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Particulars, 180 (St. Paul, 1905).
3~- 2 Wm. IV, c. 39, § Il, 72 Statutes at Large 118 (1832).
~ Regulation 2 of the Hilary Rules of 4 Win. IV, the relevant part of which is set out in 3 Chitty, Practice of the Law, 701 (Philadelphia, 1836).

the Demand of Oyer first, in the Modern Case of County Court of Brooke County v. United States Fidelity and Guaranty Co,,4decided in 1921, where one of the issues was as to the time when Oyer of a Bond could be craved, Lynch, J., of the West Virginia Su­preme Court of Appeals declared: “Thus there is presented the novel procedural ques­tion whether Oyer of a Sealed Instrument can rightly be demanded at any time after a De­murrer or Plea is tendered or filed. This question must be answered according to the procedure prescribed at Common Law, there being no abrogation, modification, or altera­tion of the Common-Law Rule in that respect by any Statute of this State. Under the Title, ‘Time to Demand,’ the author of the Chapter on Pleading, found in 31 Cyc., says, at page 553: ‘It is the settled rule of Practice at Com­mon Law that Oyer cannot be craved after the first term or after the Rule for Pleading has expired, since the Deed is not supposed to be in Court after that time; but it is demand­able at any period before the time for Plead­ing is out, although that has been extended, unless the order except the right to Demand Oyer. Oyer must precede the Matter of De­fense, whether that be by Plea or Demurrer, and regularly it should precede the entry of Imparlance’—the eQuivalent of a continu­ance.” ~


The Bill of Particulars

THE operation of the Bill of Particulars in Modern Law is well illustrated in the New Jersey case of Dixon v. Swenson,43 de­cided in 1925. The facts were that the plain­tiff commenced an Action on July 19, 1923, to recover from the defendant the sum of $1,000 for legal services performed. Rule


41. 57 W.Va. 504, 105 SE. 757.
42. County Court of Brookc County -v. United States Fidelity & Guaranty Co., ST W.Va. 304, 512, 10.3 SE. 787, 791 (1921).

43’ 101 NIL. 22, 127 A. 501 (1925).

376

DEFENSIVE PLEADINGS

Ch. 18

18 of the New Jersey Practice Act of 1912” provided that “Bills of Particulars may be ordered as heretofore.” And by Section 236 of the New Jersey Revised Laws of

1877,~~ the right to have a Bill of Particulars was extended to the case where a plaintiff demands a Bill of Particulars of a defend­ant, provided he should, before Replication filed, demand in writing a Bill of Particulars. In this Action the defendant before Answer filed, demanded a Bill of Particulars, which was furnished. On August 13th the defend­ant notified the plaintiff of a Motion to be made on August 20th for a more Specific Bill of Particulars. The day following such notice the defendant filed an Answer to the Complaint, to which the plaintiff re­plied, thus bringing the Cause to an Issue. On hearing, the Court ordered a further Bill of Particulars. The plaintiff then mov­ed to Vacate the Order. On appeal, the Court held that the Order requiring a further Bill of Particulars, after Answer filed, was improp­erly made and should be set aside. Rule 18 therefore merely adopted the General Com­mon-Law Rule that a Demand for a Bill of Particulars must be made before Answer filed.4°
In Vacating the Order, Kalisch, 3., de­clared; “That a Demand for a Bill of Par­ticulars must be made before Answer filed was the Common-Law Rule and Practice. 1 Tidd Pr. 642. The filing of a Plea was stayed until the Demand was complied with. If the Bill of Particulars was insufficient a Demand for a more specific Bill of Particulars could undoubtedly be made, and, if ordered, upon application to the Court, the Proceed­ings would be stayed until the Demand was complied with. * * * The Practice in

44. N.J,Pub,Law.t 388 (1912).

45- At p. 88.3.

