Art. 2. CH. 178. sisted of two affirmatives; also must have been objected to; for in support of this replication it was urged, that the old way of pleading was, "that every issue must consist of an affirmative and negative, but that is now got over." 1 Inst. 126: "and an issue now may be of an affirmative upon an affirmative;" and cited the above alien case: so, if the lord avows for rent service, and the plea in bar be, that the distress was made out of the avowant's fee; and the replication that it was made within, is a good issue. Rastell, 555: so, the issue on plene administravit consists of two affirmatives: so, the issue in a writ of right; but admitting this replication is informal, yet it is good after verdict, and aided by 4 & 5 Anne; and of this opinion was the whole court. Co. Lit. 261. Cro. El. 257. 2 Hale's P. § 5. So the issue may be good, though the affirmative and negative be not in precise words; as where the deft. pleaded, the plt. had nothing in the land at the time of the lease, and the plt. replied, he was seized in fee. § 6. The general issue is contrived so as to put the whole matter in issue, that is, in question; as in trespass or for any misfeasance, not guilty; in debt, he owes nothing; in debt on specialty, non est factum. § 7. On indictment for treason or felony, there can be no C. 258, 259. justification by plea; but the party has every advantage in evidence, on the general issue of not guilty; and his plea to a felony consists of two parts, to wit, 1. The issue of not guilty; to which the clerk joins cul. prist: 2. Putting himself upon the country, when the clerk demands how he will be tried; and if either of these fail, it is standing mute in law. C. 256. § 8. If the deft. plead in criminal cases, any matter of fact to the indictment, or pleads former conviction, or acquittal, he shall plead over to the felony, the general issue, 2 Hale's P. not guilty; nor shall this be double, or a waiver of his special plea; and though he do not do this on his plea, but his plea is found or tried against him, yet he shall not be thereby convicted without pleading to the felony, the general issue, and having trial thereon; but he may plead to the jurisdiction without answering to the felony; and if he plead a plea that confesses the fact, yet the better opinion is, that he ought to plead over to the felony; but not if he plead a pardon; but if that be found to be defective or insufficient, he shall be put to plead to the felony, not guilty; and on not guilty alone can the prisoner receive final judgment of 4 Bl. Com. death; because only on the issue of not guilty and guilty, can the jury find a verdict of guilty; and only on such finding can there be such judgment. 332. ART. 3. Immaterial issues. CH. 178. Art. 3. 580.-Cro. § 1. A material issue is one, if found for the plt., shews he is entitled to the thing he demands; if for the deft., that he is well discharged. An immaterial issue, is when it is taken Cro. Jam. on such a point as will not determine the merits, and if found El. 227.for the deft., will not destroy the plt's. right of action; and Lev. 32.-4 what is material cannot be proved in the trial, not being put Bac. 56. in issue. Merril r. § 2. Cases.-Error. Was debt on bond conditioned to 10 Mod. 147, pay money on the twenty-fifth of March. Plea, payment on the twentieth. Plt. replied, he did not pay on the twentieth. Issue joined on this. Verdict for the plt. and judgment. Cl. El. 828. Held, if a verdict had been for the deft. it would have been good; for payment on the twentieth is payment on the twenty-fifth; but as the verdict is for the plt., the issue is immaterial, as non-payment on the twentieth is no evidence of non-payment on the twenty-fifth, as it might be paid in Cro. Jam. the meantime. Judgment reversed; nor was this issue aided 434, Holmes by verdict; it was dehors the condition. v. Brocket. 56.-1 Bac. §3. Declaration on a promise to find the plt., his wife, 4 Bac. Abr. and servants with meat &c. for three years on request. 103,Kirlce v. Plea, that he promised to find the plt. and his wife meat Lees. &c.; absque hoc, he promised to find meat &c. for the two servants &c. Replication, that he did promise to find &c. for three years next following; and hoc petit; and verdict for the plt. Held, he could not have judgment; for no issue was joined; for the promise in the declaration, traversed by the deft., and in the replication, are different. § 4. Debt for £105. Plea, that he paid the aforesaid Cro. Jam. £100 &c. Replication, that he did not pay the aforesaid 585, Sand£105; and verdict, that he did not pay the aforesaid £105. bach v. TurHeld, the plt. could not have judgment; for no issue was joined. vey. 103.