made many wish that the course of the voyage was entirely changed," (x) though directed by the learning and experience of the English bar, would it not be a prudent and necessary means of safety, in justices' courts, to shorten the whole process at once, by authorizing a full defence in almost all cases, under the general issue? True, such a provision ought not to be without its exceptions. Matters in abatement, which do not go to the

actionerits of the action; a set-off, which is in the nature of

a cross action; or a plea of title to lands in an action of trespass, which goes with the cause to another tribunal, &c. should, without doubt, remain to be introduced as at present. I find that I am not speaking without the authority of precedent. In Massachusetts, the legislature have gone far towards abolishing all special pleading on the part of the defendant, in a justice's court, by giving a much greater latitude of defence under the general issue, than has yet, I believe, been allowed to any court of record. (y) In many actions, there are already very few instances in which it is necessary to plead the defence specially. Take, for example, the actions of trover, assumpsit and case, which derive their popularity, even in the higher courts, from the great ease with which they are stated and defended on the record. Special pleading is, in many instances, mere form. Can any earthly reason be given, for instance, why, in trover, matters of defence may be given in evidence, under the general issue, when, in an action of trespass for the very same injury, the very same defence must be ushered into court, through the delicate process of a special plea, to be met by a replication perhaps equally special, and followed by a rejoinder, rebutter and surrebutter, all in consequence of a mere difference in the form of the action? But, in treating on this subject, we must take the doctrine as we find it. This doctrine must, in the nature of things, always exist. It must always be studied by those who mean to make themselves in the least conversant with actions and defences in courts of justice. The form alone, in which it is used in a justice's court, seems to be objectionable. The statute which authorizes the substitution of a notice in the place of a special plea,(z) thus obviating the necessity of a replication and subsequent pleadings, is but a slight modification of the difficulty attending special pleading. True, the plaintiff is not required to answer the notice, but still it must, if required, be drawn with as much accuracy and legal nicety as would be required in framing a special plea; and if not so drawn, the justice would undoubtedly be authorized to reject evidence to sustain it, on objection being

(x) Eunomus, 79.

1 Mass. R. 234. 4 id. 672. 6 id. 1. 11

(y) R. S. of Mass. 527, 528; and vid. id. 313.

(z) 2 R. S. 277, § 24.

properly made. Such is the practice at the circuit, and I know of no reason why the same power may not be exercised by a justice.

1. WHAT CIRCUMSTANCES SHOULD BE STATED IN PLEADING.

In general, whatever circumstances are necessary to constitute the cause of complaint, or the ground of defence, must be stated in the pleadings, and all beyond is mere surplusage. Facts only are to be stated, and not arguments, or inférences, or matters of law. (a) Thus, if I were to sue a constable for suffering a man to escape on a warrant at my suit, it would not be enough for me in declaring, to state to the justice that the defendant is liable for an escape from a warrant in my favor ; for this would be a mere conclusion of law; and though, on certiorari after issue joined, and the merits fairly tried, the judgment might not be reversed for that reason,(b) yet the defendant might demur to my declaration, and if the justice should overrule the demurrer, it would be error. It is therefore strictly necessary for me to state, that I sued out a warrant before such a magistrate, (setting it forth in substance,) which warrant was delivered to the defendant, being a constable of the county, that he arrested the defendant by virtue of such warrant, and suffered him to escape and go at large, to my damage, &c. And I may be required to set forth the time and place of each of these acts.(c) This time and place are, however, generally matter of form only; and unless the time be stated, as the date or other part of an instrument or contract, or the place appear upon the face of a writing set forth in pleading, any proper time or place, varying from the one stated in pleading, may be proved upon the trial, and will sustain the declaration or other pleading, as effectually, as though the allegation and proof agreed in terms.

And so, in the defence, suppose the constable admits the escape, but has by agreement given the plaintiff his watch to pay him the damages, called in law an accord and satisfaction, which is a good defence, but the constable, in pleading this defence, should merely say, he has settled with the plaintiff, without showing how. This is nothing more than a conclusion of law, is consequently bad, and the plaintiff might demur to the plea. The defendant should state the facts which constitute his defence, viz. that the plaintiff agreed with him to accept a certain watch in satisfaction of his damages, on account of the escape; and that in pursu

(a) 1 Chit. Pl. 196. Vid. Gould's Pl. ch. 3, § 12.

(b) Caines, 152. id. 275. 1 John. 276. 2 id. 210. Vid. ante, 550, 551.

(c) 14 John. 369. Vid. 2 Cowen, 437, 438, and n. a. 3 Wen. 75. 12 id. 375.

ance of such agreement, the watch was delivered to and accepted by the plaintiff in full satisfaction of such damages, with the time when and the place where this was done.

2. HOW STATUTES ARE TO BE PLeaded.

Public statutes, that is to say, such as concern the whole state, need not be set forth in pleading; but private acts, that is to say, such as relate to a corporation or single individual, must be set forth, at least, in substance, the same as a private deed or charter, or the record of a court of justice; and so of the by-laws of a town, village or other corporation. Not only must a private statute or by-law, (or at least, so much of it as is material to the case,) be recited by the party complaining or defending under it, but the facts which bring the case within the statute or by-law, must be stated. These are the general rules, applicable to perhaps a majority of the cases where statutes are required to be pleaded. After stating the facts, which bring the case within the statute, if a public one, it is usual to conclude with the general allegation, "contrary to the form of the statute," (or "by force of the statute,") in such case made and provided;" if a private statute, no such conclusion is necessary; the recital of its provisions forms a part of the facts set forth in the pleading, and is sufficient. It is worthy of remark, in this connexion, that the revised statutes have greatly simplified the form of pleading in suits for the recovery of statute penalties and forfeitures, by requiring only that a general indebtedness should be stated in the declaration, concluding with a reference to the statute by which the penalty or forfeiture is given or created; to which the defendant may plead the general issue, and give in evidence any special matter which, if pleaded, would be a bar to the action. (d) It will be seen that these provisions apply only to penal statutes, so that still, cases will be constantly arising, in which other statutes, both public and private, may form an important part of the complaint or defence, and therefore necessary to be pleaded. Many acts of the legislature, though in their nature private acts, have a clause declaring that they shall be public acts, &c. in which case they are to be treated as such, both in the pleadings and evidence. (1)

