a certain amount of debt or dam- 
 ages to be due, it appears to supersede any further consid- 
 eration of the quality, quantity, or value of those goods 
 and chattels in respect of which the amount of the claim 
 is thus liquidated. And even when the verdict has itself 
 no healing operation of this kind, the statutes of jeofails, 
 which, after verdict, cure all defects of mere form, would 
 probably be held in many instances to remove the objection. 
 The courts formerly, indeed, entertained auother view on 
 this subject, holding the omission of quality, quantity, or 
 value to be matter, not of form, but substance, (r,) and 
 therefore not capable of being cured by the statutes of 
 
 {p.) 2 Saund., 171 c. Witli respect to aider by verdict, vide supra, p. 163. 
 (j.) As *io the operation of these statutes, tide supra, p. 164. 
 (r ) Playter's Case, 5 Eep., 34 b. 
 
APPENDIX. Ixi 
 
 jeofails theu in force ; but the more liberal doctrines of 
 the modern pleading or the wider effect of the subsequent 
 statutes of jeofails seem to have relaxed this severity. Ac- 
 cordingly, it has been the tendency of itcent authorities 
 to consider objections of this kind as immaterial after ver- 
 dict. Thus, in assumpsit, the declaration stated, that in 
 consideration that the plaintiff had sold to the defendant a 
 certain horse of the plaintiff's at and for a certain quantity of 
 oil, to be delivered within a certain time, which had elapsed 
 before the commencement of the suit, the defendant prom- 
 ised to deliver the said oil accordingly; though neither 
 value, quantity, nor time was specified, yet the court held 
 that the objections thence arising could not prevail after 
 verdict, (s.) However, it seems that there are some instances 
 in which the fault is still considered as matter of substance 
 and ground for arresting or reversing the judgment after 
 verdict, as in the case of replevin cited in the text, [t,) where 
 the declaration did not set forth the nature, number, or 
 value of the goods. 
 
 When an omission of this kind is considered as mere 
 form, so as to be cured by the statutes of jeofails, it will 
 be so cured, not only after verdict, but also after judgment 
 by confession, iMl dicit, or non sum informatvM, and, if made the 
 subject of demurrer, the demurrer must be special, (m.) 
 
 ISToTB 66. (See p. 284.) 
 
 Though the rule prescribing the specification of quality, 
 quantity, and value has been here classed as tending to the 
 certainty of the issue, the author is aware that, according to 
 some authorities, these particulars are required in another 
 view, viz, the more certain information of the opposite 
 party of the nature of the demand against him, in order 
 to enable him to plead to it more precisely. But, though 
 this object may have been sometimes contemplated as an 
 
 (s.) Ward v. Harris, 2 Bos. & Pul., 265. 
 
 (t.) Pope V. Tillman, 7 Taunt., 642. 
 
 (w.) As to special demurrer, vide supra, pp. 158, 159. 
 
Ixii APPENDIX. 
 
 additional ground for enforcing the specification of quality, 
 quantity, and value, the author conceives that particularity 
 on these points was originally and mainly required in refer- 
 ence to the same general design which forms the basis of 
 all the rules with respect to certainty, viz, the production 
 of a certain issue, and that this subject, therefore, occupies 
 its right place in the treatise. 
 
 That to produce certainty in the issue is the general design 
 both of this and all the ether rules that enforce certainty 
 in the pleadings, may not only be inferred from the reason 
 of the thing, but distinctly proved by several authorities. 
 Thus Bracton lays it down: Oerta debet esse intentio et 
 narratio, et certum fundamentum, et certa res quce deduciiur 
 in jwiicium, (x.) So, in treating of an assize of novel dis- 
 seisin of common of pasture, and of the form of intentio or 
 count, he says: Oportet docere de qualitaie pastures utrum 
 sit larga vel stricta, ut ceria res deducatur in judicium. Item 
 de quo tenemento pertineat, et ad quale tenementum. Et 
 eodem modo de tempore, genere, numero, et modo, {y,) &c. 
 And the same doctrine is laid down still more decisively in 
 the following passage : Oportet quod petens rem designet 
 ([uam petit, videlicet qualitatem, ut sciatur utrum petatur 
 terra, vel redditus, cum pertinentiis ; item quantitatem, utrum 
 didelicet sit plus vel minus, quod petitar. Certam enim rem 
 oportet deducere in judicium, ne contingat judicium esse deluso- 
 rium vel obscurum quia de re incerta in judicium, deducta, certa 
 fieri non poterit sententia .... Specificare autem poterit, sic, ut 
 ni dicat — Peto versue talem tot maneria, quandoque cum 
 pertinentiis, quandoque sine ; item tot feoda militum cum 
 pertinentiis ; item tot carucatas terras, tot virgatas, tot acras, 
 tot selliones, &c., {z.) 
 
 Thus, too, it is laid down by Lord Coke, that in pleading 
 performance of the condition of a bond, the party " ought 
 to plead, in certainty, the time and place and manner of 
 
 {x.) Cited Co. Litt., 303 a 
 iy.) Bract., 224 b. 
 (z.) Bract., 431 a. 
 
APPENDIX. kill 
 
 the performance, so as a certain issue may be taken," &c., 
 («■) 
 
 See also Rex v. Cooke, 2 Barn. & Ores. 871, a case con- 
 firmatory of the same view, and decided since the first pub- 
 lication of this work. 
 
 Note 67. (See p. 335.) 
 
 The principle of the rule against a negative pregnant is 
 not clearly or satisfactorily explained in any of the treat- 
 ises; and indeed very little is said in them upon this sub- 
 ject, though the fault itself is in the older cases a fre- 
 quent ground of objection. That the author has here sug- 
 gested the true principle is confirmed, he thinks, by the 
 form in which we find this kind of objection taken in the 
 following case from the Tear-Books. In an action for negli- 
 gently keeping a fire, by which the plaintiff's houses were 
 burnt, the defendant pleaded that the plaintiff's houses were 
 not burnt by the defendant's negligence in keeping Ms fire; and 
 it was objected that "the traverse was not good, for it hxis 
 two intendments: one, that the houses were not burnt; the 
 other, they were burnt, but not by negligent keeping of 
 the fire; and so it is a negative pregnant," (b.) The same 
 ground, viz, that of ambiguity, is taken in 7 Edward H., 
 213, 226, which are believed to be the earliest authorities 
 for the rule itself. What is to be found in more modern 
 books, on this subject, tends to support the same view. 
 Thus we find it laid down, "therefore the law refuseth 
 double pleading and negative pregnant, though they be 
 true, because they do inveigle, and not settle the judgment ' 
 upon one point," (c.) So it is said in another book, "A 
 negative pregnant is when two matters are put in issue in 
 one plea; and this makes the plea to be nought, because the 
 plaintiff cannot tell in which of these matters to join issue 
 with the defendant, for the uncertainty upon which of the 
 
 {a.) Halsey v. Carpenter, Cro. Jac, 360. 
 
 (6.) 28 Hen. VI, 7. 
 
 (c.) Slade v. Drake, Hot,, 295. 
 
Ixiv APPENDIX. 
 
 matters the plaintiff doth insist; and so it is not safe for 
 the plaintiff to proceed upon it," (d.) 
 
 Note 68. (See p. 343.) 
 
 In treating of the observance of established forms of 
 statement, by the ancient pleaders, Mr. Keeves remarks: 
 "It was impossible that a set form of expression could be 
 designed for every matter that might become the subject of 
 a declaration or plea. But many modes and circumstances 
 of property recurred so often in judicial inquiries as to 
 obtain apt and stated forms of description and allegation, 
 which were established by long usage ; the experience of 
 them having shown them preferable to all others. These, 
 therefore, were adhered to by pleaders ; and the nicety with 
 which they were conceived is a strong mark of the refine- 
 ment and curiosity with which this part of our law was 
 cultivated," (e.) 
 
 ISToTB 69. (See p. 845.) 
 
 The plea of coverture, however, .concludes to the writ, i. e., 
 with a prayer, quod breve cassetur, and not with responderz 
 non debet, (/.) So, in an action against a man as executor, 
 if he plead that he is administrator, this plea must conclude 
 with breve cassetur, and not with responderi non debet, (g.) 
 Indeed it may be remarked generally that all such mat- 
 ters as not only relate to the person of the plaintiff or de- 
 fendant, but also tend to show the form of the writ, is er- 
 roneous, are apt to be considered as pleas in abatement to 
 the writ rather than the person, and therefore conclude not 
 with responderi non debet, but breve cassetur. It is only such 
 matters as alienage, excommunication, &c., which relate to the 
 person exclusively and show that no form of writ would be 
 correctly applied that will be found to have the former 
 
 (d) Styles Pract. Eeg., tit. Negative Pregnant. 
 
 (e.) 3 Reeves, 463, 464. 
 
 (/.) 1 Chitty, 1st edit., 450. 
 
 {g.) Powers v. Cook, 1 Ld. Eaym., 63. 
 
APPENDIX. \x\ 
 
 conclusion. In Comyn's Digest, (h,) very numerous in 
 stances of pleas in abatement to (he person, are enumer- 
 ated; but, on examining them, they appear, for the most 
 part, to relate both to the person and the form of the writ; 
 and in all such cases we shall find, in conformity with the 
 remark above made, that, though classed by Oomyn among 
 pleas in abatement to the person, they conclude with breve 
 cassetur, and not responderi non debet. 
 
 :*5'0TE 70. (See p. 350.) 
 
 Some of these formal commencements and conclusions 
 are of great antiquity. Thus, in Britton (the first law treat- 
 ise in French, supposed to be written in the reign of Ed- 
 ward I,) (j,) we fin d this form of commencement : Le pleintife 
 ne purra rien conquere, {k,) which is nearly the same with 
 actio non. "We also find the following : L'escript ne luy doit 
 grever, {I.) This is the onerari non. So, the prayer of judgment 
 at the conclusion of pleadings is mentioned in Bracton, (m.) 
 
 A somewhat curious circumstance, and one that seems 
 to deserve remark in this place, is that a form exactly par- 
 allel to that last cited from Britton is to be found in the 
 still extant pleadings of the Lombards. Thus : Ipsa char- 
 tula non mihi nocet, quia eram Longobarda, non potui facere 
 sine parentibus, (n.) And again, si appelator dixerit, ecce 
 charta quum pater tuus mihi fecit, et appellatus dexeTit,illa 
 charta nihil mihi impedit, quia pater mens fecit eam, per vir- 
 tutem, {i. e., vim,) approbet, (o,) &c. 
 
 Note 71. (See p. 361.) 
 
