has been adjudged to be the proper conclusion; and many CH. 177. § 42. Rule 1. The first rule is, that where the whole 1 Burr. 317, plea is denied, the replication ought to conclude to the coun- 323, Robintry. Rule 2. Where only a particular fact in the plea is denied, the replication ought to conclude with an averment.-Rule 3. Where the replication introduces new matter it ought also to conclude with an averment; but to the country if it deny the substance of the plea. son v. Ray- 576.-2 428. § 43. As in trespass. Deft. pleads, his soil and freehold. 3 Salk. 275. Plt. replies, his soil and freehold, and not the deft's. ; replication ought to conclude to the country. Loder v. § 44. This was debt on a bond conditioned that A should 3 Salk. 211, not revoke his will. Plea, that he did not revoke it. Repli- Loder. cation, that he made another will, and thereby revoked the first; hoc paratus, &c.; and held, on demurrer to this replication, it was good; though an affirmative to a precedent negative in the plea; because in this replication new matter was suggested, and so it ought to conclude with an averment. 45. So, to conclude with one when it should be the 4 & 5 of Ann. other, is cause of special demurrer; or want of hoc para--Cowp.577. tus, &c. vies. § 46. Where the absque hoc comprises the whole matter Salk.4, Haygenerally, as absque tali causa, it may conclude to the coun- wood v. Datry; but where it only traverses a particular matter, as absque tali warranto, it ought to be averred. al. v. Minns. § 47. This was debt on a bond given to the sheriffs of Cowp. 575, Middlesex, by Minns, as surety of Jos. Stanhope, one of 578, Sayre & their bailiffs, conditioned to perform his duties, as serve writs and return them, receive prisoners, &c. pay over monies, exonerate the plts. in certain cases, &c. Deft. pleaded a special plea, stating the indenture in said condition mentioned, and the several covenants in it to be performed. The plea, as to the negative covenants, stated, the said Jos. had not done; so in the words of each as to the affirmative, that the said Joseph had performed them generally. The plts. replied, a writ of fieri facias issued on a judgment for £400, against one Pigot, at Grove's suit, and was delivered to said bailiff, and he neglected to return it, by reason of which the plts. had to pay, &c.; and also replied, other such special and new matter, and concluded to the country. Deft. demurred specially, for this cause, &c.; and judgment for him; for when new matter is introduced, it is necessary to conclude with an averment, that the opposite party may have an op CH. 177. portunity of answering such new matter; and the court said, Art. 9. it was a rule in pleading, you cannot go to issue on a general averment of performance; for the question ought to be brought to some degree of certainty, and notice given of what is to be agitated at the trial. Here there is a general averment; and no issue is offered by the replication. 10 Mod. 243, Miles v. Wil liams. 1 Wils. 6. Tomlin v. Burlace. 2 Johns. R. See 3 Cain. This replication averred a general performance of many matters, (and concluded to the country;) it was bad therefore, on this account, as well as because it contained new matter. § 48. Debt on bond, against husband and wife; her bond dum sola; they pleaded his bankruptcy and discharge, and concluded hoc paratus, &c. Special demurrer, for they ought to have concluded to the country, and of this opinion was the court: and his discharge was her's. It may seem at first view that hoc paratus in this case was right, as the defts. pleaded the husband's bankruptcy, a commission issued, his conformity to the statutes in all points, and his discharge; but it will be observed, these several facts pleaded, were all connected and essentially tended to one point, his discharge, and so her's. Both baron and feme pleaded, as was proper, and if their tender of an issue had involved in it many matters, it would have been no more than is sometimes done in a special plea, nor more than what is usually done in a tender of the general issue; and issue taken brought all the matters into trial fairly. § 49. Debt on bond. Plea, by duress. Replication, the deft. executed the bond of his own free will, and not for fear of imprisonment. Conclusion to the country held good. § 50. In trespass the deft. pleaded that the goods taken 462, Patcher were seized by an officer, on a warrant, as an absconding 1. Sprague- debtor's property, (stating the proceedings under the act, 160.