Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
PLEADINGS are the mutual altercations between the plaintiff and defendant; which at present are set down and delivered into the proper office in writing, though formerly they were usually put in by their counsel ore tenus, or viva voce, in court, and then minuted down by the chief clerks, or prothonotaries; whence in our old law French the pleadings are frequently denominated the parol.
The first of these is the declaration, narratio, or count, anciently called the tale;1 in which the plaintiff sets forth his cause of complain at length: being indeed only an amplification or exposition of the original writ upon which his action is founded, with the additional circumstances of time and place, when and where the injury was committed. But we may remember2 that, in the king’s bench, when the defendant is brought into court by bill of Middlesex, upon a supposed trespass, in order to give the court a jurisdiction, the plaintiff may declare in whatever action, or charge him with whatever injury, he thinks proper; unless he has held him to bail by a special ac etiam, which the plaintiff is then bound to pursue. And so also, in order to have the benefit of a capias to secure the defendant’s person, it was the ancient practice and is therefore still warrantable in the common pleas, to sue out a writ of trespass quare clausum fregit, for breaking the plaintiff’s close; and plaintiff declares in whatever action the nature of his actual injury may require; as an action of covenant, or on the case for breach of contract, or other less forcible transgression:3 unless by holding the defendant to bail on a special ac etiam, he has bound himself to declare accordingly.
In local actions, where possession of land is to be recovered, or damages for an actual trespass, or for waste, etc, affecting land, the plaintiff must lay his declaration or declare his injury to have happened in the very county and place that it really did happen; but in transitory actions, for injuries that might have happened any where, as debt, detinue, slander, and the like, the plaintiff may declare in what county he pleases, and then the trial must be in that county in which the declaration is laid. Though if the defendant will make affidavit, that the cause of action, if any, arose not in that but in another county, the court will direct a change of the venue, or visne, (that is, the vicinia or neighborhood in which the injury is declared to be done) and will oblige the plaintiff to declare in the proper county. For the statute 6 Ric. II. c. 2. having ordered all writs to be laid in their proper counties, this, as the judges conceived, empowered them to change the venue, if required, and not to insist rigidly on abating the writ: which practice began in the reign of James the first.4 And this power is discretionally exercised, so as not to cause but prevent a defect of justice. Therefore the court will not change the venue to any of the four northern counties, previous to the spring circuit; because there the assizes are held only once a year, at the time of the summer circuit. And it will sometimes remove the venue from the proper jurisdiction, (especially of the narrow and limited kind) upon a suggestion, duly supported, that a fair and impartial trail cannot be had therein.5
It is generally usual in actions upon the case to set forth several cases, by different counts in the same declaration; so that if the plaintiff fails in the proof of one, he may succeed in another. As, in an action on the case upon an assumpsit for goods sold and delivered, the plaintiff usually counts or declares, first, upon a settled and agreed price between him and the defendant; as that they bargained for twenty pounds: and lest he should fail in the proof of this, he counts likewise upon a quantum valebant; that the defendant bought other goods, and agreed to pay him so much as they were reasonably worth; and then avers that they were worth other twenty pounds: and so on in three or four different shapes; and at last concludes with declaring that the defendant had refused to fulfil any of these agreements, whereby he is endamaged to such a value. And if he proves the case laid in any one of his counts, though he fails in the rest, he shall recover proportionable damages. This declaration always concludes with these words, “and thereupon he brings suit, etc; inde producit sectam, &c.” By which word, suit or secta, (a sequendo) were anciently understood the witnesses or followers of the plaintiff.6 For in former times the law would not put the defendant to the trouble of answering the charge, till the plaintiff had made out at least a probable case.7 But the actual production of the suit, the secta, or followers, is now antiquated; and has been totally disused, at least ever since the reign of Edward the third, though the form of it still continues.
