CH. 180. pass for corn and hay carried away. The plea in bar was, Art. 11. that queen Elizabeth was seized in fee in right of her crown, and by her letters patent, one demised to A for his life, who on demised to B for eight years, if A lived so long, and the deft. as a servant of B, took the corn and hay as tithes &c. The plt. demurred, because (among other things) the deft. did not shew said letters. Judgment against him in the K. B.; though B, in whose right he justified, had but a part of the estate. On error in the Exchequer Chamber, many cases were stated to shew he need not shew them. But it was resolved, he must shew them, and that B, the lessee for years, was bound to shew them, though made to A, lessee for life; "for it is a maxim in law, that if he who is a party or privy in estate or interest, or he who justifies in the right of him who is party or privy, pleads a deed; though he who is privy claims but a parcel of the original estate, yet he ought to shew the original deed to the court." Here B claimed not part of the land, but part of the estate, to wit, eight years part of a life estate granted to A. 1 Mor. E. 142 to 170. 10 Co. 93. Co. Lit. 126. 10 Co. 93, 94, case.-1 on Pleadings, § 4. If one will prove any fact in issue by deed, it must be shewn, except where lost, or where one has it not, or claims nothing under it. § 5. If the deed belong to the party pleading it, he must shew it, though he come to the estate by act of law. § 6. But a deed pleaded need not be produced in several in Leyfield's cases, as if he who pleads it be a stranger to the deed, and Saund. 9, n. claims nothing out of it, nor justifies as servant to one who is 1.-1 Chitty party or privy, as if he comes in not by the party to the 348, 357,400, deed, but by act of law, and so cannot provide for having the deed; for "there is another maxim in law, that where a man is a stranger to a deed, and doth neither claim the thing comprised in the grant, nor any thing out of it, nor doth any thing in the right of the grantee, as bailiff or servant, then he shall plead the patent or deed without shewing it." 415. Cro. Jam. 70, § 7. So where there were letters patent to A for life, and Dagg's case. he leased to the plt. for years, and he did not shew them, and held well; for he has but parcel of the estate: 2. These letters do not belong to him: 3. This action is to punish a tort, and not to demand the interest: and 4. The title shewn in the declaration is but inducement to the action. The two last reasons materially differ this case from that of Leyfield's 1 Saund. 9, above mentioned. (So if one has not the possession of the deed.) n. 1. 5 Com. D. 462. § 8. So when A covenants to stand seized to the use of B, one who claims under B need not shew the deed; for B is in by law, that is, by the statute of uses. § 9. So it is not necessary to shew a deed in the case of a CH. 180. conveyance operating under the statute of uses. 1 Saund. Art. 11. 9, n. 1 ; 3 D. & E. 156, Read v. Brookman. §10. So "though the statute of frauds requires that livery 3 D. & E.156, shall be accompanied by an instrument in writing, then the -2 H. Bl. party is not bound to make a profert of the deed, though it 262.-Dyer is necessary in evidence to shew it, or something in lieu Jam. 217. of it." 277.-Cro. 264, Bolton v. § 11. So in stating a conveyance, it was alleged that a deed 2 H. Bl. 259, was cancelled by the seal of the releasor being taken off, and Carlisle.-4 destroyed; and that part of the deed was destroyed or lost Cruise, 370. with the profert of the residue, and it was holden to be good pleading. Omitting to state a consideration in a bargain and sale, is bad only on special demurrer-quære. 463.-Willes, § 12. So one not party or privy to a deed need not shew Co. L. 226.— if the estate be executed; as if he plead a mortgage and 5 Com. D. payment at the day, he need not shew the deed; for the 560-Co. L. condition being performed, the deed may be delivered up; 227, 228.but otherwise, if a party or privy; nor need the deed be Co. L. 226.shewn if kept by the other party, or destroyed by him, nor if lodged in court; 5 Com. D. 464. 5. Co. 75. Willes, 689. § 13. If a man plead a deed by way of discharge, no pro--5 Com. D, fert is necessary, as if a corporation avow for rent and ser- 465. vices, and in bar thereto the plt. pleads a lease of the land made to A, who leased to the plt., he need not shew the deed; for it is pleaded by way of discharge, and he does not claim title by it. Salk. 658, § 14. If the deed produced be the same in substance as the one declared on, it is sufficient; as a bond to pay the plt. Borough. or his attorney, is the same in substance, or as if the deed omit the anno domini. 