expressly negated by the other party, a traverse is unneceffary, becaufe a fufficient iffue is joined: but this must be understood not where there is a mere contradiction ;-there must be an apt iffue upon the affirmative and negative: for where the death of a man s alledged by one, and his life by the other party, tho there be an express contradiction, yet no ifiue is formed, and therefore there must be a traverse. In all cafes wherever there is a matter alledged by the defendant, which is directly contrary to the matter fet forth in the declaration, there must be a traverse of the matter set forth in the declaration. : The fame rule applies to replications and rejoinders; tho it ig faid, that the other party may wave the advantage, or demur. If the defendant pleads a tendry, the plainti Finay reply fome repugnant fact, and traverfe the tendry. Indeed the only real ufe and neceffity there is for a traverse, is to deny the facts stated in pleas and replications for if the defendant means to deny any part of the declaration, he may plead the general iffùe--if he means to avoid it by some special matter, then that must be pleaded. If the plaintiff contests the truth of the matter pleaded in avoidance, he has no way to do it, but by a traverse in his replication. verse must be taken to fome material point alledged by the adverse party, and if found for him that takes it, abfolutely destroys the adverse party's right; by fhewing that he hath none in manner and form, as has been alledged. : A tra It is laid down as a general rule, that there cannot be a traverse upon a traverse because in all the pleadings when a traverse is taken to a material point, the iffue is clofed, and therefore there can. not be a traverse upon a traverse. If the traverse be to the declaration, it destroys the right of action; if to the bar, what was said in avoidance, and so on; and confequently a subsequent traverse would be infignificant: because when a material traverse is taken, the reft ftands confefled: for it is a rule that whatever is traverfable, and not traversed, is admitted. It is a rule that regularly, whenever a traverfe is taken apt and material to the plaintiff's title, the plaintiff is bound to it, and cannot force the defendant to accept another traverse tendered by 1 'id. 301 b6 C. Reb. 24.a * Co. Lit. 282 Itim d Hod. 104. him. The parties cannot confefs and avoid, and then traverse the fame fact; for it is inconfiftent to admit a confeffion and denial of the fame fact in the fame plea. Therefore when the defendant pleads a release from a bond, he cannot be admitted to deny the execution of it. a The traverse is regularly to be taken to the most material point alledged by the other party, and not to be multifarious, but to a fingle point: but tho the iffue must be taken on a fingle point, it is not neceffary that this fingle point confift of a fingle fact. When either party takes a traverfe, he clofes with a verification, this he is ready to verify, and prays judgment: and the other party must affirm over the facts traversed, and tender an iffue, and thereof puts himself on the country. 4. Of the Replication, Rejoinder, and Surrejoinder. The replication is an answer made by the plaintiff to the plea of the defendant. If he denies the facts, he will traverse them. If the defendant has traverfed any material point in the declaration, he will affirm it over in the replication. If the facts fet up in the plea are fuch that the plaintiff can avoid them, he may reply any special matter by way of avoidance. If the defendant pleads a tendry, the plaintiff may confefs and reply in avoidance, a fpecial demand, fubfequent to the tendry. The rejoinder is the anfwer of the defendant to the replication of the plaintiff. If the replication contains a traverse, the rejoinder affirms the facts-If it contain fome fpecial matter by way of avoidance, the defendant may in his rejoinder traverse it, or he may alledge any special matter by way of avoidance, that is not inconfiftent with his plea. As where there is a plea of tendry, a replication of a fubfequent demand and refufal-the rejoinder may avoid fuch demand by alledging an offer to pay the money demanded. The furrejoinder is an aufwer by the plaintiff to the rejoinder of the defendant, and may contain a traverse or affirmance as the cafe may require. There is alfo a rebutter, and a furrebutter, to which however the pleadings are rarely extended. 2 Saund. 5, 28. In any ftage of the pleadings, where either of the parties advance a new matter, he avers it to be true," and this he is ready to verify;" which is the ufual way of clofing an inducement to a traverfe, where either party traverses, he clofes by praying judgment, and the party affuming the facts traverfed, tenders the iffue; but by the Englith practice, the party traverfing offers the iffe, and this is the preferable method: for where any point that has been alledged is traverfed, there need be no affirmance, for there is an exprefs affirmation and denial, which completely forms the ifle. . But if either fide plead a fpecial negative plea, not traverfing any thing be fore alledged, but difclofing fome new negative matter, as where the fuit is upon a bond conditioned to perform an award, and the defendant pleads that no award was made, he tenders no fue upon the plea, because it does not appear whether the fact will be difputed, the plaintiff not having yet pleaded an award. If the plaintif replies a fpecific award, then the defendant may traverse it, the plaintiff aflirm it, and an ifle will be clofed. 