At the end of the declaration are added also the plaintiff’s common pledges of prosecution, John Doe and Richard Roe, which, as we before observed,8 are now mere names of form; though formerly they were of use to answer to the king for the amercements of the plaintiff, in case he were nonsuited, barred of his action, or had a verdict and judgment against him.9 For, if the plaintiff neglects to deliver a declaration for two terms after the defendant appears, or is guilty of other delays or defaults against the rules of law in any subsequent stage of the action, he is adjudged not to follow or pursue his remedy as he ought to do, and thereupon a nonsuit, or non prosequitur, is entered; and he is said to be nonpros.‘ d. And for thus deserting his complaint, after making a false claim or complaint (pro falso clamore suo) he shall not only pay costs to the defendant, but is liable to be amerced to the king. A retraxit differs from a nonsuit, in that the one is negative, and the other positive: the nonsuit is a default and neglect of the plaintiff, and therefore he is allowed to begin his suit again, upon payment of costs; but a retraxit is an open and voluntary renunciation of his suit, in court, and by this he forever loses his action. A discontinuance is some what similar to a nonsuit: for when a plaintiff leaves a chasm in the proceedings of his cause, as by not continuing the process regularly from day to day, and time to time, as he ought to do, the suit is discontinued, and the defendant is no longer bound to attend; but the plaintiff must begin again, by suing out a new original, usually paying costs to his antagonist. Anciently, by the demise of the king, all suits depending in his courts were at once discontinued, and the plaintiff was obliged to renew the process, by suing out a fresh writ from the successor; the virtue of the former writ being totally gone, and the defendant no longer bound to attend in consequence thereof: but, to prevent the expense as well as delay attending this rule of law, the statute 1 Edw. VI. C. 7. enacts, that by the death of the king no action shall be discontinued; but all proceedings shall stand good as if
the same king had been living.
When the plaintiff has stated his case in the declaration, it is incumbent on the defendant within a reasonable time to make his defense and to put in a plea; or else the plaintiff will at once recover judgment by default, or nihil dicit of the defendant.
Defense, in its true legal sense, signifies not a justification, protection, or guard, which is now its popular signification; but merely an opposing or denial (from the French verb defender) of the truth or validity of the complaint. It is the contestatio litis of the civilians: a general assertion that the plaintiff has no ground of action, which assertion is afterwards extended and maintained in his plea. For if would be ridiculous to supposed that the defendant comes and defends (or, in the vulgar acceptation justifies) the force and injury, in one line, and pleads that he is not guilty of the trespass complained of, in the next. And therefore in actions of dower, where the demandant does not count of any injury done, but merely demands her endowment,10 and in assizes of land, where also there is no injury alleged, but merely a question of right stated for the determination of the recognitors or jury, the tenant makes no such defense.11 In writs of entry,12 where no injury is stated in the count, but merely the right of the demandant and the defective title of the tenant, the tenant comes and defends or denies his right, jus suum, that is (as I understand it, though with a small grammatical inaccuracy) the right of the demandant, the only one expressly mentioned in the pleadings: or else denies his own right to be such, as is suggested by the count of the demandant. And in writs of right13 the tenant always comes and defends the right of the demandant and his seizin, jus praedicti S. et seisinam ipsius,14 (or else the seizin of his ancestor, upon which he counts, as the case may be) and the demandant may reply, that the tenant unjustly defends his, the demandant’s right, and the seizin on which he counts.15 All which is extremely clear, if we understand by defense an opposition or denial, but is otherwise inexplicably difficult.16
The courts were formerly very nice and curious with respect to the nature of the defense, so that if no defense was made, though a sufficient plea was pleaded, the plaintiff should recover judgment:17 and therefore the book, entitled novae narrationes or the new talys,18 at the end of almost every count, narratio, or tale, subjoins such defense as is proper for the defendant to make. For a general defense or denial was not prudent in every situation, since thereby the propriety of the writ, the competency of the plaintiff, and the cognizance of the court, were allowed. By defending the force and injury the defendant waved all pleas of misnosmer;19 by defending the damages, all exceptions to the person of the plaintiff; and by defending either one or the other when and where it should behoove him, he acknowledged the jurisdiction of the court.20 But of late years these niceties have been very deservedly discountenanced;21 though they still seem to be law, if insisted on.22
