1834. PLEADING. Effect of non assumpsit. Warranty. Policy. Carriers and bailees. Agents. Goods sold. PLEADINGS IN PARTICULAR ACTIONS. I.—Assumpsit. 1. In all actions of assumpsit, except on bills of exchange and promissory notes, the plea of non assumpsit shall operate only as a denial in fact of the express contract or promise alleged, or of the matters of fact from which the contract or promise alleged may be implied by law. Ex. gr.-In an action on a warranty, the plea will operate as a denial of the fact of the warranty having been given upon the alleged consideration, but not of the breach; and, in an action on a policy of insurance, of the subscription to the alleged policy by the defendant, but not of the interest, of the commencement of the risk, of the loss, or of the alleged compliance with warranties. In actions against carriers and other bailees, for not delivering or not keeping goods safe, or not returning them on request, and in actions against agents for not accounting, the plea will operate as a denial of any express contract to the effect alleged in the declaration, and of such bailment or employment as would raise a promise in law to the effect alleged; but not of the breach. In an action of indebitatus assumpsit for goods sold and delivered, the plea of non assumpsit will operate as a denial of the sale and delivery in point of fact; in the like Money had and action for money had and received, it will operate as a denial both of the receipt of the money and the existence of those facts which make such receipt by the defendant a receipt to the use of the plaintiff. received. In actions on bills and notes, admissible. 2. In all actions upon bills of exchange and promissory general issue not notes, the plea of non assumpsit shall be inadmissible. In such actions, therefore, a plea in denial must traverse some matter of fact; ex. gr. the drawing, or making, or indorsing, or accepting, or presenting, or notice of dishonour of the bill or note. 3. In every species of assumpsit, all matters in confession and avoidance, including not only those by way of discharge, but those which shew the transaction to be either void or voidable in point of law, on the ground of fraud or otherwise, shall be specially pleaded; ex. gr. infancy, coverture, release, payment, performance, illegality of consideration either by statute or common law, drawing, indorsing, accepting, &c., bills or notes by way of accommodation, set-off, mutual credit, unseaworthiness, misrepresentation, concealment, deviation, and various other defences, must be pleaded. 4. In actions on policies of assurance the interest of the assured may be averred thus:-" That A., B., C., and D., or some or one of them, were or was interested," &c. And it may also be averred, "that the insurance was made for the use and benefit and on the account of the person or persons so interested." II.-In Covenant and Debt. 1834. PLEADING. In assumpsit, matters in con fession and avoidance to be pleaded specially. Statement of sured. interest of as 1. In debt on specialty, or covenant, the plea of non est Non est factum. factum shall operate as a denial of the execution of the deed in point of fact only, and all other defences shall be specially pleaded, including matters which make the deed absolutely void, as well as those which make it voidable. 2. The plea of "nil debet" shall not be allowed in any Nil debet. action. debt. 3. In actions of debt on simple contract, other than on General issue in bills of exchange and promissory notes, the defendant may plead that "he never was indebted in manner and form as in the declaration alleged," and such plea shall have the same operation as the plea of non assumpsit in indebitatus. assumpsit; and all matters in confession and avoidance Matters in conshall be pleaded specially as above directed in actions of assumpsit. fession and avoidance. actions. 4. In other actions of debt, in which the plea of nil Pleas in other debet has been hitherto allowed, including those on bills of exchange and promissory notes, the defendant shall deny specifically some particular matter of fact alleged in the declaration, or plead specially in confession and avoidance. III. Detinue. The plea of non detinet shall operate as a denial of the detention of the goods by the defendant, but not of the plaintiff's property therein; and no other defence than such denial shall be admissible under that plea. IV.