with regard to other points of pleading), are, ift. That it be fingle, and containing only one matter; for duplicity begets confufion. But by Stat. 4 and 5 Ann. c. 16. a man with leave of the court, may plead two or more distinct matters or fingle pleas; as in affault, not guilty, and fon affault demefne. 2. That it be direct, and not by way of argument or rehearsal. 3. That it have convenient certainty of time, place, and perfons. 4. That it answer the plaintiff's allegations in every material point. 5. That it be fo pleaded as to be capable of trial; for without trial, the cause can receive no end. Co. Lit. 303. b. The plea ought to be according to the demand, and, as the plaintiff's action muft have all effentials neceffary to maintain it, fo the defendant's bar muft be fubftantially good; that is, the essence or gift of the plea must be fuch, as if found for the defendant, the court, according to the rules of law, muft difmifs or give judgment for him; but if the gift of the bar be nought, it cannot be cured even after verdict found for him; if it be bad only in form, a verdict will cure it; and if the gift be traversed, all collateral circumstances will be intended after verdict. 4 Bac. Ab. 86. and in general pleading, prolixity is to be avoided. Special pleas are ufually in the affirmative, fometimes in the negative; but they always advance fome new fact not mentioned in the declaration; and then they must be averred to be true in the common form; and this he is ready to verify.” It is a rule in general pleading, that no man be allowed to plead fpecially fuch a plea as amounts to the general iffue; for pleas which amount to the general iffue are only facts on which the issue may be turned in evidence, and therefore are not iffues of fact to be referred to the court, but matters of evidence to be determined by a jury, and confequent ly not good pleas: because they draw to the examination of the court what is proper to be determined by a jury and fuch pleas are good caufes of fpecial demurrer, fince 27 Eliz. c. 5. and before it, of a general one. 10 Co. 95. a. Gro. Car. 157. If the defence confift in matter of law, the de- When to plead fendant muft plead fpecially; for the matter of fpecially. law must be fhewn to the court, fo as the judges may determine, whether the discharge will bar the plaintiff's action or not; and therefore, on not guilty in trefpass, the defendant cannot fhew a licence to prove there was no trefpafs; because, though the licence makes it no trefpafs, yet he fhews that licence to an improper jurisdiction, viz. to the jury, who are not proper judges of the law. 3 Mod. 166. 5 Mod. 252. 2 Salk, 580. pl. 1. Hob. 174. So if a defendant fhews a release of a debt to a jury, it is no evidence, because, though the release makes it to be no debt, he fhews it to an improper jurifdiction. When the plea of the defendant is filed, if it does What to reply. not amount to an iffue, or total contradiction of the declaration, but only evades it, the plaintiff may reply to it: either traversing it; that is, totally denying it; or he may alledge new matter in contra. diction to the plea. Replication (replicatio), is an exception or answer Replication. made by the plaintiff to the defendant's plea, and it is to contain certainty, not varying from the declaration, but must purfue and maintain the cause of the plaintiff's action, otherwise it will be a departure in pleading, and go to another matter. Co. Litt. 304. Therefore if the plaintiff in his declaration fets forth Departure, what. one thing, and after the defendant hath pleaded, the plaintiff in his replication fhews new matter different from his declaration, this is a departure. Plow. 78. 2 Inft. 147. But if the defendant takes iffue upon it, he lofes the advantage, if it's found for the plaintiff he must demur to it. Ray 86. 1 Lill. Abr. 144. If the defendant plead one thing in bar, and the plaintiff replies to it, the defendant in his rejoinder quits that, and fhews another matter contrary to, or not pursuing his firft plea; this is a departure and good cause of demurrer. I Salk. 121. Traverse comes from the French traverfer, and Traverse, is used in the law for the denying of some matter of E 2 fact, Rules relating to traverses. When traverse is neceflary. There cannot be a traverse. fact, alledged to be done in the declaration; upon which the other fide comes and affirms that it was done; and this makes a fingle and good iffue for the caufe to proceed to trial: and the formal words are, in our French, fans ceo, in Latin, abfque hoc, and in English, without that, that fuch a thing was done or not. Kitch 217. Weft. Symb. par. 2. Every matter of fact alledged by the plaintiff, may be traverfed by the defendant, but not matter of law, or where it is part matter of law, and part matter of fact; nor may a record be traversed which is not to be tried by a jury. Thefe rules are to be obferved in traverses: 1. The traverse of a thing not immediately alledged, vitiates a good bar. 2. Nothing must be traversed, but what is exprefly alledged. 