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53- Corny,’, DIgest, Pleader, B. 2 (London, 2822). See, also, Gully v. Bishop of Exeter & Do~vli]Ig, S Bing. 42, 130 Eng.llep. 975 (1828).
54. English: Chitty v. flume, 13 East 255, 104 Bug. Rep, 308 (1811); Macclellan v. Howard, 4 TB. 194, 100 EngJtcp. 969 (1791); Jenkins v. Edwards, S TB. 97, 101 Eng.Rep. 55 (1793); Illinois: Miller ‘i. Stanley, 186 IN.App. 340, 346 (1914); Peiree v. Shol­tey, 190 m.App 341, 346 (1914); Maine: Gordofl v. l’circe, ii lIe. 213 (183-1); Massachusetts: Jackson V. Stetson. 1~ Mass. 54 (isiSs Whitweu v. Wells, 2-4 Pick. (Mass.) 25 (1834); Merry v. Cay, 3 Pick. (Mass.) 388 (1820); New Hampshire: flow v. Epp­lag, 48 NIT. 7.5 (1368); New York: Buhler v Went­worth, 17 Barb. (N.Y.) 649 (1854); Lansingh -v. Parker, 0 ilow.Pr. (N.Y.) 288 (1854); Thayer V. Rogers, I Joljns.Cas. (N.Y.) 152 (1799); Pennsyl­vania: Peters v. tImer, 74 Pa. 402 (1873).
In an Action of Trespass on the Case, since the adop­tion of Rules 71 and 72 of the Circuit Court in Coin­mon-Law Actions, the defendant may file a Plea of Not Guilty with Special Pleas of Confession arni Avoidance, and to avail himself of certain Matters of Defense must file such special Pleas. Florida East Coast By. Co. v. Peters, 72 Fla. 311, 73 So. 151 (lOIS).
A defendant may plead as many Grounds of Defense as he may have, provided that they are not so re­pugnant that if one be true another must be false. Itawitzcr v. Mutual Benefit Health & Accident Ass’n, 101 NeL’. 210, 102 NW. 037 (1917); Haight v. Onia­ha & C. B. St. By. Co., 101 Web. 841, 166 NW. 248 (1917).
A defendant is not entitled to Notice of a Special Mat­ter of Defense under the General Issue and also to a Special Plea. Aurora Trust & Savings Bank V. Whildin, 208 Ill.App. 527 (1917).

have been uniformly disallowed, on the mere ground of inconsistency, are those of the General Issue and a TenderP5 As Tidd states the law:


“But subject to these Exceptions, the de­fendant may Plead as many different matters as he shall think necessary for his Defence, though they may appear to be contradictory or inconsistent; as Non Assumpsit and the Statute of Limitations, or in Trespass, Not Guilty, a Justification, and Accord and Satis­faction, etc. So he may Plead Non Assump­sit and Infancy, or Not Guilty and Libcrum Tenernentum; though, as Infancy may be given in evidence upon Non Assumpsit, and Liberurn Tenementum upon Not Guilty, the Pleading of these Matters Specially seems to be unnecessary.” 56
5S. Stephen, A Treatise on the Principles of Pleading in Civil Actions, c. II, Of the Principal Rules of Pleading, § 3, p. 265 (3d Am. ed. by Tyler, Washing­ton, D. C. 1875); Omeara v. Cardiff Coal Co., 154 III. App. 321 (1910), in which a Plea of the General Is­sue and Tender was involved. But, see, 5Mw v. Lord Alvanley, 2 Bing. 325, 130 Eng.Rep. 331 (1824); 31 Cyc. 148, n. 19.
56. Tidd, Practice of the Court of Kings Bench in Personal Actions, c. XXVIII, Of Pleas in Bar and Notice of Set-Off, 610 (1st Am. ed., Philadelphia, 1807),
“Where a defeadant ploads inconsistent Pleas, the admissions necessarily made in One Plea cannot be used against him upon another; as where the Gen­eral Issue is pleaded with a Plea in Confession and Avoidance, the admission contained in the latter Plea does not relieve the plaintift of proving his whole case against the General Issue. Glenn V. Sumner, 232 U.S. 157; Whitaker v. Freeman, 1 Devercu x 270 ... Among tl;o traditiolls of the Bar is the famous Case of the Kettle, in which plaintiff alleged flint defendant had borrowed plaintiff’s kettle, and had suffered the same while tu defendant’s possesston to be~me cracked, for which impairment damages were claimed. Defend­ant pleaded (1) that he did not borrow the kettle; (2) that the kettle was never cracked; and (3) that the kettle was cracked when he borrowed it. And these Pleas were held on Demurrer to be pleadabe together; but, according to a supplemental tradi­tion, the Demurrer was sustained on the ground that the Pleas amounted only to the General Issue.” Keigwiu, Precedents of Pleading at Common Law, 270 (Washington, D. C., 1910).

