No. 2987. Book 4, tit. 8, chap. 7, sec. 2, § 2, art. 2. No. 2988. 3. Of the confession and avoidance of the plea by the replication. 2987. The replication may, in the next place, admit either in words or in effect, the fact alleged in the plea, and avoid the effect of it by stating new matter. This replication is common in practice; as where infancy is pleaded, the plaintiff may reply that the goods were for necessaries, or that the defendant, after he came of lawful age, ratified and confirmed the promise. In form it is usual to admit the material facts alleged in the defendant's plea, in express terms, by stating after the words precludi non, "that although true it is, that the said demise was made to the said defendant, as in his said plea is alleged, yet for replication in this behalf the said plaintiff in fact saith that," etc. When the replication completely confesses and avoids the defendant's plea, it must not conclude with a traverse; in such case there is no occasion to give color to the defendant in this replication; still, as it introduces new matter, it must conclude with a verification, so that the defendant may have an opportunity of answering it. (a) 4. Of a new assignment. 2988. When the plaintiff's declaration is conceived in general terms, or when, from the nature of the action, it is so framed as to be capable of covering several injuries, the defendant may not be sufficiently guided by the declaration to the true cause of complaint, and is, therefore, led to answer a different matter from that which the plaintiff had in view. For example, it may happen that the plaintiff has been twice assaulted by the defendant, and one of the assaults is justifiable, it being in self-defence, while the other may have been committed without legal excuse. Supposing the plaintiff to bring an action for (a) 1 Saund. 103, n. No. 2988. Book 4, tit. 8, chap. 7, sec. 2, § 2, art. 2. No. 2988. the latter; from the generality of the statement in the declaration, the defendant is not informed to which of the two assaults the plaintiff means to refer. The defendant may, therefore, suppose, or affect to suppose, that the first is the assault intended, and will plead son assault demesne. This plea the plaintiff cannot safely traverse, because an assault was committed by the defendant, under the circumstances of excuse here alleged; the defendant would have a right under issue joined upon such traverse, to prove the circumstances, and to presume that such assault, and no other, was the cause of action. The plaintiff, therefore, in the supposed case, not being able safely to traverse, and having no ground either for demurrer, or for pleading in confession and avoidance, has no cause, but by a new pleading, to correct the mistake occasioned by the generality of the declaration, and to declare that he has brought his action, not for the first, but for the second injury or assault; and this is called a new or novel assignment.(a) A new assignment is said to be in the nature of a new declaration; (b) it seems, however, more properly considered as a repetition of the declaration, (c) differing only in this, that it distinguishes the true ground of complaint, as being different from that which is covered by the plea. Being in the nature of a new or repeated declaration, it is consequently to be framed with as much certainty or specification of circumstances, as the declaration itself. In some cases, indeed, it should be even more particular.(d) As the object of a new assignment is to correct a mistake occasioned by the generality of the declaration, it always occurs in answer to a plea, and is, therefore, (a) See the form of a replication by way of new assignment, in Steph. Pl. 243. No. 2988. Book 4, tit. 8, chap. 7, sec. 2, § 2, art. 2. No. 2988. in the nature of a replication. It is not used in any other part of the pleading. A new assignment may be made in most actions, whether in form ex contractu or ex delicto, but it most frequently happens in trespass. In replevin, as the plaintiff must show the place with certainty where the taking was, it is said there can be no new assignment as to the place. (a) Several new assignments may occur in the same series of pleading. Thus, in the example above mentioned, if it be supposed that three distinct assaults had been committed, two of which were justifiable, the defendant might plead as above to the declaration, and then by way of plea to the new assignment, he might again justify, in the same manner, another assault; upon which it would be necessary for the plaintiff to new assign a third; and this upon the first principle by which the first new assignment was required.(b) As the new assignment introduces new matter, its conclusion must be with a verification, in order that the defendant may have an opportunity of answering it. The new assignment is in the nature of a new declaration, and the defendant is required to plead to it, precisely as to a declaration; and as the plaintiff avers that the new assigned trespasses are other and different from those in the plea, he waives those which the defendant has justified, and it is not necessary to plead over again to the new assignment, any matter of justification, necessarily covered by the first plea.(c) The plaintiff may reply precisely as to pleas to a declaration, and if the plea be such as to require a new assignment, the plaintiff should again new assign.(d) (a) Corkley v. Pagrave, Freem. 238. (d) 1 Saund. 299 c; 9 Wentw. Pl. Index; 2 Chit. Pl. 723. No. 2989. Book 4, tit. 8, chap. 7, sec. 3, § 1. Art. 3.-Of the conclusion of a replication. No. 2991. 2989. The general rules which relate to the conclusion of a replication are, that when it wholly denies the defendant's plea, consisting of matter of fact, it should conclude to the country. And when there is an affirmation on one side, and a negative denial on the other, the replication, as indeed all other pleading in such case, must conclude to the country, although the affirmative and negative be not in express words, but tantamount thereto. When new matter is alleged in a replication, it should conclude with an averment, in order to give the defendant an opportunity of answering it, and an appropriate prayer of judgment, for debt or damages only, according to the form of action. SECTION 3.-OF THE QUALITIES OF A REPLICATION. 2990. Many of the rules which apply to the qualities of pleas, are alike applicable to the qualities of replications. A replication must, 1, answer so much of the plea as it professes to answer, and if it be bad in part, it is bad for the whole; 2, be conformable to, and not depart from the count; 3, be, like a plea, certain, direct and positive, and not argumentative, and that it also be triable; 4, be single. § 1. The replication must answer the plea. 2991. To prevent a chasm or interruption in the pleadings, which in law is called a discontinuance, it is a rule that every pleading must answer the whole of what is adversely alleged. (a) A replication must, therefore, answer so much of the plea which it professes to answer, or it will be a discontinuance. It is a rule, also, that if an entire replication be bad in part, it is bad for the whole; as if to a plea of the statute of (a) Com. Dig. E. 1, F 4; 1 Saund. 28, n. 3. No. 2992. Book 4, tit. 8, chap. 7, sec. 3, § 2. No. 2992. limitations to two counts of a declaration, the plaintiff should reply that the accounts were between the plaintiff and defendant as merchants; if this replication be bad as to one of the counts, it is bad as to the other; but this rule does not apply when the matter objected to is mere surplusage.(a) § 2. The replication must not depart from the declaration. 2992. The replication must not depart from the declaration in any material matter; this rule equally affects rejoinders and subsequent pleadings. A departure, in pleading, takes place when a party quits or departs from the case or defence which he has first made, and has recourse to another. (b) The following will illustrate what is a departure in a replication: in assumpsit, the plaintiffs, as executors, declared on several promises alleged to have been made to the testator, in his lifetime; the defendant pleaded that she did not promise within six years, before the obtaining of the original writ of the plaintiffs; to this the plaintiffs replied, that within six years before they obtained the original writ, the letters testamentary were granted to them, whereby the action accrued to them, the said plaintiffs, within six years. This was held to be a departure, because in the declaration they had laid the promise to the testator, but, in the replication, alleged the right of action to accrue to themselves as executors.(c) A departure in pleading is never allowed, for the record would, by such means, be spun out into endless prolixity; he who had departed from and relinquished his first plea, might resort to a second, third, fourth, or even a fortieth defence; pleading would, by such means, become infinite. He who had a bad cause (a) Com. Dig. Pleader, F 25. (b) Co. Litt. 304 a; 2 Saund. 84 a, n. 1; 1 Chit. Pl. 619; Steph. Pl. 405, 406. (c) Hickman v. Walker, Willes, 27. |