46. For a review of Dixon v. Swenson, 101 NIL. 22,

127 A. 591 (1025), see note by floppy, Pleading— Construction of flew Jersey Supreme Court Utile as to Bin of Particulars, 20 I1I.L.Rev~ 170 (1925).

this State was patterned after the Common Law.
By the fifty-fourth Section of the Act of 1799 (Pat.L., p. 361), it is provided: ‘That the plaintiff or his Attorney, if required, shall deliver to the defendant, or his Attor­ney, a copy of the Account, or a Bill of Particulars of the Demand, or a copy of the Bill, Bond, Deed, Bargain, Contract; Note, Instrument or other writing, whereon the Declaration is founded.’
“In the case of Clinton v. Lyon, 3 N.J,L. 1038, Hornblower, afterwards Chief Justice of the Supreme Court, who appeared for the plaintiff, said;
‘“ Our Act on the subject of a Bill of Par­ticulars, is not a New Law, but a confirma­tion of the Common Law, manifested by Uni­versal Practice.’ *
And in a case under the title of Anony-­mous, 16 N.1L. 346, Mr. Gifford moved for a rule that he have further time to plead, the Bill of Particulars not having been delivered till the 15th instant, and Mr. Chief Justice Hornblower said:
“‘The rule is that the defendant has the same time for pleading, after receiving the Bill of Particulars, that he had at the time of demanding it. The delay in the delivery is not to be counted as part of his time for plead­ing.’ And in Tillou v. liutchinson, 15 N.J.L. 178, Mr. Chief Justice Hornblower (at p. 179) said: ‘By the fifty-fourth section of the Prac­tice Act, Record Laws of 1821, page 421, the defendant, or his attorney, at any time before plea pleaded, has right to require, and the plaintiff or his attorney, if required, is bound to deliver to the defendant, or his at­torney, a copy of any bond, bill or note, on which the declaration is founded. If regular­ly required, the plaintiff, or his attorney, must deliver such copy, at his peril. But the requisition should appear to have been made ‘before plea pleaded,’ and in writing. Section-54, above referred to, is the same as found

Sec. 188


AFTER TIlE DECLARATION AND BEFORE THE PLEA

377


in Pat.L., above referred to. The entire sub­stance of this section is incorporated in sec­tion 236 of the Revision of 1877, page 885, with the extension to the case where a plain­tiff demands a Bill of Particulars of a defend­ant he shall, before replication filed, demand, in writing, a Bill of Particulars, &c.
“This section, in turn, became section 102 of the Practice Act of the Revision of 1903. 3 comp.Stat. p. 4082. Under the new Prac­tice Act (Pamph.L.1912, rule 18, p. 388), ap­pended to the latter act, it is provided: ‘Bills af Particulars may be ordered as heretofore.’ This leaves the former statutes and practice thereunder undisturbed. Rules 32 and 94 of the Supreme Court accomplish no different result.” ~
Under Modem Codes, Practice Acts and Rules of Court, a Bill of Particulars is gen­erafly still available as at Common Law, in­cluding matters of Defense or Set-off.48 Ac­cording to Clark,4° some states limited the use of Bills of Particulars to actions involving accounts, or demands arising upon Contract. Motions to make the Complaint more Definite and Certain, or the Amendment of plaintiff’s
47. Dixon v. Swenson, 101 N.J.L. 22, 23, 227 A. 59i,
592 (1925),
4S. Marl~el-Tucker Cook Co., Inc. v. thrlleli, 200 App. Div. 171, 204 N.Y.S. 870 (1924).
-49. fl~nd1jook of the Law of Code Pleading, § 54 Bills of Particulars, 338 (2d ed, St. Paul, 1947).

Complaint have frequently been used to per­form the function of the Bill of Particulars. But in some states the Bill of Particulars is more limited in its application than an Amendment of the Complaint. It has been held that a Bill of Particulars limits the Com­plaint so that nothing can be claimed beyond what is set forth in the Bill.30 On the other hand, it has been held that the plaintiff should not be permitted to rely on his Bill of Par­ticulars to supplement his Complaint, but Clark suggests that the Bill of Particulars should perform this function and that an Amendment should not be required, and states this is the position taken in those State Systems where the Bill of Particulars is made definitely “a part of the pleading which it supplements.” ~‘


In New York, as in many other states, the Bill of Particulars,52 is regulated by Statute or Rule of Court.53

50. Id. at 338—339.

5’. Id. at 340.

52. For a more detailed treatment of the Bill of Par­ticulars under Modern Practice, consult Clark, Handbook of the Law of Code Pleading, § 54 Bills of Particulars, 838—344 (24 oct St. Paul, 1947).
53. See Section 3041 and Rule 3042 of the NOW York

Civil Practice Law and llules (2988); Hackett v.

Walters, 162 tIisc. 730, 295 N.Y.S. 022 (1037): Ivey

v. ~cew York Telephone Co., 279 App.Div, 972, 111

N.Y.S,2d 032 (4th Dept.1952).