AFTER defense made, the defendant must put in his plea. But, before he pleads, he is entitled to demand one imparlance,23 or licentia loquendi, and may have more granted by consent of the plaintiff; to see if he can end the matter amicably without farther suit, by talking with the plaintiff: a practice, which is24 supposed to have arisen from a principle of religion, in obedience to that precept of the gospel, “agree with thine adversary quickly whilst thou art in the way with him.”25 And it may be observed that this gospel precept has plain reference to the Roman law of the twelve tables, which expressly directed the plaintiff and defendant to make up the matter, while they were in the way, or going to the praetor; in via, rem uti pacunt orato. There are also many other previous steps which may be taken by a defendant before he puts in his plea. He may, in real actions, demand a view of the thing in question, in order to ascertain its identity and other circumstances. He may crave oyer26 of the writ, or of the bond, or other specialty upon which the action is brought; that is to hear it read to him; the generality of defendants in the times of ancient simplicity being supposed incapable to read it themselves: whereupon the whole is entered verbatim upon the record, and the defendant may take advantage of any condition or other part of it, not stated in the plaintiff’s declaration. In real actions also the tenant may pray in aid, or call for assistance of another, to help him to plead, because of the feebleness and imbecility of his own estate. Thus a tenant for life may pray in aid of him that has the inheritance in remainder or reversion; and an incumbent may pray in aid of the patron and ordinary: that is, that they shall be joined in the action and help to defend the title. Voucher also is the calling in of some person to answer the action, that has warranted the title to the tenant or defendant. This we still make use of in the form of common recoveries,27 which are grounded on a writ of entry; a species of action that we may remember relies chiefly on the weakness of the tenant’s title,
who therefore vouches another person to warrant it. If the vouchee appears, he is made defendant instead of the vouchor: but, if he afterwards makes default, recovery shall be had against the original defendant; and he shall recover over an equivalent in value, against the deficient vouchee. In assizes indeed, where the principal question is whether the demandant or his ancestors were or were not in possession till the ouster happened, and the title of the tenant is little (if at all) discussed, there no voucher is allowed; but the tenant may bring a writ of warrantia chartae against the warrantor, to compel him to assist him with a good plea or defense, or else to render damages and the value of the land, if recovered against the tenant.28 In many real actions also,29 brought by or against an infant under the age of twenty one years, and also in actions of debt bought against him, as heir to any deceased ancestor, either party may suggest the nonage of the infant, and pray that the proceedings may be deferred till his full age, or in our legal phrase that the infant may have his age, and that the parol may demur, that is that the pleadings may be stayed; and then they shall not proceed till his full age, unless it be apparent that he cannot be prejudiced thereby.30 But, by the statutes of Westm. I. 3 Edw. I. c. 46. and of Gloucester 6 Edw. I. c. 2. in writs of entry sur disseisin in some particular cases, and in actions ancestrel brought by an infant, the parol shall not demur: otherwise he might be deforced of his whole property, and even want a maintenance, till he came of age. So likewise in a writ of dower the heir shall not have his age; for it is necessary that the widow’s claim be immediately determined, else she may want a present subsistence.31 Nor shall an infant patron have it in a quare impedit,32 since the law holds it necessary and expedient, that the church be immediately filled. It is in this stage also of the cause, if at all, that cognizance of the suit must be claimed or demanded; when any person or body corporate has the franchise, not only of bolding pleas within
a particular limited jurisdiction, but also of the cognizance of pleas: and that, either without any words exclusive of other courts, which entitles the lord of the franchise, whenever any suit that belongs to his jurisdiction is commenced in the courts at Westminster, to demand the cognizance thereof; or with such exclusive words, which also entitle the defendant to plead to the jurisdiction of the court.33 Upon this claim of cognizance, if allowed, all proceedings shall cease in the superior court, and the plaintiff is left at liberty to pursue his remedy in the special jurisdiction. As when a scholar or other privileged person of the universities of Oxford or Cambridge is impleaded in the courts at Westminster for any cause of action whatsoever, unless upon a question of freehold.34 In these cases, by the charter of those learned bodies, confirmed by act of parliament, the chancellor or vice-chancellor may put in a claim of cognizance; which, if made in due time and with due proof of the facts alleged, is regularly allowed by the courts.35 It must be demanded before any imparlance, for that is a submission to the jurisdiction of the superior court: and it will not be allowed if it occasions a failure of justice,36 or if an action be brought against the person himself who claims the franchise, unless he has also a power in such case of making another judge.37
WHEN these proceedings are over, the defendant must then put in his excuse or plea. Pleas are of two sorts; dilatory pleas, and pleas to the action. Dilatory pleas are such as tend merely to delay or put off the suit, by questioning the propriety of the remedy, rather than by denying the injury: pleas to the action are such as dispute the very cause of suit. The former cannot be pleaded after a general imparlance, which is an acknowledgment of the propriety of the action.