169.-1 Wils. § 15. No profert of the assignment of a bail bond is neces- Bul. N. P. sary for it is not a deed; nor is it necessary to state the 180, Lease v. witnesses' names. § 16. The court on argument, allowed a count on a deed, with a profert, to be struck out, and a new count to be filed, stating a deed lost by time and accident, with a profert of a copy. Several cases have since occurred, in which this rule has not been questioned,-how parties &c. must be known and named; 10 East, 55. Box. Mass. S. Jud. Peirce v. § 17. A neglect to make a profert in curia, where neces- Salk. 519, sary, is fatal upon a general demurrer, but otherwise by the 4th and 5th of Anne; see article 9; only form, and cannot Salk. 497. be taken advantage of after verdict. Salisbury v. Williams, 1 Saund. 9, n. 1. § 18. If a profert be made, nothing but the production of 4 East, 585, the deed will be sufficient. Smith v. CH. 180. 8 D. & E.571, Banfil v. Leigh. 4 D. & E.370, Wallace's case, cited 1 And it is error, if it appear by the record, that the deft. had oyer of a copy only; leave to amend an inadvertent profert. 1 Wils. 16; 3 D. & E. 153, n. Matteson v. Atkinson. § 19. Where there is an assignment of all debts with a power of attorney to receive and compound for the same, and to submit them to arbitration, and the assignee, on an arbitration, has a sum awarded to be paid to him, it is not necessary in an action on the promises, in consequence of the non-payment of such sum, that the assignee in stating the assignment, should make a profert of the same in his declaration, and no profert need be made of a deed that is only in ducement to the action. § 20. And where a profert is had, and oyer regular, the whole deed is to be set out, and if mis-recited, the other party Saund. 96, n. may help himself by signing judgment for want of a plea, or he may by his replication, pray the deed may be enrolled, and procure it to be truly enrolled,-demur or take it as truly enrolled. 1.-1 Stra. 227. 2 Dallas, 436. 4 Bac. Abr. 316. 21. Though a profert is made of a deed it is no part of the record if oyer be not prayed of it-profert of a copy of a lost deed, Ch. 82, a. 3, s. 11. ART. 12. Sham pleas, or false or deceitful pleas. § 1. If a party plead one of these knowingly, it is a great 65.-Saund. abuse of justice, and the court may punish the pleader at discretion; and if false, of the pleader's own shewing, it is cause of demurrer; as if a pleader bring an indenture into court, and plead it contains no covenants, and on inspection, it is found to contain covenants. 4 Bac. Abr. 66.-Vent. 213.-Co. Lit. 366. Davies v. § 2. If a client would have his attorney plead a false plea, he ought not to do it, but may plead he is not truly informed &c., and it shall be entered on the roll to save him from damages. Cro. Jam. 64, § 3. In debt plea, non est factum, and afterwards the deft. Clerk-Cro. relinquish this plea, and confessed the action, and judgment was in mis-recordia, and good, for he confesses, and it is not found against him, and he has not troubled the court and jury. Car. 436. 2 Wils. 369, Ellis q. 1. 4 Bac. Abr. 90. § 4. If the deft. plead a sham plea, he will not be allowed to withdraw it, and plead the general issue; the sham plea was a recovery in the K. B. for the same offence. ART. 13. Pleading to avoid prolixity. § 1. The modern rule is, that where the matters to be pleaded tend to infiniteness or multiplicity, whereby the record may be incumbered in the length thercof, to allow general pleading; and particular or general pleading must be according to the nature of the subject matter. See Bristow v. Wright; correct principles. CH. 180. Art. 14. Bethell. §2. Cases; this was debt on a bond conditioned, "that if the deft. at all times, on request, delivered to the plt. all the fat and tallow of all beasts, which he, his servants, or assigns, should kill or dress before such a day, that then the obliga- Cro. El. 749, tion should be void. The deft. pleaded that upon every re- 750, Mints v. quest made unto him, he delivered to the plt. all the fat and See 9 Johns tallow of all the beasts which were killed by him, or any of R. 180-4 his servants, or assigns, before the said day." The plt. de- Bac. 93. murred, and said, the plea was too general; that the deft. should have stated he had delivered so much fat and tallow, which was all &c., or that he had killed so many beasts, whereof he had delivered all the fat and tallow, so that the plt. might have assigned a certain breach; but the court held the plea good; and the plt. ought to shew a breach in some particular. So to account for all monies received from time to time. § 3. But this rule is not always strictly adhered