courts, mentioning the time and place of appearance, with the substance of the action; and if the faid party, pr parties, do not appear according to faid fommons, or warrant, upon affidavit firft made, that the warrant was read to the perfon or persons within his heating, or left at the place of his ufual abode, the court fhall order an attachment to be granted against the perfon, or perfons delinquent, to arreft or apprehend the faid perfon or perfons, for his or their willful contempt, and in cafe no fufficient bail, or security be tendered, to imprifon the faid party, or parties: returnable to the next court that is capable to take cognizance of the business in queftion, and upon return of the faid attachment, the faid court to do therein according to the laws and orders of the jurifdiction, and in that case alfe, the party delinquent, hall bear his own charges. In the revifion of the tatutes published in 1702, there is an additional provifion, that the defendant imprisoned as above mentioned, fhall be holden as well to anfwer the contempt, as the plaintiff's action, and that en conviction, the court may impofe a fine on the contemner, not exceeding twenty fhillings. At the fame time provifion was alfo made, that the plaintiff might firft proceed by attachment against the goods of the defendant, aud for want there. of, against his lands, or perfon, and that if the defendant did not live in the jurisdiction fo as that he might be reached by a compulfory process, the court after one continuance of the action in cafe he did not appear, were authorised to render judgment and grant execution. This idea of defaulting a perfon, and giving judgment against him if he did not belong in this ftate, and could not be compelled to appear, feems naturally to have led the way to the prac tice of rendering judgment on default of appearance in all cafes. Accordingly we find that a flatute was pafled in the year 1713, authorifing the courts to render judgment on default of appearing to anfwer to the action, in all cafes, which placed the law on the fame bafis on which it now ftands. PLEADINGS CHAPTER NINETEETH. OF PLEAS AND PLEADINGS. LEADINGS fignify the allegations, or mutual altercations between the parties. They were originally oral, but must now be reduced to writing, Their object is by a logical process, to bring the matter in dispute to a single point, which may fairlybe tried and determined. They close either in an issue at law, which is called a demurrer, or in an issue of fact. Tho the declaration iflues with the writ, yet in legal confideration it is deemed a part of the pleadings, and must be treated of as fuch in this place. I have already pretty fully difcuffed this subject under the head of actions, but fome things yet remain to be explained and illuftrated. The declaration, or count as it is frequently called, contains and fets forth at large the plaintiff's demand, and the foundation of the action. The gift and effence of the action on which the right of recovery is grounded, must be alledged with clearness and certainty. All the facts must be stated which are necessary to authorise the court to render judgment, and which will furnish a rule by which they can afcertain the damages that ought to be given. It must appear that the plaintiff has done every thing neceffary to give him a right of action, If the debt or duty is dependant on a particular demand, or upon giving notice, it must be averred in the declaration that demand has been made, and notice given. ¿ Where a note is payable in a collateral article, a special demand must be laid, and a general one will be infufficient. Where the intereft or estate commences on condition, whether the condition is to be performed, or the act to be done by the plaintiff, defendant, or any other perfen, and whether it be affirmaative or negative, the plaintiff ought to fhew it in his declaration, and aver a performance of it.-But if the intereft or estate vests inftantly and may be defeated by fonie fubfequent matter, this need not appear in the declaration, but must be pleaded by him who wishes to take advantage of it. 3 Black. Com. 293. 4 Bac. Abr. 1. 3 Black. Com. 293. Abr. 8. Dean vs. Woodbridge, Sup. C. 1-90. e 7 Co. 10. But 4 Lac. But where by the fame contract or deed, each party is to do fomething advantageous to the other, and on which there is not a mutual remedy, fo that the fulfilment of one contract is the confideration of the other, the plaintiff muft aver in his declaration that he has performed what was to be done by him, but where there are reciprocal contracts, and one is the unconditional confideration of the other, the declaration need not ftate a performance. The declaration must contain fuch direct and positive averments, and certain affirmation that it may be traverfed. If the facts are alledged in fuch a vague and uncertain manner, that they are not traverfable, the declaration will not be cured by verdict, because it is a defect in fubftance. In the description of the thing declared for, the law requires that there be fuch particularity and certainty, that it may be known and diftinguished: but does not require any greater certainty than the nature of the thing would admit of. All perfons who are the joint owners of any eftate, or who have a joint intereft, or right of recovery, may join, but if either will refuse to join in a fuit, his right may be fevered by fummons and feverance, but where two perfons are affaulted or flandered, they cannot join, for the affault and flander done to one is not done to the other, and therefore the right of action cannot be joint. The plaintiff may join in the declaration all perfons who are jointly concerned in the commiffion of a tort, or who have jointly, or jointly and severally entered into a contract, or he may bring his action against them feverally, unless it be upon a joint contract, where all must be joined. But two defendants cannot be joined in a declaration for flander, for the flander of one is not the flander of the other. f Neither can feveral plaintiffs join in an action againft one for a vexatious fuit, for the vexation done to one, does not affect the other. 