I. DILATORY pleas are, I. To the jurisdiction of the court: alleging, that it ought not to hold plea of this injury, it arising in Wales or beyond sea; or because the land in question is of ancient demesne, and ought only to be demanded in the lord’s court, etc. 2. To the disability of the plaintiff, by reason whereof he is incapable to commence or continue the suit; as, that he is an alien enemy, outlawed, excommunicated, attainted of treason or felony, under a praemunire, not in rerum natura (being only a fictitious person) an infant, a feme-covert, or a monk professed. 3. In abatement: which abatement is either of the writ, or the count, for some defect in one of them; as by misnaming the defendant, which is called a misnosmer; giving him a wrong addition, as esquire instead of knight; or other want of form in any material respect. Or, it may be, that the plaintiff is dead; for the death of either party is at once an abatement of the suit. And in actions merely personal, arising ex delicto, for wrongs actually done or committed by the defendant, as trespass, battery, and slander, the rule is that actio personalis moritur cum persona;38 and it never shall be revived either by or against the executors or other representatives. For neither the executors of the plaintiff have received, nor those of the defendant have committed, in their own personal capacity, any manner of wrong or injury. But in actions arising ex contractu, by breach of promise and the like, where the right descends to the representatives of the plaintiff, and those of the defendant have assets to answer the demand, though the suits shall abate by the death of the parties, yet they may be revived against or by the executors:39 being indeed rather actions against the property than the person, in which the executors have now the same interest that their testator had before.
These pleas to the jurisdiction, to the disability, or in abatement, were formerly very often used as mere dilatory pleas, without any foundation of truth, and calculated only for delay; but now by statute 4 & 5 Ann. c. 16. no dilatory plea is to be admitted, without affidavit made of the truth thereof, or some probable matter shown to the court to induce them to believe it true. And with respect to the pleas themselves, it is a rule, that no exception shall be admitted against a declaration or writ, unless the defendant will in the same plea give the plaintiff a better;40 that is, show him how it might be amended, that there may not be two objections upon the same account.
ALL pleas to the jurisdiction conclude to the cognizance of the court; praying “judgment, whether the court will have farther cognizance of the suit:” pleas to the disability conclude to the person; by praying “judgment, if the said A the plaintiff ought to be answered:” and pleas in abatement (when the suit is by original) conclude to the writ or declaration; by praying “judgment of the writ, or declaration, and that the same may be quashed,” cassetur, made void, or abated: but, if the action be by bill, the plea must pray “judgment of the bill,” and not of the declaration; the bill being here the original, and the declaration only a copy of the bill.
WHEN these dilatory pleas are allowed, the cause is either dismissed from that jurisdiction; or the plaintiff is stayed till his disability be removed; or he is obliged to sue out a new writ, by leave obtained from the court,41 or to amend and new-frame his declaration. But when on the other hand they are overruled as frivolous, the defendant has judgment of respondeat ouster, or to answer over in some better manner. It if then incumbent on him to plead
2. A PLEA to the action; that is, to answer to the merits of the complaint. This is done by confessing or denying it.
A confession of the whole complaint is not very usual, for then the defendant would probably end the matter sooner; or not plead at all, but suffer judgment to go by default. Yet sometimes, after tender and refusal of a debt, if the creditor harasses his debtor with an action, it then becomes necessary for the defendant to acknowledge the debt, and plead the tender; adding that he has always been ready, tout temps prist, and still is ready, uncore prist, to discharge it: for a tender by the debtor and refusal by the creditor will in all cases discharge the costs,42 but not the debt itself; though in some particular cases the creditor will totally lose his money.43 But frequently the defendant confesses one part of the complaint (by a cognovit actionem in respect thereof) and traverses or denies the rest: in order to avoid the expense of carrying that part to a formal trial, which he has no ground to litigate. A species of this sort of confession is the payment of money into court: which is for the most part necessary upon pleading a tender, and is itself a kind of tender to the plaintiff; by paying into the hands of the proper officer of the court as much as the defendant acknowledges to be due, together with the costs hitherto incurred, in order to prevent the expense of any farther proceedings. This may be done upon what is called a motion; which is an occasional application to the court by the parties or their counsel, in order to obtain some rule or order of court, which becomes necessary in the progress of a cause; and it is usually grounded upon an affidavit, (the perfect tense of the verb affido) being a voluntary oath before some judge or officer of the court, to evince the truth of certain facts, upon which the motion is grounded: though no such affidavit is necessary for payment of money into court. If, after the money paid in, the plaintiff proceeds in his suit, it is at his own peril: for, if he does not prove more due than is so paid into court, he shall be nonsuited and pay the defendant costs; but he shall still have the money so paid in, for that the defendant has acknowledged to be his due. In the French law the rule of practice is
grounded upon principles somewhat similar to this; for there, if a person be sued for more than he owes, yet he loses his cause if he does not tender so much as he really does owe.44 To this head may also be referred the practice of what is called a set-off: whereby the defendant acknowledges the justice of the plaintiff’s demand on the one hand; but, on the other, sets up a demand of his own, to counterbalance that of the plaintiff, either in the whole or in part: as, if the plaintiff sues for ten pounds due on a note of hand, the defendant may set off nine pounds due to himself for merchandise sold to the plaintiff, and, in case he pleads such set-off, must pay the remaining balance into court. This answers very nearly to the compensatio, or stoppage, of the civil law,45 and depends on the statutes 2 Geo. II. c. 22. and 8 Geo. II. c. 24. which enact, that, where are mutual debts between the plaintiff and defendant, one debt may be set against the other, and either pleaded in bar, or given in evidence upon the general issue at the trial; which shall operate as payment, and extinguish so much of the plaintiff’s demand.
