the defendant plead, "no such memorial as the statute requires," to which the plaintiff replies that there was a memorial, which contained the names of the parties, &c. and the consideration for which the annuity was granted, and the defendant rejoins that the consideration is untruly alleged in the memorial to have been paid to both obligors, for that one of them did not receive any part of it; this rejoinder is bad, as being a departure from the plea.(m) So, in an action of debt on bond, conditioned for the performance of covenants, if the defendant plead performance, and *the plaintiff reply and assign a breach, the defendant cannot [ *689] rejoin any matter in excuse of performance.(a) But where the rejoinder discloses new matter, in explanation or fortification of the bar, it is no departure:(b) Thus, where the defendant in an action of debt on an arbitration bond, pleaded no "award," and the plaintiff in his replication set out the award, and the defendant in his rejoinder stated the whole award, in which was recited the bond of submission, by which it appeared, upon the face of the award, that it was not warranted by the submission, and then demurred; the court held, that the rejoinder was not inconsistent with, nor a departure from the plea.(c) In scire facias against bail, they pleaded that there was no ca. sa. against the principal, the plaintiff replied, by showing the ca. sa. and a return of non est inventus, the defendant rejoined that the ca. sa. did not lie four days in the office; and this, on demurrer, was holden to be a departure; although, by the practice of the court, the proceedings were on that account irregular, and might have been set aside.(dd) But where bail, sued in scire facias upon their recognizance, pleaded that no ca. sa. was duly sued out, returned and filed, against the principal, according to the custom and practice of the court, to which the plaintiff in his replication showed a writ of ca. sa. issued into Middlesex, it was holden to be no departure for the defendant to rejoin, that the venue in the action against the principal was laid in London; for that sustains the plea.(e) Time and place, when material, cannot be departed from; as, in an action upon a bond,(f) or promissory note, (g) the plaintiff in his replication cannot vary from the day laid in the declaration. So, in an action for a local trespass, he cannot reply that it was committed at a different place. But when the time laid in the declaration is immaterial, there, if it become necessary by the defendant's plea, the plaintiff in his replication may depart from it; as in trespass, (h) or trover,() or upon a general indebitatus assumpsit,(k) when the time becomes material by the defendant's plea of a release, tender, or the statute of limitations, &c. So, in an action for a transitory trespass, when the defendant pleads a local justification, the plaintiff, in his replication, may vary from the place laid in the declaration. (1) The proper mode of taking advantage of a departure, is by demur (m) 4 Durnf. & East, 585. (a) Co. Lit. 304, a. 2 Lev. 67. 1 Salk. 221, 2. 50. (b) 2 Wils. 98. 2 Dowl. & Ryl. 472, 3, S. C. (f) 1 Salk. 222. 3 Lev. 348. (h) Co. Lit. 282, a. b. 1 Salk. 222. 2 Ld. Raym. 1015. (i) Cro. Car. 245, 333. 1 Salk. 222. (k) 1 Str. 22. 2 Str. 806. 1 Lev. 110. 1 Keb. 566, 578. 10 Mod. 251. Fort. 375. 1 Barnard, K. B. 54. (1) 1 Ld. Raym. 120. rer; for if the defendant, instead of demurring, take issue upon a replication containing a departure, and it be found against him, the court will not arrest the judgment.(m) *But though a departure be not allowable, yet in many actions, [*690] and particularly in trespass, 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.(a) A new assignment is either as to time, place, or other circumstances. With respect to time, when the defendant justifies under a right of common, &c. at particular times, the plaintiff may new assign the trespass at other times. So, in an action of assault and battery, if the defendant plead son assault demesne, and there were in truth two assaults, one of which the defendant can justify, and the other not, the plaintiff may new assign the assault for which he brought his action.