-In Case. 1. In actions on the case, the plea of not guilty shall operate as a denial only of the breach of duty or wrongful act alleged to have been committed by the defendant, and not of the facts stated in the inducement, and no other defence than such denial shall be admissible under that plea: all other pleas in denial shall take issue on some particular matter of fact alleged in the declaration. Ex. gr. In an action on the case for a nuisance to the occupation of a house by carrying on an offensive trade, the plea of not guilty will operate as a denial only that the defendant carried on the alleged trade in such a way as to be a nuisance to the occupation of the house, and will not operate as a denial of the plaintiff's occupation of the house. In an action on the case for obstructing a right of way such plea will operate as a denial of the obstruction only, and not of the plaintiff's right of way; and in an action for converting the plaintiff's goods, the conversion only, and not the plaintiff's title to the goods. In an action of slander of the plaintiff in his office, profession, or trade, the plea of not guilty will operate to the same extent precisely as at present in denial of speaking the words, of speaking them maliciously, and in the sense imputed, and with reference to the plaintiff's office, profession, or trade; but it will not operate as a denial of the fact of the plaintiff holding the office or being of the profession or trade alleged. In actions for an escape, it will operate as a denial of the neglect or default of the sheriff or his officers, but not of the debt, judgment, or preliminary proceedings. 1834. PLEADING. Escape. In this form of action against a carrier, the plea of not Carriers. guilty will operate as a denial of the loss or damage, but not of the receipt of the goods by the defendant as a carrier for hire, or of the purpose for which they were re ceived. 2. All matters in confession and avoidance shall be Matters in conpleaded specially, as in actions of assumpsit. V.-In Trespass. fession and avoidance. claration. 1. In actions of trespass quare clausum fregit, the close Abuttals in deor place in which &c. must be designated in the declaration by name or abuttals, or other description; in failure whereof the defendant may demur specially. 2. In actions of trespass quare clausum fregit, the plea Effect of plea of of not guilty shall operate as a denial that the defendant not guilty in trespass quare committed the trespass alleged in the place mentioned, clausum fregit. but not as a denial of the plaintiff's possession or right of possession of that place, which, if intended to be denied, must be traversed specially. bonis asporta 3. In actions of trespass de bonis asportatis, the plea of In trespass de not guilty shall operate as a denial of the defendant having tis. committed the trespass alleged by taking or damaging the goods mentioned, but not of the plaintiff's property therein. 4. Where, in an action of trespass quare clausum fregit, Right of way. the defendant pleads a right of way with carriages and cattle and on foot in the same plea, and issue is taken thereon, the plea shall be taken distributively; and if a right of way with cattle or on foot only shall be found by the jury, a verdict shall pass for the defendant in respect of such of the trespasses proved as shall be justified by the right of way so found; and for the plaintiff in respect of such of the trespasses as shall not be so justified. 1834. PLEADING. Common of pasture. Similar pleas. Commencement of the rules. 5. And where, in an action of trespass quare clausum fregit, the defendant pleads a right of common of pasture for divers kinds of cattle, ex. gr. horses, sheep, oxen, and cows, and issue is taken thereon, if a right of common for some particular kind of commonable cattle only be found by the jury, a verdict shall pass for the defendant in respect of such of the trespasses proved as shall be justified by the right of common so found, and for the plaintiff in respect of the trespasses which shall not be so justified. 6. And in all actions in which such right of way or common as aforesaid, or other similar right, is so pleaded that the allegations as to the extent of the right are capable of being construed distributively, they shall be taken distributively. PROVIDED NEVERTHELESS, that nothing contained in the 5th, 6th, or 7th of the above-mentioned general rules and regulations, or in any of the above-mentioned rules or regulations relating to pleading in particular actions, shall apply to any case in which the declaration shall bear date before the first day of Easter Term next. No. 1. Form of an is sue in the King's FORMS OF ISSUES, &c. Issues, judgments, and other proceedings in actions commenced by process under 2 Will. 4, c. 39, shall be in the several forms in the schedule hereunto annexed, or to the like effect, mutatis mutandis: Provided, that, in case of non-compliance, the Court or a Judge may give leave to amend. In the King's Bench, or, Bench, Common In the Common Pleas, or, Pleas, or Exchequer. The [date of declaration] day of year of our Lord 18-. in the [Venue.]—A. B., by E. F., his attorney, [or, in his own proper person, or, by E. F., who is admitted by the Court |