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PARTIAL DEFENSES
232. Every Pleading must be an Answer to the Whole of what it Professes to Answer. Par­tial Defenses must be Pleaded as such.
26. English: Warner v. Wainsford, Hoh. 127, 80 Erg. Rep. 276 (1603); Ward and Blunt’s Case, I Leon. 178, 74 Eng.Rep. 164 (1589); Connecticut: Whittel­sey v. Wolcott, 2 Day (Conn.) 431 (1807).
27- rn addition to the cases cited above, see, also,

English: Sinclair v. Bervey, 2 Chit. 642, 18 E.C.L.

826 (1771); Saunder’s Case, 12 Mod. 518, 88 Eng.

Rep. 1486 (1701); Lynner v. Wood, Cro.Car. 157, 79

Eng.Rep. 737 (1629); Illinois: Cushman v. Hayes, 46

111. 155 (1867); Cook v. Scott, 1 Gil. (III.) 333 (1844);

Curtis v. Martin, 20 Iii. 557 (1858).

28. Warner v. Wainsford, Rob. 127, 80 Eng.Rep. 270 (1615); Comyns, Digest, ‘Pleader”, E. 13 (New York, 1825); But compare statement of Gould, A Treatise on the PrInciples 0! Pleading, Pt. III, Div. V, C. 11, .~19 (6th ed. by Will, Albany, 1909).

THE effect of this Rule is that a Pleading must fully meet the cause of action stated by answering the Whole of it, or all that is Ma­terial. If it fails in this, it is bad.2°


Thus, in Trespass for breaking a close and cutting down 300 trees, if the defendant Pleads some Matter of Justification or title as to all but 200 trees, and says nothing as to the 200, his Plea is bad.
As to the proper course for the plaintiff

to take in such cases there is some doubt, and a conflict in the authorities. It is said by Stephen that there is a distinction in a case where the defendant does not Profess to An­swer the Whole, and a case where, by the Commencement of his Plea, he does Profess to do so, but in fact gives a Defective and Partial Answer, applying to part only. He says that in the former case, that is, where the defendant does not Profess to Answer the Whole, the plaintiff is entitled to sign Judgment as by Ni? Dic’it against him in re­spect of that part of the cause of action not answered, and to Demur or Reply to the Plea as to the remainder; and, on the other
29. Stephen, A Treatise on the Principles of Pleading in Civil Actions, e. II, Of the Principal Rules of Pleading, ~ 1, p. 215 (34 Am. ed. by Tyler, Washing­ton, 0. C., 1875); Comyn, Digest, “Pleader”, B. 1, F. 4 (London, 1822).
See, also, the following cases: English: Earl of Man­chester ~‘. Vale, I Wms.Saund. 27, 28, n. 3, 85 Eng.

Rep. 28, 29 (1666); Herlakenden’s Case, 4 Co. 62a,

76 Eng.Itep. 1025 (1588); Illinois: Goodrich v. Reyn­olds, 31 III. 490 (1863); Maryland: Mitchell v.

Sellman, 5 Md. 376 (1854); New Jersey: Sprague

Nat. Bank v. Erie B. Co., 62 N.J.L. 474, 41 A. 681

(1898); New York: Sterling v. Sherwood, 20 Johns,

(N.Y.) 204 (1822); Riggs xc Dennlston, 3 Johns.Cas.

(N.Y.) 198 (1802); Nevins xc Keeler, 6 Johns. (N.Y.)

63 (1810); Boyd v. Weeks, 5 HIll (N.Y.) 893 (1843);

Vermont: Carpenter v. Brlggs, 15 Vt. $4 (1848).


A Plea undertaking to answer the whole eOmfllail]t when the matter set forth answers only a part thereof Is bad. Alabama: Jackson v. Bohlin, 10 Ala.App. 105, 75 So, 097 (1017); ylorida: Florida East Coast Ily. Co. v. Peters, 72 Pta. 311, 78 So. 151 (1918); North Carolina: Singer Sewing Mach. Co.