(b) And it seems that the defendant in such case may prove an assault on any day before the action brought; and the plaintiff cannot give in evidence an assault at another day, or at another time on the same day, without a new assignment. (c) But where the defendant, in trespass quare clausum fregit on several days, pleads leave and license to the whole, if some of the trespasses were committed after the license was revoked, the plaintiff need not new assign; as the defendant, by his plea, undertakes to prove a license sufficient to cover all the acts of trespass. (d) With respect to place, it is a rule, that if the plaintiff in trespass give it a name by his writ, the defendant cannot vary from that name; but if the writ be only general, quare clausum fregit, and the plaintiff give a name in his count, this shall not bind the defendant, but he may give the place another name.(e) And it is on all hands agreed, that when the writ and count are both general, the defendant may give the place a name in his plea ;(f) or he may plead liberum tenementum generally, without giving it a name.(g) But when the place is made material by the defendant's plea, he must show it with certainty; as in trespass, for taking and carrying away the plaintiff's goods in D., the defendant pleaded that the locus in quo was his freehold, and that he took the goods damage feasant, &c. the plaintiff demurred generally, and had judgment; for the action being transitory, there is no locus in quo supposed, D. being only alleged for a venue; therefore, if the defendant will make the place material, it must come on his part to show the certainty of it.(h) If the defendant say, that the locus in quo is six acres in D. which are his freehold, and the plaintiff say they are his freehold, and in truth the plaintiff and defendant have both six acres there, it was in one [ *691] case *determined, that the defendant cannot give in evidence, that he committed the trespass in his own soil, unless he give a name a. &c. (m) T. Raym. 86. And see further, as to departure in pleading, 2 Wms. Saund. 5 Ed. 84, 1 Chit. Pl. 4 Ed. 556, &c. Steph. Pl. 405, &c. (a) 3 Blac. Com. 311. (c) Bul. Ni. Pri. 17; and see 1 Esp. but see Cro. Car. 514, 15, contra. (b) 6 Mod. 120. Rep. 38. Ry. & Mo. 118. 2 Ld. Raym. 1015. 1 Car. & P. 381. S. C.; and see 11 East, 451. (d) 1 Car. & P. 448, 677; (e) Per Fairfax, Just. 22 Edw. IV. 17. certain to the six acres; for otherwise, it is said, the plaintiff cannot make a new assignment. (a) So where the plaintiff, in trespass quare clausum fregit, names the close in his declaration, and the defendant pleads liberum tenementum generally, without giving any further description of the close, the plaintiff is not driven to a new assignment; but is entitled to recover, upon proving a trespass committed in a close in his possession, bearing the name given in the declaration, although the defendant may have a close in the same parish, known by the same name.(b) But where the defendant, in trespass quare clausum fregit in D. pleads liberum tenementum, without giving the close a name, and issue is joined thereupon, it seems to be sufficient for him to show any close there that is his freehold ; (c) and therefore, in that case, the better way is to make a new assignment. As the plaintiff may new assign the trespass in a different close, so he may new assign it in another part of the same close. In the latter case, he ought to allege, in what other part of the close the defendant committed the trespass, as in the south or north part, so that the difference may be plainly perceived. (d) If the defendant justify under a right of way, the plaintiff may either deny the existence of the right claimed by the defendant, or admitting it, he may new assign the trespass, extra viam: or, if the declaration be so framed as to include several trespasses of the same nature, he may deny the right, as well as make a new assignment, by saying that he brought his action, not only for the trespass attempted to be justified, but also for the other trespass extra viam. And where the defendant justifies under a right of common of pasture, or turbary, &c. the plaintiff may, if the declaration will admit of it, state the trespass to have been committed on other occasions, and for other purposes, than those mentioned in the plea. But where the plaintiff complains of a single act of trespass, which is justified by the defendant, the plaintiff cannot in his replication take issue upon the facts of the justification, and also newly assign either the same or different matters; such replication and new assignment being double.