-Rol. § 5. Trespass. Plea, accord between the plt. and J. S. 4 Bac. Abr. on the one part, and the deft., of the other. Replication, no 57.-1 Bac. such accord between the plt. and the deft. as the deft. had R. 86. alleged. Verdict for the plt. Held, he could not have judgment; for the bar shews one accord and the replication another; and the court could not decide which was proved. 341. § 6. So, trespass. Plea, special justification. Replication, 4 Bac. Abr. of his own wrong, and without such cause. Held, ill, after 57.-Sid. verdict; for the replication only affirms the declaration, and does not confess or deny the special matter in bar. How special justification must be answered in trespass, see Trespass; see also, Fletcher v. Hennington, Ch. 165. CH. 178. § 7. An immaterial issue, does not traverse what is materially alleged in pleading; but is on such a point as will not determine the merits of the case; but an informal issue is on a material point, but the material matter is not traversed in a 933, 1011 right manner. See cases next article &c. Stra. 313, Cro. El. 227. -2 Mod. 137.-10 Mod. 19. Cro. Car. ART. 4. Informal issues. § 1. These are aided by verdict. By this issue, all matters of substance are put in issue, though not in a formal manner; and it is good on a general demurrer, and after verdict. § 2. Cases. Debt on bond conditioned to pay £8, on a 316, Parker certain day. Plea, payment on the day, and concluded to 7. Taylor. the country. The issue was joined and found for the plt. Held, this was an informal issue; for the deft. should have concluded hoc paratus &c.; but want of form is waived by both sides, by going to issue; and aided by the statutes of jeofails. 4 Bac. Abr. 59. Cro.El.455.- Cro. Jam. 44, ot.-4 Bac. Ero. Jam. 312, Gill v. Glass.-4 § 3. Debt on a usurious bond. Plea, that it was corruptly agreed, and that the plt. corruptly received the money; and issue on both one material and one not. Held, this issue though informal, was aided after verdict for the plt. §4. See Chamberlain v. Nichols, to this point, Ch. 156. This was an action of replevin. The deft. avowed for rent; for that Eleanor Enderby was seized of the locus in quo, in fee, and married Thomas Pigot, and by him had issue John Pigot, and died; and Thomas Pigot being tenant by the curtesy, the reversion in fee in his said son, John Pigot, he granted a rent charge for life, to the deft., and showed the death of the said tenant by the curtesy, and so avowed &c. The plt. said, the said Eleanor Enderby was seized in tail, and the estate descended to the said John, in tail, and that he granted the rent and died, and that the land descended to the deft's. wife, as heir in tail; absque hoc, that the said Eleanor was seized in fee; and issue was joined and found for the deft.; and moved in arrest of judgment, that it was not well joined; for the seizin in fee of the grantor of the rent, should have been traversed, and not that of an ancestor paramount; for that was not material; but the court held, that as seizin in fee was alleged in the said Eleanor Enderby, and the conveyance of the reversion to her son, John Pigot, the seizin alleged in her might be traversed, and though not an apt issue, it was aided by 32 H. VIII. § 5. Glass brought debt for rent reserved on his own lease for years. Plea, that he had nothing in the tenements at the Bac. Abr. 58. time of the lease. Replication, quod habuit in tenementis predictis &c.; issue, and found for the plt. and judgment for him; and error assigned, that the replication was bad; for he ought to have shewn to the court what estate he had, at Art. 4. the time of the lease, that the court might judge if he had СH. 178. good authority to demise. Held, the deft. might well have demurred for the badness of the replication; but as he did not, the verdict has made it good; for the court now sees the plt. had power to make the lease, and estate to demise, as a verdict is found for him. § 6. In assumpsit after verdict, not guilty is aided by the Cro. El. 470, statute; for there is a deceit alleged and the issue is only Corbyn v. misjoined; but the plt. might have demurred. Brown. ex'r. This was debt on a bond of £13 13s. 4d. The deft. Hob. 49, pleaded, that his supposed testator, B., died intestate, and Keeble v. that administration of his goods was granted to one Edward Osbarton, Keeble, before this action was commenced, who administered and still doth administer. The plt. replied, that the said B. died intestate, and that after his death, and before administration granted, as aforesaid, divers goods of his, (naming them particularly, and their value, to the amount of the plt's. debt,) came to the deft's. hands, which he, as executor of B., administered or otherwise converted and disposed of to his own use; and hoc petit, and issue; and found for the plt., and judgment for him; and held, well; for the verdict is true, if either he administered or converted them to his own use; and both must be as executor. -See Ch. § 7. Covenant, that he was seized in fee. Breach as- Sid. 289.