-2 D. and that from him the plt. held the goods by a fraudulent & E. 439. conveyance) and that the deft. acted in aid of the officer. Cro. El. 107. Held, a good plea; for several dependent facts, making but one defence, may be pleaded together. 5 Johns. R. § 51. Held, where a plea contains matter of law and of 112, Lytle v. fact, it may properly conclude to the country. Lee & al. 5 Com. D. 359. § 52. It is a general rule in forming a declaration or plea, &c., the party ought to aver every fact, without being informed of which, the court cannot judge whether he has Lutw. 1089. right or not: as in an action on a statute, the plt. must aver every fact necessary to inform the court his case is within it. So, what is made requisite by the purview of a statute, must be averred; as where a statute makes a feoffment, &c. by cestuy qui use of full age, sane, at large, &c., good: one who pleads a feoffment by cestuy qui use, must aver he was sane, of full age, and at large; for only such a one is authorized by the act, to make a feoffment. § 53. An averment need not be in express words: licet is a sufficient word: so, pro eo quod: so, he demanded proferendo satisfactionem, is a good averment of a tender; 5 Com. D. 361; 2 Cro. 383; Salk. 686. So, any facts stated are a sufficient averment from which the fact may be inferred, that might be expressly alleged; as where it is stated the executor paid a debt of the testator and took a term in satisfaction; as it may be inferred hence, the executor paid with his own money, this fact is well averred; and see Lutw. 1172; 1 Lev. 154; 2 Lev. 50; Stra. 512; Cowp. 672; 1 Vent. 136; 1 Lev. 75. CH. 177. Art. 9. v. Waller. § 54. Debt on bond, conditioned to deliver up certain 2 Ld. Raym. goods, if by law adjudged prize. Plea, the law had not ad- 891, Grant judged them prize: this admits they were not delivered up, and so the plt. need not allege that fact in his replication. § 55. Hoc paratus, or hoc petit; as in debt on bond, the 2 D. & E. deft. pleads the plt. won money of him at cards, and the 439, Hodges bond was given to secure payment thereof. Replication, it . Sandon. was given to secure payment of a just debt, and not to secure payment of money won. This replication may conclude to the country, or with an averment; either is good. case. § 56. A material fact well proved, not averred; as when the 1 Wils. 115, plt. borrowed money of the deft., and pledged a bond as se- 118, Alcorn's curity, which the deft. promised to return on payment. Plt. sued on this promise, but did not aver he had paid or tendered the debt; but held well after verdict, as he proved he tendered it, and the deft. refused, &c. This seems to be an exception to the general rule, that nothing material can be proved but what is alleged in pleading; 1 Phil. Evid. 161. § 57. Case for perjury; the plt. must aver the deft. knew what he testified was false. § 58. In suits in inferior courts, the plt. must expressly aver the cause of action arose within their jurisdiction, and particularly allege the places. Kirby, 7, Kirby 27, al. v. Par § 59. Case on a note, absolutely promising to pay, or fur- sons. ther secure a debt due, on the contract of one of the defts., Kirby, 128, Bulkley v. the plt. need not aver that notice was given to the deft. of Elderkin. the amount of the demand. § 60. In qui tam for usury the plt. must prove the contract 4 Day's Ca. precisely, as he avers it was made; Wilmot v. Monson; see 114. Ch. 180, a. 9, s. 6. Dennison. § 61. In an action on a bail bond, an averment that the Kirby, 430, plt. was lawfully authorized to serve and return, &c., is a Gulley v. sufficient averment of the officer's authority to make the arrest and take bail. So, an averment, he made diligent search after the person or estate of the principal throughout his precinct, but could find neither, and thereon, on such a day, CH. 177. 3 Bl. Com. 309. Co. L. 257. -Finch Law, 399, 302. Booth, 214. 11 Co. 10. (while the execution was in force) returned the same into the files of the court, &c., with a proper non est inventus endorsed, is a sufficient averment of non est inventus. ART. 10. Giving colour. § 1. Giving colour in pleading, is not so much in practice in modern times as formerly; still, 10 Co. 91. however, the party has a right to give colour when he wishes the judges to decide on his title. It is a settled rule, that no man can plead specially, what amounts to the general issue, or total denial of the charge. But deft. may in trespass, and some other actions, avoid this rule in several cases, by giving colour. "He may state his title, specially, and at the same time give colour to the plt., or suppose him to have an appearance or colour 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 plt., claiming by colour 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 best in point of law." 4 Bac. Abr. 102.