CH. 177.

Art. 12.

a new trial was disposed of.) Such a plea, filed and verified on oath, is a matter of right the court cannot set aside on motion, but must receive it. The plea was, that the plt. after the trial and verdict and before the day in bank, became a bankrupt. How this plea is pleaded in bar. 4 East, 502. Salk. 178. § 3. Regularly the deft. can have but one plea, because 4 Bac. Abr. there can be but one verdict in a cause; but if any new 142,143,144. matter happen, pending the writ, he may plead it after a 92, 93.-2 former plea, provided it be pleaded before the next continu- Cro. 82.-2 ance after such matter happens; and pleas of this kind are twofold, in bar or in abatement. If after a writ of inquiry is awarded, the plt. releases, the deft. cannot plead it; for judgment is already; but if the plt. die, such death may be pleaded: And 1 Com. D. 93.

-1 Com. D.

Vent. 58.

§ 4. Things may be pleaded before the writ purchased; 6 Ins. Cl.522. after purchased, and before issue joined, must be pleaded --4 Bac.Abr. pending the writ; and pleas after the last continuance it is 143. said, are only those things that happen after issue joined; and if for delay, the court may refuse this plea. 1 Com. D. 93.

Stoner v.

Gibson.

In this book it is said, that if after demurrer a plea be Hob. 81, pleaded since the last continuance, and there is a new demurrer on that plea. yet the court must consider of the first demurrer; "for if upon that standing confessed by the demurrer, the plt. could not have his action, the court cannot give judgment for him, however the latter issue or demurrer pass; but otherwise it were, if the first had been an issue; for then nothing were confessed to his prejudice; and then that had been utterly relinquished by a second issue or demurrer."

Barber v.

If a plea after the last continuance be put in, it is a waiver Salk. 178, of the plea in bar; and no advantage can be taken of any Palmer. thing in the bar.

§ 5. Debt against an administrator after demurrer joined. Moore 871. Administration was repealed and granted to another; and the court held, that this plea may be pleaded after issue joined but not after demurrer.

Johns. R.

§ 6. Held, that after verdict at nisi prius, a release can be 4 Bac. Abr. pleaded only in audita querela, to hinder execution; other- 143.-7 wise, before verdict. Any matter arising after issue joined 194, Jackson and pleadable, puis darrein continuance must be so pleaded, v. Rich. and is not in evidence on the general issue.

Pierce v.

§7. Payment of part since, &c. pleaded in bar and good. 12 Mod.541, This was debt on bond. The deft. pleaded payment of part Packston. puis darrein continuance, which the plt. accepted, in bar. Held, by Holt, the deft. could not plead this in abatement, but might in bar; and if it had been debt on contract, this

CH. 177.
Art. 12.

Payment since, &c.

had been a bad plea, "because it might be given in evidence."

§ 8. This plea is like any other in principle, with the single exception as to the time of the matter of its accruing. If one of the defts. dies pending the action, the other comes says, that after the last continuance of the plea, to wit, 5 Johns. R. after, from which day the complaint was last continued before which day, to wit, on

7 Johns. R. 399.

268.-3 Ins.

Cl. 537.

3 Ins. Cl.531.

Hawkins v.

and

to

9

at -, the said T. (other deft.) died, whereby no process or any thing in the plea aforesaid can farther be done against the said T., &c.

§ 9. So the deft. may plead puis, &c. (as above;) the -2 Cro 261, plt. entered into a part of the land, and put the deft. out from the same, and that the plt. is seized thereof in his demesne as of fee; hoc paratus, &c.; wherefore he prays judgment of the writ, &c.

Moor.

Thomp. 1.

3 Ins. Cl.533.

7 Ins. Cl. 141.-3 Ins.

Cl. 534.

1 Com. D.

93, 94.-15 E. IV. 5.

Lut. 1178.