478

Cli. 22


Sec. 234

PLEAS—PEREMPTORY OR IN BAR



479

On the subject of Several Pleas it is to be further observed that the Statute extends to the case of Pleas only, and not to Replications or Subsequent Pleadings. These remain sub­ject to the full operation of the Common Law Rule against Duplicity, so that, though to Each Plea there may, as already stated, be a Separate Replication, yet there cannot be of­fered to the same Plea more than a Single Replication,57 nor to the same Replication more than One Rejoinder; and so to the end of the series. The legislative provision allow­ing Several Matters of Plea was confined to that case, under the impression, probably, that it was in that Part of the Pleading that the hardship of the Rule Against Duplicity was most seriously and frequenUy felt, and that the Multiplicity of Issues which would be occasioned by a further extension of the enactment would have been attended with expense and inconvenience more than equiva­lent to the advantage. The effect, however, of this state of Jaw is somewhat remarkable. For example, it empowers a defendant to Plead to a Declaration in Assumpsit for goods sold and delivered (1) the General Issue; (2) that the cause of action did not accrue within six years; (3) that he was an infant at the time of the contract. On the First Plea the plaintiff has only to Join Issue, but with respect to each of the Two Last he may have Several Answers to give. The case may be such as to afford either of these Replica­tions to the Statute of Limitations, namely, that the cause of action did accrue within six years, or that at the time the cause of action accrued he was beyond sea, and that he commenced his Suit within six years after his return. So, to the Plea of Infancy, he may have ground for Replying, either that the defendant was not an infant, or that the goods for which the action is brought were necessaries suitable to the defendant’s con­dition in life. Yet, though the defendant had


57- But compare Priest v. Dodsworth, 235 Ri. 612,

619, 85 NE. 040, 942 (1005).

the advantage of his Three Pleas cumulative­ly, the plaintiff is obliged to make his Elec­tion between these Several Answers, and can Reply but one of them to each Plea.
It is also to be observed that the power of

Pleading Several Matters extends to Pleas

in Bar only, and not to those of the Dilatory

Class, with respect to which the leave of the



Court will not be granted.r~
Again, it is to be remarked that the Statute does not operate as a total abrogation, even with respect to pleas in Bar, of the Rule against Duplicity. For, first, it is necessary, as we have seen, to obtain the leave of the Court to make use of Several Matters of De­fense, the application for leave being ad­dressed to the discretion of the Court,5° and then the Several Matters are Pleaded For­mally, with the words, “by leave of the Court for this purpose first had and obtained.” The Several Defenses must also each be Pleaded as a New or Further Plea, with a Formal Commencement and Conclusion as such; so that, notwithstanding the Statute, and the leave of the court obtained in pursuance of it, to Plead Several Matters, it would still be improper to incorporate several matters in One Plea in any case in which the Plea would be thereby rendered Double at Common Law.°°
As the Several Counts in the Declaration are required, apparently at least, to be dis­tinct and complete Statements of Separate
5S. Stephen, A Treatise on the Principles of Pleading in Civil Actions, ~. II, Of the Principal Rules of Pleading, 3 p. 266 (3d Am. ed. by Tyler, Washing­ton, P. C. 1875).
~D. Illinois: Millikin st, Jones, 77 Ill. 872 (1875);

Massachusetts: Jackson v. Stetson, 15 Mass. 48

(1815); New Hampshire: Watriss v. Pierce, 30 N.