 Though it be said that it is sufficient to pray judgment 
 generally, (except in the case of pleas in abatement,) and 
 
 (h.) Com. Dig., Abatement, E., F. 
 
 (i) 2 Reeves, 280. 
 
 (k.) Brit., c. 96. 
 
 ll.) Ibid, 0. 28. 
 
 (m.) Bract., 57 b. 
 
 (71.) Legea Lintpr., lit. vi, 74. 
 
 (o.) Leges Ottonis II, Augnsti, c. 6, 
 
Ixvi APPENDIX. 
 
 that upon such general prayer the court will, ex officio, 
 award the proper legal consequence, yet it may be doubted 
 whether this proposition does not require considerable 
 qualification. Perhaps it cannot safely be laid down as 
 settled law that a simple prayer of judgment, without more, 
 would, in every case, be held good, supposing the want of 
 form to be specifically objected upon special demurrer, (p.) 
 
 Note 72. (See p. 352.) 
 
 It is said in several books that if a plea which contains 
 matter in bar conclude in abatement, it is a plea in bar, 
 notwithstanding the conclusion, {q.) K this proposition be 
 meant to include the case where there is not only a conclu- 
 sion, but a commencement, as in abatement, it is opposed 
 to the decision in 6 Taunt., 587, as cited in the text. And 
 even if it be intended to apply only to the case where there 
 is a conclusion in abatement, but no commencement either 
 way, the soundness of the doctrine seems doubtful. For 
 it is said to be founded on this principle, that where there 
 is no cause of action the plaintiff can have no writ, (r;) and 
 the opinions of Prisot, J., and Littleton, J., are cited to 
 this point from the Tear-Books. It is observable, how- 
 ever, that this principle would only tend to show that such 
 a plea would be a good plea in abatement, and does not 
 explain why it should be considered as a plea in bar. And 
 though Prisot, J., in 37 Hen. VI, 24 a., holds that it would 
 be a plea in bar, the opinion of Littleton, J., 36 Hen. VI, 
 18, when examined, does not go to that extent. He merely 
 says it would be a good plea. There seems reason, there- 
 fore, to doubt whether such plea should not be taken (in 
 conformity with the general principle, conclusio facit plod- 
 turn) as a plea in abatement, (s.) As to the case where the 
 
 (p.) But see the caaes, Pit v. Knight, 1 Ley., 222; Barnes v. Gladman, 2 
 Lev., 19 ; Curwen v. Fletcher, Str., 520. 
 (2.) 2 Sannd., 209 c, n. 1; 1 Chitty, 446, 1st edit.; 1 Arch., 304. 
 (r.) 1 Chitty, 446, 1st edit.; 2 Saund., 209 c, n. 1. 
 (s.) See Alice v. Gale, 10 Mod., 112; Godson v. Good, 6 Taunt., 595; 2 
 
APPENDIX. Ixvii 
 
 commencement is one way, and the conlusion anotJier, as 
 where the plea commences in bar, and concludes in abate- 
 ment, or commences in abatement and concludes in bar, 
 see 2 Saund., 209 c, n. 1; Medina v. Stoughton, 1 Ld. Eay., 
 593; Carneth v. Priour, 1 Show., 4. 
 
 Note 73. (See p. 354.) 
 
 Lord Coke defines it thus: "A departure in pleading i8 
 said to be when the second plea containeth matter not pur- 
 suant to his former, and which fortifieth not the same. 
 And therefore it is called decessus, because he departetb 
 from his former plea," (i.) 
 
 Mr. Sergeant "Williams gives the following definition : 
 '' A departure in pleading is said to be when a man quits 
 or departs from one defense, which he had first made, and 
 had recourse to another ; it is when his second plea does 
 not contain matter pursuant to his fijst plea, and which 
 does not support and fortify it," (m.) 
 
 Note 74. (See p. 368.) 
 
 This form of commencing the declaration, ceo vous mon- 
 stre, occurs in the Tear-Books passim, and in the Novae 
 Narrationes, which is of the time of Edward EH, and con- 
 tains the most ancient precedents in the law French, (x.) 
 The same commencement. Latinized, occurs in Bracton : 
 Hoc ostmdit vobis, {y.) The form of an earlier period, as 
 given by Glanville in Latin, is peto, [z,) &c. 
 
 Saund., by P. & W., p. 209 c, n. e, where the learned editors of Saunders, in 
 a note not published when the remarks in the text were first made, appear to 
 coincide with them. 
 
 it.) Co. Litt., 304 a. 
 
 («.) 2 Saund., 84, n. 11. 
 
 (i.) See also Britton, 59. 
 
 (y.) Bract, 296 b. ; 372 b. 
 
 (z.) Glan., lib. 3, c 1 ; 3 lib., 4, c. 6. 
 
 30 
 
Ixviii APPENDIX. 
 
 Note 76. (See p. 371.) 
 
 It is said in Fleta that the rule requiring the production 
 of suit in the declaration is the subject of one of the pro- 
 visions of Magna Charta. Ad hoc facit hoc Statutem in 
 Magna Charta: NuUus liber homo ponatur ad legem, nee 
 ad juramentum, per simplicem loquelam, sine testibus 
 fidelibus ad hoc ductis, (a.) 
 
 Note 76. (See p. 373.) 
 
 The practice of finding pledges to prosecute appears to 
 have been an effective one, at least as late as the time of 
 Bracton. " Si quis," says that author, "plegios inveniet de 
 prosequendo, et non fuerit prosecutus, omnes erunt in mis- 
 ericordia, tarn plegii, quam principales. 
 
 Note 77. (See p. 373.) 
 
 The order of pleading has generally been given in a leas 
 detailed form than that contained in the text. 
 According to Mr. Tidd it" is as follows : 
 
 1. To the jurisdiction of the court. 
 
 „ m 4.1, f 1. Of the plaintiff. 
 
 2. To the person, | 2. Of the defendant. 
 
 3. To the count. 
 
 A m j.t,„ „ -i. f 1- To the form of the writ. 
 
 4. To the writ, | g. To the action of the writ. 
 
 5. To the action itself, in bar thereof, (6.) 
 
 And it is given in nearly the same manner in the preface 
 to the Doctrina Placitandi and in Bacon's Abridgment, (c.) 
 
 Lord Holt states it still more generally : " The law has 
 prescribed and settled the order of pleading which the party 
 
 (o.) Fleta, 137. 
 
 (5.) 1 Tidd, 680, 8th edit. 
 
 (o). Bac. Ab., Fleas, &c., A. 
 
APPENDIX. Ixix 
 
 is to pursue, viz, to the jurisdiction of the court, to the 
 disability of the person, to the count, to the writ, and, 
 lastly, to the action," (d.) 
 
 This is almost in the same terms with Lord Coke ; 
 
 " 1. In good order of pleading a man must plead to the 
 jurisdiction of the court 2. To the person, and therein, 
 first to the person of the plaintiff, and then to the person 
 of the defendant. 3. To the count. 4. To the writ. 5. To 
 the action, &c. Which order and form of pleading you 
 shall read in the ancient authors, agreeable to the law at 
 this day, and, if the defendant misorder any of these, he 
 loseth the benefit of the former," (e.) 
 
 Note 78. (See p. 375.) 
 
 Defendere was the word most often used in ancient times 
 to express denial. Thus we find it employed to deny the 
 genuineness of a deed. Petrus venit et defendit cartaniy 
 quod nunquam facta fuit per Petrum de Goldington, &c. , (/.) 
 
 Note 79. (See p. 375.) 
 
 " Defense, in its true legal sense, signifies not a justifica- 
 tion, protection, or guard, which is now its popular signifi- 
 cation, but merely an opposing or denial (from the French 
 word defender) of the truth or validity of the complaint. 
 It is the contestatio litis of the civilians," (g.) As to the 
 latter proposition, vide supra, note 42, where it is shown 
 that the contestin litis has a different meaning in the civil 
 law. 
 
 Note 80. (See p. 377.) 
 
 With whatever object introduced, the use of the words 
 defendit jus suum and defendit vim et injuriam in the 
 
 (d.) Longueville v. Thistleworth, Lord Ray., 970, 
 (e.) Co. Litt., 303 a. 
 
 (/.) Plao. Ab., 27 Leic, rot. 11, temp. Johan. 
 [g.) 3 Bl. Com., 296. 
 
IXX APPENDIX. 
 
 plea, is coeval with the most ancient records, for we find 
 them in the earliest specimens from the Placitorum Abbre- 
 viatio, in the beginning of the reign of Richard I. Eogerus 
 de Hineton defendit jus suum et dicit, {h.) Et y vo venit 
 et defendit jus suum et dicit, {i.) Et Robertas venit et 
 defendit vim et injuriam et dicit, {k.) 
 
 N"0TE 81. (See p. 377.) 
 
 The rule by which a plea in abatement is required to 
 give the plaintiff a better writ is very ancient, being laid 
 down by Bracton, in the reign of Henry III. Thus he says, 
 in speaking of the plea of non tenure: Nolandum, quod 
 cum tenens semel talem exceptionem proposuerit, ulterius 
 consimilem proponere non possit, ne diutius protrahatur 
 negotium ; et tenens ad hoc poterit coarctari, quod osten- 
 dat quis in possessione extiterit, ne iterum cadat breve per 
 mendacium; et, etiam ad omnes exceptiones quae faciunt 
 ad breve prosternendum, (l.) So Britton says, in speak- 
 ing of the same plea: Si le tenant die que il ne tient mye 
 rentier, adonques covient que il die qui tient le remenaunt. 
 Car nous volons eins ceo que brefs se abatent par vice et 
 par errour, que les tenaunts informent les pleintifes coment 
 ils purchaserount bona brefes, (m.) 
 
 Note 82. (See p. 378.) 
 
 This principle, relative to dilatory pleas, viz, that they 
 should be pleaded at a preliminary stage of the suit, ap- 
 pears to, have been borrowed from the canon or civil law. 
 Dilatorise exceptiones, si declinatoriae judicii, ab initio et in 
 Uiis ingressu, proponi debent; alioquin; omissse, non repe- 
 tuntur, ut neque quae contra judicem, vel ejus incompe- 
 
 (h.) Plac. Ab., 1 Dorset, rot. 5, temp. 6 Ric. I. 
 (i.) Plac. Ab., 7 Cantabr., rot. 26, temp. 10 Eic. I. 
 Ik) Plao. Ab., 90 Ebor., rot. 23, temp. 15 Joban. 
 Il) Bract., 431 b. 
 (m.) Brit., o. 84. 
 
