Сн. 178. Raym. 57, action. These are allowed because they wholly extinguisli the right of action, being matters for the court to judge of, they must be specially pleaded. 3. If the plt. charge the deft. as receiver for a particular time, he must answer precisely to that time. The act of limitations is pleadable in this action, except in accounts between merchants: the auditor's account must include all articles to the time they end their accounts; per Lord Mansfield. ART. 9. Audita querela, pleas proper in. See this subject considered, Ch. 186, art. 1, at large, in connexion with certain writs applicable to particular cases: there the various matters relating to audita querela, including pleadings therein intermixed, are sufficiently examined. ART. 10. Case in tort, proper pleas in. 1. In case for nonfeasance, negligence, misfeasance, malfeasance, defamation and libels, malicious prosecution, for deceit, for disturbance, escape, false return; in nusance, trover, and waste, trespass on the case generally &c., the general issue is, not guilty; for an obvious reason, the plt in all these and other cases of actions on the case grounded on torts, or tortious, deceitful, or even negligent acts or conduct, charges the deft. with acting negligently, deceitfully, fraudulently, or wrongfully, but not with force and arms; to all which charges the deft's proper general answer, plea, or denial, is not guilty of the charge made against him in the plt's. declaration or complaint; see several heads and index. 2. The deft's. special pleas in case on torts, are numerous, and will generally be found under each head to which applicable; as Ch. 58, General Principles, as to Case or Trespass; Ch. 59, Case on Torts, against one for the acts of his agents, apprentices, servants, &c.; Ch. 60, as to Bastard Children; Ch. 61, Copy Rights; Ch. 62, Deceits; Ch. 63, Defamation and Libels; Ch. 64, Disturbance; Ch. 65, Escapes, False Returns and Rescue; Ch. 66, Fences; Ch. 67, Ferries; Ch. 68, Fisheries, Flats, and Rivers; Ch. 69, as to Lands, Ancient Lights, &c. ; Ch. 70, Malicious Prosecutions; Ch. 71, as to Lands Flowed, Mills, Mill Streams, Water Courses, and Watering Places; Ch. 72, Misfeasance, and Malfeasance; Ch. 73, for Negligence; Ch. 74, Nusances; Ch. 75, Officers and Offices; Ch. 76, Property Special, as by Accession, in Banks, Bridges, Canals and Roads, in Bottomry, &c., Confusion of Goods, in Emblements, found as derelict, Estrays, Wrecks, Treasure Trove, &c., incident, as Fixtures, &c., Feræ Naturæ, in Succession, in Tolls; Ch. 77, Trover; Ch. 78, Waste; and Ch. 79, Ways. In each of these branches of case on torts, a sufficient number of pleas Art. 11. will be found in their proper places, it having been a rule in CH. 178. considering the cases, to notice the pleadings in them whenever deserving of attention. 10 Johns. R. 104. 105, cution is 3. Proper manner of pleading in a justice court &c. Technical nicety or form is not required in his court in New Pintard v. York. It is sufficient if the plt. state his case, so, that conTackington. nected with the proofs, it appears he is entitled to recover: How alteras where a plt. declared on a lost note, promissory note, pay- ing his exeable on demand, and alleged it has been lost or destroyed; void or not. and proves the existence and contents of it; and it not ap- 10 Johns. R. pearing it was negotiable, or if so, that it had been negotiated 405.-15 in fact. Judgment for the plt. for $50, the extent of the justice's jurisdiction; the reasons, the pleadings are usually by. Green. parol and by the parties themselves. 247, Burdick Johns. R. 10 Johns. R. 246.-9 Sundry cases of pleadings before a justice in New York; 10 Johns. R. 106, in error on certiorari; 110, a set-off; 111, Johns. R. 75. held, the deft. cannot shew in evidence a former trial and judgment between the same parties, unless he has pleaded it, or given notice of the matter on joining issue; by this case he may give it in evidence on such notice. A justice can no more try title to lands, in New York, than one can in Massachusetts, and is by a plea of title prevented proceeding. It seems all other special matter are evidence on the general issue, if notice of them be given by the deft. on pleading it. It is a good rule thus to require notice. §4. In error on certiorari from a justice's court: B. sued W. before a justice, by a warrant taken out on his own oath, declared for work and labour &c. Held, a prior suit by the deft. against the plt. before a justice, being a good plea in bar under the statute, it makes no difference whether such suit was commenced by a summons or warrant, for the plt. should have set-off his demand in the action brought against him; other cases 10 Johns. R. 239, 240. 