H. 232 (1858).


60. Priest v. Dodswarth, 235 311. 013, 85 N.E. 940 (1908); Keokuk & Hamilton Bridge Co. v. Wctzel, 228 III. 258, 81 N.E. 864 (1907); Mix v. People, 02 III. 540, 663 (1879).

See, also, Note: Speethc Denials in Affirmative Dc-tenses, 20 CoLL.Rev. 170 (1920).



Kolier & Reppy ConLaw PIdg. hft—17

480


DEFENSIVE PLEADINGS

Ch. 22


Causes of Action, and are so considered and treated, so as stated above, each of Several Pleas, when Pleaded together, must be stated as a New or Further Plea, with Formal Com­mencement and Conclusion, and must stand and be treated as if Pleaded alone. One Plea cannot be taken in to help or destroy another, but Every Plea must stand or fa]l by itself.6’ Neither can One Plea thus offered have the effect of dispensing with the Proof of what is Denied by another, or, in other words, be used to aid the plaintiff in evidence against the defendant, and thus disprove another.62
Several Defendants iWay Plead Separately

WHERE there are several defendants, each may Plead for himself a Single Matter of Defense to the Whole, or Different Matters to Different Parts of the Opposing Pleading, as if he was the only person charged; and, as each defendant may thus use a Separate Plea, all may join in that, if they so desire.6’ This does not apply, however, when several defendants, jointly charged in an action on contract, All Plead the Same Defense to the action; as, for instance, the General Issue, or the Same Matter in Confession and Avoid­ance, Here they cannot sever, but must join in One and the Same Plea, in presenting the Common Defense. The reason for this is that if they all agree as to the Nature of their Defense, as a joint ilability is sought to be enforced against them, all are as safe in thus


61. English; Grills v. Mannell, Wiles 378, 125 Eng.

Rep. 1223 (1742); Arkansas: Clark V. Bolt, 10 Ark.

257 (1855); Indiana; Potter v, Earnest, 45 lad.

416 (1873).


~2. Illinois: West Chicago St. B. Co. v. Morrison, Adams & Allen Co., 100 III. 288, 43 N.E. 393 (1896); New Hampshire: Bartlett v. Prescott, 41 N.H. 499 (1860); New York: Starkweather V. lOttie, 17 \Vend. (N.Y.) 20 (1837); Federal: Whitalcer v. Free­man, 12 NC. 271, Fed.Cas.No.17,527a, 29 Fed.Cas. 055 (1826).
‘~3. Coke, Littleton, 303a (London, 1832); Essington v. Bourther, Bob. 245, 80 Bng.Rep. 390 (1618). See, also, English: Cuppledick V. Terwflit, Bob. 250, 80 Eng.Rep. 396 (1618); New York: Stilweli v. Has­brouck, I Bill (N.Y.) 561 (1841).

pleading Jointly as in presenting their De­fenses separately. But the exception does not hold, even in actions on contract, if they choose Different Defenses, and they may then Plead separately. Neither does it hold in an action charging a joint liability in tort, as torts committed by more than one person, though charged as joint, tre several as well.


DUPLICITY IN PLEAS—IN GENERAL
235. A Pleading which Contains Several Answers, whatever their Class or Quality, will be Double.
THIS Rule rests upon the principle, pre­viously stated, that where One of Two or More Facts would constitute a sufficient ground of Defense, only One such Fact should be stated. If, therefore, a Pleading included Several Matters in Abatement or in Bar,°4 or contained One of each Character,65 it would be Double, and hence fatal on a Special Demurrer. The same would be true in join­ing Several Matters in Confession and Avoid­ance, or Several Answers by Way of Tra­verse, or a Traverse with a Plea of the former kind~6
DUPLICITY—IMMATERIAL MATTER
236. Matter which is wholly Immaterial cannot operate to snake a Pleading Double.
THIS is the result of a General Rule that Surplusage is to be disregarded, Where Mat­ter is Pleaded which is wholly foreign to the cause, it is mere Surplusage, and will not therefore render a Pleading objectionable, under the Rule we are considering, even
64. Calhoun v. Wrght, 3 Scam. (Ill.) 74 (1841); Bar­ross v. Hewitt, 3 Seam. (III.) 224 (1841).
OS. Comyn, Digest, Pleader, E. 2 (London, 1822); See, also, English; Bleeke v. Grove, 1 Sid. 176, 82 Eng.Rep. 1040 (1063); Illinois: Mcconnell v. Stet­tinius, 2 011. (flI.) 707 (1845).