PLEAS, that totally deny the cause of complaint are either the general issue, or a special plea, in bar.
I. THE general issue, or general plea, is what traverses, thwarts, and denies at once the whole declaration; without offering any special matter whereby to evade it. As in trespass either vi et armis, or on the case, non culpabilis, not guilty;46 in debt upon contract, nil debet, he owes nothing; in debt on bond, non est factum, it is not his deed; on an assumpsit, non assumpsit, he made no such promise. Or in real actions, nul tort, no wrong done; nul disseisin, no disseizin; and in a writ of right, that the tenant has more right to hold than the demandant has to demand. These pleas are called the general issue, because, by importing an absolute and general denial of what is alleged in the declaration, they amount at once to an issue; by which we mean a fact affirmed on one side and denied on the other.
FORMERLY the general issue was seldom pleaded, except when the party meant wholly to deny the charge alleged against him. But when he meant to distinguish away or palliate the charge, it was always usual to set forth the particular facts in what is called a special plea; which was originally intended to apprize the court and the adverse party of the nature and circumstances of the defense, and to keep the law and the fact distinct. And it is an invariable rule, that every defense, which cannot be thus specially pleaded, may be given in evidence, upon the general issue at the trial. But, the science of special pleading having been frequently perverted to the purposes of chicane and delay, the courts have of late in some instances, and the legislature in many more, permitted the general issue to be pleaded, which leaves every thing open, the fact, the law, and the equity of the case; and have allowed special matter to be given in evidence at the trial. And, though it should seem as if much confusion and uncertainty would follow from so great a relaxation of the strictness anciently observed, yet experience has shown it to be otherwise; especially with the aid of a new trial, in case either party be unfairly surprised by the other.
2. SPECIAL pleas, in bar of the plaintiff’s demand, are very various, according to the circumstances of the defendant’s case. As, in real actions a general release or a fine, both of which may destroy and bar the plaintiff’s title. Or, in personal actions, an accord, arbitration, conditions performed, nonage of the defendant, or some other fact which precludes the plaintiff from his action.47 A justification is likewise a special plea in bar; as in actions of assault and battery, son assault demesne, that it was the plaintiff’s own original assault; in trespass, that the defendant did the thing complained of in right of some office which warranted him so to do; or, in an action of slander, that the plaintiff is really as bad a man as the defendant said he was.
ALSO a man may plead the statutes of limitations in bar; or the time limited by certain acts of parliament, beyond which no plaintiff can lay his cause of action. This, by the statute of 32 Hen. VIII. c. 2. in a writ of right is sixty years: in assizes, writs of entry, or other possessory actions real, of the seizin of one’s ancestors, in lands; and either of their seizin, or one’s own, in rents, suits, and services; fifty years: and in actions real for lands grounded upon one’s own seizin or possession, such possession must have been within thirty years. By statute I Mar. St. 2. c. 5. this limitation does not extend to any suit for advowsons, upon reasons given in a former chapter.48 But by the statute 21 Jac. I. c. 2. a time of limitation was extended to the case of the king; so that possession for sixty years precedent to 19 Febr. 1623,49 is a bar even against the prerogative, in derogation of the ancient maxim “nullum tempus occurrit regi“. By another statute. 21 Jac. I. c. 16. twenty years is the time of limitation in any writ of formedon: and, by a consequence, twenty years is also the limitation in every action of ejectment; for no ejectment can be brought, unless where the lessor of the plaintiff is entitled to enter on the lands,50 and by the statute 21 Jac. I. c. 16. no entry can be made by any man, unless within twenty years after his right shall accrue. As to all personal actions, they are limited by the statute late mentioned to six years after the cause of action commenced; except actions of assault, battery, mayhem, and imprisonment, which must be brought within four years, and actions for words, which must be brought within two years, after the injury committed. And by the statute 31 Eliz. c. 5. all suits, indictments, and informations, upon any penal statutes, where any forfeiture is to the crown, shall be sued within two years, and where the forfeiture is to a subject, within one year, after the offense committed; unless where any other time is specially limited by the statute. Lastly, by statute 10 W. III. c. 14. no writ of error, or scire facias, shall be brought to reverse any judgment,
fine, or recovery, for error, unless it be prosecuted within twenty years. The use of these statutes of limitation is to preserve the peace of the kingdom, and to prevent those unnumerable perjuries which might ensue, if a man were allowed to bring an action for any injury committed at any distance of time. Upon both these accounts the law therefore holds, that “interest reipublicae ut sit finis litium“: and upon the same principle the Athenian laws in general prohibited all actions, where the injury was committed five years before the complaint was made.51 If therefore in any suit, the injury, or cause so action, happened earlier than the period expressly limited by law, the defendant may plead the statutes of limitations in bar: as upon an assumpsit, or promise to pay money to the plaintiff, the defendant may plead non assumpsit infra sex annos; he made no such promise within six years; which is an effectual bar to the complaint.