10 Johns. R. 238, Went worth v. Burnum-1 Johns. R. 283, Douglass v. Hoag Strictly not a general issue. ART. 11. In covenant, pleas proper in. 1. Pleas applicable to this action are numerous; some peculiar to it and some not. The general issue in covenant depends somewhat on the declaration. If the plt. charge the deft. in it with breaking his covenant, he pleads the general issue by saying, he has not broken his covenant aforesaid, in manner and form as plt. complains, de hoc ponit; but if the plt. alleges in his declaration that the deft. has not kept his covenant, general issue is, that he has kept his said covenant &c., or sometimes more particularly; thus actio non, because, the deft. says, that he, after the signing and making the indenture aforesaid, to the day of suing out his writ, fulfilled, performed, and kept all and singular the covenants, grants, pay 3 Ins. C ments, articles and agreements on his part to be performed, 461. CH. 178. 3 Ins. Cl. 462. Ch. 121, a. 2, s. 16. 3 Inst. Cl. 464. 3 Inst. Cl. 464. 3 Inst. Cl. 464.-Bro. Red. 149. Rast. Ent. fulfilled, and kept, according to the form and effect of the indenture aforesaid, hoc paratus &c. 2. There are many pleas in covenant more special, which state and aver special performance in the words or substance of the deed or covenant sued; as that the deft. for ten weeks provided for said six horses, good and sufficient hay, and also good and sufficient oats, with sufficient straw, according to the form and effect of the indenture aforesaid; to wit, at, and of this puts himself &c. Quære, if this de hoc ponit be right. 3. So, he pleads a release, and says the plt. after making the indenture sued upon; to wit, at on by his certain writing of release, (produced in court,) dated released to the deft. all actions, the tenor of which writing of release follows in these words, "know" &c., and this he is ready &c. 4. So, an apprentice, deft. pleads he offered to serve, and that his master refused: long plea; hoc paratus. 5. So, the deft. pleads he demised a house to the plt. in satisfaction of damages &c., hoc paratus. Replication, did not demise &c., and offers issue. 6. So, the deft. pleads he offered to deliver fruit &c., 134.-3 Inst. according to the tenor and effect of the said indenture &c., hoc paratus, (long plea) and replication and issue. Cl. 472. 3 Inst. Cl. 477. 3 Inst. Cl. 481. 3 Inst. Cl. 482. 3 Inst. CI. 157. 3 Inst. Cl. 7. So, the deft. pleads and answers to each particular, and issue on each, offered on his part, in his plea, as to waste in buildings, 8. So the deft. protesting the plt. had no title, for plea, says, he did not eject, expel or remove the plt. from the possession and occupation of the tenements aforesaid, as the plt. above complains, hoc paratus. Replication, did eject &c., and offers issue. 9. So, the deft. pleads he performed his covenant to such a time, and afterwards the plt. ejected him &c. &c., hoc paratus. So, the deft. confessed a part of the rent was due, and as to the rest assigned over, hoc paratus. 10. So, the deft. pleads he spent the monies in repairs 492.-1 Saun. of the leased premises, hoc paratus. Demurrer and plea ill, for not shewing what those necessary charges were. 45, 49. 3 Inst. Cl. 507.-Bro. 127. 3 Inst. Cl. 508. 3 Inst. Cl. 508. 11. So the deft. protested the ship was not sound; for plea, said, the Spaniards did not attack her &c. and offered Issue. 12. So, plea, the ship did not depart with the first fair wind, as she might have done, hoc paratus. 13. So, plea, the deft. was ready to account after the return of the ship &c., hoc paratus. § 14. So, the deft. pleaded that the plt. had nothing in the CH. 178. tenements &c., demised, as supposed, hoc paratus &c. 4 Ins. Art. 11. Cl. 95. § 15. So, plea by deft. that he did not grant the annuity 4 Ins. Cl.97. demanded, and offered issue. § 16. So, the deft. pleaded as to part of the rent not in 4 Ins. Cl. 98. arrear, and as to part levied by distress. Issue offered as to arrears, hoc paratus, as to the distress, replication, denying the distress, and offering issue. § 17. So, the deft. pleaded that the plt. expelled him from 4 Inst. Cl. the leased premises, hoc paratus. Replication, saying the 100. plt. did not enter and expel the deft., and issue offered. § 18. So, the deft. pleaded nothing passed of the tenements 4 Ins. Cl.107. into the possession of the deft. by the