(e) The plaintiff therefore, in such case, should either reply to the plea, or new assign the trespass, according to the facts of the case: If the plea do not contain a complete answer to the trespass, then the plaintiff should reply, by denying or confessing and avoiding it:(f) but if the trespass be completely justified by the plea, the plaintiff should not reply thereto, but make a new assignment, if the facts of the case will warrant it :(g) By new assigning, however, he admits that the trespass in *the declaration is answered [ *692] by the plea; and therefore, unless a different trespass of the same nature can be proved, the plaintiff must fail in his action.(aa) And where the declaration consisted of two counts, to the first of which there was a justification, and the plaintiff new assigned the trespass, as having been committed at a subsequent time, but failed at the trial in proving his new (a) Dyer, 23. (b) 1 Barn. & Cres. 489. 2 Dowl. & Ryl. 719, S. C.; and see 2 Bing. 49. (e) 2 Salk. 453. 6 Mod. 119, S. C.; and see Willes, 223. 7 Durnf. & East, 335, per Lawrence, J. Atherton v. Pritchard, E. 43 Geo. III. K. B. 2 Taunt. 159. I Wms. Saund. 299, b. c. 1 Chit. Pl. 4 Ed. 546, 7. (d) Bro. Abr. tit. Trespass, pl. 203. (e) 10 East, 73, 80; and see 7 Taunt. 156. (f) 16 East, 82. (g) 2 Wils. 3; and see Cro. Car. 228. 2 Durnf. & East, 172, 177. 3 Durnf. & East, 292. 7 Durnf. & East, 654. 11 East, 406. 8 Moore, 326. 1 Bing. 317, S. C. 1 Car. & P. 381, S. C. 4 Barn. & Cres. 704. 7 Dowl. & Ryl. 187, S. C. 485. 8 Dowl. & Ryl. 257, S. C. (aa) 16 East, 82. Ry. & Mo. 118. 5 Barn. & Cres. assignment, the court held, that he could not have recourse to the second count: for by new assigning he admitted that he did not intend to proceed for the trespass that was justified, but to rely on his new assignment; and as there were only two trespasses, one of which was admitted to be answered, he could not avail himself of the other trespass, both on the new assignment and on the second count.(b) A new assignment, being in nature of a new declaration,(c) should be equally certain; and the defendant may answer it in the same way, either by pleading the general issue of not guilty, or a special justification.(d) But, in answer to a new assignment at a different place, he cannot say that the places mentioned in the plea and new assignment are the same ;(ee) for by new assigning, the plaintiff admits the truth of the plea, and is estopped from giving any evidence in the place stated therein; so that if the places are in truth the same, the defendant may take advantage of it on the general issue of not guilty. Neither can the defendant justify at a different place, and traverse the place mentioned in the new assignment. (f) When a replication denies the whole substance of the defendant's plea, there the plaintiff ought to tender an issue, and conclude to the country (gg) and it matters not whether the replication in such case be with or without a traverse; for where a traverse comprises the whole matter of the plea, the replication may still conclude to the country.(h) But when a particular fact is selected and denied, the conclusion seems to depend on the form of the replication: If it be so framed, as simply to deny the fact, without any inducement or traverse, it ought to conclude to the country;() but the plaintiff is not always obliged to reply in that way, for in some cases he is allowed, after a proper inducement, to traverse the fact, with an absque hoc ;(k) and when a particular fact is so traversed, the replication should conclude to the court, with an averment and prayer of damages, [*693] or *of the debt and damages: (a) And it is an invariable rule, that whenever new matter is alleged in the replication, it should be concluded with an averment, in order to give the defendant an opportunity of answering it.(bb) A new assignment concludes, by averring that the trespass newly assigned is another and different trespass than that mentioned in the plea; wherefore, inasmuch as the defendant hath not answered the trespass newly assigned, the plaintiff prays judgment, and his damages, &c. (b) 2 Durnf. & East, 176, 7; and see 1 Durnf. & East, 479. Bul. Ni. Pri. 17. 