68. English: Bleeke v. Grove, I SkI. 175, S2 Eng.BeP.

1040 (1663); WrIght y. Watts, 3 Q,E. 89 (1642): Il­linois: Priest v. Dodsworth, 235 Ill. 613, 85 N.E. 940 (1908); Vermont: Vaughan v. Everts, 40 Vt. 526 (1808).

Sec. 237

FLEAS—PEREMPTORY OR IN BAR

481

though Pleaded in connection with what is Material. Such Matter will be rejected as Impertinent 67 and Superfluous, since it re­quires no answer, and it therefore cannot oc­casion the fault for which all Double Plead­ings are objectionable, that is, a Multiplicity of Issues.68


Thus, in an Action by the Executors of A on a bond conditioned that the defendant should warrant to A a certain meadow, the defendant Pleaded that the said meadow was copyhold of a certain Manor, and that there is a Custom within the Manor, that if the customary tenants fall in payment of their rents and services, or commit waste, then the lord for the time being may enter for for­feiture; and that the said A, during his life, peaceably enjoyed the meadow, which de­scended after his death to one B, his son and heir who, by his own wrong, entered without the admission of the lord, against the Custom of the Manor; and because three shillings of rent were in arrear on such a day, the lord entered into the meadow, as into lands forfeited. On Demurrer, it was objected (among other things) that the Plea was
87. An Impertinent Averment is a statement of mat­ter altogether foreign to the Merits of the Cause, and may, therefore, be struck out in its entirety, without injury to the pleading, and, of course, no proof of such an Allegation can be required; on fhe other hand, an immaterial Ave,ment must, in many cases, be proved, and is a statement of unnecessary particulars in connection with, and as descriptive of, What Is material. GouM, A Treatise On the Prin’ ciples of Pleading, Part III, Of Pleading, Div. II, Rules Applicable to Pleadings in General e. II, Mi s­cellaneous Rules, 317—320 (6th ed. by Will, Albany, 1909).
68. English: Countess of Northumberland’s Case, S Coke 97b, 77 Eng.Bep. 206 (1597); Illinois: Here­ford v. Crow, 3 Seam. (Ill.) 423 (1842); Maryland:

Stewardson V. White, 3 Bar, & MeN. (MO.) 455 (1796); Massachusetts: Lord v. Tyler, 14 Pick. (Mass.) 156 (1833); MIchigan: Comstoek v. MeEtoy, 52 MIch. 324, 17 NW. 931 (1883); New York: Pan­ton v, Holland, 17 Johns. (N.Y.) 02, S Am.Dec. 369 (1819).


A 2lca settIng up two defenses, one of them bad, is riot Demurrable for duplicity. Guest Piano Co. v. Bick­er, 274 III. 448, 113 N.E. 717 (1910).

Double; because in showing the forfeiture to have accrued by the heir’s own wrongful act, Two Several Matters are alleged: Ffrst, that he entered without admission, against the custom; secondly, that three shillings of rent were in arrear. But the Judges held that the only sufficient cause of forfeiture was the nonpayment of rent; that, there being No Custom alleged for forfeiture in respect of entry without admission, the Aver­ment of such Entry was mere Surplusage and could not, therefore, avail to make the Plea Double.69 It is, however, to be observed that the Plea seems to rely on the nonpayment of the rent as the only ground of forfeiture, for it alleges that “because three shillings of the rent were in arrear, the lord entered,” and the Court noticed this circumstance. The case, therefore, does not explicitly decide that where Two Several Matters are not only Pleaded, but relied upon, the Immateriality of one of them shall prevent Duplicity, but the manner in which the Judges express themselves seems to show that the doctrine goes to that extent; and there are other au­thorities who take the same view.70


DUPLICITY—MATTER ILL PLEADED
237. Material Matter, though Ill Pleaded, will occasion the Fault of Duplicity.