-4 signed, he was not seized in fee; and so had not perform- Bac. Abr.60. ed his covenant. Deft. pleaded, he had not broken his 121, a. 2, seovenant. Issue, and found for the plt. Moved in arrest 15. of judgment, that the issue consisted only of two negatives, to wit, not seized in fee, and not performed &c. by the plt., and had not broken his covenant, by the deft.; and he ought to have answered particularly to the breach assigned; but judgment for the plt.; for it is argumentative; for if he was not seized in fee, he had broken his covenant. Sid. 444.-4 82.-1 Bac. § 8. This was an action of assault and battery, against Bac. Abr.59, the master of a ship. Plea, that the plt. neglected his ser- 104. vice, per quod moderate castigavit. Replication, quod non moderate castigavit. Issue, and found for the plt. Held, well; for though this is an informal traverse, as it rather traverses the chastisement, than the moderate manner of doing it; and the right traverse should have been, of his own wrong, and without such cause; yet it was good after verdict; for the jury found he did not beat him moderately. Purcase v. § 9. Debt on bond, conditioned to pay £100, 31st of Cro. Car.78, September. Plea, payment the said 31st of September, ac Jagon.-Co. cording to the condition of the bond; and issue, and found Lit. 42. for the plt., that the deft. did not pay. Error assigned; Noy. 85.-1 because the verdict being on the payment the 31st of Sep- Bac. 104. tember, is an idle and void issue. Held, there being no CH. 178. Art. 5. Law's Plead ing, 111, 112. 305, 306, 309. -3 Bl. Com. -4 Bac. 5 Mod. 252. -10 Co. 95, such day as the 31st of September, and the jury having found that the money was not paid on that day nor before, have in effect, found it was never paid, which is a good verdict; and judgment for the plt. affirmed. ART. 5. As to pleas amounting to the general issue. § 1. Such pleas are not cause of demurrer if matter of law be mixed in them. Pleas amounting to the general issue are only facts on which the issue may be turned in evidence. If the defendant plead any facts, which if found true, leave no colour of action in the plt., or right of action, it amounts to the general issue. Such a plea in fact, denies the whole charge or declaration. It is a settled distinction that matter of law must be referred to the court by special pleading; and matter of evidence to the jury, so given in evidence on the general issue. § 2. If matters of fact be referred to the court, which Cro. Car.157. ought to be referred to the jury, it is cause of special demura.-Hob.127. rer since the 27th of Eliz. c. 5, and of general demurrer -3 Mod. 165 before; as in an action of trover for divers loads of corn, to 167.-Ld. the deft. made his title to it in a special plea, as tythes, Raym. 88, 341, 393, 869. severed. The plt. demurred, and shewed for cause of de 4 Bac. 62, 64. Cro.El.262.-- 165, Johns v. Cro. Jam. murrer, that the plea amounted to the general issue of not guilty. The deft. attempted to maintain his plea as involving title to real estate, namely, tythes and title, pleaded as it were a confession of the possession in the plt., as a general bar in an action of trespass, and colour given; but the court said, that action comprehends title in it; and held, that a plea which amounts to the general issue, is bad on special demurrer. § 3. One may confess and avoid by a special plea. Cro. El. 871; Salk. 344; 2 Mod. 279. § 4. In trover. Plea, sale in market overt; or in trespass, plea, property in a stranger or deft., such pleas amount to Williams. the general issue: so, a plea in trover, that the owner sold the goods to the defts., and then to the plt., and then that they came into the hands of the defts. Held, this plea amounted to the general issue, as it left no colour of action in the plt.; but otherwise, in replevin. 4 Bac. Abr. 61; 1 Ins. Cl. 303, b. 319. Salk. 394, 41. § 5. In assumpsit, a plea, that he performed all things on 580-3 Lev. his part to be performed, amounts to the general issue; but in debt, the deft. may plead a release, because it admits the contract, which is a colour of action. If debt on a bond, the plea was proper. Sundry cases, Com. D. Pleader, E. 14. 4 Bac. Abr. 62.-4 Ed. III. 15.-Doct. Pl. 20. § 6. In dower, plea, that the husband of the demandant was only tenant for life, remainder to his son in tail, is ill, as it amounts only to the general issue; as not seized as of dower. |