AN estoppel is likewise a special plea in bar: which happens where a man has done some act, or executed some deed, which estops or precludes him from averring any thing to the contrary. As if tenant for years (who has no freehold) levies a fine to another person. Though this is void as to strangers, yet it shall work as an estoppel to the cognizor; for, if he afterwards brings an action to recover these lands, and his fine is pleaded against him, he shall thereby be estopped from saying, that he had no freehold at the time, and therefore was incapable of levying it.
THE conditions and qualities of a plea (which, as well as the doctrine of estoppels, will also hold equally, mutatis mutandis, with regard to other parts of pleading) are, I. That it be single and containing only one matter; for duplicity begets confusion. But by statute 4 & 5 Ann. c. 16. a man with leave of the court may plead two or more distinct matters or single pleas; as in an action of assault and battery, these three, not guilty, son assault demesne, and the statute of limitations. 2. That it be direct and positive, and not argumentative. 3. That it have convenient certainty of time, place, and persons. 4. That it answer the plaintiff’s allegations in every material point. 5. That it be so pleaded as to be capable of trial.
SPECIAL pleas are usually in the affirmative, sometimes in the negative, but they always advance some new fact not mentioned in the declaration; and then they must be averred to be true in the common form: “and this he is ready to verify.” This is not necessary in pleas of the general issue; those always containing a total denial of the facts before advanced by the other party, and therefore putting him upon the proof of them.
IT is a rule in pleading, that no man be allowed to plead specially such a plea as amounts only to the general issue, or a total denial of the charge; but in such case he shall be driven to plead the general issue in terms, whereby the whole question is referred to a jury. But if the defendant, in an assize or action of trespass, be desirous to refer the validity of his title to the court rather than the jury, he may state his title specially, and at the same time give color to the plaintiff, or suppose him to have an appearance or color of title, bad indeed in point of law, but of which the jury are not competent judges. As if his own true title be, that he claims by feoffment with livery from A, by force of which he entered on the lands in question, he cannot plead this by itself, as it amounts to no more than the general issue, nul tort, nul disseizin, in assize, or not guilty in an action of trespass. But he may allege this specially, provided he goes farther and says, that the plaintiff claiming by color of a prior deed of feoffment, without livery, entered; upon whom he entered; and may then refer himself to the judgment of the court which of these two titles is the best in point of law.52
WHEN the plea of the defendant is thus put in, if it does not amount to an issue or total contradiction of the declaration but only evades it, the plaintiff may plead again, and reply to the defendant’s plea: either traversing it, that is, totally denying it; as if on an action of debt upon bond the defendant pleads solvit ad diem, that he paid the money when due, here the plaintiff in his replication may totally traverse this plea, by denying that the defendant paid it: or he may allege new matter in contradiction to the defendant’s plea; as when the defendant pleads no award made, the plaintiff may reply, and set forth an actual award, and assign a breach:53 or the replication may confess and avoid the plea, by some new matter or distinction, consistent with the plaintiff’s former declaration; as, in an action for the trespassing upon land whereof the plaintiff is seized, if the defendant shows a title to the land by descent, and that therefore he had a right to enter, and gives color to the plaintiff, the plaintiff may either traverse and totally deny the fact of the descent; or he may confess and avoid it, by replying, that true it is that such descent happened, but that since the descent the defendant himself demised the lands to the plaintiff for term of life. To the replication the defendant may rejoin, or put in an answer called a rejoinder. The plaintiff may answer the rejoinder by a sur-rejoinder; upon which the defendant may rebut; and the plaintiff answer him by a sur-rebutter. Which pleas, replications, rejoinders, sur-rejoinders, rebutters, and sur-rebutters answer to the exceptio, replicatio, duplicatio, triplicatio, and quadruplicatio of the Roman laws.54
THE whole of this process is denominated the pleading; in the several stages of which it must be carefully observed, not to depart or vary from the title or defense, which the party has once insisted on. For this (which is called a departure in pleading) might occasion endless altercation. Therefore the replication must support the declaration, and the rejoinder must support the plea, without departing out of it. As in the case of pleading no award made, in consequence of a bond of arbitration, to which the plaintiff replies, setting forth an actual award; now the defendant cannot rejoin that he has performed this award, for such rejoinder would be an entire departure from his original plea, which alleged that no such award was made: therefore he has now no other choice, but to traverse the fact of the replication, or else to demur upon the law of it.