V. Burger, 151 NC. 241, 107 S.E. 14 (1021) NoW

York: Wagecic v. Travelers’ Ins. Co., 108 Misc. 61,, 177 N.’I.S. 327 (1919).

Sec. 233

PLEAS—PEREMPTORY OR IN BAR

473


hand, if he Demurs or Replies to the Plea without signing Judgment for the part not answered, the whole action is said to be dis­continued.3° For the Plea, if taken by the plaintiff as an Answer to the Whole Action, it being in fact a Partial Answer only, is, in contemplation of Law, a mere nullity; and there is consequently an interruption or chasm in the Pleading, which is called in technical phrase a “Discontinuance.” And such Discontinuance will amount to Error on the Record.31 Where, however, the defend­ant does Profess to Answer the Whole Dec­laration, but in fact gives a Defective An­swer, applying to a Part only, this amounts merely to Insufficient Pleading, and the plain­tiff’s course, therefore, is not to sign Judg­ment for the Part Defectively Answered, but to Demur to the Whole Plea.32
20. On a discontinuance by a reply to a partial plea without taking a Judgment for the part not an­swered to upon nil dicit, see Davis v. Burton, 3 Scam. (In.) 41, 36 Am.Dec, 511 (1841); Stephen, A Treatise on the Principles of Pleading in Civil Ac­tions, c. II, Of the Principal Rules of Pleading, § 1, p. 215 (3d Am. ed. by Tyler, Washington, D. 0., 4875); Earl of Manchester v. Vale, 1 Wms.Saund.

27, 28, n. 3, 85 Eng.Rep. 28, 29 (1666).

See, also, the following cases: English: Herlakenden’s Case, 4 Co. 62a, 76 Eng.Rep. 1025 (1588); Tippet v. May, I Bos. & P. 411, 126 Eng.Rcp. 982 (1790); New

Jersey: Flemmiag v. Mayor, etc. of City of Ho~ bokcn, 40 N.J.L. 270 (1878); Tennessee: Young v. Fentress, 10 Rumph. (Tenn.) 151 (1849); West Vir­ginia: Ilisher v. Wheeling Roofing & Cornice Co., 5? W.Va. 149, 49 SE. 1016 (1005). Cf. Carpenter v. Briggs, 15 Vt. 31 (1843).


1. \Vats v. King, Cro.Jac, 353, 79 Eag.Itep. 302 (1614). But such an error is cured after Verdict by the Statute of Jeofans, 32 Hen. VIII, C. 30 (1540), and after Judgment by nil dicit, Confession, or non 2um iftfoi’matus, by the Statute of 4 Anne, e. 10 (1705).
-32. Earl of Manchester v. Vale, I Wms.Saunders 27, 28, n. 3, 85 Eng.Rep. 28, 29 (1066); Stephen, A Treatise on the Principles of Pleading in Civil Ac­tions, c. II, Of the Principal Rules of Pleading, § 1, p. 216 (3d Am. ed. hy Tyler, Washington, 0. C., 1875). See, also, Harpham v. Eayncs, 30 II]. 404 (1863); Snyder v. Gaither, 3 Scam, (Ill.) 01 (1S41)~ Hinton v. husbands, 3 Scam. (Ill.) 187 (1841); IllInois Cent. It. Co. v. Leidjg, 64 III. 151 (1872); People, to Use

Some Courts have refused to recognize any such distinction as this, and hold that where the Plea does not Profess to Answer the Whole Declaration, as well as in cases where it does so Profess, the plaintiff may Demur to the Plea as a Whole as Insufficient in Law, or Reply to it, and need not enter Judgment, for the Part Unanswered, as by Ni? Dicit; and that such a course will not amount to a Discontinuance.33