ALTHOUGH Immaterial Matter is to be disregarded, that which is Material to the cause of Action or Defense, though stated in an insufficient manner, will render the Plead­ing open to objection as Double, when Plead­ed in connection with other Issuable Facts. Such Matter cannot be treated as Surplusage, and, being Material, is therefore, Issuable though defectively alleged. It can neither be rejected as Superfluous, nor does it render the Plea void. It may, therefore, be stated that any Matter which, if Well Pleaded,


69. Executors of Grenelife, 1 Dyer 42a, 73 Eng.Rep.

01 (1538)~

‘70. Stephen, A Treatise on the Principles of Plead­ing in Civil Actions, c. 11, Of the Principal flules of Pleading, 260 (4th Am. cd. by Treubat, Philadelphia, 1841).

482


DEFENSIVE PLEADINGS

Ch. 22


would give rise to Duplicity, will have the same effect when Ill Pleaded, especially if, in spite of such faulty statement, it would be Aided by a Verdict.7
Thus, in an Action of Trespass for Assault and Battery where the defendant Pleaded that he committed the trespasses in the mod­erate correction of the plaintiff as his serv­ant, and further, Pleaded that since that time the plaintiff had Discharged and Released to him the said trespasses, without alleging, as he ought to have done, a Release under Seal, the Court held that the Plea was Double, the moderate correction and the Release being each a Matter of Defense; and although the Release was insufficiently Pleaded, it was, nevertheless, a Matter upon which a Material Issue might have been taken, and hence it was sufficient to make the Plea Double.’72

This doctrine, that a Plea may be rendered Double by Matter Ill Pleaded, but not by Immaterial Matter, quite accords with the object of the Rule against Duplicity, as pre­viously explainad. That object is the avoid­ance of Several Issues. So, whether a Mat­ter be Well or Ill Pleaded, yet if it be suffi­~ient in Substance, as to make it possible for the opposite party to take Issue upon it, if he chooses to Plead Over, without pressing the Formal Objection, such Matter tends to the Production of a Separate Issue, and is on that ground held to make the Pleading Double. On the other hand, if the matter be Imma­terial, no Issue can properly be taken upon

it. It does not, therefore, tend to a Separate Issue, nor, consequently, fall within the Rule against Duplicity.
DUPLICITY—MATTERS FORMING A CONNECTED PROPOSITION
238. No Number of Circumstances, however

multifarious, that together constitute but One


71. See Bleeke v. Grove, 1 Sid. 175, 82 Eng.Bep. 1040 (1663).
fl. 4 Bacon, Abridgment of the Law, ‘Pleas” K. 2 (Dublin, 1786); Bleekc v. Grove, 1 Bid. 175, 82 Eng.Rep. 1040 (1063).

Connected Proposition or Entire Point, will operate to make a Pleading Double.


THE Rule against Duplicity has been qualified, not only as to Pleadings in Confes­sion and Avoidance, but also as to Traverses; and a Party may therefore Deny, as well as Affirm, any Number of Circumstances that together Form but a Single Point or Propo­sition.73
Thus, to an Action of Trespass for Assault and Imprisonment, if the defendant Plead that he arrested the plaintiff on suspicion of felony, he may set forth any Number of Circumstances of suspicion, though each cir­cumstance, taken alone, may be sufficient to Justify the arrest; for, all of them, taken to­gether, amount to one connected cause of suspicion.14
And, in an Action of Trespass for breaking the plaintiff’s close and depasturing it with cattle, the defendant Pleaded a right of com­mon in the close for the said cattle, being his own commonable cattle, levant and couchant upon the premises. The plaintiff, in the Rep­lication, Traversed “that the cattle were the defendant’s own cattle, and that they were levant and couchant upon the premises, and commonable cattle.” On Demurrer to the Replication for Duplicity, it was objected that
73. English: Robinson v. Raley, 1 Burr. 316, 97 Ens.

ltep 330 (1757); Illinois: Holland v. Kiblje, 16 111.

133 (1854); Maine: Potter v. Titcomb, 10 Me. 53

(1883) New Jersey: Harker v. Brink, 24 N.J.L. 833

(1854) New YorI~: Tucker v. Ladd, 7 Cow. (N.Y.)

450 (1827); Vermont: Torrey v. Field, 10 Vt.