APPENDIX. Ixxi 
 
 tentiam, proponuntur, quae defensionem prsecedere debent, 
 &c., (n.) Si quis advocatus, inter exordia Ms prsetermissam 
 dilatoriam prcescriptionem, {i. e., exceptionem,) postea voluerit 
 exercere, et ab hujusmodi opitulatione submotus, nihilom- 
 inus perseveret, atque prceposteroB defensioni institerit, unius 
 librae auri condemnatione, multetur, (o.) 
 
 Note 83. (See p. 379.) 
 
 The rule requiring that each pleading should be sup- 
 ported by proof appears to have extended equally to the 
 declaration and to the subsequent pleadings, for the secta 
 ■was considered as a species of proof offered in support of 
 the declaration. 
 
 To establish in a satisfactory manner the existence of 
 this rule, several authorities shall here be cited. First, in 
 speaking of the intentio, or count, in a writ of right, Brac- 
 ton says : Item non sufficit quod petens intentionem suam 
 sic proponat et fundet, nisi sic fundatam probaverit, et dica- 
 tur in fine intentionis fundatse, "et quod tale sit jus suum 
 offert," &c., (p.) Again, with respect to exceptiones, or 
 pleas, generally, he lays it down : Sicut ille qui dicit, tene- 
 tur, probare actionem, ita ille qui excipit, exceptionem, 
 sive affirmando, sive negando, dum tamen negitiva habeat 
 in se, affirmativam implicitam, (q.) So, he says that where 
 a tenant has occasion to plead the grant of the demandant, 
 ostendere debet tenens ehartam ad probandam exceptionem suam, 
 quod si non fecerit, exceptio sua nulla, et amittat sicut 
 indefensus. Si autem ehartam forte exhibere non possit, 
 quia illam ad manum non habuerit, de necessitate erit ad 
 patriam recurrendum, (/•.) And of exceptiones, in general, 
 he says : Sicut necesse est actionem proponere, et fundare, 
 et probare, ut prima facie justa videatur, ita oportebit ex- 
 
 (n.) Corv. Jus. Canon, lib. 3, tit. 32. 
 (o.) Cod., lib. 8, tit. 36, a. 9 
 Ip.) Bract., 373 b 
 Iq.) Ibid., 307 b. 
 (r.) Ibid., 34 a. 
 
Ixxii APPENDIX. 
 
 ceptionem, (s.) The reader may also be referred to the 
 Placitorum Abbreviatio, passim, where the pleadings are 
 constantly accompanied with an offer of some method of 
 proof. The latter work contains, in particular, the follow- 
 ing entries, which afford strong confirmation of the same 
 principle. 
 
 Isabella de B. petit versus E. de B., dimidium, &c., ut 
 jus suum et hereditatem. Et ipse venit et defendit jus 
 suum. M ipsa nullam seciam adduxit. Eat sine die, [t.) 
 
 Gilbertus de Beivill petit versus "Willielmum de Beivill, 
 duas virgatas terrge cum pertinentiis in Gunetorp, quae eum 
 contingunt de socagio quod fuit patris eorum, in eadem 
 villa. Willielmus defendit quod socagium illud nunquam 
 partitum fuit, nee debet partiri. Et hoc offert defendere, 
 &c. Quia Gilbertus nullam probaiionem produzit, consider- 
 atum est quod "Willielmus eat inde sine die, et quietus, (?<.) 
 
 In an action of assize, of novel disseizin, we have the 
 following entry : Assiea venit recognitura si Oliverus filius 
 Eanulfi Haki, et Simon Medicus, disseisiverunt Williel- 
 mum filium Simonis, et Sibillam uxorem suam, injuste et 
 sine judicio, de libero tenemento suo in Cliftun infra assi- 
 sam. Simon Medicus dicit, quod ipse disrationavit illud 
 tenementum versus Oliverum, in curia Domini Regis, per 
 concordiam inde inter eos factum. M inde protulit chiro- 
 graphum factum inter eos inde. Et Oliverus venit, et idem 
 testatur; et dicit quod disrationavit terram illam per as- 
 sisam mortis antecessoris versus matrem suam et fratrem 
 suum, et ipsam Sibillam sororem suam, post obitum patris 
 sui; in qua terra ipsi injuste se tenuerunt. JEt inde pro- 
 ducit milites de comitatu, qui eidem assises capiendo interfuerunt, 
 et hi idem testantur. Willielmus et Sibilla dicunt quod post- 
 quam inde Oliverus disrationavit illam terram, dedit eia 
 terram illam, et homagium inde cepit. Et inde ponunt se 
 super visinetum, (x.) 
 
 (s.) Bract., 40.0 a. ; see also 215 b. 
 
 (t.) Plao. Ab., 62 Staff., rot. 7, temp. 10 Johan. 
 
 (u.) Plac. Ab., temp. Johan. 
 
 (x.) Plac. Ab., 81 Bed., rot. 4. 
 
APPENDIX. ixxiii 
 
 The following is an entry in an assize of mortancestor: 
 Assisa venit recognitura si "Willielmus pater Jurdani 
 Baisitus fuit in dominico suo ut de feodo, de duabus caru- 
 catis terrse cum pertinentiis in Tadestorn, die qua obiit; et 
 si obiit post primam coronationem Henrici Regis, patria 
 Domini Eegis; et si prsefatus Jurdanus propinquior hseres 
 ejus sit; quam terram Thomas frater Willielmi de M.are 
 tenet. Et praedictus Thomas venit et dixit quod assisa inde 
 fieri non debet, quia ipse Jurdanus et frater ejus primo- 
 genitus implacitaverunt ipsum Thomam de ipsa terra, per 
 breve de recto, ita quod per placitum illud, qusedam par- 
 ticula de terra ilia, eis remansit; et postea ceperunt pro 
 eadem terra duas marcas argenti et unum chazurum. Et 
 hoc offert probare adoersus eum, prout curia consideraverit. Sed 
 nullam produxit probationem. Et Jurdanus venit et defendit 
 quod ipse nullum fratrem primogenitum legitime natum . 
 habuit. Et quod ipse nunquam in curia uUa, quietam clam- 
 avit terram illam, nee inde duas marcas vel pecuniam 
 aliquam inde cepit. Et hoc offert defendere per quendam lib- 
 erum hominem suum. Et Thomas nihil quam defensionem 
 illam dixit vel obtulit, nee sectam quod ipse Jurdanus primogeni- 
 tum fratrem habuit, produxit, nee curiam aliquam in qua placitum 
 esset inter eos, nee quando finis f actus esset infer eos. Consid- 
 eratum est quod ipse Jurdanus habeat inde saisinam suam, 
 
 These authorities, to vrhich many others of the same 
 class might easily be added, are sufficient to prove that a 
 tender of evidence was, before and at the time when 
 Bracton wrote, considered as a necessary ingredient in all 
 pleadings of the affirmative kind. Soon after that period, 
 however, the process of pleading began to be conducted 
 with a more distinct and single view to the development 
 of the particular question in controversy or production of 
 the issue; and, Trhen so conducted, the offer of evidence 
 in support of any allegation would naturally be considered 
 as premature till it were ascertained that such matter came 
 
 (t/O Plac. Ab., 20 Hertf., temp. Eic. I. 
 
Ixxiv APPENDIX. 
 
 into dispute. The rule in question appears, therefore, ua 
 der the influence of this cause, to have suffered a silent 
 abrogation, yet vestiges of it to this day remain in the 
 production of suit and in the formal verification. 
 
 Note 84. (See p. 379.) 
 
 Thus Bracton lays it down, (in a passage cited in the 
 last note:) Si autem chartam forte exhibere non possit, 
 quia illam ad manum non habuerit, de necessitate erit ad 
 patriam recurrendum, (z.) Again, in treating of the excep- 
 tion that the demandant was a villein, he says: Oportet 
 quod tenens probet exceptionem per parentes, quos statim 
 habeat ad manum, si possit, &c. But if the case was, that 
 no parentes could be produced on either side, then recourse 
 was to be had to a jurata. Probat enim tenens exceptio- 
 nem per juratam; in quam de necessitate consentire oportet, 
 propter defectum alterius probationis; quia si non habeat paren- 
 tes, de necessitate recurritur ad juratam — alioquin, nulla 
 erit exceptio, quasi deficiente probatione. Eodera modo dici 
 poterit de replicatione querentis, (a.) Again, this author 
 observes: Pro6an poterit exceptio multis modis, tarn per 
 vocem mortuam, sicut per instrumenta, tum per vivam, 
 sicut per patriam et inquisitiones, &c., (b.) And in another 
 place he speaks of probatio per instrumenta — quae quidem 
 si non fuerint recognita, fides eorum multipliciter probari 
 poterit, vel per collationem signorurn, vel per testes, vel 
 Tper patriam, et aliis multis modis, &c., (c.) 
 
 Even in the phraseology of later times, trial by jury is 
 mentioned as a mode of proof. (Constable's Case, 6 Kep., 
 108 a.; Ladd v. Garrod, Lutw., 665; Vin. Ab., Trial, 
 Q. a.) 
 
 (z.) Bract., 34 a. 
 (a.) Ibid, 216 a. 
 (6.) Ibid, 400 a. 
 ((!.) Ibid. 305 a,, et vide 289 b., 290 a. 
 
APPENDIX. IXXV 
 
 Note 85. (See p. 379.) 
 
 Prest, &c., was the constant form in the viva voce plead< 
 ing of offering to prove by jury, as appears by the Tear- 
 Books. 
 
 Sometimes the prest, or prest, ^c, is more fully given, 
 thus: prest d'averrer; that is, ready to prove or to verify. 
 
 Note 86. (See p. 382.) 
 
 The following examples ( which, independently of the 
 view in which they are adduced, are curious, and deserve 
 attention) will illustrate the original meaning and object 
 of the profert, and, as the author conceives, fully support 
 him in the new view he has ventured to take on this sub- 
 ject. 
 
 In the first of them it will be observed the plaintiff offers 
 proofs, both by deeds and by the roll of Winton, and the 
 defendant also refers to deeds in support of his plea. 
 