Where that Part of the Pleading to which no Answer is given is Immaterial, or such as requires no Separate or Specific Answer, as, for instance, where it is mere Matter of Aggravation, the Rule does not apply.34
Again, if any Pleading be intended to apply to Part Only of the Matter Adversely Alleged, it must be qualified accordingly in its Com­mencement and Conclusion.35
A PLEADING BAD IN PART IS BAD ALTOGETHER
233. A Pleading which is Bad in Part is Bad Altogether. In other words, a Plea is treated as a unit, and hence, if it is deficient in any
of Busch v. MeCormack, 08 Ill. 226 (1873); Bonbam

v. People, to Use of Wilson, 102 III, 434 (1882).


A Plea professing to answer the whole Declaration, and which answers but One Count, is bad on De­murrer. People’s Shoe Co. v. Slcally, 196 Ala, 349, 71 So. 719 (1916).
A Plea to the entire Declaration, omitting to answer to a material part, is Demurrable. Florida East Coast Ry. Co. v. Peters, 72 Fla. 311, 73 so. 151, Ann. Cas.1918D, 121 (1918).

33. English: Bullythorpe v. Turner, Willes, 475, 480,

125 Eng.Itep. 1275 (1744); Ncw York: Sterling v.

Sherwood, 20 Johns. (N.Y.) 204 (1822); Riggs V.

Denniston, 3 Johns.Cas. (N.Y.) 108, 2 Am.Dcc. 145

(1802); Hick-ok v. Coates, 2 Wend, (N.Y.) 419, 20

Am.Dec, 632 (1820).


34. Earl of Manchester v. Vale, I Wms.Saund. 27, 28, n. 3, 85 Eng.Rep. 28, 29 (1666).
35. Weeks v. Peach, I Salk 179, 01 EngIlep. 101 (1701).

An item pleaded by the Answer In reduction of any Judgment recovered by the plaintiff ~c’ag pro tanto a defense. Oregon Engineering Co. v. City of West Linn, 94 Or. 254, 185 P. 750 (1919).



474

DEFENSIVE PLEADINGS

Ch. 22

Material Fact, or in reference to any of the Material Things which it undertalies to An­swer, or as to either of the Parties Answering. though otherwise free from objection, the Whole is open to Demurrer.
BY the proper Forms of Commencement

and Conclusion, the matter which any Plead­ing contains is offered either as an Entire or as a Partial Answer to the Whole af that which last preceded. If it falls in any Ma­terial Part, it fails altogether?° Thus, if in a Declaration of Assumpsit Two Differ­ent Promises be alleged in Two Different Counts, and the defendant Plead in Bar to both counts conjointly the statute of lim­itations, viz., that he did not Promise with­in six years, and the Plea be an insuff i­cient answer as to one of the Counts, but a good Bar to the other, the Whole Plea is bad, and Neither Promise is sufficiently an­swered.37 So, where to an Action of Trespass for False Imprisonment against two defend­ants they Pleaded that one of them, A., having ground to believe that his horse had been stolen by the plaintiff, gave him in charge to the other defendant, a constable, where­upon the constable and A., in his aid and by his command, laid hands on the plaintiff, etc., the Plea was adjudged to be bad as to both defendants, because it showed no reasonable ground of suspicion; for A. could not Justify the Arrest without showing such ground; and though the case might be different as to the constable, whose duty was to act on the


St See Comyn, Digest, Pleader, E. 3G. F, 25 (London, 1822).
See, also, the following eases: English: Wehi, v. Mar­tin, 1 Lev. 48, 85 Eng.hlep. 201 (1661); Duflield v.