said writing; and hoc paratus; and replication, the tenements did pass into the deft's. possession by said writing, and issue offered. § 19. These are some of the pleas most common in covenant; also many pleas in covenant will be found in the preceding chapters, treating of the action of covenant, from Ch. 101 to 124; as Ch. 101, General Principles, Covenant lies or not, Covenant in Law, Rules of Construction; Ch. 102, Indentures of Apprenticeship; Ch. 103, Charter-Parties; Ch. 106, Covenants binding on Heirs, Executors, Administrators, Wives, Assignees, &c.; Ch. 107, Covenants joint and several &c.; Ch. 111, Principles, Conditions, and Defeasances; Ch. 112, Mortgages; Ch. 115, Covenant of Seizin, of Right, of Warranty, and as to Incumbrances; Ch. 116, Quiet Injoyment, and Save Harmless; Ch. 117, Covenants to Repair and Pay Rent, Mutual and Independent, &c.; Ch. 119, Covenant lying in; Ch. 120, What is a Breach of Covenant &c. how assigned, &c.; Ch. 121, Pleadings in Covenants by Defts.; Ch. 123, Pleas in Covenants on Several Heads; Ch. 124, Voucher, Voucher and Rebutter; as to Estates, Ch. 125 to 136, especially in dower, held by aliens, forfeiture, &c. § 20. In debt on bonds conditioned for performance of covenants; several forms of pleas thereto. 2 Ch. on Pl. 481 to 487. Where all the covenants, &c. in the bond, are affirmative and not negative, nor disjunctive, or alternative, deft. may plead performance. 206, 221, § 21. This was an action of covenant on a policy under seal, 6 Cranch, made in Alexandria under Virginia law; and held, 1. All spe- Marine Ins. cial matter of defence must be pleaded: 2. Under the plea of Co. & al. v. covenants performed, the deft. cannot give evidence which Hodgson. goes to vacate the policy. The evidence offered was such as went to prove the policy was obtained by the assured by fraud and misrepresentation, as to the built, age, and value of the 1. CH. 178. vessel insured. After the first writ of error and the cause Art. 12. remanded, this matter was pleaded in a ninth plea; but being too late, the plea was rejected by the court below. The court above on the second writ of error, considered the rejection altogether a matter in the discretion of the lower court: 3. To prove a vessel condemned the libel and sentence are sufficient: 4. The depositions stated in the case abroad, are not evidence in an action on the policy: 5. Nor in it can the insurer prove by parol, other value than that in the valued policy. See Ch. 42. -Forms 2, Ch. on Fl. 459, 498. 4 Ins. Cl. 364. 4 Ins. Cl. 368. 4 Ins. Cl.373. ART. 12. In debt, pleas proper in. § 1. The general issue is nil debet, or does not owe. Very numerous are the pleas in the books, applicable to the action of debt, and many of them peculiar to it; among which are the following, nil debet, qui tam. 2 Ch. on Pl. 459. § 2. The deft's. plea of payment at the day and place according to the condition, hoc paratus; and replication, did not pay. § 3. So, plea, payment of all sums mentioned in the condition of the bond; hoc paratus. Replication, protesting no payment, did not pay £1; and rejoinder, payment, &c. § 4. So, pleá of payment by a surety of two bonds on -Rol. Ent. oyer. Plea to each; and each, hoc paratus. Replication, and issue to each. 221. 4 Ins. Cl. 879, 391. 3 Lev. R. 55. 391. § 5. So, deft's. plea, that the day of payment is not come &c.; hoc paratus. As to part payment; replication, no payment &c., and issue offered. Thomp. 434; 1 Lutw. 465, 466. § 6. Plea, after the day the plt. accepted another bond in 4 Ins. Cl. discharge &c. Held, not a good plea: so, plea, the obligee had accepted the executor's bond in lieu of the testator's. Held, no discharge of his bond. 1 Bac. Abr. 23. Nor one by a stranger with sureties, unless to pay at an earlier day. 4 Inst. Cl. 412. 4 Ins. Cl. §7 So, plea of payment &c., and proof of payment to the 409.-5 D. & obligee's attorney, or agent, holding the bond, even after judgment, is a good plea. Where nil debet is a good plea. 2 Ch. on Pl. 460. E. 513. 4 Ins. Cl. 383. 4 Ins. Cl. 392. § 8. So, the deft. pleaded he delivered wheat, and paid 20s., according to his deed at -; hoc paratus. Replication, protesting he did not pay the plt. the 20s. at, as alleged by the deft.; for plea, the deft. did not deliver the said quarters of wheat to the plt. &c., and offered issue. § 9. So, the deft. pleaded, wheat was paid and accepted in satisfaction, and paid also £4. Was debt on a bond of £20, conditioned to pay £10; hoc paratus. Replication, did not pay said £4, on or deliver said wheat by protest |