performance generally of negative and affirmative covenants, CH. 180. Cro. El. 232; 4 Bac. Abr. 134-(otherwise of disjunctive); Art. 9. several breaches in debt on bond to perform covenants, 134; informal issues, see such issues (not immaterial ones), Hob. 233; not shewing how cousin and heir, Hob. 232; want of inducement to a traverse, 236; informal conclusion of a plea or replication, 321; departure, according to some books, not others, 1 Stra. 22; 4 D. & E. 504; 5 Com. D. 425, 428, omitting to state the consideration of a bargain and sale, 2 H. Bl. 261, Bolton's case; not shewing the judgment sued is in force, 3 Mod. 235; not guilty in assumpsit, so good after verdict, Marsham v. Gibbs, 2 Stra. 1022. Bolsford & al. 1789, s. 32. Variance in form &c. does not vitiate; assumpsit for monies 3 Day's Ca. paid to the deft's. use, inhabitant of Newtown. The declara- 159, Beers v. tion stated an execution issued against them for taxes on which property was taken, for which the plt. receipted, and was obliged to pay the taxes. At the trial a receipt was given in evidence, stating it was taken on an execution against the collector. Held, the variance was not material, as it was proved the execution was in fact against the town. § 2. Here also may be added the clause in the United Act Sept. 29, States' laws on this point, providing "that no summons, writ, daclaration, return, process, judgment, or other proceedings in civil causes, in any of the courts of the United States, shall be abated, arrested, quashed, or reversed, for any defect or. want of form; but the said courts, respectively, shall proceed and give judgment according as the right of the cause and matter in law shall appear unto them, without regarding any imperfections, defects, or want of form in such writ," &c. except those specially pointed out by demurrer; and all defects in form the court may amend. What substance-not form. This distinction is found to be diffused throughout all kinds of pleadings, and all sorts of instruments. It is constantly seen in the application of demurrers, general and special; in verdicts aiding, or not, defects; in amendments allowable, or not, in the application of the statutes of amendments, jeofail; in defects cured, or not, by the pleas of the opposite party; to make a table of all the defects in substance and in form, found in the books, would require volumes, only a few leading cases of course can be collected in this article; also, see causes of demurrer, head Demurrer. § 3. Defects in substance; a defective title (not a good title 5 Co. 35-18 defectively stated); an immaterial issue; omitting to state a El. 27; El. 5. special request where necessary what can be supplied only by the party's information. Debt on bond, nil debet pleaded is bad in substance, and so 2 Wils. 10. CH. 180. 3 Day's Ca. 4 Day's Ca. 37, Drake v. Watson. 4 Day's Ca. 114, Wilmot . Monson. 9 Johns. R. $2. Co. L. 282, 283.--Hob. 103.--Salk. 365.-Saund. 22.-1 Saund. 43, Salmon v. Smith; but quære.-1 Saund. 209, B. 8. on a general demurrer, though urged it was only a jeofail, and but form. § 4. To build or finish a ship is in substance variant, as the declaration stated the deft. undertook in consideration of the plt's. contract, to build a ship; evidence was of one-to finish a ship partly built, and to sell it to the deft. Held, this variance was a matter of substance, and fatal. § 5. Qui tam for taking usury; the declaration stated it was on a loan of $200 by means of a note; the proof was of forbearing the sum due on the note $200, and of the interest accrued for more than six months. Held, a material variance, and fatal; the declaration and evidence varied in substance. § 6. So qui tam for usury, the declaration stated a loan by the deft. to A for sixty-three days, and proved a note executed by A and B jointly and severally, payable to the deft. in sixty days. Held, the variance was in substance, and fatal. Ch. 177, a. 9. s. 60. §7. The place of holding the court in the county, is not material, or substance,—as where alleged to be held at Salem, in the county of Washington, August, 1807, &c.; in the record produced, the place or town where held was not mentioned. Held, the variance was immaterial; the place of holding &c. being fixed by law, it must be known to have been at Salem. ART. 10. Traverse. § 1. This usually consists of two parts: 1st, The inducement: 2. The traverse proper, or denial. As where the 628.-Dyer, deft. pleads infancy, the plt. replies, and traverses thus ; precludi non &c., because he says, the said D, at the time of executing the writing obligatory aforesaid, was of full age of twenty-one years; without this, that the said D, at the time of making the said writing, was within the age of twentyone years, as he has alleged. 