Scott, 3 T.R. 374, 100 Eng.llep. 025 (1780); Indiana:

Ferrnnd v. Walker, 5 Blaekf. (lad.) 424 (1840);

Shearman v. Fellows, 5 Blackf. (md.) 459 (1840);

New York: Bradley v. Powers, 7 Cow. (N.Y.) 330

(1527); Ten Byck V. Waterbury, 7 Cow. (N.Y.) 51

(1827).
3~• Webb v. Martin, 1 Lev. 48, 83 Eng.Rep. 291

charge, and not to deliberate, yet, as he had not Pleaded separately, but had joined in A.’s Justification, the Plea was bad as to him also?8


This Rule seems to result from that which requires each Pleading to have its proper Formal Commencement and Conclusion; for by those Forms, it will be observed, the Mat­ter which any Pleading contains is offered as an Entire Answer to the Whole of that which last preceded. Thus, in the first example above given, the defendant would allege, in the Commencement of his Plea, that the plaintiff “ought not to have or maintain his action” for the reason therein assigned; and therefore he would Pray Judgment, etc., as to the Whole Action in the Conclusion. If, therefore, the answer be insufficient as to One Count, it cannot avail as to the other; because, if taken as a Plea to the latter only, the Commencement and Conclusion would be wrong. It is to be observed that there is but One Plea, and consequently but One Com­mencement and Conclusion; but if the de­fendants should Plead the Statute in Bar to the First Count separately, and then Plead it to the Second Count with a New Commence­ment and Conclusion, thus making Two pleas instead of One, the invalidity of One of these Pleas could not vitiate the other.
As the Declaration, like the General Issue, has neither Formal Commencement nor Con­clusion of the kind to which the last Rule relates, it does not fall within the scope of the one under consideration. A Declaration may be Good in Part, and Bad as to Another Part, relating to a distinct demand divisible from the rest; and if the defendant Plead to the Whole, instead of to the Defective Part Only, the Judgment will be for the plaintiff.39
38. Hedges v. Chapman, 2 Bing 523, 130 Eng.Rep. 408 (1825); Bradley v. Powers, 7 Cow. (N.Y.) 830 (1827).
39. Webb v. Martin, 1 Let 48, 83 Eng.flep, 291 (1661).

(1661).


Sec. 234 PLEAS—PEREMPTORY OR IN BAR

SEVERAL DEFENSES’°
234. The respective Pleadings subsequent to the Declaration must not contain Several Dis­tinct Answers to the Opposing Pleading. But—

(1) Several Facts may be Pleaded, if necessary, to constitute a Single Complete Answer.

(II) A defendant in the Same Plea may Plead separately to Different Mat­ters of Claim.

(III) By Statute, Two or More Distinct

Defenses may be Pleaded in Sepa­rate Pleas to the Same Claim, upon leave of Court first obtained. It is



to be noted that:

(A) The Statute only applies to

the Pleas of the defendant.



Jt does not apply to the Replication or Subsequent

Pleadings.

(B) Leave will not be granted so as to extend the Statute to

Dilatory Pleas.

(C) Where Several Pleas are thus presented, each is to

be considered as Independ­ent, and to operate as if Pleaded Alone.

40. In general, on the subject of several Defenses, see:

Treatises: 1 T!dd, Practice of the Court of King’s Bench in Personal Actions, c. XXVIII, Of Pleas in Bar (London, 1824); Stephen, A Treatise on the Principles of Pleading In Civil Actions, c. II, Of the Principals of Pleading, 3, pp. 262—267 (3d Am. ed. by Tyler, Washington, 0. C., 1900); Shipmnn, Hand­book of Common-Law Pleading, c. XVII, General Rules Relating to Pleas, 239 (3d ed. by Ballantine, St. Paul, 1923).



Articles: Simpson, A Possible Solution of the Plead­ing Problem, 53 Ilarv.L.Rev. 169 (1930); MeDowall, Alternative Pleading in the United States, 52 Col. L.llev, 603, 605—605 (1952).