 Abbas Sampson queritur quod Osbertus de "Weckesham, 
 miles episcopi Eliensis, injuste levavit furcas, et suspendiam 
 fecit, in manerio de Hecham infra libertatem Scti Edmundi; 
 et contra libertatem quam habuit beatus Edmundus a tem- 
 pore Regis Edwardi, et ex ejusdem Regis dono. Et inde jsro- 
 tulit cartas diversorum Regum, &c. Et prceteria ponii se inde 
 super Botulum, Winton, &c. Osbertus venit et trahit inde 
 Episcopum Eliensem ad warrentum. Episcopus venit et 
 warrantizat illud suspendium quod et de jure factum fuit, 
 ut dicit, quia libertatem habuit et habet Sancta Ethildreda 
 a tempore Bdgari Regis, qui universas libertates dedit ec- 
 clesiae Sanctas Ethildredse, cum suspendii libertate, &e. 
 Protulit eiiam cartam et confirmation em Regis Edwardi, qui 
 confirmavit libertates omnes ita datas Sanctse Ethildredse 
 tam in manerio de Hecham, cujus membrum est Weckes- 
 ham, et in pertinentiis omnibus, quam in aliis maneriis, sine 
 omne exceptione, &c,, sirut Rex Edgarus eis concesserat, 
 
IXXVi APPENDIX. 
 
 Proiulii eiiam cartas Regum Willielmi ConquestorisjHenrici 
 avi, et aliorum, &c, (d.) 
 
 In the next example the plaintiff offers a deed, with the 
 subscribing witnesses or the grand assize, as alternative modes 
 of proof. 
 
 Johannes de Crioill, et Johanna uxor ejus, petunt versus 
 Petrum de Goldington, terram de Winchinton tenendam 
 et habendam, sicut illam quse data fait eidem Johanni, in 
 liberum maritagium, ex dono Petri de Goldington et Bvse 
 uxoris suae, et unde Willielmus pater ejus et Johanna uxor 
 ejus seisiti fuerunt tempore Henrici Regis patris, et ipse Jo- 
 hannes Crioill postea, capiendo inde explecia ad valenciam 
 XX solidorum, &c. Et inde proiulerunt cartam Petri de Gold- 
 ington, et Ev83 uxoris suae, donationem testantem. Petrus 
 venit et defendit jus, &c., et dicit quod terro ilia de Winchin- 
 ton fuit maritagium Evse matris suae, et eidem descendit 
 tanquam recto heredi, et offert defendere jus et dona- 
 tionem cartse, &c. Et prseterea ponit se in magnam assisam 
 Domini Regis, &c. Ipsa e contra dicit quod ponit se in mag- 
 nam assisam, si suffieere ei non potest carta Petri patris sui et 
 Evse matris suae, (quae testatur quod si non possint ei ter- 
 ram illam warrantizare excambium ei facient ad valenciam 
 in Stokes vel in Cotes,) et vivce voces testium carte, &c., (e.) 
 
 The following passage of Bracton, already cited for other 
 purposes in previous notes, seems decisively to confirm the 
 same view of the original meaning of the profert : 
 
 Ostendere debet tenens chartam ad probandam excepOonem 
 swam; quod si non fecerit, exceptio sua nulla, et amittat 
 sicut indefensus. 8i autem chartam forte exhibere nonpossit, 
 quia illam ad manum non habuerit, de necessitate erit ad 
 patriam recurrendum. Et eodem modo si casum allegave- 
 rit, et casum probaverit, (/.) 
 
 On this subject it is not undeserving of remark that, 
 
 (d) Plao. Ab.,22 Suffolc.rot. 7. 
 («.) KtfePlao Ab.,e3 Leio.,rot.l3. 
 (/.) Bract., 34 a. 
 
APPENDIX. Ixxvii 
 
 though in the king's bench the profert is made in the body 
 of the declaration, yet in the common pleas its proper place 
 is at the conclusion; a position that entirely corresponds 
 with the idea that it is derived from the old rule of law in 
 question, under which it was the practice to make the 
 offer of proof at the conclusion of the pleading, as appears 
 by the examples cited in this note and by a great variety 
 of entries in the Placitorum Abbreviatio. 
 
INDEX. 
 
 ITte figure* reftn to the body of the work, the Soman letters to the Appendix. 
 
 Abatement, pleas in, 85-89, xxi- 
 zziii, Izir. 
 
 to the person, 85, 86, 345, xxiii. 
 
 to the connt, 85. 
 
 to the writ, 86-88, 345, Ixiv. 
 
 are exceptions to the role re- 
 quiring traverse or confession 
 and avoidance, 220. 
 
 may be pleaded to part, 261, 
 
 (P) 
 conunencements and conclusions 
 
 of, 345, 348, 352. 
 of replications to, 346. 
 must give a better writ or bill, 
 
 377, 220, (k.) 
 strictness of form in prayer of, 
 
 351. 
 judgment on, 161, 134, 136, 398. 
 AssftUE HOC, 181, (g,) 184, 191, xlix. 
 Actio non, 345, 348. 
 Actio non ULTEEitrs, 349. 
 Action, when discontinued, 60, 215, 
 
 216, ibid, (o.) 
 Actions, division of, 39. 
 
 local and transitory, 274. 
 Acts op Fabliament. (See Statutes.) 
 public, need not be set forth in 
 
 pleading, 313. 
 private, material parts of, should 
 be stated, ibid. 
 Affibmative, pleadings, which do 
 not conclude to the country, 
 nhould conclude with a verifi- 
 cation, 192, 230, 378. 
 of issue to be proved, 118. 
 two affirmatives make a bad 
 issue, 338. 
 
 AoflBAVATiON, matter of, should not 
 be traversed, 237. 
 need not be answered, 216. 
 venue not necessary to, 269. 
 certainty of time not required as 
 
 to, 278. 
 degree of particularity required 
 in statement of, 329. 
 Aid pbayeb, xxii. 
 
 AlDBE BY VEBDicT, extent and prin- 
 ciple of, 163, 164. 
 will not supply necessary allega- 
 tions altogether omitted, 164. 
 nor aid where pleading contains 
 adverse matter clearly ex- 
 pressed, iMd. 
 Alien eneut, plea of, must be cer- 
 tain in every particular, 316. 
 Altebnative, pleading in the, bad, 
 339. 
 performance of condition in the, 
 how to be pleaded, 324, 325. 
 Ambiguity, 333-336. 
 Amendment, 110, 165, 393. 
 
 statutes of, 126, 165, 370, xxii, 
 
 zxx. 
 objections of form only cured by 
 166. 
 Appeaeancb, 58, 61, 79, viii, xvii. 
 Aegumentativeness, 191, 326, 337, 
 
 361. 
 Abbest of judgment, 126, 162, 166. 
 Assault and batieey, original writ 
 of trespass for, 48. 
 declaration for, 70. 
 Assize, plea in, makes no defense, 
 376. 
 
 Izxiz 
 
INDEX. 
 
 Assize — continutd. 
 
 color given in, 213. 
 trial by the grand, 129. 
 recognitions of, zzzii. 
 of novel disseizin, and mort- 
 aneestors, xxix. 
 Assizes de Jeeusalem, ix, x, xv. 
 Assumpsit, where it lies, 49. 
 
 on promise express or implied, 
 
 175. 
 original writ of, 50. 
 declaration in, 72, 175. 
 general issue in, 170, 174^177, 
 
 395. 
 conclusion of replication to plea 
 in bar in, 348. 
 Attachment op pbivheoe, 80. 
 Attaiitt, writ of, xxx. 
 Atioenet, suing and defending by, 
 
 58, 61, 62, viii, xvii. 
 Authoeitt, must be shown in plead- 
 ing, 302. 
 under judicial process, rules as 
 
 to pleading, 303, 304. 
 matter of, must be separately 
 traversed, 181, 252. 
 Avoidance, pleas in confession and, 
 (See Confession and Avoid- 
 ance.) 
 AvowET, 203, (g,) title of possession 
 not sufficient in, even against 
 wrong-doer, 289. 
 of liberum tenementum, 296. 
 AwABS, rule as to showing breach of, 
 
 in replication, 227. 
 Bail, filing common, 79. 
 Bab, pleas in, 89, xxiv. 
 
 commencements and conclu- 
 sions, 345. 
 
 of replications to, 347, 848. 
 trial at, 117. 
 Baeeistees, 64, ix-xii. 
 Bill, proceeding by, 40, 75, 270, 370. 
 form of declaration by, 80. 
 of Middlesex, 77. 
 Bill or exceptions, 121. 
 Bond, declaration in debt on 87. 
 
 Breach, of coveiiint or condition.. 
 Low assigned, 307, 319, 820. 
 of award, when to be shown, 227, 
 Capias, of privilege, 81. 
 Capias ad eespondendum, 55. 
 Cassbtue beeve, 134, 136. 
 Ceetainty, of issue, 153, 267, Ixi. 
 reasons for requiring, 153-155. 
 of pleadings, different meanings 
 
 of term, 153. 
 pleadings must have certainty ol 
 place, 268. (Vide Vemie) 
 of time, 278. 
 
 must specify quality, quantity, 
 and value, 281. 
 names of persons, 284. 
 must show title, 286. (Vide 
 Title) 
 
 authority, 302. 
 whatever is alleged in pleading 
 
 must be alleged with, 306. 
 rules tending to limit or restrain 
 ' the degree of, 309-332. 
 to a common intent sufficien', 
 
 334. 
 degree of, required in pleas in 
 
 estoppel, 316. 
 degree of, required in plea of 
 alien enemy, ihid. 
 Ceetificate, trial by, 131, 230. 
 
 CHANGINa VENUE, 275. 
 
 CoaNizANOE, 203, (j,) 304, 350. 
 CoLOB, 206-215, 362, 1. 
 
 definition of, 206, 209, 210. 
 implied, 210. 
 must be given in all pleadings 
 in confession and avoidance, 
 206, 210. 
 express, 210. 
 use of, 210-213. 
 in what actions used, 213. 
 prevents plea from being bad, 
 as amounting to general 
 issue, 207, (p,) 211, 362. 
 form of giving, 212, 214. 
 not traversable, 213. 
 rules relating to, 214, 215. 
 
INDEX. 
 
 Ixxxi 
 
 COMMENCEMEKT, of eatate i n fee simple 
 need not be shown, 291. 
 of particular eatatea must be 
 shown, 292, 293, 298. 
 except where matter of induce- 
 ment, 293. 
 or in showing title of adver- 
 sary, 329. 
 of general freehold title need 
 not be shown, 297. 
 Commencements, of pleadings, 344^ 
 352, Ixv. 
 
 improper, where cauae of de- 
 murrer, 351. 
 of declarations by original, 366. 
 of declarations by bill, 368. 
 of pleas, to the jurisdiction, 344 
 in suspension, ibid. 
 in abatement, 345. 
 in bar in general, ibid. 
 
 of matter puis darreign con- 
 tinuance, 348. 
 arising after action brought, 
 
 349. 
 to part of the cause of action, 
 
 350. 
 by way of estoppel, 349. 
 with onerari non, 350. 
 of avowries and cognizances, ibid. 
 of replications, to plea to the ju- 
 risdiction, 345. 
 in suspension, 346. 
 in abatement to writ or bill, 
 
 ibid. 
 to person, ibid. 
 in bar, 347. 
 by way of estoppel, 349. 
 of subsequent pleadings, 348. 
 Common bab, 224. 
 Common intent, certainty to, 334. 
 CcNOLTJSiotts, of pleadingp, 344-352, 
 Ixv. 
 of declarations improper, when 
 cause of demurrer, 851. 
 laying damages, 370. 
 production of suit, 371. 
 pledges to prosecute, 372. 
 