5 Ins. Cl. 215. To omit the inducement is but form; and so an immaterial traverse is but form, as a. 9; and a traverse must be so offered that the other party may meet it without a departure. As where the declaration stated a lease of three rooms; plea, a lease of four rooms, and an entry into the fourth by the plt.; this is ill; for the deft. should have pleaded a lease of four rooms, and traversed the lease of three rooms; for the plt. could not traverse the lease of four rooms without a departure, as he had declared on a lease of three. Davis. Farr. R. 104, § 2. Conclusion. Trespass against two for taking a pail Haywood v. of water out of the plt's. well. The deft. pleaded in abatement, that the plt. and the other deft. were tenants in common of the well. The plt. replied, he was sole seized; absque hoc, he was tenant in common with any, and concluded to the country. Rule laid down, where the absque hoc takes CH. 180. in the whole matter of the plea, conclusion may be to the Art. 10. country; but where the absque hoc is on a particular fact, or a special point, which does not comprehend the whole mat- Dougl. 95, ter of the plea, the conclusion must be with an averment. In Boyes v. case of absque tali causa, (when that is proper) may conclude to the country; for in fact, absque tali causa answers the whole matter; and a replication may be good that does not traverse a particular point in many cases. Traverse means to deny. Whitaker. Salk. 268, Chance v Weeden. - §3. A traverse properly taken, closes the issue, and it 4 Bac.Abr.67. denies some material point alleged in the pleadings; and it -5 Bac Abr. is general or special. General, is absque tali causa, the in- 205, 206 ducement to which is, that the deft. did the wrong the plt. complains of, de injuria sua propria: Special, is where some particular fact, or special matter, or point of title only, is denied or traversed. The general traverse is good, 1st, Where the deft. excuses a tort, as his assault: 2. Where the deft. in trespass, justifies under a public statute giving a right to all persons: 3. Where the deft. justifies at common law. § 4. Rule-where matter is expressly affirmed by one Cro. El. 754, party and denied by the other, it need not be traversed be- Huish v. Phillips: cause a sufficient issue is joined; as in audita querela. A bond to pay money at a day and place declared on. Plea, the deft. was there and tendered the money, and that the plt. was not there to receive it. Plt (creditor) pleaded, that such a day he was there and demanded it, and that neither the deft. (debtor,) nor any one for him, was there to pay; absque hoc, the deft. tendered. Held, this traverse was unnecessary. § 5. Matter of law connected with matter of fact, is traversable, but not a matter of law alone; rather, a matter of right resulting from facts is traversable. 6. But the last rule must be understood of those cases where the denial makes an apt and complete issue, on an affirmative and negative; as where the plea is, that B is dead, and the replication is, that he is alive, there must be traverse that he is dead. 2 Saund. 23, Bl. 776.-2 Vent. 213.-4- -Salk.628.- 7. It is another rule, that the inducement ought to be Cro.Car. 336, sufficient in matter traversable and issuable; but it seems it Dike v.Ricks. need not be alleged with so much precision and certainty, Dyer, 365.-as the matter after the absque hoc. In the inducement the Like's case, party sets up a title for himself, and particularly specifies Hob. 103.his case, and justifies, and then denies the matter alleged by Doct. Pl.344. the other party; or denies it to be true, in the manner and form the other party avers it. CH. 180. § 8. Another rule is-a traverse ought not to be taken Art. 10. but when the thing traversed is issuable, as the intention of it is to come to a good issue; and the traverse, too, must be 3 Mod. 320.- to a single point, however made up of several facts, and of 3 Lev. 40. a matter alleged by the other party. If the deft's. plea be Ld.Ray.64.-1 Bac.Abr.320. special, and contrary to the matter in the plt's. declaration, -Cro.El. 30, such plea must traverse such matter; as if the deft. plead a Hering v. Blacklow. Salk.91,Hudson v. Jones. Salk. 138, 4 Bac. Abr.68. prescription, he must traverse the plt's. prescription; and in this case, the court said, the rule is, if the deft. allege seizin in one from whom he claims, and the plt. alleges seizin in another from whom he claims, before the seizin stated by the deft., the plt. must traverse or avoid the seizin laid by the deft. § 9. Another rule is that whatever is traversable and not traversed, is admitted. But where a man confesses and avoids, he need not traverse: must not traverse. Yelv. 173. § 10. Any material part of the declaration or defence, is traversable; as in trespass, plea, seizin in J. S., who demised to the deft.; the plt. may traverse the seizin or demise; and if the plt. assign several breaches, the deft. may traverse any of them, or severally. 