Notes: Inconsistent Defenses, 8 Mich.L.Rev. 134 (1909); Pleading—Answer—Inconsistent Pleas, 23 Yale L.J. 187 (1913); The Right to Employ Incon­sistent Defenses, 15 Mich.L.Itev. 152 (1916); Plead­ing and Practlee—Ineonsistent Causes of Action in Same Complaint—Contract and Tort, 20 Col.L.Rev. 712, 800 (1920); Pleading Inconsistent Defenses, 10 Calif.L.rtev. 251 (1922); Pleading—Inconsistent De­fenses, 23 Minn.L.Itev. 840 (1939); PleadIng: Alter­native Liabilities and Inconsistent Causes of Action:

C.P.A. Sections 211, 212 and 25S Interpreted, 11 Cor­nell L.Q. 113 (1025).

(IV) Several defendants may Plead Sep­

arately.

Singleness of issue

IT was the avowed object of Common-Law Pleading to reduce the controversy of the parties to a Single Material Issue decisive of the case. If a defendant had Several De­fenses, the Common Law required him to make his Election between them and rest his



one selected. In Whitaker v. Chief Justice Marshall says:

“The principle in Pleading that a Special Plea must Confess and Avoid the fact charged in the Declaration was introduced at a time when the Rigid Practice of the Courts re­quired that every cause should be placed on a Single Point, and when it was deemed error to Plead Specially Matter which Amounted to the General Issue; it was not allowed to Deny the Fact and also to Justify it. The defendant might select his Point of Defense; but, when selected, he was confined to it.

That a Single Point might be presented to the Jury, he was under the necessity of Con­fessing everything but that point. The at­tention of the Jury was not directed to Mul­tifarious Objects, but confined to one on which alone the cause depended.” ~
The Rule is well settled that No Plea or Traverse can be good which embraces Dif­ferent Matters, which cannot be brought within the scope of One Issue.43 A Plea or
4’. Whitaker v. Freeman, 12 N.C. 271, Fed.Cas.No.

17,527a, 29 FeciCas. 955 (C.C.1S27).


42. Originally, at Common Law, the plaintiff was al­lowed to plead only One Plea in Bar, as the great aim of Pleading n-as to reduce the controversy to a Single, Clear-Cut, Well-Defined Issue for the Jury, and thereby simplify the Investigation. By use of the various General Issues, Singleness of the Issue early became a fiction, since the Issue, though ap­parently single in words, was in reality Complex.

43. Comyn, Digest, Pleader, E. 2 (London, 1522).
Every Plea must be Simple, Entire, Connected, and Confined to a Single Point, and a Ploa sotting up more than one lndcpcndent fact or set of facts, ei­ther of which ts sufficient answer, Is bad for du­plicity, whether the Plea Is in Bar, In Abatement,

475


case on the

Freeman,4

476

DEFENSIVE PLEADINGS

CIt 22


Replication, therefore, must contain but One Complete Answer to the last Opposing Plead­ing, the principle being that, as One such An­Swer, if maintained, is sufficient to defeat the Action or Defense, all others are superflu­ous.44 It is not necessary, however, that the Single Ground of Defense or Answer to which each Flea or Replication is thus limited shall consist of a Single Fact,45 since several con­nected or dependent Facts or circumstances may be necessary to constitute a Single or Complete Answer. In such a case the fault of Duplicity cannot exist, as such Facts con­stitute, in fact, but a Single Answer.4°
The Rule against Duplicity in the Plea

does not prevent a defendant from giving Several Distinct Answers to Different Mat­ters of Claim in the Declaration. A defend­ant may therefore Plead the General Issue to One Part of the Declaration, and Matter in Confession and Avoidance to the residue, or One Matter of Abatement to One Part, and

‘N
or Both. Florida East Coast By. Co. v. Peters, 72 Pla. 311, 73 So. 151 (1918).
44. See the following eases: English: Vivian v. Jen­kIn, 3 Ad. & Ii 741, 30 E.C.L, 330, 111 Eng.Bep. 595

(1835); Illinois: Armstrong v. Webster, 30 Ill. 333

(1863); New Hampshire: Watriss v. Pierce, 36

N.H. 232 (1858); New Jersey: Star Brick Co. V.