 COHOLTJSIONS — CO ntinued. 
 
 of pleas, to jurisdiction, 344. 
 in suspenaion, ibid. 
 in abatement to writ or bill 
 abatable^ 345. 
 
 abated de facto, 348. 
 to peraon, 845. 
 in bar, in general, ibid. 
 of matter puis darreign con- 
 tinuance, 348. 
 after action brought, 34i>. 
 to part of the cause of action, 
 
 350. 
 by way of estoppel, 349. 
 with onerari non, 350. 
 of replications to plea, to the ju- 
 risdiction, 346. 
 in suspension, ibid. 
 in abatement to writ or bill, 
 347. 
 
 to person, ibid. 
 in bar in debt, 347. 
 covenant, ibid. 
 trespass, ibid. 
 in bar in assumpsit, 348. 
 on the case, ibid. 
 other actions, ibid. 
 by way of estoppel to plea in 
 bar, 349. 
 abatement, ibid. 
 of subsequent pleadings, 348. 
 CoHDiTiON, performance of, how to be 
 pleaded, 305-307, 321-226. 
 praying oyer of, 326. 
 Confession and avoidance, plead- 
 ings in, 89, 156, 176, 178, 205- 
 215. 
 
 by way of justification or ex- 
 cuse, 206. 
 discharge, ibid. 
 form of, should conclude with a 
 verification and prayer of judg- 
 ment, ibid. 
 quality of, must give color, ibid. 
 implied, 210. 
 or express, ibid. 
 COKTIHUANOES, 60, 97, 124. 
 
Ixxxii 
 
 INDEX. 
 
 CoNTEACT, must be pleaded with cer- 
 tainty, 307. 
 CoNYETAKOE, nature of, must be 
 shown by party claiming un- 
 der, 293. 
 to be pleaded according to its 
 
 legal effect, iMd. 
 where it must be shown to be by 
 deed or writing, 294. 
 CoPTHOLD, how title to, pleaded, 292. 
 will not sustain plea of liberum 
 tenementum, 297. 
 CoPTHOLDEBS, customary right of 
 common in, how pleaded, 290, 
 (s.) 
 Costs, 137. 
 
 not allowed on arrest of judg- 
 ment, 166. 
 
 when judgment reversed in er- 
 ror, ibid. 
 allowed on demurrer, ibid. 
 of striking out redundant matter 
 
 in pleadings, 365. 
 of amending pleadings, 110. 
 Count, 64, 254, Ivi. 
 
 plea in abatement to the, 85. 
 
 COUNTEBPLEA, 107. 
 
 CouKTBT, conclusion to the, 91, 115, 
 
 194, 228, 233, 378. 
 Counts, several, 254-261. (Vide Sev- 
 eral Counts.) 
 CouET, title of, to be prefixed to 
 
 pleadings, 383. 
 CouETS, 39, 40. 
 Covenant, where it lies, 46. 
 original writ of, 47. 
 declaration in, 68, 181. 
 general issue in, 169, 171. 
 conclusion of replication to plea 
 in bar in, 347. 
 
 CUEIA ADVISAEE VULT, 112, (a.) 
 
 CusTOMAET EEEEHoLDS, how pleaded, 
 
 292, (A.) 
 Damases, laying, in declarations, 370. 
 not to be laid in real actions, 
 
 371. 
 actions sounding in, 133. 
 
 Debt, where it lies, 46. 
 original writ of, ibid. 
 declaration in, 67. 
 general issue in, 171-173. 
 conclusion of replication to piM 
 
 in bar in, 347. 
 Deolaeation, 64, 80. 
 
 commencement of, 366, 
 
 venue in, 269. 
 
 original writ to be recited in, 
 
 366. 
 to be conformable to original 
 
 writ, 369. 
 may be good as to part and bad 
 
 as to residue, 354. 
 to lay damages and allege pro- 
 duction of suit, 370. 
 ancient form of commencing, 368. 
 
 Ixvii. 
 Deeds to be pleaded according to le 
 
 gal effect, 341. 
 piofert of, where necessary, 100, 
 
 380. 
 when traversed under non est 
 
 factum, 204. 
 when under non coneessit, ice., 
 
 205. 
 Defense, pleas should make, 374. 
 form of making, in writ of right, 
 
 ibid. 
 
 formedon, Hid. 
 
 quare impedit, 375. 
 
 trespass, ibid. 
 
 other actions, ibid. 
 not to be made in dower, iMd. 
 
 assize, 376. 
 distinction between full and half 
 
 defense, ibid. 
 Db injueia, 179, 251. 
 
 form and use of replication, 179, 
 
 200. 
 as inducement to special tra- 
 verse, 193, 196. 
 absque residuo causae, 252. 
 Delay in PLEADiNa, rules to pre- 
 vent, 354-366. 
 Demise, how pleaded, 293, 295, 331. 
 
INDEX. 
 
 Ixxxiii 
 
 Demise — continued. 
 
 where made by husband and 
 -wife, 295. 
 Dbmubeee, 82, 91, 95, 96, 107, 112, 
 113, 157, XX. 
 joinder in, 92, 235. 
 general, 158. 
 special, ibid., xlvii. 
 
 objections in substance may be 
 taken advantage of under, 
 159. 
 causes of, how to be specified, 
 159. 
 what not a sufficient cause of, 
 iMd. 
 informality of protestation, 
 
 219. 
 erroneous recital of writ, 368. 
 surplusage, 365. 
 cannot be, except where fault is 
 apparent on face of pleading, 
 96. 
 effect of, as to admission of mat- 
 ters of fact, 159, li. 
 court wUl consider the whole 
 
 record upon, 160. 
 exceptions to this rule, 161. 
 where demurrer to plea in 
 
 abatement, ibid. 
 where record discloses an ap- 
 parent right in the plaintiff 
 not relied on by him, ibid. 
 court will consider only the 
 right in matter of substance, 
 and not mere form, ibid. 
 effect of pleading over without, 
 
 162-165. 
 where advisable or not, 165, 
 
 166. 
 party succeeding upon, obtains 
 
 costs, 166. 
 Tipon demurrer, not allowed, 
 
 235. 
 book, 108. 
 
 to evidence, 122, 123. 
 DlHiAL synonymous with traverse, 
 xxiv. 
 
 Depaetuee, what », 364, Ixvii. 
 what not, 357. 
 in replication, 355. 
 in rejoinder, ibid. 
 upon a point not material, 359. 
 Descent, title by, how to be shown, 
 
 293, 299. 
 Detinue, where it lies, 47. 
 original writ of, ibid. 
 declaration in, 69. 
 general issue in, 169, 173. 
 Devise, must be shown to be in writ- 
 ing, 295. 
 Dignity, name of, to be correctly 
 
 stated, 285. 
 DiiiATOET PLEAS, 83, 220, xxi, 
 xxii. 
 not within the statute of plead- 
 ing several matters, 266. 
 must he pleaded at a prelimi- 
 nary stage, 378, Ixx. 
 not to be pleaded after general 
 
 imparlance, ibid. 
 order of, 373, liviii. 
 must be entitled of the same term 
 with the declaratiop, 383, {x.) 
 DisoHAEGE, pleas in, 206. 
 
 DiSOOHTINUANOE, 216. 
 
 cured after verdict, &c., by stat- 
 utes of jeofails, 216, (p.) 
 Disseizin, pleaded, 208. 
 
 DiSTEINGAS jnEATOEES, Writ Ot, 116. 
 
 DowEE, where it lies, 45. 
 
 original writ of, ibid. 
 
 count in, 66, 372. 
 
 plea in, does not make derense, 
 376. 
 
 no general issue in, 168, xlvii. 
 DnpLiciTT, 242-247, Hi. 
 
 rules as to, 247-254. 
 
 what, 243, 244, 247, 248. 
 
 what not, 245, 246, 248-254. 
 
 rule against, does not prohibit 
 several counts, 254-261. 
 several pleas, 262-267. 
 Ejectment, ^3, 71, vi. 
 
 declaration in, 71. 
 
 3] 
 
Ixxxiv 
 
 INDEX. 
 
 Eeeoe, writ of, 142, 162. 
 
 no-costs allowed, where judgment 
 reversed on, 166. 
 EsoBow, evidence under non est 
 
 fectum, 172, (e.) 
 Estate in fee simple, how pleaded, 
 290. 
 less than fee, 291. 
 Estoppel, 204, 220. 
 
 what, by matter of record, 204. 
 by deed, ibid. 
 by matter in pais, 205. 
 pleadings by way of, 220. 
 commencements of, 349. 
 conclusions of, ibid. 
 must be certain in every par- 
 ticular, 316. 
 Et noit, may be used in special trav- 
 erse instead of " absque hoc," 
 184, (w.) 
 Evidence, matters of, need not be 
 
 stated in pleading, 310. 
 Exceptions, bill of, 121. 
 Exchequee, 39, 77, 81. 
 Excuse, pleas in, 206. 
 Execution, 141. 
 
 ExTEA viAM, new assignment, 225. 
 Fee simple, how pleaded, 290. 
 PEorFMBNT, 317, 294, (y.) 
 Fictions, in pleading, 385. 
 Fine, 41, 56. 
 
 FoEMEDON, where it lies, 44. 
 original writ of, ibid. 
 count in, 65. 
 defense in plea in, 374. 
 general issue in, 168, 171. 
 Fbeehold, plea of, when sufScient 
 269. 
 form of pleading, ibid. 
 by what proof sustained, 297. 
 need not show commencement of 
 title, ibid. 
 QiaiBBAL TS3UE, 168-179, 252, xlvii, 
 lii. 
 why so called, 168. 
 differs in what respects from 
 common traverse, ibid. 
 
