when his second plea does not contain matter pursuant to his first plea and which does not support and fortify it. The rendering of an account and the payment of money at the time specified in the condition, is one thing; the rendering of an account and payment of money, after the day specified, is another thing. The matter of the plea is neither supported nor fortified by the matter of the rejoinder. There is, therefore, unquestionably, a departure. A departure in pleading, is matter of substance, and the rejoinder must be adjudged insufficient. 3. STATE V. DORSEY, ET AL. Dec. T. 1830, 3 Gill & Johns. Md. Rep. 75; READ V. HANNA'S Ex'RS, 3 Rand. Va. Rep. 56. Held by the court, Buchanan, C. J. that in an action on a bond, with collateral conditions, and the defendant pleaded general performance, to which there was a replication assigning a breach of the condition. If the defendant rejoins matter which shows the bond had no legal existence, it is a departure. 4. HARPER V. HAMPTON, Oct. T. 1803, 1 Har. & Johns. Md. Rep. P. 453. To a plea of the statute of limitations, the plaintiff replied beyond sea, to wit, at Philadelphia in the state of Pennsylvania, and the defendant rejoined the act of limitations of the state of Pennsylvania. Per Cur. We are of opinion, that the rejoinder of the defendant is not in law, a sufficient answer to the replication of the plaintiff in this cause, but that the matter alleged in the rejoinder is a departure from the plea. 5. DUTTON ET AL. V. HOLDEN, May T. 1830, 4 Wend. N. Y. Rep. p. 643. Where the defendant pleads gene ral perform ance to a bond a re joinder that the bond is void, is a de partnre. So where sea, &c. And the court held, Trespass for breaking and entering the plaintiff's close. The defendant pleaded liberum tenementum. The plaintiff re- that, where plied, that the defendants demised the premises in question to the defend ant pleaded him, and by virtue of which he entered. The defendant rejoin- liberum ten ed, admitting the demise, but setting forth a reservation to enter and rejoin the premises at all times, to make repairs, &c. and that he did ed to a repli enter to make repairs, &c. Demurrer and joinder. ementum cation set ting forth a demise, that the demise Per Cur. Marcy, J. The question presented by the plead-contained a privilege to ings is, whether the rejoinder is a departure from the defence set up by the plea, I am disposed to think it is not. (And the court referred to Fisher v. Pimbly, 11 East. 188, as being a case in point.) II. MODE OF STATING FACTS.* GRANNIS V. CLARK, Oct. T. 1827, 8 Cow. N. Y. Rep. 36. Held by the court, Savage, C. J. that in pleading any contract in writing, it is sufficient to set it forth according to its legal effect. III. DIVISION OF PLEADING.† IV. JOINING DIFFERENT CAUSES OF ACTION. V. CONSTRUCTION OF PLEADING.§ 5. GAYLORD V. PAYNE, June T. 1822, 4 Conn. Rep. 194. S. P. Per Hosmer, C. J. The general rule is, that if the words are *The facts ought to be stated clearly and distinctly, so that they may be understood both by the party who is to answer the matters stated against him, the counsel who are to argue them, the jury who are to decide upon their existence, and the court who are the judges of the law arising out of them. The pleadings must be single as well as apt, Hob. 295, and confined to a single point, ibid. Co. Litt. 304, a. And words may be rejected as surplussage to make the matter sensible, Wyatt v. Aland, 1 Salk. 325. As to certainty in pleading, Lord Coke observes there is three kinds. Certainty to a common intent; secondly, to a certain intent in general, and thirdly, to a certain intent in every particular, Co. Litt. 383, a.This division has been called a jargon of words without any meaning, 2 H. Black. p. 530. +Pleadings may be divided into pleas to the jurisdiction and in abatement, pleas in bar, replication, rejoinder, sur-rejoinder, rebutters, sur-rebutters and demurrers. See those titles. Assumpsit and tort cannot be joined, Brown v. Dixon, 1 T. R. 274. Nor can assumpsit and trover be joined, Holmes v. Taylor, 2 Lev. 101. Mast v. Goodson, 3 Wills 384; Jennings v. Webb, 1 T. R. 277. Nor can detinue and trover be joined, Kettle v. Broomsall, Wills 118; Nor trespass and case, Dalson v. Janson, 5 Mod. 90: But a count in case and trover may be joined, Dixon v. Clifton 2 Wills 319. So also trespass for breaking &c. and debauching the plaintiff's daughter, Woodard v. Welton, 2 N. R. 476. It is said in Gould's Pleadings, p. 153, that the rule is foundednot only upon the presumption that cach party's statement is the most favorable to himself, of strongly a ing. equivocal, they shall be construed most strongly against the ed most pleader. And the court observed, in 1 Nott & M'Cord, 85,that a gainst the plea shall be taken most strongly against the defendant. As party plead where he pleaded that he had been in the quiet and peaceable possession five years, it was held, that it was insufficient, as it did not state the possession to be adverse and actual, in order to bring it within the statute of limitations. And see Lowrey v. Drake's heirs, 1 Dana's Rep. 46, where Chief Justice Robertson held, that the terms in a plea were to be taken according to the common understanding. 24 CARTHANS V. OWINGS, June T. 1823, 6 Har. & Johns. Md. Rep. p. 135. Per Cur. Dorsey, C. J. It is an established rule in pleading, And if bad that if a plea, avowry, or replication, each of which is entire, in part is be bad in part, it is bad for the whole. 