1 Wheaton's

§ 10. That the plt. took a husband, as above. The said plt. took to husband, one J., who is yet living, to wit, at; hoc paratus, &c. Replication, did not marry, &c. Says her writ ought not to be quashed; because she says that after and before she did not take to husband the said J. as the deft. alleges, and offers an issue to the country. § 11. So, a release in scire facias, pleaded by the deft. as given by the plt. since the last continuance, and with a profert, and after judgment given on -, (15 St. Martin,) (to which 15 St. M.) the complaint aforesaid from, was last continued at first did remise, release, and quit claim, for himself and his heirs, to the deft., &c. all executions and judgments, &c. all actions, &c.; hoc paratus, &c.; and prays judgment if the plt. have any execution, &c. Replication, the release was made by duress; precludi non: Prays judgment, &c. Rejoinder, that he was at large, &c.; and issue offered.

§ 12. There is a distinction as to matters arising after issue joined and before: After, the deft. must plead, since the last continuance; but before, yet pending the writ, need not, though in bar or abatement; but may be pleaded without saying, after the last continuance: so, if any thing happens that abates the writ before any plea pleaded, though there be a continuance after the thing happened; but it must be shewn to be pending the writ, and before plea.

§ 13. In abatement. After action in another state pleaded R. 215, Ren- in abatement of the first. Judgment against the deft. peremptory.

ner & al. v. Marshal.

Error to the Circuit Court, Columbia, June term, 1813. Marshal declared against Renner & al. in assumpsit, on an inland bill of exchange, drawn by A, on them, and accepted

by them. Plea, non assumpsit, and issue joined. Continued CH. 177. to December term, 1813. Then Renner & al. pleaded in Art. 12. abatement, a suit in chancery in Virginia, commenced October 19, 1813, by Marshal against them and B & al., for the same cause. Marshal replied, the prior pending of this suit in the Circuit Court. Renner & al. rejoined in substance, the matter of their plea. Plt. demurred specially. Judg ment, plea, and rejoinder not sufficient in law to preclude the plt. from maintaining his said action; and judgment in chief. On error brought, Supreme Court held, 1. That said suit in chancery so commenced in another state pending this action at law, though for the same cause, could not be pleaded in abatement of it; though a prior suit may abate a subsequent one in personal actions: 2. The judgment in such case as the Chitty on present against the deft., is peremptory, as well on demurrer Pleading, as on trial: 3. The court assesses the damages, where, as 636, cited. in this case, they are a mere matter of computation. As to this last point, see Damages, Ch. 28; and Holdip v. Otway, Ch. 177, a. 7, s. 4; and Ch. 40, a. 23.

§ 14. Writ of entry on a mortgage. The plt., Jonathan 14 Mass. R. Walcut, in 1806, mortgaged to William Walcutt, as security 409, Walcut to a bond of maintenance, subject to which the plt. conveyv. Spencer. ed to John Bellows, and took back the mortgage sued in this action. Bellows conveyed to the deft., subject to said mortgage, and took from him an indemnifying bond &c. Pending this action, said William Walcutt recovered on his mortgage and leased to the deft. for a year; under this lease he held; and the court held, that when the deft. is vested pending the suit by a stranger, having a better title, this will abate the writ. 1 Com. D. Abatement H. 56: so, if fairly recovered against him by a stranger; but in both cases, the fact must be pleaded as having occurred after the last continuance. Id. H. 54. Deft. defaulted, and questionable if this matter so pleaded had availed him, when sued as mortgagor for the purpose of foreclosure; and see Penniman v. Hollis, Ch. 112, a. 5, s. 1; as there may be a judgment to this purpose without immediate possession by the plt.

v. Demont.

§ 15. A release of the premises in ejectment, after issue 9 Johns. R. joined, ought to be pleaded by the deft. since the last continu- 55, Jackson ance; but if admitted by consent, its effect is as if duly pleaded.

Bancker.

Ash.

§ 16. A discharge under the insolvent act, pleaded in bar, 9 Johns. R. puis darrein continuance, need not be verified by affidavit, un- 250, 251, less offered at the circuit; nor then, if probable cause of its truth be shown to the judge, who may receive it without oath or not, at his discretion: 2. Such a plea cannot be

CH. 178. treated as a nullity when pleaded in bank, and no affidavit; Art. 1. but the plt. must reply to it, or move the court to set aside.

