in advance just what facts the jury will consider proved. You may know that the defendant promised you $100 for a horse. But he may testify and the jury may believe it was $90. Or the jury may conclude that no price was fixed, but that the defendant was to pay what it was reasonably worth. The plaintiff cannot tell which to allege. To avoid this difficulty, he was allowed to allege all three states of fact as different causes of action in separate counts. Whichever count he proved he would recover on. Of course, really separate causes of action were also stated in separate counts.

At common law several pleas were not allowed. There was the same reason for allowing several pleas, though it did not apply so often, probably; namely, that the defendant might think he had one defense, while the jury might decide he had another. The defendant, therefore, needed the right to plead all defenses which he had any hope of proving. This right was not extended to him, however, until 1706. By a statute (68) passed in that year, the defendant was allowed to plead as many defenses as he might have. But this statute did not permit several replications, rejoinders, or further pleadings, and it did not permit the defendant to use a demurrer and a plea at the same time (69).

§ 80. Same: General issues and replication de injuria. It may have occurred to the reader that the general issues are violations of the rule against duplicity. They clearly are. By using a general issue the defendant may set up

very numerous defenses by one plea. They simply form a clear exception to the general rule.

There was a general traverse allowed in the replication, which was another exception to the rule against duplicity. This general traverse in the replication was called the replication de injuria. By its use the plaintiff could traverse all the facts alleged in any one plea. Perhaps it should be pointed out that denying more than one fact is duplicity. Suppose that, to an action for a battery, the defendant pleads that he is an officer, and that he had reasonable ground to suspect that a felony had been committed, and reasonable ground to believe that the defendant committed it. These facts are all necessary to make this plea good. If the plaintiff denies that the defendant is an officer, that is a sufficient replication. If the plaintiff denies that the defendant had reasonable ground to suspect the commission of a felony, that is alone sufficient to overthrow the plea. Likewise, a denial of the defendant's reasonable ground for suspecting the plaintiff would overthrow the plea. Any one of these being a good replication, the joinder of all three denials in the replication would make a replication trebly good in substance, and that is duplicity (70). But this denial of several facts in the plea may be accomplished by the replication de injuria.

§ 81. Replication de injuria: Limitations upon use. To the use of this replication there are, however, several limitations: (1) It can only be used to traverse pleas

(70) Tubbs v. Caswell, 8 Wend. (N. Y.) 129.

in confession and avoidance in excuse (71). Of course it cannot traverse a traverse, as issue must be joined on a traverse. But it was not allowed to be used to traverse pleas in confession and avoidance in discharge. What is the difference between pleas in confession and avoidance in excuse and in discharge? Pleas in discharge show that a cause of action which once existed has been discharged or ended. Pleas in excuse show that no cause of action ever arose. Thus, a plea of illegality is a plea in excuse, a plea of coverture is a plea in excuse, and a plea of breach of warranty is a plea in excuse. But pleas of release, the statute of limitations, or accord and satisfaction, are pleas in discharge. To the latter class of pleas de injuria may not be used. No doubt the reason that pleas in discharge could not be denied by de injuria arose wholly out of the wording of the replication. It read that the defendant did the act "de injuria sua propria absque tali causa" (of his own wrong without such excuse). Obviously the latter words would be meaningless as applied to a plea in discharge. (2) It cannot be used to deny authority from the plaintiff, interest in realty, or matter of record (72). It was thought that the plaintiff knew positively whether he had given authority or not, and so should either admit giving it or stake his case on a denial that he gave it. Title to realty was considered too important to be tried with other facts, and so had Matter of record (whether a

to be denied separately. certain record existed) was tried by the court and not by

(71) Berry v. Cahanan, 7 N. J. L. 77.

(72) Crogate's Case, 8 Co. 66.

the jury, and so should not be put in issue with matters that would be tried by the jury.

§ 82. Argumentativeness. There are several other miror instances of defects in form of which but three will be mentioned. Argumentativeness consists in denying a fact by stating another fact inconsistent with it, instead of denying the fact directly. Thus, suppose that the plaintiff alleges that he painted a portrait of the defendant. A direct denial would be that the plaintiff did not paint a portrait of the defendant. An argumentative denial would be that, ever since the order for the portrait was given, the plaintiff has been totally paralyzed. This was thought bad, because it did not create a clear issue (73). Was the painting of the picture, or the paralysis, the fact to be tried by the jury? Also, if the defendant could argumentatively deny the plaintiff's allegation, then the plaintiff would have equal right argumentatively to deny the defendant's plea, and thus a termination of the pleadings would be indefinitely postponed. However, these objections were not very serious in reality, and argumentativeness is only a defect in form (74).

§ 83. Recitals. The use of recitals of material facts, instead of direct allegations of the facts, is also a defect in form (75). Suppose a declaration on a contract should state that, by a certain writing, it appears that the defendant promised to convey his house and lot known as

(73) Fortescue v. Holt, 1 Ventris, 213. (74) Muntz v. Foster, 6 M. & G. 734.

(75) Collier v. Moulton, 7 Johns. (N. Y.) 109.

his Home Place to the plaintiff, and should then go on and state the other allegations. It would be defective. The promise is not expressly stated, but it is merely recited as appearing in the writing.

§ 84. Failure to use general issue when possible. A defect in form, which used to be constantly before the courts, is the use of some other pleading when the general issue should be used. It was the common law, that, if the general issue would deny the fact desired to be denied, then it must be used, and the use of a specific traverse of the fact would be bad in form. Even more clearly, the use of a plea in confession and avoidance, argumentatively denying the fact, would be bad in form (76). But generally defenses in discharge could be pleaded in confession and avoidance, without error, even though they could be proved under the general issue. Thus, in an action of assumpsit, a release could be proven under the general issue; but it could also be pleaded in confession and avoidance, if the defendant so elected. With regard to defenses in excuse, there is doubt whether this option exists or not (76).

SECTION 4. DILATORY DEFECTS.

§ 85. Lack of jurisdiction. No doubt the most important of the possible dilatory defects is lack of jurisdiction. This occurs when the court in which the action is brought has no jurisdiction to entertain the proceedings. Of course the lack of jurisdiction will not be a defect in the pleading, unless it appears in the pleading that there is

(76) Thayer v. Brewer, 15 Pick. (Mass.) 217.