(1) PUBLIC AND PRIVATE ACTS IN LEGAL LANGUAGE.-1. Acts are deemed to be public and general acts, which the judges will take notice of without pleading, viz. acis concerning all great officers, or all officers in general of any other class, such as sheriffs, &c. Acts concerning trade in general, or any specific trade; acts concerning all persons generally, though it be a special or particular thing, such as a statute concerning the circuit court, oyer and terminer, &c. or

(d) 2 R. S. 395, § 10 to 13.

3. THE DECLARATION NEED not negative the defence.

Matter of defence to the plaintiff's action, need not be negatived by him in declaring, or in any way alluded to, (except the common breach, as non-payment in an action of debt, or non-payment or non-performance of the defendant's promise in an action of assumpsit, or of his covenant in an action of covenant,) for matter of defence should be left to be pleaded or otherwise, according to its nature, stated and proved on the part of the defendant. For example, the plaintiff, after having stated his claim, need not go on to deny that he has released it, that it is barred by the statute of limitations or other cause, for if there be these, or any other matter, in defeasance of the plaintiff's action, it must be shown by the defendant.(e)

In declaring upon statutes, where there is an exception in the enacting clause, the plaintiff must expressly allege and show the defendant not to be within such exception; but if there be an exception or proviso, in a subsequent part of the statute, the defendant must show it himself by way of defence. This rule is now of little practical utility, as the general form of declarations in these cases given by the revised statutes(f) requires no special averments whatever. Notwithstanding the provisions of the statute, however, there can be no doubt that, if the plaintiff prefer, he may still adopt the old form of declaring, in which case a strict observance of this rule will be necessary; and it applies to all the other pleadings in a cause, as well as the declaration. (g) The best application of this rule that can be given, was contained in the first edition of this work; and although the act there referred to, has, in the revised statutes, undergone material alterations not only in its language but in the substance of its provisions, yet it is worthy of repetition here, merely as an illustration of the above rule. The fourteenth section of the "act to lay a duty on strong liquors, and for regulating inns and taverns,”(h) provides, that if any tavern keeper shall take a note to secure more than one

woods and forests, &c. &c. 2. Private acts, are those which concern only a particular species, thing or person, of which the judges will not take notice without pleading them, viz. acts relating to any particular place, or to divers particular towns, or to one or divers particular counties, or to certain colleges only in the university. In a general act, there may be a private clause, and a private act, if recognized by a public act, must, afterwards, be noticed by the courts as such. Vid Bac. Abr. tit. Statute, (F), Phila. ed.

It seems that an act incorporating a bank, without declaring the law to be a public statute, is a public act. 3 Cowen, 662, 684.

dollar and twenty-five cents, for strong liquors drank at his house, from any person, other than travellers, he shall forfeit a penalty equal to the amount of the note. Now, in an action for the penalty under that act, the plaintiff must have set forth, not only the facts necessary, in the first instance, to maintain his suit, viz. that the defendant was a tavern keeper, and took the note of such a person, for a sum exceeding one dollar and twenty-five cents, for the purpose forbidden by the act, but he must have gone farther, and denied in his declaration, that the person who gave such note, was a traveller; for there the exception, other than travellers, is contained in the very clause, which gives the penalty. But af ter the act goes through a description of the offence, there is a proviso or exception, that it shall not extend to the taking a note of a lodger in the tavern keeper's house, but that this shall be lawful. Now it was not neccssary for the plaintiff to deny, that the person trusted was a lodger, but if such was the case, it was a matter of defence for the defendant to show on his part. The present statute (i) extends the exception in the enacting clause to both travellers and lodgers, so that in declaring for the penalty, in the old form, it would be necessary to deny that the person who gave the note was either a traveller or lodger.

4. THE LAW SOMETIMES ALLOWS A FICTION IN PLEADING.

The general rule is, that facts must be stated, yet the law sometimes allows of fictions in pleading, for the sole purpose of advancing justice; and being allowed for this purpose, they require, on the one hand, no proof, and on the other, they cannot be traversed; since to require the one or permit the other, would defeat the end for which they were designed. Thus, in trover, the plaintiff always declares, that he lost the goods in question, and that the defendant found them, which facts the defendant is not allowed to deny ; and on the trial, though the plaintiff show that he delivered the goods to the defendant to use, and that he had refused to re-deliver them, after the time of the bailment had expired, or that they came to his hands in any other way besides that of losing and finding, and are wrongfully converted, he must recover; for the plaintiff, in trover, always declares on a loss and finding, and then proves what kind of taking he pleases. (j) So in the action of assumpsit, if there be an actual debt, or legal liability, by simple contract, on the part of the defendant, but, as is frequently the case, no express undertaking to pay the debt, yet the plaintiff, in his declaration, must regularly allege a

(i) 1 R. S. 678, § 11.

j) 1 Chit. Pl. 207. Gould's Pl. ch