Rldsdale, 84 N.J.L. 428 (1871); New Yorli: Eradner

V. Demick, 20 Johns. 405 (1823); Federal: United

States v. Gurney, 1 Wash.C.C. 446, Fed.Cas.No.15,271

(1806).
A Plea of Abatement on the ground of Wrong Venue, and on the ground of defendant being immune from service of process when and where he was served, is bad for dnpliiñty. Fitzgerald v. Southern Farm Agency, 122 Va. 264, 94 S.E. 761 (1918).
45. As to the test of duplicity, see People ox rel. At­torney General v. River Raisin & L. B. It. Co., 12 Mich. 390, 88 Am,Dec. 64 (1864).
44. English: Robinson v. Raley, 1 Burr. 316, 97 Eng.

Rep. 330 (1757); Illinois: Kinney v. Turner, 15

El. 182 (1853); Kipp v. Bell, 86 III. 577 (1877):

Maine; Potter v. Titcomb, 10 Me. 453 (1833); New

Hampshire: Tebbets v. Tilton, 24 N.H. 120 (1851);

New York~ Strong v. Smith, S Caines (N.Y.) 100

(1805); Cooper v. Heermance, 3 Johns. (N.Y.) 318

(1808); Tubbe V. Catwell, 8 Wend. (N.Y.) 130 (1831);

Vermont: Robinson v. St. Johusbury & L. C. It. Co.,

80 Vt. 129, 66 A. 814, 9 L.R.A.,N.S., 1249 (1907).

Another to Another Part, or may Plead in Abatement to One Part of the Demand, and in Bar as to Another.~’ To Several Counts, or to distinct parts of the Same Count, he may therefore Plead Several Pleas; that is, one to each.

Thus, in an Action of trespass for three assaults and batteries, the defendant may Plead Not Guilty to the First Count; in Ex­cuse—Self-Defense--—to the Second; and the Statute of Limitations to the Third. The reason is that the Different Matters so Plead­ed are not alleged to the Same Point, and therefore do not tend to produce Several Is­sues as to that point.~ The Rule applies equally to the Replication and Other Subse­quent Pleadings in the series, a severance be­ing always proper when there are Several Subjects of Claim or Complaint. This right, however, of thus Pleading Distinct Matters, appears to be subject to the restriction that neither of the Separate Defenses thus alleged can be such as would alone constitute a suffi­cient Answer to the Whole of the Opposing Claim, since then one only would be neces­sary.49


It may often happen that the defendant may have Several Distinct Answers to give to the Same Claim or Complaint. Thus, in an Action of Trespass for two assaults and batteries, he may have ground to Deny both the trespasses, and also to allege that neither

of them was committed within the period of the Statute of Limitations. Prior, however, to the Statutory Regulation which we shall
47. Stephen, A Treatise on the Principles of Pleading in Civil Actions, c. II, Of the Principal Rules of Pleading, 245—246, 267, 306 (3d ed. by Tyler, Wash­ington, D. C., 1875).
48. Lawe v. King, I Wms.Saunders 76, 85 Eng.Rep.

88 (1667); Keigwin, Precedents of Pleading at com­mon Law, 1, 11 (Washington, 1910).


Each Plea, of course, must be addressed and limited to a different element of the Cause of Action.
40. Stephen, A Treatise on the Principles of Plead­ing in Civil Actions, c. It, Of the Principal Itules of Pleading, 292 (5th ed. by Williston, Cambridge, 1893).