11. Another rule-if the traverse be not an apt one, -3 Mod 203, judgment will be arrested; as in assault and battery, plea a anonymous. release. Replication, by duress. Rejoinder, shewing it was 4 Bac. Abr.69. 2 Lutw.1632. --Stra. 837.3 Salk. 353. 5 Bac. Abr. 207. 4 Bac Abr.69. Cro El.780.- not by duress, but was voluntary. Plt. surrejoins, it was by duress; absque hoc, it was voluntary; and hoc ponit. Issue thereon, and verdict for the plt.; and judgment arrested; for the rejoinder should have been, not by duress. § 12. If the deft's. plea be in the negative, the plt. need not traverse it; for a negative cannot be traversed; as plea, no assets ultra. Replication, assets ultra, and good without saying what. 13. Another rule-where one confesses and avoids, he need not traverse; but if he do, it is mere form; as where plea was, A was seized and leased to the deft. Replication said, true, A was seized, and so leased to the deft.; but before that lease he leased to the plt. Held, the plt. should not traverse. § 14. If the deft. insist on one title, and the plt. on another. not inconsistent with the deft's. title, there a traverse is not necessary. § 15. Second head. A traverse allowed or not. Gener -Dyer,212.- ally a record or an officer's return, is not traversable; as on Haw. P. C. scire facias, the sheriff returned J. J. tertenant, this is not 142.-Raym. traversable; nor is his return of a rescous traversable; nor is a justice's record of a forcible detainer; for he acts as a 406. judge; nor is a coroner's inquisition on a view of a dead body; nor is the probate of a will traversable. CH. 180. Art. 10. 630, Gilbert v. Parker. §16. A fact or seizin implied may be traversed; as where in replevin, A was seized of two-thirds of the land, 2 Salk. 629, as tenant in common, and the deft. justified that A, his master, was seized, A shall be intended sole seized; and his sole seizin may be traversed, though only implied or intended. § 17. A virtute cujus is not traversable, as it is not a posi- 3 Salk. 352, tive allegation, but only a deduction or inference from an- Beals v. other matter; as where two habeas corpora were pleaded, Saund. 23, n. Simpson.--1 and both of different teste and returns. Replication, he was 5. brought up by virtue of the first writ. Held, as above. So by pretence of which, by force of which, per quod, &c. are not traversable for the same reasons. Nor a conclusion. 1 Saund. 23, n. 5, 299. § 18. Where a power is given to hear and determine, the 12 Mod. 388. matter is not traversable. § 19. A traverse must not be too narrow nor too broad. 1 Saund. 268, n. 1; 312, d. n. 5; 82, n. 8; 260, n. 2.; 2 Saund. 207, a. n. 24. And there must be colourable title set forth in the inducement to the traverse. The deft. in 3 Salk. 357. Griffith v. trespass justified under a prescriptive right to a duty called 1 Wils. 338, tensary, and a prescriptive right to distrain for it. Plt. Williams. traversed the right to the duty, but not that to distrain for it; and held, the traverse was right. Gilbert v. § 20. On pleading a seizin generally, a traverse may be 2 Salk. 630, taken, that he is sole seized, as seizin generally implies so much. A replication must not confess, and avoid, and traverse too. Yelv. 151, 221. 4 Bac. Abr. 13 § 21. Third head. Where a traverse is necessary or not. The rule is where the matter pleaded by one party is contrary to the matter pleaded by the other, there generally ought to be a traverse of the latter; as in Hering's case Lutch. 381 above, the deft. pleaded seizin in A, under whom he claim- Cro El. 30.ed, and the plt. alleged seizin in B, under whom he claimed, 70, 71. he must traverse, or confess and avoid A's seizin. So, a plea, A died seized in fee; replication, he died seized in tail; plt. must traverse he died seized in fee. And if the deft. plead, J. S. is executor, he must traverse he himself is. So of a bailiff, administrator, &c. Turke. § 22. So in escape against a gaoler, he may plead the Dyer, 66, gaol was broken by the king's enemies, or suddenly burnt Mynours v. by fire; but must also say absque hoc, that the escape was in another manner, or as the plt. hath alleged. 23. Debt against the marshal, for that he suffered one Cro.Jam.657, D., in execution for £202 damages, to go at large where she Whiting v. Reynel. VOL. VI. 24 |