3. HUGHES V. ZELLERS, June T. 1822, 5 Har. & Johns. Md. 432; Debt on bond. The declaration contained two counts, and the defendant pleaded, that the conveyance of the land was a condition precedent. Demurrer and joinder. whole. jaration. Per Cur. Buchanan, J. The plea does not profess to answer whole dec exclusively to either count. It must be construed most strongly against the defendant, and as a plea to the whole declaration. The demurrer did not work a discontinuance. The action is not discontinued by the plaintiff not taking his judgment by nil dicit. VI. PLEAS IN BAR GENERALLY. 1. JACKSON V. STETSON, March T. 1818, 15 Mass. Rep. 48; Hix v. which his case will admit; but obviously upon the reasonable principle that it is the plea of admits the of justification admitted that the words were spoken, and that the plaintiff need not prove the speaking of them. words were spoken. A plea in bar admits the ability of the plain tiff to sue. Must be a substantial Verdict for the plaintiff. Jackson. J. after referring to authorities, observed, that whatever is confessed or admitted by the parties, need not be proved. That the plea of justification was not inconsistent with the general issue, and admitted the words spoken, and that such admissions contained in one plea, filed under leave to plead double, may be used before the jury in the trial upon any other plea. Vide Cilley v. Jenness, 2 N. Hamp. Rep. 89. 2. YEATON V. LINN, Jan. T. 1831, 5 Peter's U. S. Rep. 224. Per Cur. Thompson, J. It is a general rule, that a plea in bar admits the ability of the plaintiff to sue. 3. KARTHANS V. OWINGS, June T. 1830, 2 Gill & Johns. Md. Rep. p. 430. Per Cur. Stephens, J. A plea in bar must be a substantial and conclusive answer to the action. The same principle was answer to decided in Winter v. Simonton, et al. 5 Peters' Rep. 141. the declara tion. Alien ene action may be pleaded in abate 4. HUTCHINSON V. BROCK, May T. 1814, 11 Mass. Rep. 119. S. Per Cur. Sewall, C. J. Pleas of alien born, and of alien enemy, are said to be in disability of the person of the plaintiff; my in a real and these are strictly in abatement of the writ, when the present proceeding is thereby utterly defeated; and if according to the subject matter of the suit, the defence is, that the plaintiff cannot for that cause, maintain any action at any time, then the plea may either be in abatement or in bar. Thus, a plea of alien enemy to a real action, may be pleaded either in abatement or in bar, because for that cause of action the plaintiff has no right to ment or in bar. recover. 5. HUTCHINSON V. BROCK, May T. 1814, 11 Mass. Rep. 119. LE- Per Cur. Sewall, C. J. In time of peace, alienage is no plea In a person al action it in personal actions; and in time of war, the plea of alien enemy s a temporary disability of the plaintiff only, which ceases with must be in abatement. the war. It is still called a plea in abatement, although the effect of it is not to abate the writ, or defeat the process entirely, but to suspend it; and the plea is defective, when it concludes either in bar or in abatement of the writ. The form is a prayer, whether the plaintiff shall be further answered; and the judg ment to be entered upon it, when it shall be confessed, or maintained, is, that the writ aforesaid, remain without day, donec terræ feurint communis, until the intercourse of the peace of the two countries shall be restored. Where the effect of a plea is a temporary disability of the plaintiff and nothing more, a prayer of judgment of the writ is bad. 6. The pl should that the PARKINSON V. WENTWORTH, March T. 1814, 11 Mass. Rep. 25; HUTCHINSON v. BROCK, ib. 119; LANGDON, ET AL. v. POTTER, ib. 113. To an action of assumpsit, the defendant pleaded puis darrien show either continuance, that the said S. to his said action, ought not to be plaintiff is answered, because, he says, that since the last imparlance of the an alien said action, the United States of America declared war against here with His Majesty, George the third, &c. which war still continues, duct, or if a and that the said S, is an alien, and subject of, and under the al- citizen that legiance to the said King, now an enemy to the U. States, and dent with that the said S. is to this same enemy adhering. Demurrer. Per Cur. The plea ought to have averred, either that the plaintiff was alien born, and here without protection or safe conduct from the United States, or if not alien born, that he was resident with the enemies of the United States. born and out safe con he is resi the enemy. 7. FOWLER V. SHARP, ET AL. EX'RS, Aug. T. 1818, 15 Johns. N Y. Rep. 323. And a plea by execu not on the biting the plaintiff's To an action of assumpsit against the defendants as executors, tors that they pleaded, that they had not on the day of exhibiting the they had plaintiff's bill, nor at any time since, had any goods which were day of exhi of the testator, at the time of his death, in their hands to be administered, without alleging they had fully administered. The bill plaintinff demurred specially, for that the defendants had not had any averred, that they had fully administered, and that they had not goods or alleged, that they had never had any goods or chattels which which were were of the deceased at the time of his death in their hands to for at the be administered. Joinder in demurrer. The court, Spencer, J. after referring to Serjeant Williams' time sinco chattels of the testa time of his death in his hands to be administer ed, is good. |