CHAPTER 19

CONSIDERATIONS FRELIMINARY TO THE

CLASSIFICATION OF DEFENSES
Parties Must Demur or Plead.

Pleas: Dilatory or Peremptory.

Other Stages of Pleading Beyond the Declaration and Plea.

Election to Demur or Plead—Factors to be Considered.

Forced Issues Under the Codes.

PARTIES MUST DEMUR OR PLEAD
189. After the Declaration, the Parties must, at each Stage of the Proceedings in the Action, either:

(I) Demur, or

(II) Plead:



(A) A Dilatory Plea, or
(E) A Peremptory Plea, or Plea in Ear
IF it is assumed that Every Liability con­sists of Two Elements—a given combination of Facts or Events, plus a Rule of Substantive Law attaching legal consequences to those Facts or Events; and if it be remembered that in order to state a good cause of action one need only set out the combination of facts and events, the Court taking Judicial Notice of the Rule of Law without its statement, the question arises: In how many ways may the defendant resist the Alleged Liability as­serted in the Declaration?
Confronted with this Alleged Liability, with a Declaration of the Facts only, the Minor Premise, and omitting the statement of the Rule of Law relied upon, the Major Premise, the defendant was compelled to De­mur or Plead. He was bound to pursue one or the other of these two courses, until Issue was Tendered, if he desired to sustain his Defense. If he neither Pleaded nor Dc­inurred, but Confessed the right of the ad-

verse party, or appeared but said nothing, the Court immediately Entered Judgment in favor of his adversary; in the former case, as by Confession; in the latter, where he said nothing, by nil dicit,’


If, however, the defendant Demurred, dis­puting the Rule of Law relied upon by the Plaintiff, he raised an Issue of Law, Triable by the Court; if he desired to Plead, thus disputing the Combination of Facts relied upon by the plaintiff, he raised an Issue of Fact, Triable by the Jury. If he desired to dispute the Rule of Law relied on by the plaintiff, he could do so by resorting to the procedural device known as the Demurrer, which developed in Two Forms, the General and the Special Demurrer, with the result that the Pleadings terminated in an Issue of Law, which Issue, once Tendered, must be ac­cepted by what was known as a Joinder in De­murrer. If the defendant Demurred General­ly an Issue of Law was presented as to wheth­er the Declaration was Substantively Defec­tive; whereas, if the defendant Demurred Specially, an Issue of Law was raised as to whether the Declaration was Formally De­fective.
1. Stephen, A Treatise on the Principles of Pleading In Civil Actions, ~. IX, 157 (3d Am. ed, by Tyler, WashIngton, 1893); Henry v. Ohio B. Co~, 40 W.Va. 234, 21 SE. 863 (l895~.

Sec.
189.

190.

191.


192.

193.

378


Sec. 190

CLASSIFICATION OF DEFENSES

379


PLEAS: DILATORY OR PEREMPTORY
190. If the Declaration is sufficient in both Substance and Form, so that a Demurrer will not lie, or if the defendant does not wish to Demur, he must Plead:

(I) A Dilatory Plea, or

(II) A Peremptory Plea, or Plea in Bar:

(A) By Way of Traverse:

(1) By Pleading the General Issue, or


(2) By Pleading the Specific or Common Traverse, or
(3) By Pleading the Special

Traverse


(B) By Way of Confession

Avoidance:

(1) In Justification and Ex­cuse, or

(2) In Discharge

Dilatory Pleas

IF the defendant desired to dispute the combination of facts and events relied upon by the plaintiff, he could do so by resorting to a procedural device known as the Plea, which might assume either one or two forms

—a Dilatory Plea, or a Peremptory Plea, better known as a Plea in Bar. A Dilatory Plea sought to prevent the Entry of a Final Judgment on the Merits, whereas a Plea in Bar sought to bring about a Final Judgment on the Merits, If the defendant desired to prevent a Final Judgment on the Merits, that is, if he wished to use a Dilatory Plea, he could resort to any one of three procedural devices, known as one, a Plea to the Jurisdic­tion, on the ground that the court had no ju­risdiction over either parties or subject mat­ter of the action; two, a Plea in Abatement, which shows some ground for Abating or Defeating the Particular Action, without de­stroying the Right of Action itself; or three, a Plea in Suspension of the Action, which offered some reason why the plaintiff was temporarily disabled from pursuing the ac­tion at the time.