-Dr. & -Co. L. 303. 3 Salk. 273. -Dr. & Stud. 272, § 2. The first rule in giving colour is, where the deft., in Stud. 272. trespass, would bring the cause to be tried by the judges, 10 Co. 88.- he allows the plt. to have a shew or colour of action in law, 3 Mod. 166. though, in fact, he has none; as where, the deft. says, the plt. claims by colour of a deed of feoffment, when nothing passed by it, this is good colour. The matter of law raises a doubt in the jury; to wit, whether the land passed or not, by this feoffment without livery; but this colour must be by deed of feoffment, and not by feoffment only. The deft. must plead the general issue; as nul disseizin in a writ of entry, &c., or not guilty, in trespass, by the rules of pleading, or he must plead some plea in abatement of the writ, to the jurisdiction, to the party, or else some bar, or some matter by way of conclusion of the plt.; but to plead what shews the deft. had a good title, and no more, is pleading what amounts to the general issue; hence, to avoid this, and a trial per pais, he may give colour, as above. 277. 4 Bac. Abr. 102. 10 Co. 88. § 3. Second rule is, the colour given ought to continue, as where the deft. allows the plt's. claim, by a deed of demise, for the life of A, it must appear A is alive, and so a subsisting title. § 4. Third rule is, the colour given ought to be such, that, if it were effectual, would maintain the nature of the action, a CH. 177. Art. 11. 10 Co. 90.Dr. & Stud. as in assize to give colour of a freehold; colour is given in a writ of entry sur disseizin, in trespass, &c. in order to make a certain issue for a trial by the judges, and not by a jury. But when the special matter of the plea totally bars the plt., no colour is necessary; therefore, in pleading warranty, an estoppel, &c., no colour is necessary. § 5. In trespass, if the deft. justify taking the plt's. cattle, Co. Ent. 652. damage feasant, he need not give any other colour to the plt., for by this justification he admits the property to be in him; there is no colour in ejectment, as there is in trespass, 4 Bac. Abr. but the plt's. declaration must be answered. 272. 102. 103.-5 Bac; 205.-Doct. R. 140. § 6. If a man plead to the writ, or to the action of the 4 Bac. Abr. writ, he need not give a colour; nor where the deft. entitles himself by statute; nor he who justifies for wreck or strays. Pl. 77.So, in forcible entry, the deft. may plead that he was seized Rast. Ent. until he was disseized by the plt., and need not give colour. 62.-2 Rol. When letters patent are pleaded, the deft. ought to plead Cro. Jam. colour by former letters patent, in this form, to wit, "by 122. colour of those letters patent, made to the aforesaid plt., where nothing passed ;" and not, that the plt. claimed by colour of the grant or demise, for to say, he claims by colour of a deed, is not to give colour, or shew of title, but only to allege he claims title; and without the appearance of title in the plt., and a plea made by the deft. that amounts to the general issue, in itself, no question of law can be raised, which can draw the case into the examination of the judges. § 7. The fourth rule; if the deft. derives title to himself by several mean conveyances, and gives colour to the plt. by one who was last named in the conveyances, this is ill; but the deft. must give colour by one first named in them. In trespass, for taking and carrying away the plt's goods, the deft. justified, for that J. S. was possessed of them, as of his proper goods, and the plt. claiming them by colour of a deed of gift, afterwards made, by which nothing passed, took them, and that the deft. retook, and thereon the plt. demurred, for the colour given to the plt. is a good title for him, and confesses the interest in him; for colour ought to be such a thing which is good colour of title, and yet is not any title, as a feoffment without livery, &c.; but a deed of goods, without other ceremony, is a good title. § 8. Giving colour in certain real actions, see Ch. 178 art. 24; see colour pleaded in Quarles v. Quarles & al. ART. 11. Notice and request. § 1. Though much has been already said in the preced- See many ing chapters upon this important branch of the law, espe- good forms eially, in stating rules and cases, in framing declarations, of notice. and in many cases, occurring under various heads, yet much 223 to 228 10 Wentw. |