Sec. 234


PLEAS—PEREMPTORY OR IN BAR

477


presently notice, it was not competent for him to thus Plead Several Answers to the Same Claim, as that would have been an in­fringement of the Rule against Duplicity.50 He was therefore obliged to Elect between his Different Defenses, Where more than one thus happened to present themselves, and to rely on that which, in Point of Law and Fact, he might deem best. But as a mistake in that selection might occasion the loss of the cause, contrary to the real merits of the case, this restriction against the use of Several Pleas to the same matter, after being for ages ob­served in its original severity, was at length considered as contrary to the true principles of justice.
The Rule was changed by the Statute of 4 Anne, c. 16, § 4, 11 Statutes at Large 156 (1705). That section provides that “it shall and may be lawful for any defendant or ten­ant In any Action or Suit, or for any plaintiff in Replevin, in any Court of Record, with the leave of the same Court, to Plead as Many Several Matters thereto as he shall think nec­essary for his Defense,” This statute is old enough to have become a part of our Com­mon Law, but in most states substantially the same provision has been expressly enacted. Since this Act the course has been for the defendant, if he wishes to Plead Several Mat­ters to the same Subject of Demand or Com­plaint, to apply previously I or a Rule of Court permitting him to do so; and upon this a Rule is accordingly drawn up for That pur­pose.5
When Several Pleas are Pleaded, either to Different Matters, or, by virtue of the Stat­ute, to the Same Matter, the plaintiff may, according to the nature of his case, either Demur to the Whole, or Demur to One Plea
M. See dictum In Auburn & Onwasco Canal Co. v. Leltch, 4 Denlo (N.Y.) 65 (1847).
~1. Stephen, A Treatise on the Principles of Plead­lug In Civil Actions, e. It, Of the Principal Rules of Pleading, § 3, p. 263 (3d Am. ed. by Tyler, Washing­ton, D. C. 1875).

and Reply to the Other, or make a Several Replication to each Plea; and in the Two Latter cases the result may be a correspond­ing Severance in the Subsequent Pleadings, and the Production of Several Issues. But, whether One or More Issues be produced, if the decision, whether in Law or Fact, be in the defendant’s favor, as to any One or More Pleas, he is entitled to Judgment, though he fail as to the remainder; that is, he is entitled to Judgment in respect of that Subject of Demand or Complaint to which the successful Plea relates, and, if it were Plead­ed to the Whole Declaration, to Judgment generally, though the plaintiff should suc­ceed as to all the Other Pleas.


By a relaxation similar to that which has obtained with respect to Several Counts, the use of Several Pleas, though presumably in­tended by the Statute to be allowed only in a case where there are really Several Grounds of Defense,52 is, in practice, carried much fur­ther. For it was soon found that, when there was a Matter of Defense by Way of Special Plea, it was generally expedient to Plead that Matter in company with the General Issue, whether there were any real ground £ or de­nying the Declaration or not; because the effect of this is to put the plaintiff to the Proof of his Declaration before it can become necessary for the defendant to establish his Special Plea; and thus the defendant has the chance of succeeding, not only on the strength of his own case, but by the failure of the plaintiff’s Proof. Again, as the plain­tiff, in the case of Several Counts, finds it convenient to vary the Mode of Stating the Same Subject of Claim, so, for similar rea­sons, defendants were led, under Color of Pleading Distinct Matters of Defense, to state variously, in Various Pleas, the Same De­fense; and this either by presenting it in an entirely new view, or by omitting in One Plea some circumstances alleged in Another. To

St. Clinton v. Morton, 2 SIr. 2000, 93 Eng.flop. 994

(1734).

DEFENSIVE PLEADINGS



this extent, therefore, is the use of Several Pleas now carried.
Some efforts, however, were at one time made to restrain this apparent abuse of the indulgence given by the Statute; for that leave of the Court which the Statute requires was formerly often refused where the pro­posed Subjects of Plea appeared to be incon­sistent, and on this ground leave has been refused to Plead to the same trespass, “Not Guilty” and “Accord and Satisfaction,” or “Non Est Factum” and “Payment” to the same demand.53 In modern Practice, how­ever, such Pleas, notwithstanding the ap­parent repugnancy between them, are per­mitted,1~ and the only Pleas, perhaps, which

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