Peremptory Pleas By Way Of Traverse or Confession And Avoidance

IF, for any reason, the defendant did not

desire to use a Dilatory Defense, or if such Defense proved futile, his only other recourse was to enter a Peremptory Plea or Plea in Bar, which might take either a Negative or Affirmative Form. If the defendant desired to dispute the combination of the facts relied upon by the plaintiff, he could do so by re­sorting to a procedural device known as a Traverse or Denial, which took one of three forms, one, the General Issue, which generally operated as a blanket denial of all the Ma­terial Allegations in the plaintiff’s Declara­and tion; two, the Common or Specific Traverse, which denied One or More Material Allega­tions in the plaintiff’s Declaration; and three, the Special Traverse, a highly technical form, capable of being used only in limited circum­stances, which consisted of an inducement, containing affirmative new matter, a denial, and a verification, and which did not termi­nate the pleadings. In the case of the Gener­al Issue and the Common or Specific Trav­erse, the Pleadings terminated in an Issue of Fact, triable by a Jury. In these Forms of Traverse, the General Issue and the Common or Specific Traverse, a Tender of Issue was required, which consisted of a Statement in the Pleading that the defendant was ready to go to the country, or to submit the issue to a Trial by Jury.


If, however, the combination of facts and events and the Rule of Substantive Law re­lied upon by the plaintiff was sufficient to constitute a cause of action; if the alleged liability could not be met by a Dilatory Plea or by some Form of Negative Plea in Bar, the defendant might dispute the asserted lia­bility by stating that the plaintiff had not told the full story, that is, that the defendant was willing to admit the combination of facts set out by the plaintiff, or that the plaintiff had stated a prima fade case, but that there was an additional combination of facts and events,

380


DEFENSIVE PLEADINGS

Cli. 19


plus an additional Rule of Substantive Law which equalled non-liability, or which changed the legal effect of the Allegations ad­mitted. The defendant could accomplish this end by use of the procedural device known as a Plea in Confession and Avoidance, which took either one of two forms, one, a Plea by Way of Confession and Avoidance in Justifi­cation and Excuse; or two, a Plea by Way of Confession and Avoidance in Discharge, the difference being that the former assumes that no liability ever existed, and the latter as­sumes that liability once existed but has ceased to exist because of the happening of some subsequent fact or event. Thus, to illus­trate, in Trespass for Assault and Battery, the Plea of Self-Defense assumes that the defend­ant was never liable in point of Substantive Law, whereas in Debt for Five Hundred Dol­lars, the Plea of Payment assumes that a debt which once was existent is now no longer existent because of the happening of some subsequent fact or event, to wit, Payment. Pleas in Confession and Avoidance were ter­minated with a statement that the defendant stood ready to verify his facts.
It will be observed that if the Pleadings ter­minated in a Demurrer, an Issue of Law tri­able by the Court, arose; if the Pleadings terminated with some Form of Dilatory Plea, the settlement of the case on its merits suf­fered a temporary or permanent delay; if the Pleadings terminated in a Traverse, in the Form of the General Issue or the Common or Specific Traverse, an Issue of Fact tri­able by the Jury arose. But if the defend­ant pleads in Confession and Avoidance, tIle pleadings remain open, and no issue emerges, and the altercatIon continues until an issue is produced either by a demurrer or by a traverse.
OThER STAGES OF PLEADING

BEYOND THE DECLARATION AND PLEA

that the defendant has met this by a Plea in Confession and Avoidance, the next Stage of Pleading is the Replication, after which follows a Rejoinder, a Surrejoinder, a Rebutter and a Surrebutter. Such a result, however, as­sumes that the preceding pleading was in each case in Concession and Avoidance. This proc­ess continues until one side or the other Tra­verses or Demurs, thus producing either an is­sue of Pact or of Law.