 Gbneeai issue — contimted. 
 
 none in writ of right, 168, zlvii, 
 lii. 
 
 dower, 168, xlvii. 
 form oi, in formedon, 168, 
 171. 
 quare impedit, 168, 171. 
 debt on specialty, 169, 171. 
 on simple contract, 169, 173. 
 covenant, 169, 171. 
 detinue, 169, 173. 
 trespass, 169, 174. 
 trespass on the case, assumpsit, 
 
 170, 174. 
 tort, 170, 177. 
 replevin, 170, 178. 
 established forms of, not to be 
 
 departed from, 343. 
 plea amounting to, to be so plead- 
 ed, 360. 
 Geand assize, trial by, 129, 228, 
 
 xl. 
 Gbant, conveyance by way of, mus\ 
 be shown to be by deed, 295. 
 Habeas coeposa, 116. 
 Heib, party claiming as, must show 
 how, 293. 
 opposite party may be charged as, 
 without showing how, 299. 
 Hundbedoes, 272, 273, Iviii. 
 Husband and wiee, demise by, how 
 
 pleaded, 295. 
 Immateeial, issue, 127, 151. 
 
 matter, need not be answered, 
 216. 
 
 should not be traversed, 236. 
 will not make pleading double, 
 248. 
 Impaelance, 104. 
 
 dilatory plea not allowed after 
 general, 378. 
 Incipitue, 111, (z.) 
 Inconsistent pleas, what considered 
 
 as, and what not, 265. 
 Indebitatus assumpsit, 283, (*.) 
 Inducement, matter of, 237 
 
 not to be traversed, iiid. 
 
INDEXc 
 
 Ixxxv 
 
 Ikducement — continued. 
 
 necessary, will not render 
 
 pleading double, 249. 
 need not be laid with venue, 
 
 269. 
 certainty of time not requisite 
 
 in, 279. 
 lees particularity required in, 
 293, 329. 
 to special traverse. (Vide Special 
 Traverse.) 
 iHtiniET, writ of, 134. 
 Ihsehsible, pleadings not to be, 332. 
 Ihspectiok, trial by, 131, 230. 
 Issue, definitions of, 59, 91, 148, xl, 
 xUii, xlv, lii, xiii. 
 in fact, 60, 91, 235, xiii. 
 in law, ibid. 
 
 decides the cause, 133, 118. 
 ought to be material, 151, 155. 
 ought to be single, 153, 155. 
 certain, 154, 155. 
 entry of. 111. 
 tender of, 91, 167. 
 issue must be tendered upon a 
 
 traverse, 227. 
 except upon a special traverse, 
 
 184, 230. 
 or where traverse involves 
 allegation of new matter, 
 230, 231. 
 form of tendering, where to be 
 tried by a jury, 228. 
 the grand assize, ibid. 
 the record, 229. 
 certificate, witnesses, or inspec- 
 tion, 230. 
 by wager of law, iMd. 
 when well tendered must be ac- 
 cepted, 233. 
 not well joined upon two 
 
 affirmatives, 338. 
 or two negatives, 339. 
 affirmative of, must be proved, 
 
 118. 
 Bubstance of, must be proved, 
 117, 200. 
 
 Issue — dontinued. 
 
 nothing but the, to be tried by 
 jury, 117. 
 Issue boll, 111. 
 Issues, collateral, 107. 
 several, 247, 258, 283. 
 special, 179. 
 
 general. (See General Issue.) 
 Jeofails, statutes of, 126, 165, 166, 
 
 370, XXX. 
 JoiNDEB, of different causes of action, 
 254, V. 
 in issue, 93, 233, 235. 
 in demurrer, 92, 235. 
 JnuaMENT, 133-138. 
 
 non obstante veredicto, 126. 
 of nonsuit, 136, 280, (a.) 
 interlocutory, 133, 138. 
 final, ibid. 
 
 will he given on whole record, 
 143, 160-161. 
 exceptions to this rule, 161, 
 162. 
 entry of, 138-141. 
 prayer of, in conclusion of plead- 
 ings, 184, 344, 350, 351, Ixv. 
 arrest of, 126. 
 
 no costs allowed upon, 166. 
 where several issues, 247, 263. 
 where issue joined on dilatory 
 plea, 133, 374. 
 
 on declaration or peremptory 
 plea, 135. 
 JuBlSDiOTioN, pleas to the, 83, xxii. 
 commencements and conclusions 
 
 of, 344. 
 of replications to pleas to the, 345. 
 Jury, trial by, 114, 129. 
 
 original constitution of, 153, 268, 
 270, 273, 234, 379, xxx, xliv, 
 Ixxiv, Ixxv. 
 
 effect of, on forms of pleading, 
 154, 270, 234, 379, Ixxiv. 
 Ixxv. 
 form of tendering issue to ba 
 tried by, 90, 228. 
 JusTiFioATioM, pleas in, 20fi 
 
Ixxxvi 
 
 INDEX. 
 
 Language op pleadings, xviii. 
 Latitat, 77. 
 
 Law, matter of, not traversable, 201. 
 needs not be alleged in plead- 
 ing, 312, 365. 
 issue in, 60, 91, 285, xiii. 
 LsTTEBS, patent, oyer not demanda. 
 ble of, 102, (x.) 
 
 testamentary, and of admistra- 
 tion, to be pleaded with pro- 
 fert, 380. 
 Libel, declaration for, 73. 
 LiBEEUM lENEMENiuM, plea of, when 
 sufficient, 296. 
 form of pleading, ibid. 
 by what proof sustained, 297. 
 need not show commencement 
 of title, ibid. 
 Limitations, plea of statute of, 167. 
 
 replication to, ibid. 
 Litis oontbstatio, xzxviii, xlii. 
 LrvEET OF SEIZIN, conveyance with, 
 
 how pleaded, 294, 295. 
 Local and tbansitoet matters, dis- 
 tinction between, 274. 
 actions, ibid. 
 
 action, when not triable in Eng- 
 land, ibid. 
 fact, with what venue laid, 275, 
 277, 278. 
 Mateeiality of issue, 127, 151. 
 
 rules tending to secure, 235-242. 
 Mattee, of law, not traversable, 
 201. 
 of law needs not be stated, 312. 
 mixed of law and fact may be 
 traversed, 201. 
 Meecy, 137, 140, 141. 
 MiSE, the, 129, 228, xlvii, lii. 
 MiSNOMEB, 284. 
 
 plea of, must show right name, 
 377. 
 Mixed actions, 39. 
 modo et foema, 199, 200. 
 Money counts, 260. 
 Names, of peisons to be specified in 
 plp^ading, 284. 
 
 Names — continue. 
 
 omission of, when excnsatlti 
 
 285, 327. 
 mistake in, how to be token 
 advantage of, 828. 
 Nb distueba pas, 168, 171. 
 Nb dona pas, 168, 171. 
 Negative peegnant, 335-336. 
 Negative, two negatives make a bad 
 issue, 339. 
 pleading in the, need not con- 
 clude with a verification 
 380. 
 Ne unque seisie que doweb, xlvii. 
 New assignment, 221-226. 
 use of, 221. 
 form of, 223. 
 is in the nature of a replication, 
 
 225. 
 in what actions permitted, 225, 
 
 226. 
 upon the common bar, 224. 
 extra viam, 225. 
 several new assignments may oc- 
 cur in same series of pleading, 
 ibid. 
 degree of certainty required in, 
 226. 
 New teial, 124, 128. 
 Nil capiat pee beeve, judgment of, 
 
 135. 
 Nil debet, 169, ibid., (z,) 173, 230, 
 252. 
 what is evidence under, 173. 
 what not, 173, (p.) 
 Nil digit, judgment by, 136. 
 Nisi peius, 116, xxix. 
 NoN assumpsit, 170, 174, 252. 
 what is evidence under, 175. 
 what not, 176, (t/.) 
 NoN OEPiT, 170, 178. 
 
 when the proper plea, 178. 
 involves traverse of place, 179. 
 but not of property in plaintiff 
 ibid., (h.) 
 NoH DAMNiFicATUS, plea of, 307, 
 322-323. 
 
INDEX. 
 
 VU 
 
 NON DETINEI, 169, 173. 
 
 when proper, 173, 174. 
 when not, 174, (r.) 
 Nos EST TAOTUM, 169, 171, 172, 253. 
 what is evidence under, 171. 
 what not, 171-173. 
 to be pleaded by a party to the 
 deed, 204. 
 
 not by a stranger, 205. 
 Noir PEOS., judgment of, 136. 
 NoNSTTiT, judgment of, 136, 280, (o.) 
 Not guilty, 169, 174, 252. 
 
 when proper m trespass, 174. 
 in trespass on the case, 177. 
 NUL TIEL EECOED, 130, Hid., {g.) 
 Oheeaei kon, 350, Ixv. 
 Oeal pleadikg, 59, 149, viii. 
 Oedee of pleading, 373, liviii. 
 Oeiqinal weit, 40-43, 54, 268, ii-vi. 
 examples of its form in different 
 
 actions, 44-62. 
 oyer of, 88, 101. 
 recital of, in declaration, 366. 
 declaration must be conformable 
 to, 369. 
 Otee, 88, 100-104, 108, {d,) 326. 
 dilatory plea »iot allowed after, 
 378. 
 Papee-book, 108. 
 Paeol demueeeb 84, xxii. 
 Paeticulae estate, commencement 
 of, must be shown in pleading, 
 291. 
 
 except when matter of induce- 
 ment, 203. 
 Paetioulaeitt est pleadihg, not 
 greater required than the case 
 will conveniently admit, 326. 
 less required as to matters more 
 within the knowledge of the 
 opposite party, 328. 
 as to matters of inducement or 
 aggravation, 329. 
 Pedigebe, o' heir, must be shown, 
 
 when, 293, 299. 
 PEEPOE\iAKr'E, plea of, 305-307. 
 wbare i-t should be special, 305. 
 
 PBBPOEMAliroE — continued. 
 
 where it may be general, 306, 
 321-326. 
 Peeson, pleas to the, 86, 345, xxiii, 
 Ixiv. 
 commencement and conclusion 
 
 of, 345. 
 replications to, commencement 
 and conclusion of, 346, 347. 
 Place, certainty of, 154, 268. (Vide 
 Venue!) 
 material in replevin, 179. 
 traversed in general issue of non 
 
 cepit, ibid. 
 when of the substance of th« 
 issue, 274, 275. 
 
 though laid under videlicet, 
 277. 
 when not, 239. 
 Plea, definition of term, 84, i, xxv. 
 sham, what permitted, 384. 
 in bar, in replevin, what, 203, 
 
 (2-) 
 dilatory. (Vide Dilatory Pka.) 
 Plead, definition of term, 84, i, zxi, 
 
 XXV. 
 