10 Johns. 161, 164, Morgan v. Dyer.

2 Johns. R. 294, 295.

§ 17. A plea, nunc pro tunc: As the deft. may plead an insolvent discharge, though more than one term has intervened, on payment of costs. 9 Johns. R. 255, Morgan & al. v. Dyer.

§ 18. And it is at the discretion of the court to receive this plea; and if pleaded after a term has intervened, the plt. ought not to demur to the plea, but move the court to set it aside.

§ 19. Pleaded by one who, being insolvent, got his discharge after &c. Plt. allowed liberty to discontinue.

3 Bl. Com. 305.

CHAPTER CLXXVIII.

PLEADINGS.-PLEAS IN BAR.

ART. 1. General principles.

Usually when the deft. has no further expectations from any of the above pleas, he comes to his plea in bar of the action, and on the merits.

§ 1. As in every action and prosecution against the deft. he is charged either with a breach of contract, or with some tortious, negligent, or criminal act, his plea in bar must be framed accordingly. In this plea the deft., first, denies the thing was done, and pleads the general issue; or secondly, he excuses it, as done by accident and without his fault; or thirdly, he justifies the thing done, admits it done, and insists on something that made it lawful; and justification must be pleaded, unless specially allowed by some statute or agreement to be given in evidence; but matters of excuse may be pleaded or given in evidence.

In every case a right issue must be formed, material, formal, and consisting of "one single, plain, and clear point;" but this issue, or point, or matter put in issue, may consist of, or include in it, many connected facts, material to constitute the pleader's title or right; and this in criminal as well as civil causes, as in Miles v. Williams, Ch. 177, a. 9, s. 5. In Robinson v. Rayley, and 2 Johns. R. 462.

§ 2. And many other cases.

In these pleas in bar are included the general issue, which denies the whole declaration at once, as not guilty, nul dis

seizin, non cepit, never promised, &c. and special pleas in bar, which set forth the particular facts, the deft. relies on; and they are various according to the circumstances of his case. 3 Bl. Com. 305.

ART. 2. Issue, how formed.

66

CH. 178.

Art. 2.

Co. Lit. 124.

§ 1. According to all the good rules in pleadings, an issue is so formed as to be upon a single, certain, and material point, issuing out of the allegations of the parties, to be tried by twelve men, regularly consisting of an affirmative and 4 Bac. 54.negative." There is no question as to this rule in forming an issue. The only question is, what is a single, certain, and material point, issuing? And where a single fact is put in issue, no question arises; but very often many facts make but one point, being all connected and leading to the same point or issue; as in the leading case in 1 Burr. 320, which may be Robinson v. here well repeated. In this the plt. traversed" that the cat- Rayley. tle were the deft's. own cattle; and that they were levant and couchant on the premises, and commonable cattle." Held, to be a good, and single, certain, and material issue, on demurrer, pointing out the three distinct facts so pleaded; and Lord Mansfield said, it was not necessary this single &c. point should consist of a single fact. Here the point is, the cattle being entitled to common; but in fact they must be the deft's. own cattle; also levant and couchant, and commonable.

§ 2. An issue must not include a negative pregnant; as a plea alleging that one did not give by deed; implying he gave by some other conveyance, so that the court may be in Co. Lit 126. doubt whether the party ought to have judgment, though the

issue be found for him. An issue cannot be taken on a 2 Johns. R. general plea of performance.

§ 3. Generally two affirmatives do not form a good issue ; but some special cases are exceptions. As where the deft. pleaded, the plt. was born in France, and the plt. replied he

on

416.

6.

was born in England. Held, it was well; for if he should Co. Lit. 261, traverse the birth in France, it could not be tried; and cited,1 Wils. such pleadings the jury shall be charged; and on evidence he was born in France, out of the king's allegiance, they shall find he was born out of the king's allegiance; on evidence he was born in England, or Ireland, &c. they shall find he was born within the king's allegiance.

Burlace.

§ 4. In error. Was debt on an obligation; plea, by du- 1 Wils. 6, 7, ress. Replication, that the deft. was at liberty, and made the Tomlin v. bond of his own free will; not for fear of imprisonment; and concluded to the country. Verdict for the plt. &c. Error assigned in common form. Was urged this replication was bad, as it was per minas, rather than per duritiam, and con