Replication

IF we assume that the defendant neither Demurs nor Pleads by way of Traverse, but seeks to evade liability by Pleading in Con­fession and Avoidance, the plaintiff, at the Third Stage of the Pleadings, may file a Rep­lication to the defendant’s Plea, either Tra­versing it—that is, totally denying it—as, if in an action of debt upon bond the defend­ant pleads Payment—that he paid the money when due—the plaintiff in his Replication may totally Traverse this Plea, by deny­ing that the defendant paid it, or the Repli­cation may Confess and Avoid the Plea, by alleging some new Matter or Justification consistent with the Plaintiff’s Declaration. Thus, in an action for trespassing upon land whereof the plaintiff is seised, if the defend­ant shows a title to the land by descent, and that therefore he had a right to enter, and gives color to the plaintiff, the plaintiff may either Traverse and totally Deny the Fact of the Descent, or he may Confess and Avoid it, by Replying that true it is that such descent happened, but that since the descent the de­fendant himself demised the lands to the plaintiff for term of life.
Eejoinder
TO the Replication the defendant may file a Pleading known as a Rejoinder, to which the plaintiff may, in his turn, Demur, or Plead, either by way of a Traverse, or in Confession and Avoidance, in a Surrejoinder.
Eurrejoinder

THE plaintiff, now j~1eading for the third time, may answer the defendant’s Rejoinder

191. Assuming the plaintiff has stated a

good cause of action in his Declaration and

See. 192

CLASSIFICATION OF DEFENSES

381

b~ filing what was known as a Surrejoinder, to which the defendant might interpose a Rebutter.


Rebutter
UPON this Pleading the defendant may in turn Demur or Plead by Way of Denial or by Way of Confession and Avoidance.
Surrebntter

AND the plaintiff might answer with a Pleading by Way of Surrebutter.


It will be observed that these various

Pleadings—Plea, Replication, Rejoinder, Sur­rejoinder, Rebutter and Surrebutter,—in le­gal theory, proceeded ad infinitum, until at some Stage of the Procedure the Pleadings terminated in either a Demurrer, thus raising an Issue of Law, triable by a Court; in some form of Dilatory Plea, in which instance the settlement of the case on its merits suffered a temporary or permanent delay; or in a Traverse, thus raising an Issue of Fact, tri­able by the Jury; but if the defendant in his Plea neither Demurs nor Traverses, but Pleads in Confession and Avoidance, the Pleadings remain open and do not terminate in either an Issue of Law or of Fact. There­fore, the plaintiff, at the Next Succeeding Stage of Pleading, the Replication Stage, may either Demur, or Plead by way of Traverse or in Confession and Avoidance, and so on, ad infinitum, until the plaintiff or defendant ei­ther Demurs, raising an Issue of Law, or Traverses, raising an Issue of Fact, thus re­ducing the controversy to a single clear-cut well-defined Issue of Law, or of Fact, which is the Primary Function of Pleading.


If a party finds the Declaration or other pleadIng opposed to him to be Sufficient in Substance and Defective in Form, Sufficient in Form and Defective In Substance, or In­sufficient in both respects, he has ample ground for Demurrer; but whether he should Demur or Plead is a matter of expediency, or of procedural tactics, which may influence

favorably or unfavorably the outcome of the litigation. It may be useful therefore to examine the considerations by which, in view of what has been said about demurrers, the pleader should be governed in making his election to demur or plead.



ELECTION TO DEMUR OR PL}L&D— FACTORS ‘tO BE CONSIDERED
192. In many cases, a Party must Demur in order to take advantage of defects, while in others he may, even after Judgment, vaise ob­jections which he might also have taken by Demurrer. In many cases it may not be ad­visable to Demur, even where a Demurrer would lie.
IF the Declaration or other Pleading which may be involved is sufficient in both Form and Substance, the pleader has no alternative but to plead. If the Pleading is insufficient in either Form or Substance, there is good ground for either a Special or a General De­murrer; but whether the defect should be seized upon or taken advantage of depends upon several factors, If the Pleading be deemed insufficient in Form the pleader must inquire of himself whether it would be worth while to take the objection, in view of the indulgence which the law allows by way of Amendment; the pleader must also bear in mind that if the defect is not taken advantage of at that Stage of the Pleading, it may be Aided by a Subsequent Pleading, or after such Subsequent Pleading, by Verdict of the Jury, or by the Statutes of Jeofails and Amendments, If the pleader elects to De­mur, he must take care to Demur Specially, lest, upon General Demurrer, he should be held excluded from the objection.t If, on the other hand, the Pleading in question is De­fective in Substance, it must be determined whether the insufficiency is in the case itself or in the manner of statement, such, for ex­
t. Stephen, A Treatise on the Principles of Pleading In Civil Actions, C. II, Of the Principal Rules of PleadIng, 185 (3d Am. ed, by Tyler, Washington, 1898).

382

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