 Pleadees, 59, ix-xii. 
 Pleadihg, definition of term, 39. 
 system of, ibid. 
 whence derived, xviii, xx, 
 
 Ivii. 
 when and how formed, 147 
 
 149, xxxvi-xl. 
 objects of peculiar system 
 adopted in England, 148- 
 155. 
 oral, 59, 149, x. 
 on paper, 62-64. 
 manner of, in general, 82-97. 
 oyer, effect of, in general, as to 
 
 aiding faults, 162-166. 
 without traverse, effect of, as ad- 
 mitting matter of foot, 217. 
 several matters, statute of, 262. 
 extends to pleas in bar only, 
 
 265, 266. 
 leave of court necessary, 26d 
 
Ixxxviii 
 
 IITDEX. 
 
 Plbadino — continued. 
 
 and demurring to same matter 
 not allowed, 267. 
 PlBABiiTGS, 68, 59, 166,205, xviii.xix. 
 collateral, 107. 
 
 by way of traverse, 167-205. 
 (Vide Traverse.) 
 confession and avoidance, 205- 
 215. (Vide Confession and 
 Avoidance.) 
 in general, nature and propertiea 
 of, 96, 215-228. 
 must be founded on matter col- 
 lateral, 96. 
 must answer the whole ad- 
 versely alleged, 215. 
 except as to immaterial mat- 
 ter, 216. 
 
 or matter of mere aggra- 
 vation, ibid. 
 confess all traversable matters 
 
 not traversed, 216, 11. 
 must not be double, 242. (Vide 
 
 Dwplidty^ 
 must be certain as to place, 
 268. (Vide Venue.) 
 time, 278. (Vide Time) 
 quantity, 281. 
 quality, ibid. 
 value, ibid. 
 
 names of persons, 284. 
 title, 286. (Vide Title.) 
 authority, 302. (Vide Au- 
 thority.) 
 other matters, 305. 
 degree of certainty required, 
 
 154, 282, 311. 
 need not state matters of evi- 
 dence, 310. 
 nor what the courts notice ex 
 
 officio, 312. 
 nor what should come from the 
 
 other side, 314. 
 nor circumstances necessaxily 
 
 implied, 317. 
 nor what the law presumes 
 318. 
 
 PlBADiHGS — continued. 
 
 nor matters tending to prO' 
 lixity, ihid. 
 
 general mode of pleading al- 
 lowed, when allegation on 
 other side will reduce to 
 certainty, 320. 
 
 need not state more than the 
 case conveniently admits, 
 326. 
 
 need not be so particular as to 
 facts more in the knowledge 
 of opposite party, 328. 
 as to matter of inducement 
 or aggravation, 329. 
 
 manner of allegation in, not 
 altered by statute, when, 
 330. 
 
 most not be insensible nor re- 
 pugnant, 332. 
 
 but are not vitiated by sur- 
 plusage, though repug- 
 nant, 333. 
 
 nor ambiguous, ihid. 
 but sufficient, if certain to a 
 common intent, 334. 
 
 nor by way of negative preg- 
 nant, 335. 
 
 nor argumentative, 191, 337, 
 361, 363. 
 
 nor in the alternative or hy- 
 pothetical, 339. 
 
 must be positive, not by way of 
 recital, 340. 
 
 must plead things according to 
 their legal effect, 341, 294. 
 
 should adhere to known forms, 
 342. 
 
 must have proper commence- 
 ments and conclusions, 344. 
 (Vide Gommencements and 
 ConcZimons.) 
 
 bad in part, bad altogether, 352. 
 
 there must be no departure in, 
 354. (Vide Departure) 
 
 surplusage in, to be avoided, 
 364. 
 
INDEX. 
 
 Ixxxix 
 
 Plea zisQs-^continued. 
 
 afSrmative, which do not con- 
 clude to country should con- 
 clude withaverification, 378, 
 192, 230. 
 should make profert, 380. 
 
 (Vide Profert) 
 should be properly entitled, as 
 to court, 383. 
 
 as to term, ibid. (Vide 
 Term.) 
 ought to be true, 384. 
 sham pleas, what permitted, 
 
 ibid. 
 wUlbe construed most strongly 
 
 against the pleader, 333. 
 amendment of, when and how 
 
 permitted, 110, 393. 
 redundant matter in, may be 
 struck out on motion, 365. 
 Pleas, division of, 83, zzi. 
 order of, 352, Ixviii. 
 only one of each degree permit- 
 ted, 373. 
 dilatory pleas must be pleaded 
 at preliminary stage of suit, 
 378. 
 several, 245, 246, 261-266. 
 in estoppel, 220. (Vide Estoppel.) 
 amounting to general issue 
 
 should be so pleaded, 360. 
 must be pleaded with defense, 
 374^377. (Vide Defeme.) 
 Pledges, for prosecution, 372, 
 
 lixxiv. 
 Possession, title of, how to be alleged 
 in pleading, 286. 
 when applicable, 287, 297. 
 when sufficient, 298. 
 when insufficient, 289, 298. 
 POSTEA, 120, 140. 
 PBiEOiPE, 56, 258. 
 
 Peecedents, established, to be fol- 
 lowed in pleading, 342. 
 Feeoludi non, 347. 
 Peivilege, attachment and capias of, 
 80,81. 
 
 Pkooess, writs of, 55. 
 Pbodcotion op suit, 370. 
 Peopeet, 100, 102, 380, Ixxv. 
 
 when not necessary to make, 
 
 381. 
 of collateral instrument, when 
 necessary, 326. 
 Peolixitt, rules to prevent, 354- 
 366. 
 general pleading, when allowed, 
 to avoid, 318-306. 
 Peomise, express or implied, 49, 175. 
 to answer the debt of another, 
 need not be shown to be in 
 writing, 331. 
 Pbotestation, 217-220. 
 use and origin of, 217. 
 form of, 218. 
 of no avail in the same action, 
 
 219. 
 of no avail in another action, if 
 issue be found against party 
 protesting, ibid. 
 unless where matter protested 
 was not issuable, ibid. 
 ought not to be repugnant to 
 
 pleading, ibid. . 
 nor taken on matter traversed 
 
 by the pleading, ibid. 
 informal, not a ground of demur- 
 rer, ibid. 
 of insufficiency in law, unneces- 
 sary, 220. 
 Puis dabeeiqn ooniinuahob, plea, 
 97. 
 commencement and conclusion 
 of, 348. 
 Quality, to be specified in pleading, 
 281. 
 how to be stated, 282. 
 verdict cannot be for more than 
 laid, 284. 
 
 QtJAEE 0LAU3UM FEE3IT, Writ of 
 
 trespass, 48. 
 declaration in, 70. 
 QuABE IMPBDIT, where it lies, 45. 
 writ of, ibid. ' 
 
xo 
 
 INDEX. 
 
 QiTASB IMPEDIT — et ntinued. 
 
 declaration in, 66. 
 
 form of making defense in, 375. 
 
 general issue in, 168, 171. 
 Que estate, 290, 299. 
 
 Quo MINUS, 81. 
 
 Quod bebve cassetue, judgment of, 
 
 134, 136, 393. 
 Quod cum, 340, (s.) 
 
 Quod eeoupeeet, judgment of, 133, 
 
 135, 137, 393. 
 
 Ebal actiohs, 39, 43, 64, 168. 
 
 damages not to be laid in, 371. 
 Ebbuttbe, 94. 
 
 Ebcital, pleadings not to be by way 
 of, 340. 
 of writ in declaration, 366-368. 
 Ebooed, 61, 111, 116, 126, 142-144, 
 xiii-xvii, xviii. 
 trial by, 130. 
 form of tendering issue to be 
 
 tried by, 229. 
 court examines the whole, be- 
 fore giving judgment, 143, 
 160. 
 matter of, must be separately 
 traversed, 181, 252. 
 Ebcoedee, xiv. 
 Eegistee of weits, 42. 
 
 EBJOIIfDEE, 94. 
 
 Eepleadee, 127, 151. 
 Eeplbvin, 52, 203, (q,) 289. 
 
 where it lies, 52. 
 
 names of pleadings in, 203, (j.) 
 
 declaration in, 74. 
 place material in, 179. 
 
 general issue in, 170, 178. 
 
 plea in bar in, 203, (q.) 
 avowry, ibid. (Vide Avowry.) 
 
 cognizance, ibid. (Vide Oogni- 
 za/nce.) 
 
 title of possession not sufficient 
 in, 289. 
 EBPLioATioir, 94. 
 
 not within the statute of plead- 
 ing several matters, 265. 
 
 commencements and wnclusions 
 
 Eeplicatiok — contitmed. 
 
 of, 345-348. (Vide Commeni,» 
 ments and Concluaioiu.) 
 
 EepUGNAITOT is PLBADINa, 332-333. 
 
 Eespondbat ousiee, judgment o^ 
 
 133, 373, 393, Q.) 
 Eetuen-dat, what, 55. 
 EwHT, writ of, where it lies, 44. 
 count on a, 65, 342. 
 
 production of suit in, 372. 
 form of making defense in, 374. 
 no general issue in, 168, lii. 
 form of the mise in, 228, Hi. 
 trial in, 129. 
 Sevbeal counts, 254-261. 
 
 where founded on different causes 
 of action, 254. 
 
 on same cause of action, 259. 
 where facts relied on really dif- 
 ferent, ibid. 
 
 same facts differently repre- 
 sented, 260. 
 some facts omitted, 260. 
 must purport to be founded on 
 different causes of action, 261. 
 modes of pleading to, 257. 
 Sevbeal issues, 217, 258, 263. 
 Sevbeal fleas, to several matters 
 of complaint, 261. 
 same matter, 262. 
 how to be pleaded, ihid. 
 must be with leave of the 
 court, 266. 
 when permitted, 265. 
 not several dilatory pleas, 
 266. 
 in what form pleaded, ibid. 
 plea and demurrer to same mat- 
 ter not allowed, 267. 
 Sevebanoe in pleading, 247. 
 Sham pleading, 384. 
 Signing, judgment, 137. 
 
 pleas, 64. 
 SiMILITEE, 93, 233. 
 
 may be struck out if improperly 
 
 added, 234. 
 origin and meaning of, ibid. 
 
INDEX. 
 