to when 4 the facts are solely in the deft's. own knowledge; as debt on bond conditioned, that the deft. should deliver briefs to all the churches within such a time, and collect the monies given thereon, and deliver it over to the plt. Held, the deft. could not plead generally, but must shew what briefs were delivered, what sums collected, and that he delivered it to the plt.; for such facts were in his own knowledge only. ART. 14. Matters pleaded according to their operation in law. § 1. This is a very important branch in pleading, and as to which the authorities are not very uniform. This branch in pleading has been so largely considered in American Precedents, chapter 4, that it will be necessary to add but a few rules and cases in this place. Bac. Abr. 93, WoodSid. 215. cock's case. § 2. It has been long a question if a party be bound at his peril to plead his deed or writing, according to its legal operation, where that varies from the words, or may plead it in the words of it, and leave the construction to the court. The better opinion seems to be, that he shall plead it according to its legal effect or operation. In some he must so plead, as where A and a feme covert sign a note, the promisee must declare on it as the note of A alone; and no doubt the Carth. 308, party does well to plead his instrument according to its legal Osman v. operation, as the court observed in this case, where the grant Saund.976,n. of a rent by deed, under the circumstances, operated as a 2-4 Cruise, covenant to stand seized, and said the deft. had done well in pleading it as a conveyance by way of covenant to stand seized; for if he had pleaded it as a grant of the rent, it would have been void. Sheafe.-2 186. CH. 180. 3 Lev. 291, Baker v. 2 Saund. 97, b. c. n. 2.And so are Cro. El.166, Taylor v. Vale. 4 Mod. 149, this case, Baker v. Lade.-2 Vent. 145. § 3. So in replevin the deft. avowed for rent, and pleaded a grant of a rent charge to another, and brought it down by several mesne conveyances to the deft's. father, in fee; and he being so seized by indenture in consideration of natural love and affection to his son, the deft., and £5 paid by him, gave, granted, assigned, and transferred the rent to the deft., in fee; "which said grant, there being no attornment, or other execution had thereon, except only the sealing and delivery of the deed, operated by way of covenant to stand seized to the use of the deft., whereby and by force of the statute for transferring uses into possession," the deft. was seized, and avowed for so much rent in arrear; on which the plt. demurred; and held, that pleading that "no attornment or any other execution had thereon ;" and so pleading 308, 312,341, the special matter, and leaving the determination of the law 403--2 Vent. to the court was impertinent and idle: 2. Held, by three 149.-Com. judges, that pleading in the words of the deed, "that he gave, granted," &c. was sufficient, and the court would construe them according to their legal operation; but they agreed, the deft. might have pleaded this conveyance as a covenant to stand seized of the rent to him and his heirs, and said, this would have been the better pleading. But 175-4 Mod. Pollixfen C. J., held, that pleading in the words of the deed was bad; and that it should have been pleaded as a covenant to stand seized (its legal operation) to the deft. and his heirs; and on error brought, his opinion was confirmed, and judgment reversed. But if a verdict find A granted, it shall be construed as it operates in law. Ld. Raym D. PI C. 37. 1 Vent. 109. Ray, 187. Stra. 934. - Willes, 673, 682.-1 Lut. 789-1 Mod. 151. 4 Mass. R. Tuttle. § 4. In this case A gave a note to B, to pay him $1000 in 414, Dowev. sixty days, and B, when the note was given, gave a promise not to demand it in less than ninety days. Held, B might recover the note in sixty days, and that his promise was in law collateral, on which A might have another action, if B sued before the ninety days were expired, and there was a sufficient consideration for B's promise. The legal operation was to give another action on B's promise, and not to bar his action on the note. Mass. S. J. term, 1803, § 5. In this case A, as executrix, sold by order or license Court, April of court certain lands. The evidence produced was, that she was empowered by such order as administratrix to sell. Held, the sale made by her was valid, and that this was the legal operation of her conveyance. Essex, Cook v. Griffin. Mass. S. J. §6. In this case the grantor sold the lands as his own. Court, Feb. The evidence was, that he as administrator, had power to 1803, Boston. sell. Held, his deed operated in law as his deed as admin istrator. |