5. Of immaterial and informal Iffùes. An immaterial iffue is where, what is materially alledged in the pleadings is not traverfed, but an iflue is taken on fuch point as is not material, and will not determine the merits of the caufe. In debt on a bond, conditioned for the payment of fixty pounds on the 25th day of June, the defendant pleads payment on the 20th day of June, according to the condition, on which iffue is joined, and a verdict that the defenda ant did not pay on the 20th day of June, but the plaintiff shall not have judgment, for the iflue was different from the condition of the bond, and the defendant might have paid on the 25th day, it was therefore immaterial whether he paid it on the 20th, and of courfe the if he was immaterial. A verdict cannot help an immaterial iffie, because what is alledg ed in the pleadings, is not put in iie, or if it be it is not decifive between the parties, and therefore, there can be no foundation for a judgment. d Where the parties put an immaterial infue to the court, let the proof be as it may, they will decide the inde to be immaterial, and instead of ordering a repleader, they will render judgment upon the fafts which fand confeiled in the plad ings, by the parties having taken an immaterial ifiue. Ан 23 Black 313, 6 Carth. 371. • Cro. Jc 435. Barber, vs. Garden, Sup. C. 1794. An informal fue is where the traverfe is not taken in the right manner but this fhall be aided by verdict, because the material facts are found, and the court can render judgment. In an action of covenant, the plaintiff affigns a breach that the defendant was not feized in fee, and fo had broken his covenant. The defendant pleaded that he had not broken his covenant: on which, iffe. was joined, and verdit for the plaintiff. This is an informal iffue, but the breaking of the covenant is found, and therefore judgment fhall be rendered for the plaintiff. 6. Of Departure in Fleading. A departure in pleading is, when the fecond plea contains matter not pursuant to the former, and which does not fortify the fame; as where the rejoinder contains matter repugnant to the bar, and does not fortify the fame, it is a departure. The replication fhould fupport the declaration, and the rejoinder fupport the plea, without departing from the facts ftated in them. As in the cafe of pleading, no award in action of debt, upon an abitration bond, to which the plaintif replies, fetting forth an award, the defendant cannot rejoin, that he has performed the award; for this would be an entire departure from the original plea, which alledged that no fuch award was made; he must therefore traverse the award, or demur to it for infufficiency. But where a man fhews any thing which he could not have fhewn at first, it shall never be reckoned a departure. So where he fortifies his plea in the fame manner that he pleaded it; but if he fortifies in a different manner it will be a departure. As if one pleads a ftatute, the other fays it is repealed, he may reply that it is revived by anoth er, for this fortifies the firft matter. d But if a man pleads performance of covenants, the plaintiff teplies that he did not do fuch an act according to the covenant: the defendant fays he offered to do it, and the plaintif refafed: this is a departure; for it is one thing to do an act, and another that he offered to do it and the other party refufed. In many actions, the plaintiff who has ftated in the declaration an injury in general terms, may in his replication, if the defendant puts in an evalive plea, reduce the general wrong to greater par ticularity, and certainty. He may make what is called a new af fignment; which is affigning the injury anew, and in a manner conflent a Co Lic. 304. Lit. 304 Yelv. 14. Cro. Car. 257. 3 Black. 31X. e Lev. 81. & Co. confiftent with his declaration, by which he specificates the circumftances of it, fo as to identify and ascertain it. As if the plaintiff in trespass declares upon the breach of his close in dale, and the defendant in his plea alledges that the place where the injury is faid to have happened, is a certain clofe or pafture, which defcended to him from his father, and fo is his own freehold; the plaintiff may reply and affign another close in dale, as the place of the injury, and fpecify the abuttals and boundaries. a 7. Of Duplicity in pleading. Duplicity in pleading is when a plea contains two or more distinct matters to one and the fame thing, and to which diftinct answers are required. This the law will not allow-but the rule extends only to pleas to the action, and not to dilatory pleas; for the defendant may plead feveral diftinct matters in abatement. In an action of debt, the defendant cannot plead tendry at the day and a release; beause there are diftinct matters requiring different anfwers, and either are fufficient to avoid the action. For the reafons why duplicity in pleading is a fault, are, because the party is as effectually barred by a single point as by a number; it is therefore unneceffary to put him upon litigating a number. The party is fuppofed to know his own ftrength, and the material point in the cafe. He ought therefore to chufe his strongest point of defence, and adhere to it. For every plea ought to be fimple, entire, connected, and confined to a fingle point it must never be entangled with a variety of distinct and independent answers to the fame matter, which muft require as many different replies, and introduce a multitude of iflues upon one and the fame difpute: which would often embarrass the court and jury and greatly enhance the expense of the parties. Where a man confeffes and avoids, and likewife traverses the fame point, this is in the nature of a double plea, and ill. If a man pleads two things, when he is compellable to fhew both, this does not make his plea double. In all cafes of duplicity in pleading, the party muft demur fpecially on account of fuch duplicity, if he means to take advantage of it, and point out in particular wherein the duplicity confifts; and if he does not he is confidered as waving any advantage. When the parties plead regularly without any informal, or immaterial iffues, and are not guilty of a departure Plow. 194. a Co. Lit. 304. b 4 Bac. Abr. 119. 2 Vent. ZII. |