on a statute, the statute must be followed strictly. Hull v. The Town of Richmond, 2 Woodb. & M., 337.

$459. Proceedings under 4 George II.- Allegation of no distress.— In a proceeding under the statute of 4 George II., it must be alleged and proved that there was no sufficient distress upon the premises on some day or period between the time at which the rent fell due and the day of the demise, and if the time when, according to the proofs, there was not a sufficient distress upon the premises, be subsequent to the day of the demise. Connor v. Bradley, 1 How., 211.

§ 460. Under the act of August 31, 1851, a petition to the board of land commissioners must show a claim by virtue of a right or title derived from the Spanish or Mexican government, but the act does not define the character of the right or title, or prescribe the kind of evidence by which it shall be established. It is sufficient if the right is derived from such government, and it may rest only in the general law of the land. Beard v. Federy, 3 Wall.,

478.

§ 461. Conclusion of declaration for statute penalty.- In debt for a penalty on a statute the declaration must conclude against the form of the statute, or it will be bad. Cross v. United States, 1 Gall., 26; Jones v. Van Zandt, 2 McL., 611; United States v. Babson, 1 Ware, 450.

$ 462. Conclusion of declaration founded on amendatory act. If the declaration is founded on an amendatory act, which refers to and continues the provisions of a former act, it should conclude "against the form of the statute," and not statutes. Falconer v. Campbell, 2 McL., 195.

§ 463. Action for statutory penalty - Declaration must allege offense to have been committed contrary to the form of the statute.— A declaration in an action to recover a statutory penalty must allege that the offense charged was contrary to the form of the statute, and it is not a valid substitute to say that "by force of said act" defendant has forfeited. Such a declaration is bad on error. Sears v. United States,* 1 Gall., 257; United States v. Batchelder, 9 Int. Rev. Rec., 97.

§ 464. In such an action it is not necessary to refer in the declaration to the statute giving the remedy in addition to that creating the offense. Ibid.

§ 465.

brought by an individual.— In an action for a statutory penalty, brought by an individual, the declaration must state that the act was done or omitted contrary to the form of the statute in such cases made and provided. Briscoe v. Hinman,* Deady, 588.

§ 466. The declaration must also allege that, by force of the statute, an action has accrued to the plaintiff to have and demand of the defendant the penalty forfeited. Ibid.

§ 467. A declaration by an individual for a penalty, under act of August 30, 1852, as to transportation of passengers and freight upon steamboats, which alleged that upon certain occasions a boat carried freight or passengers, or which alleged that the defendant, a collector of customs, negligently or intentionally omitted to enforce the law, would be bad for uncertainty. Ibid.

$468. When an offense depends upon several statutes, a conclusion in the declaration against the form of a single statute would be bad. The converse, however, is not true, and if the offense depends upon one statute only, a conclusion against the form of the statutes is good on error. Kenrich v. United States,* 1 Gall., 268.

$ 469. in admiralty, setting forth the offense clearly enough to bring it within the statute, is sufficient without the contra formam statuti. The Merino, The Constitution and The Louisa, 9 Wheat., 391.

§ 470. A plea justifying a seizure under the statute of 1794 need not state the particular prince or state by name against whom the ship was intended to cruise. Gelston v. Hoyt, 3 Wheat., 246.

§ 471. A plea justifying a seizure and detention by virtue of the statute of 1794, under the express instructions of the president, must aver that the naval or military force of the United States was employed for that purpose, and that the seizor belonged to the force so employed. Ibid.

§ 472. Declaration or information for statute penalty must negative exception in enacting clause. In a suit to recover a statutory penalty, or an information to secure the forfeiture of property under a statute, if there be an exception in the enacting clause, the declaration or information must negative it; but if the exception is superadded by way of proviso, the party wishing to avail himself of it must set it up in his pleading. United States v. Distillery,* 4 Biss., 26. $ 473.

proviso, however, need not be negatived.- A plea averring that the claimant is an alien, in substantial conformity with the second section of the act of congress, July 27, 1868, but not negativing a provision to the statute allowing aliens the same privilege as citizens in prosecuting claims against the United States, is good on demurrer, as only exceptions

to enacting clauses of statutes, not provisos, must be negatived in thus pleading a statute. Muller v. United States,* 4 Ct. Cl., 61.

§ 474. Action to recover taxes paid under protest-Facts showing plaintiff to be within the exception of the statute need not be alleged. Under section 110 of the revenue act of the United States, as amended on the 13th of July, 1866, providing for a tax upon certain banking institutions, but excepting others from such tax, if the complainant, in a suit to recover the amount of taxes paid by it under protest, denies that it is within the general clause of the act, it need not proceed to allege facts showing that it is within the exception. German Sav. & Loan Co. v. Oulton, 1 Saw., 695.