YET in many actions the plaintiff, who has alleged in his declaration a general wrong, may in his replication, after an evasive plea by the defendant, reduce that general wrong to a more particular certainty, by assigning the injury afresh with all its specific circumstances in such manner as clearly to ascertain and identify it, consistently with his general complaint; which is called a new or novel assignment. As, if the plaintiff in trespass declares on a breach of his close in D; and the defendant pleads that the place where the injury is said to have happened is a certain close of pasture in D, which descended to him from B his father, and so is his own freehold; the plaintiff may reply and assign another close in D, specifying the abuttals and boundaries as the real place of the injury.55
IT has previously been observed56 that duplicity in pleading must be avoided. Every plea must be simple, entire, connected, and confined to one single point: it must never be entangled with a variety of distinct independent answers to the same matter; which must require as many different replies, and introduce a multitude of issues upon one and the same dispute. For this would often embarrass the jury, and sometimes the court itself, and at all events would greatly enhance the expense of the parties. Yet it frequently is expedient to plead in such a manner, as to avoid any implied admission of a fact, which cannot with propriety or safety be positively affirmed or denied. And this may be done by what is called a protestation; whereby the party interposes an oblique allegation or denial of some fact, protesting (by the gerund, protestando) that such a matter does or does not exist; and at the same time avoiding a direct affirmation or denial. Sir Edward Coke has defined57 a protestation (in the pithy dialect of that age) to be “an exclusion of a conclusion.” For the use of it is, to save the party from being concluded with respect to some fact or circumstance, which cannot be directly affirmed or denied without falling into duplicity pleading; and which yet, if he did not thus enter his protest, he might be deemed to have tacitly waived or admitted. Thus, while tenure in villenage subsisted, if a villein had brought an action against his lord, and the lord was inclined to try the merits of the demand, and at the same time to prevent any conclusion against himself that he had waived his seigniory; he could not in this case both plead affirmatively that the plaintiff was his villein, and also take issue upon the demand; for then his plea would have been double, as the former alone would have been a good bar to the action: but he might have alleged the villenage of the plaintiff, by way of protestation, and then have denied the demand. By this means the future vassalage of the plaintiff was saved to the defendant, in case the issue was found in his (the defendant’s) favor:58 for the
protestation prevented that conclusion, which would otherwise have resulted from the rest of his defense, that he had enfranchised the plaintiff;59 since no villein could maintain a civil action against his old. So also if a defendant, by way of inducement to the point of his defense, alleges (among other matters) a particular mode of seizin or tenure, which the plaintiff is unwilling to admit, and yet desires to take issue on the principal point of the defense, he must deny the seizin or tenure by way of protestation, and then traverse the defensive matter. So, lastly, if an award be set forth by the plaintiff, and he can assign a breach in one part of it (viz. the non-payment of a sum of money) and yet is afraid to admit the performance of the rest of the award, or to aver in general a non-performance of any part of it, lest something should appear to have been performed; he may save to himself any advantage he might hereafter make of the general non-performance, by alleging that by protestation; and plead only the non-payment of the money.60
IN any stage of the pleadings, when either side advances or affirms any new matter, he usually (as was said) avers it to be true; “and this he is ready to verify.” On the other hand, when either side traverses or denies the facts pleaded by his antagonist, he usually tenders an issue, as it is called; the language of which is different according to the party by whom the issue is tendered: for if the traverse or denial comes from the defendant, the issue is tendered in this manner, “and of this he puts himself upon the county,” thereby submitting himself to the judgment of his peers:61 but if the traverse lies upon the plaintiff, he tenders the issue or prays the judgment of the peers against the defendant in another form; thus, “and this he prays may be inquired of by the country.”