353 (1888).
74. See the following eases: English: Robinson V. Haley, 1 Burr. 316, 97 Eng.Ecp. 330 (1757); Palmer v. Gooden, 8 Iv!. & w. 890, 151 Eng.Bep. (1841) Con­necticut: Raymond y. Sturges, 28 0mm. 134 (1854); Illinois: calhoun v. Wright, 4 111. 74 (7841); iToh land v. Kibbe, 16 III. 133 (1554); Henry v. Held­mafer, 226 Ill. 152, 8 N.E. 705 (1907): MississiPpi Deut V. Coleman, 10 Smodes & M. (Miss.) 83 (1848); New York: Russell v. Rogers, 15 Wend. (N.Y.) 351 (1536) Gaft’ney V. Colvill, 0 Hill (N.Y.) 507 (1844) Tucker -v, Ladd, 7 Cow. (IcY.) 450 (1827); Federal:

Clearwater v. MeredIth, 1 Wall. 25, 17 LEd. 604



(1863).

Sec. 238


PLEAS—PEREMPTORY OR IN BAR

483


there were Three Distinct Facts put in Issue, any one of which would be sufficient by itself. But the Court held that the point of the De­fense was that the cattle in question were en­titled to common; that this point was Single, though it involved the Three Several Facts that the cattle were the defendant’s own, that they were levant and couehant, and that they were conimonable cattle; that the Rep­lication Traversing these Facts, in effect, therefore, only Traversed the Single Point whether the cattle were entitled to common, and was consequently not open to the Objec­tion of Duplicity.75
There is some difficulty in the application of this Rule in establishing a test between those cases in which Several Averments make up a Single Point, and may therefore be Al­leged or Traversed together, and those in which each constitutes a Separate Point, though insufficient in itself as a Defense with­out union with the others. The governing principle seems to be that while each Suc­cessive Denial or Allegation in Pleading must contain no Superfluous Matter, and must be limited to what is strictly necessary to con­stitute a Good Defense or Reply to the Plead­ing it seeks to answer, it may still go as far, and cover as much ground, as may be req­uisite to attain that object. Therefore Two Distinct Facts cannot ordinarily be Averred or Denied Together, if the Proof or Disproof of one would be sufficient to defeat or main­tain the action.76 A qualification becomes necessary, however, where a Number of Dif­ferent Facts or Averments relate to one thing, or together make up a Single Proposi­tion; and it seems that the Rule above stated will hold where the Averment of Several Con­nected Facts is necessary to make a Complete Defense, and that under it, where the Denial of any One of Such Facts would not be a Per­fect Answer, a Replication will not be Double
7~. Robinson V. Raley, 1 Burr. 316, 97 Eng.Rep. 330 (1757).

which meets the Averments by Separate De­nials of all, or by a Single General Denial. A Traverse thus made is called a “Cumulative Traverse.” The most frequent instance of its use occurs in the Replication Dc Injuria, which alleges that the defendant of his own wrong, and “without the cause alleged,” com­mitted the act. This “cause” may consist of Several Connected Circumstances, and the Denial in the Replication is taken as a Trav­erse of Each of the Facts stated by Denying the cause which they collectively tend to show.77 There is a restriction upon the use of this Form, however, where the Opposing Allegations include Matter of Title, Author­ity, etc., and in such case Matter of that Character must be Denied Separately; or, if the plaintiff wishes to disregard these and Deny Other Matters in the Plea, such other Matters must be Separately Traversed.78


General Issues as Double Pleas

IN some cases the General Issues appear to partake of the Nature of these Cumulative Traverses; for some of them are so framed as to convey a Denial, not of any Particular Fact, but Generally of the Whole Matter alleged, as Not Guilty in Trespass or Tres­pass on the Case, and Nil Debet in Debt. And in Assumpsit the defendant is permit­ted, under the General Issue, in that ac~ tion, to avail himself, with some few Excep­tions, of any Matter tending to disprove his liability. The consequence is, that under these General Issues the defendant has the advantage of disputing, and therefore of put­ting the plaintiff to the Proof of every Aver­ment in the Declaration. Thus, by Pleading Not Guilty, in Trespass quare clau.sum fregit, he is enabled to Deny, at the Trial, both that the land was the plaintiff’s and that he corn-

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