 XCJ 
 
 Singleness of issoe, 153, 242. 
 SLAifiiEE.in declaration for, the words 
 
 must te set out, 342. 
 SoK assault demeshe, plea of, 180. 
 Special case, 123. 
 Special issues, 179. 
 Special pleaders, 64. 
 Special pleabiitg, 179, (i.) 
 Special pleas, ibid. 
 Special teaveese, 181-231, 230, 338, 
 xlviii. 
 examples of, 183, 186, 187, 220. 
 essential parts of, 184. 
 use of, 189, 338. 
 inducement of, 184, 186, 188, 
 231. 
 
 sometimes contains new affirm- 
 ative matter, 186. 
 sometimes not, 188. 
 should of itself amount to an 
 answer to last pleading, 195. 
 must not consist of a direct 
 
 denial, 196. 
 must not be in the nature of 
 a confession and avoidance, 
 197. 
 is not to be traversed, 197. 
 nor answered by pleading in 
 confession and avoidance, 
 199. 
 
 except when matter trav- 
 ersed under the ahsquehoc 
 is immaterial, 198, 199, 
 231. 
 if faulty, the whole pleading 
 may be demurred to, 199. 
 absque hoc, 184, 191, 220, (4.) 
 verification, 184, 220, 230. 
 improper, when no allegation of 
 new matter, and whole matter 
 of last pleading denied, 193. 
 may be used when one only of 
 
 several facts is denied, 194. 
 but unnecessary when induce- 
 ment contains no new matter, 
 193. 
 disadvantages of, 195. 
 
 Special traveuse— continued. 
 does not tender issue, 184, 230. 
 mode of pleading in answer to, 
 
 188, 199. 
 demurrer to, 191, 199. 
 Statute, where it makes no alteration 
 in form of pleading, 330, 295. 
 public, need not be stated in 
 pleading, 313. 
 
 should be referred to in plead- 
 ing when, and how, ibid. 
 private, must be stated in plead- 
 ing, ibid. 
 of wills, 295, 331. 
 of frauds, ibid. 
 
 of jeofails and amendments, 126, 
 145, 165, 272, 370, ixi. 
 objections of form only, cured 
 
 by, 164, 166. 
 cure discontinnences, 216, (p.) 
 of limitations, plea of, 167. 
 replication thereto, ibid. 
 Suit, production of, 370. 
 SuEPLUSAGE, to be avoided, 364. 
 not ground for demurrer, 365. 
 will not vitiate pleading, though 
 
 repugnant, 332. 
 may be struck out on motion, 366. 
 
 SUBEEEUTIEE, 94. 
 SUEBEJOINDEE, ibid. 
 
 Suspension, plea in, 83, 84. 
 
 commencement and conclusion 
 of, 344. 
 
 of replications to, 346. 
 Tender, plea of, cannot be pleaded 
 
 with general issue, 265. 
 Tendeb of issue, 91, 227-233. 
 Teem, 58, 62, 137, 138. 
 
 pleadings to be entitled of, 383. 
 when general title used, ibid. 
 when special, 384. 
 Time, certainty of, in pleading, 278- 
 281. 
 in what actions required, 278, 
 
 347. 
 as to traversable facts only 
 278. 
 
XCll 
 
 INDEX 
 
 Time — continued. 
 
 in general need not be proved as 
 laid, 279. 
 
 but should be laid under a vi- 
 delicit, ibid. 
 should not be impossible or re- 
 pugnant, ihid. 
 when material, 280. 
 statement of, in pleadings after 
 
 declaration, 273. 
 omission of, aided by statutes of 
 jeofails, ihid. 
 Title, to be alleged in pleading, 286- 
 302. 
 
 of possession, 286-290. 
 form of alleging, as to goods 
 and chattels, 286. 
 corporeal hereditaments, 
 
 ihid. 
 incorporeal heredita- 
 ments, ihid. 
 when applicable, 287. 
 when sufficient, ibid. 
 against a wrong-doer, ibid. 
 except in replevin, 289. 
 when not sufficient, ibid. 
 in its full and precise extent, 
 290-296. 
 
 form of allegation of, 290. 
 derivation of, ibid. 
 commencement of fee sim- 
 ple need not be shown, 
 291. 
 unless previous seizin al- 
 leged in another, iJnd. 
 commencement of partic- 
 ular estates must be 
 shown, 292. 
 unless alleged by way of 
 
 inducement, 293, 298. 
 party claiming by descent 
 must show how he is 
 heir, 293. 
 by conveyance, &c., must 
 show its nature, ibid. 
 according to its legal 
 eflect, 294. 
 
 1 1TLE — continued. 
 
 in writing, when, ^ft. 
 of general freehold, 296, 297. 
 form of allegation of, 296. 
 when sufficient, 297. 
 by what proof sustained, ibid. 
 Mmmencemsnt of, need not b« 
 shown, ibid. 
 in adverse party, 297-300. 
 how to be shown, 297. 
 of possession, when suffi- 
 cient, 298. 
 commencement of particular 
 estate need not be shown, 
 iJnd. 
 by que estate, 299. 
 by descent, ibid. 
 must in general be proved as 
 
 laid, 300. 
 need not be shown when oppo- 
 site party estopped, ibid. 
 need not be set forth in avowries 
 
 for rent, &o., 301. 
 matter of, must be separately 
 
 traversed, 252. 
 of court, 383. 
 term, ibid. 
 Teansitoet, and local, matters, dis- 
 tinction between, 274, Iviii. 
 actions, 274. 
 
 facts, venue of, in declaration, 
 275, 276. 
 subsequent pleadings, 276. 
 Teaveesb, 89, 167, xxiv. 
 different kinds of, 167. 
 common form of, ibid. 
 when affirmative, ibid. 
 negative, ibid. 
 general issue, 168-179. (Vide 
 
 General Issue.) 
 de injuria, 179, 200, 251, 25a 
 
 (Vide De Injuria.) 
 special, 181-199, ,338. (Vid« 
 Special Traverse.) 
 upon a traverse, not allowed, 197. 
 except where first traverse 
 insufficient, 198, 231. 
 
INDEX. 
 
 XCUl 
 
 Teaveese — continued. 
 
 denies allegation modo et forma, 
 
 199. 
 puts the opposite party on proof 
 
 of substance of his allegation, 
 
 199, 200. 
 must not be taken on matter of 
 
 law, 201. 
 may, upon allegation mixed of 
 
 law and fact, ibid. 
 must not be taken on matter not 
 
 alleged, 202. 
 
 unless necessarily implied. 
 203. 
 should tender issue, 227-232. 
 
 except where new matter is 
 introduced, 230-232. 
 must not be taken on a point im- 
 material, 236, 866 
 but may on any material allega- 
 tion, 237. 
 must not be too large, 238. 
 
 by involving immaterial cir- 
 cumstances, ibid. 
 
 by being in the conjunctive in- 
 stead of the disjunctive, 239. 
 
 but generally party may trav- 
 erse title as laid, 240. 
 must not be too narrow, 238. 
 may sometimes put several facts 
 
 in issae, without duplicity, 251. 
 of deed, by parties how, 204. 
 
 strangers, 205. 
 Tbespass, where it lies, 47. 
 original writ of, 48. 
 declaration in, 70. 
 general issue in, 169, 174. 
 conclusion of replication in, 348. 
 Trespass upoit the case, where it 
 lies, 48. 
 
 original writ of, 50-52. 
 declaration in, 72-74. 
 general issue in, 169, 177. 
 conclusion of replication in, 348. 
 Tbial, origin of word, xxviii. 
 
 different modes of, 114, 129-132, 
 
 150, 153, xxvi-xiix. 
 
 Tbial — continued. 
 
 effect of, on system of plead- 
 ing, 149-151, 153. 
 by jury, 114-124, 228, 233, 234, 
 
 XXX. 
 
 original constitution of, 153, 
 270-272, xliv. 
 by the grand assize, 129, 228. 
 by the record, 130, 229. 
 by certificate, 130, 230. 
 by witnesses, 131, 230. 
 by inspection, 131, 230. 
 by wager of law, 131, 230, xzziii 
 at nisi prius, 116, xxiz. 
 new, 124, 125. 
 Tbovee, 49, 50, 73. 
 
 TEUTH or PLEADINGS, 384. 
 
 Value, to be specified in pleadings, 
 281, 282. 
 need not in general be strictly 
 
 proved as laid, 283, 284. 
 verdict not to be for larger than 
 laid, 284. 
 Vaeianoe, 118, 199, 200. 
 
 between writ and declaration, 88, 
 369-370. 
 Veniee facias, 115. 
 
 ancient and modern form of, 153- 
 155, 234,(^,) 268, 271, 273, xxii. 
 ad respondendum, 81. 
 de novo, 128. 
 Venue, different significations of the 
 term, 268, 271. 
 in original writ, 268. 
 what allegations to be laid 
 with, ibid. 
 
 not matter of inducement 
 269. 
 
 or of aggravation, ibid. 
 what a sufficient venue, ibid. 
 in the action, ibid. 
 in the declaration, 269, 270. 
 by original, 270. 
 by bill, ibid. 
 in subsequent pleadings, ibid. 
 ancient effect of, as to venire, 
 270, 271, Ivii-lvix. 
 
KCIV 
 
 INDEX. 
 
 Vencb — continued. 
 
 changes introduced by 16 and 17 
 Car., II, 0. 8, 272,4 Ann., o. 16, 
 273. 
 when to be laid truly, 273, 274, 
 
 278. 
 may be changed in transitory ac- 
 tions, 275. 
 of local facts, how laid, 275, 276. 
 transitory facts, 275, 276. 
 local facts occurred out of 
 realm, 277. 
 
 or in venue different from 
 that in the action, 278. 
 when to be laid under a videlicet, 
 276, 277. 
 Veedict, 117. 
 special, 122. 
 
 aids faults in pleading when, 163. 
 cannot be for a larger quantity 
 or value than alleged, 284. 
 Vbbificatioit, 184, 192, 194, 206, 
 230, 378-380. 
 different forms of, 378. 
 none necessary to a negative 
 pleading, 380. 
 
 ViDBLiOET, 277, 279, 284. 
 
 will not help when place mat* 
 rial, 277. 
 or time, 279. 
 View, demand of, 98. 
 
 dilatory plea not allowed after, 
 378. 
 Vouchee to warranty, 99. 
 
 dilatory plea not allowed after, 
 378. 
 Wagee, of law, 131, 230, xxxiii. 
 
 of battel, 129, xxxii. 
 Wabbanty, voucher to, 99. 
 Wills, statute of, 295, 331. 
 Witnesses, trial by, 131, 230. 
 Weit, of error. (Vide Error.) 
 
 right. (Vide Right.) 
 Weits, original, 40. 
 original of, ii-vi. 
 register of, 42. 
 recital of, in declaration, 366- 
 
 368. 
 of process, 55. 
 Wbong-doeb, title of possession sol 
 
 ficient against, 287. 
 Yeae-Books, 151, zzxyii. 
 
 THX SBD.