3. Surplufage in a plea doth not inforce a traverse. 4. It must always be made to the fubftantial part of the title. 5. Where an act may indifferently be intended at one day or another, there the day is not traverfable. 6. In actions of trefpals, generally the day is not material; though if a matter be to be done upon a particular day, there it is material and traverfable. 2 Roll. Rep. 37. Roll. Rep. 235. Yelv. 122. 2 Lill. Ab. 313. If the parties have agreed on the day for a thing to be done, the traverse of the day is material; but where they are not agreed on the day, it is otherwife; and though it is proved to be done on another day, it is fufficient. Palm. 280. Where the matter alledged by the defendant in his plea, is contrary to the matter fet forth in his declaration, there must be a traverse or denial of such matter fet forth in the declaration; fo if the replication contradicts the matter alledged in the plea. Lutw. 381. Cro. Eliz 30. There cannot be a traverse upon a traverse, bea traverse upon cause that in all pleadings, whereupon a traverse is properly taken, the iffue is clofed; and therefore a traverfe cannot be taken on a traverse, for a traverfe must be of a material point; if to the declaration, it destroys the plaintiff's action; if to the bar, it deftroys what is faid in avoidance of the action; and and if to the replication, what was faid in avoidance to the bar, et fic de cæteris, and confequently a fubfequent traverfe will be infignificant; because when a material traverse is taken, the reft ftands confeffed. Co. Litt. 282. Hab. 104. Sand. 20. 22. Vaugh. 62. Cre. Car. 105. Salk. 91. That the traverse must be taken to fome material It must be taken point alledged by the adverfe party, which if found to fome material for him who takes it, abfolutely deftroys the adverfe point alledged. party's right, by fhewing, that he hath none, in manner and form as he hath alledged; and being to the principal point alledged, puts an end to the matter. 2 Saund. 5. 28. 6 Co. 24. a. Carter 217. Lane 18. the plea, and tra The replication may confefs and avoid the plea Replication may by fome new matter of diftinction, confiftent with confels and avoid the plaintiff's former declaration, as in an action for verfe or deny the trefpaffing on land, whereof the plaintiff is feized; fact. if the defendant fhews a title to the land by defcent, and that therefore he had a right to enter and give colour to the plaintiff, the plaintiff may either traverfe or totally deny the fact of the defcent; or he may confefs or avoid it, by replying, "That true it "is that fuch defcent happened, but that fince the "defcent the defcendant himself demifed the lands to "the plaintiff for term of life." Colour (color), fignifies a probable plea, but what Colour in pleadis in fact falfe; and hath this end, to draw the trial ing. of the cause from the jury to the judges: and therefore color ought to be matter in law, or doubtful to the jury. concludes when The replication, where new matter is offered, How replication concludes with boc paratus eft verificare, so as to give defendant rethe defendant an opportunity to rejoin; but if the joins on new plaintiff takes iffue on the defendant's plea, and it matter. be a matter to be tried by a jury, then it concludes to the country. But if there is new matter in the replication, the Rejoinder. defendant may rejoin, or put in his anfwer, called a rejoinder (rejunétio), which is to be a fufficient anfwer to the replication, and follow and enforce the E 3 matter Departure in pleading. matter of the bar pleaded: and if the defendant depart therefrom, the rejoinder is not good. 2 Lill. Abr. 433. Departure in pleading is when the second plea contains matter not pursuant to the former, and which does not fortify the fame; and when the rejoinder contains new matter fubfequent to the matter, or not fortifying the fame, this is regularly a departure. Co. Litt. 304. But where a man pleads any thing which he could not have fhewed at firft, it fhall never be reckoned a departure; fo.where he fortifies it in the fame manner that he pleaded it; but if he fortifies in another manner, as by fpecial custom, it will be a departue. Yelv. 14. Dyer 253. Stile 260. Fon. 262. Leon. 156. Cro. Car. 257. Surrejoinder,&c. The plaintiff may answer this by way of furrejoinder (quadruplicatio), upon which the defendant may rebutt; and the plaintiff may anfwer him by a furrebutter. Pleadingsfeldom fun to fuch &c. It is very feldom the pleadings run to fuch a length, uniefs, length, unless in actions of trefpafs; there the plaintiff, after he has alledged in the declaration a general wrong, may, in his replication, after an evafive plea by the defendant, reduce that general wrong to a more particular certainty, by affigning the injury afresh, with all its specific circumstances, in fuch manner as clearly to ascertain and identify it, confiftently with his general complaint; which is Wovel affign called a new or novel offignment. As if the plaintiff ment. in trefpafs declares on a breach of his close in D; |