§ 475. A libel of information does not require all the technical precision of an indictment at common law. If the allegations describe the offense it is all that is necessary; and if founded upon a statute it is sufficient if it pursues the words of the law. The Emily and The Caroline, 9 Wheat., 381.

§ 476. What is mere matter of defense need not be set out in an information, but only enough need be set out to show a violation of the statute under which the information is brought; and it is not necessary to aver that requirements of such statute, which are merely directory to the officers of the government, have been complied with by them, if there has been an actual violation of the statute by the party against whom the information is brought. United States v. 78 Cases of Books, 2 Bond, 271.

§ 477. Action under Revised Statutes, section 4963, for violating copyright law — Complaint must aver it to be within the statute.- In a complaint under Revised Statutes, section 4963, for printing the words "entered according to act of congress,” etc., upon a noncopyrighted article, if such article may or may not be within the statute, it must be averred in the complaint that it is within the statute, unless the terms used in describing it necessarily bring it within the statute. Rosenback v. Dreyfuss, 2 Fed. R., 217.

§ 478. An information under the confiscation act of Angust 6, 1861, should state in distinct articles the causes of forfeiture; should aver that the same are contrary to the form of the statute in such case made and provided; and the allegations must conform strictly to the statute upon which the information is founded, since the proceeding is in the nature of a criminal proceeding. United States v. Huckabee, 16 Wall., 414.

§ 479. Forfeiture of imported merchandise for undervaluation; necessary averments.An information under section 66 of the act of March 3, 1799, for forfeiture of imported merchandise, because of undervaluation, must aver that the valuation was under cost at the place of exportation; but an amendment of an information not so averring will be allowed. United States v. 78 Cases of Books, 2 Bond, 271.

§ 480. Entry upon false invoice Defective allegation as to.- In an action of debt upon a statute which makes it penal to make an entry upon false invoice, an allegation in the declaration that the defendant, upon entry, left with the collector a false invoice, is a fatal defect not cured by the verdict. United States v. Batchelder,* 9 Int. Rev. Rec., 97.

§ 481. An information under the slave-trade act of 1794, which describes, in one count, the two distinct acts of "preparing a vessel" and of “causing her to sail," pursuing the words of the law, is sufficient. The Emily and The Caroline, 9 Wheat., 381.

§ 482. Stating a charge in the alternative is good if each alternative constitutes an offense for which a thing is forfeited. Ibid.

§ 483. Notice. In an information on section 3 of the act of January 9, 1809, for not unloading, or giving bonds, the time of receiving the act at the port where the offense was alleged to have been committed, and also of notice to unload, were material and traversable; and it was also held insufficient to allege that notice was given "to discharge the cargo or to give bond, according to the law in such cases provided." The nature of the requisition should have been stated, and to whom notice was given, that the court might judge of its sufficiency. The Schooner Bolina, 1 Gall., 75.

584

2. Plea.

a. In General.

SUMMARY-Plea to a part of the declaration not to be treated as a plea to the whole, § 484.Several pleas to different parts of declaration must all be good to obtain final judgment, § 485.- Several pleas to different parts, all to be determined separately, §§ 486, 487.— Pleas must leave no part of declaration unanswered, § 488.— Several pleas to different parts, the same as one plea with several verifications, § 489. — Traverse to be direct, § 490.— Foreign judgments, how to be pleaded, §§ 491, 492.— Joint plea must be good as to all, § 493. — Plea of alteration of instrument, § 494.- General issue without an oath admits instrument, § 495.- Duress or fraud in promissory note, § 496. — General plea of fraud, § 497.— Pleading defense already set up, § 498.— Plea to declaration on official bond, §§ 499, 500.— Plea to answer declaration, not evidence, § 501.— Bad plea by defendant as acceptor, § 502.- Double plea, § 503.— Set-off, § 503.— Failure of consideration, § 504.— Fraudulent misrepresentations, $ 505.— Bad plea in action on penal bond, § 506.- Plea that instrument was mere escrow, § 507.- Plea varying written contract, § 508.- Uncertainty, § 509. § 484. When a plea professes to answer only part of the actionable matter in the declaration the plaintiff, by treating it as a plea to the whole, discontinues. Kerr v. Force, §§ 510

518.