BUT if either side (as, for instance, the defendant) pleads a special negative plea, not traversing or denying any thing that was before alleged, but disclosing some new negative matter; as where the suit is on a bond, conditioned to perform an award, and the defendant pleads, negatively, that no award was made, he tenders no issue upon this plea; because it does not yet appear whether the fact will be disputed, the plaintiff not having yet asserted the existence of any award; but when the plaintiff replies, and sets forth an actual specific award, if then the defendant traverses the replication, and denies the making of any such award, he then and not before tenders an issue to the plaintiff. For 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; all their debates being at last contracted into a single point, which must now be determined either in favor of the plaintiff or of the defendant.
1. Append. No. II. § 2. No. III. § 6.
2. See pag. 285. 288.
3. 2 Ventr. 259.
4. 2 Salk. 670.
5. Stra. 874. Mylock v. Saladine. Trin. 4 Geo. III. B. R.
6. Seld. In Fortesc. C. 21.
7. Bract. 400. Flet. l. 2. c. 6.
8. See pag. 275.
9. 3 Bulstr. 275. 4 Inst. 189.
10. Rastal. Entr. 234.
11. Booth of real actions. 118.
12. Vol.II. append. No. V. § 2.
13. Append. No. I. § 5.
14. Co. Entr. 182.
15. Nov. Narr. 230. edit. 1534.
16. The true reason of this, says Booth, (on real actions. 94. 112.) I could never yet find.
17. Co. Litt. 127.
18. edit. 1534.
19. Theloal. dig. l.14. c. I. pag. 357.
20. En la defence sont iij choses entendantz: per tant quil defende tort et force, home doyt entendre quil se excuse de tort a luy surmys per tounte, et fait se partie al ple; et per tant quil defende les damages, il affirme le partie able destre respondu; et per tant quil defende ou et quant il devera, il accepte la poiar de courte de conustre ou trier lour ple. (Mod. tenend. cur. 408. edit 1534.) See also Co. Litt. 127.
21. Salk. 217. Lord Raym. 282.
22. Carth. 230. Lord Raym. 117.
23. Append. No. III. § 6.
24. Gilb. Hist. Com. Pl. 35.
25. Matth. V. 25.
26. Append. No. III. § 6.
27. Vol. II. append. No. V. § 2.
28. F. N. B. 135.
29. Dyer. 137.
30. Finch. L. 360.
31. I Roll. Abr. 137.
32. Ibid. 138.
33. 2 Lord Raym. 836. 10 Mod. 126.
34. See pag. 83.
35. Hardr. 505.
36. 2 Ventr. 363.
37. Hob. 87. Yearbook, M. 8 Hen. VI. 20. In this latter case the chancellor of Oxford claimed cognizance of an action of trespass brought against himself; which was disallowed, because he should not be judge in his own cause. The argument used by sergeant Rolfe, on behalf of the cognizance, is curious and worth transcribing. Jeo vous dirai un fable. En ascun temps suit un pape, et avoit fait un grand offence, et le cardinals vindrent a luy et disoyent a luy, “peccasti:” et il dit, “judica me:” et ils disoyent, “non possumus, quia caput es ecclesiae; judica teipsum:” et l’apostol’ dit, “judico me cremari;” et suit combustus; et apres suit un sainct. Et in ceo cas il suit son juge demene, et issint n’est pas inconvenient que un home soit juge demene.
38. 4 Inst. 315.
39. Mar. 14.
40. Brownl. 139.
41. Co. Entr. 271.
42. I Vent. 21.
43. Litt. § 338. Co. Litt. 209.
44. Sp. L. b. 6. c. 4.
45. Ff. 16. 2. I.
46. Append. No. II. § 4.
47. Append. No. III. § 6.
48. See pag. 250.
49. 3 Inst. 189.
50. See pag. 206.
51. Pott. Ant. b. I. c. 21.
52. Dr. & St. d. 2. c. 53.
53. Append. No. III. § 6.
54. Inst. 4. 14. Bract. l. 5. tr. 5. c. I.
55. Bro. Abr. t. trespass. 205. 284.
56. pag. 308.
57. I Inst. 124.
58. Co. Litt. 126.
59. See book II. ch. 6. pag. 94.
60. Append. No. III. § 6.
61. Append. No. II. § 4.