1 Car. & P. 394, 5. (c) 1 Ken. 389. (d) Bro. Abr. tit. Trespass, pl. 168, 359. (ee) Id. pl. 3, 168. Cro. Eliz. 355, 492, 3. (f) Id. pl. 168. And see further as to new assignments, when necessary or not, and how made, and the pleadings thereon, 1 Wms. Saund. 5 Ed. 299, (6). 2 Wms. Saund. 5 Ed. 5, (3). Chit. Pl. 4 Ed. 542, &c. Steph. Pl. 241, &c. (99) Bur. 316. 2 Bur. 1022. Doug. 94, 428. 2 Durnf. & East, 442, 3. (h) 1 Salk. 4. (i) 2 Durnf. & East, 439; and the cases there cited of Bush v. Leake, T. 23 Geo. III. K. B. Slater v. Carne, H. 25 Geo. III. K. B. and Carter v. Yates, T. 27 Geo. III. K. B. accord. Mulliner v. Wilkes, E. 23 Geo. III. K. B. semb. contra. (k) Fen v. Alston, cited in 1 Bur. 320, 21. 2 Str. 871. 2 Wils. 113. Barnes, 161, S. C. Doug. 428. (a) Id. Ibid. 1 Bur. 319. 2 Durnf. & East, 442, 3. (bb) 2 Wils. 65. Doug. 58. 2 Durnf. & East, 576. And see further, as to the mode of concluding replications, &c., and when they should conclude to the contrary, or with a verification; 1 Wms. Saund. 5 Ed. 103, (1), 327, (1), 334, (9), 338, (5, 7), 339, (8). 2 Wms. Saund. 5 Ed. 190, (5). 1 Chit. Pl. 4 Ed. 554, &c. Steph. Pl. 247, 8; 396, &c. In the King's Bench, when the plea was entered in the general issue book, or delivered to the plaintiff's attorney, the replication should in all cases be delivered to the defendant's attorney; but otherwise it should be filed in the office of the clerk of the papers: And a similiter to the general issue must be delivered, or the defendant will be entitled to sign a judgment of non pros. (c) The replication also should be signed by counsel, unless it conclude to the country. In the Common Pleas, the replication is either filed in the prothonotary's office, or delivered to the defendant's attorney: And, in that court, a tender of an issue in fact must be signed by a serjeant, but a joinder in issue need not.(d) If the plaintiff reply, without joining issue, the defendant may be called upon to rejoin; or if there be a new assignment, he may be ruled to plead thereto, in like manner as to the original declaration.(e) The rejoinder should be delivered to the plaintiff's attorney, or filed in the office of the clerk of the papers, in the King's Bench, in like manner as the replication; In the Common Pleas, it is filed with the prothonotaries. And after a rejoinder, if the parties are not yet at issue, the plaintiff must surrejoin, the defendant rebut, and the plaintiff surrebut, &c. till issue is joined. The rule for these purposes is given by the master or secondaries, in like manner as the rule to reply; and if the defendant neglect to rejoin or rebut, when called upon for that purpose, the plaintiff, in the King's Bench, may strike out the previous pleadings, and sign judgment by default, as for want of plea.(f) If the plaintiff, on the other hand, do not surrejoin, or surrebut, within the time limited by the rule, or order for further time, the defendant may sign a judgment of non pros; and it is not necessary for him, in the King's Bench, to demand a surrejoinder, &c. the service of the copy of the rule being deemed a demand of itself; but, in the Common Pleas, a surrejoinder, &c. must be demanded, before judgment is signed. *CHAPTER XXIX. Of DEMURRERS, and AMENDMENT. [ *694] A Demurrer admits the facts, and refers the law arising thereon to the judgment of the court :(a) And it is either to the whole or part of a declaration; or to the plea, replication, &c. When there are several counts in a declaration, some of which are good in point of law, and the rest bad, the defendant can only demur to the latter; for if he were to demur generally to the whole declaration, the court would give judgment against him.(5) So, if the sum demanded by a declaration in scire facias be divisible on the record, and there be no objection to one part of it, a demurrer which goes to the whole is bad. (cc) If a plea or replication, which is entire, be (c) 3 Dowl. & Ryl. 1. (d) 1 Bos. & Pul. 469. 3 Bos. & Pul. 171. (e) Append. Chap. XVIII. ? 9. (f) 5 Durnf. & East, 152. And see further, as to rejoinders, &c. 1 Wms. Saund. 5 Ed. 318, a. (1). 1 Chit. Pl. 4 Ed. 563, &c. (a) Co. Lit. 71, b. 5 Mod. 132. (b) 1 Wms. Saund. 5 Ed. 286, (9). 2 Wms. Saund. 5 Ed. 380, (14). 1 Wils. 248. 1 New Rep. C. P. 43. (cc) 11 East, 565 |