8 It has not been the ufual practice here to make several counts in the fame declaration-but it is in England, and is warranted by the common law. The plaintiff may lay feveral counts for the fame thing, and alfo diftinct counts for diftinct things. Thus in an action of affumpfit for goods fold and delivered, the plaintiff may count с a Sand. 319. 5 Co. TO. Co. Lit. 303. Stile, 156, 235. ← Cro. Jac· 647. ƒ Kirb. Rep. 145.3 Black. Com. 295. upon a price fettled and agreed on with the defendant, and leaft he fhould fail of proof, he may count upon a promife to pay as much as they were worth and fo in feveral different shapes, and then conclude by averring that the defendant has not fulfilled any of his engagements, and if he can prove the cafe laid in any one of the counts, tho he fails in the reft he fhall recover proportionable damages. This practice is calculated to give the plaintiff a fair opportunity to recover his demand, and does not fubject him to the expence of feveral fuits, where he is uncertain how his proof will apply: but by laying feveral counts, he may form one which will comport with his proof, and frequently fave the expence of a fecond fuit. a Several counts for diftinct things, but of the fame nature, may be joined in the fame declaration. Such as actions founded on contracts, as debt, and covenant: actions founded on torts, as trefpafs with force and arms and actions on a fraud, as trefpass on the cafe. The actions must not only be for things of the fame nature, but they must be fuch that they may have the fame mode of trial, and be terminated at the fame court. Actions therefore, where one is appealable and the other is not, cannot be joined: but two notes of hand, whether both are, or are not appealable, may be joined in one fuit. So, two judgments rendered on fuits of like kind, and dependent between the fame parties, and on fimilar principles, may be joined in the fame writ of error. This joinder of actions might fome times fave expence, and tho rarely prac ticed, is clearly maintainable by our law. When the plaintiff has stated his cafe in the declaration, it is incumbent on the defendant to make his defence and to put in a plea, or the plaintiff will recover judgment by default or nihil dicit. The feveral courts in this state, have adopted certain rules refpecting the time, within which pleas are to be given, which are nerely local, and therefore cannot with propriety be enumerated in an elementary treatife. It is fufficient to obferve, that they have power to make fuch regulations, and orders refpecting pleadings as tend to expedite and facilitate business, and promote justice The defendant when he comes to make his defence, may put in pleas of two kinds: dilatory pleas, and pleas to the action Dilatory 4 4 Bac. Abr. II. Kirb. Rep. 16c t Dilatory pleas, are fuch as tend to delay or put off the fuit, and are alfo called: pleas in abatement : pleas to the action are fuch as dispute the very cause of the fuit. I fhall confider each kind, 1. Of dilatory Pleas, or Pleas in Abatement. According to our practice, the firft plea to be exhibited, where the parties ap pear for trial, is a plea in abatement, which will include any exception to the jurifdiction. The plea in abatement therefore, must comprehend every matter that the defendant has to offer under this plea, whether it goes to the point of jurifdiction, or any er point, and he may plead feveral diftinct matters at the fanie time by way of abatement. The feveral matters which are usually plea ded in abatement, I fhall briefly remark upon... 1. Of Pleas in Abatement to the Jurifdiction. I have already ftated the jurifdiction of courts, and whenever an action is brought before them which is not within their jurifdiction, it must abate,, The defendant may take advantage of it by pleading, but if he waves a plea to the jurifdiction, the court in any stage of the cafe on difcovering that it is not cognizable by them, are bound to difmifs it. For the principle of the English law, that he who does not in the first instance plead to the jurifdiction, admits it, has not been adopted here. Thus where an, action of trover was brought before a juftice of the peace, for bark taken on certain land. defcribed in the declaration, the defendant pleaded title to the land, and the action was removed to the county court, and came. by an appeal to the fuperior court, who when the action was on trial on the general iffue, difmiffed it, because title of land could not be fet up and pleaded in action of trover. 2. Of abatement by reason of the difability of the person of the plaintiff. Alien enemy cannot maintain any action either real or përfonal. An alien friend may maintain perfonal actions, for the benefit of trade and merchandize, but not real actions, as they are by ftatute excluded from holding lands, with an exception however in favour of the fubjects of Great Britain holding lands here previously to the American revolution, or where they have defcend a Co. Lit. 128. b Idem, 129. Bac. Abr. 4. ed |