§ 485. When several independent pleas are filed to different parts of a count they are not double, and plaintiff may demur or reply to each, taking nil dicit judgment as to all matters not covered by the plea in each case. Final judgment, however, is upon the whole record, and if all the pleas are good it will be for defendant. Ibid.

§ 486. When several pleas are filed, each to the whole count, final judgment will be for defendant if one of them be good. Ibid.

§ 487. When several pleas are filed to different parts of a count, and issues taken thereon, damages will be assessed on those found for plaintiff, and defendant will have judgment on those found for him.

Ibid.

§ 488. When any actionable part of declaration is left unanswered by a sufficient plea plaintiff may have nil dicit judgment for so much. Ibid.

§ 489. Pleading several pleas to different parts of a count is the same as pleading one plea with several verifications. Ibid.

§ 490. A plea should traverse a fact in the declaration directly, not argumentatively. Mower v. Burdick, § 519.

§ 491. Foreign judgments are not records, and should not be pleaded as such. Burnham v. Webster, §§ 520-525.

§ 492. A plea setting up a foreign judgment must allege that the court rendering it had jurisdiction. Ibid.

§ 493. A joint plea by several defendants, if bad as to one is bad as to all. United States v. Linn, §§ 526–528.

§ 494. A plea by defendant, alleging alteration of the instrument sued on after signature, without charging the alteration on the plaintiff, is bad in substance. Ibid.

§ 495. When statute requires the denial of an instrument declared on to be sworn to, the general issue without an oath may be pleaded, which, though admitting the instrument, allows other defenses to be proved. McClintick v. Johnston, §§ 529–537.

§ 496. The plea of duress or of fraud by the maker of a bill in a suit by the assignee is bad without an averment of notice. Ibid.

§ 497. A general plea of fraud to a declaration on a bill is not demurrable. Ibid.

§ 498. A plea by one defendant, setting up a defense already pleaded by all the defendants jointly, is useless, and a motion to strike out or a demurrer will be sustained. Ibid.

§ 499. To a declaration in debt on an official bond a plea is bad which sets up a subsequent bond as received in satisfaction and discharge of the first. United States v. Gerault, §§ 538

513.

§ 500. To such a declaration a plea is bad in which sureties set up a fraud of their principal as a defense. Ibid.

§ 501. A plea must answer the declaration, and not the evidence, which it is assumed will be given to support the declaration. Ibid.

§ 502. Where the declaration is against defendant, as acceptor, in his individual capacity, of a bill of exchange drawn in payment for the transportation of a particular lot of goods, for a firm of which defendant is a member, a plea is bad in substance which seeks to avoid liability by setting up that, in various shipments for the firm, the plaintiff had failed to per

form his agreements and had greatly damaged the firm. Railroad Co. v. Thompson, §§ 544–

547.

§ 503. A plea is double when, after averring non-performance in bar of the action, it sets up a counter-claim against plaintiff. Such a claim should be made in a separate plea of setoff, or by notice of special matter. Ibid.

§ 504. A plea of failure of consideration should state precisely what was the consideration; also to what extent and in what respect consideration has failed. Grunninger v. Philpot, $$ 548-551.

§ 505. A plea of fraudulent misrepresentations should state what they were, with necessary incidents; also that defendant entered into the contract relying upon them, and should allege the consideration. Ibid.

§ 506. In an action on a penal bond, a plea that the breach is less in extent than that charged in the declaration is bad. United States v. Dair, §§ 552, 553.

§ 507. A special plea of non est factum, on the ground that the instrument declared on was only an escrow and not the deed of defendant, must aver that the instrument was delivered to a third person, to be delivered to the obligee only on performance of a certain condition. Ibid.

§ 508. A plea is bad which sets up that the written contract as set out in the declaration is not the contract as made between the parties, this being an attempt to vary a written contract by parol testimony. McDonald v. Orvis, § 554-556.

$509. This plea is bad also for uncertainty, in not stating wherein the contract as set out differs from the contract as made. Ibid.

(Circuit Court for the District of Columbia: 3 Cranch, C. C., 8-46. 1826.)

STATEMENT OF FACTS. This was a suit charging the defendant with having published a libel against the plaintiff, in stating that the plaintiff had altered a note made by a Mrs. Moulton and indorsed by John Q. Adams, making the instrument materially different from what it was when the parties respectively signed and indorsed it.

The plea was apparently intended to be in justification, and was to the effect that the defendant did publish the matters and things in said (alleged) libel contained, as he might lawfully do. The court having adjudged the plea defective, upon leave given the defendant filed fourteen additional separate pleas, of which the court refused to receive six. Plaintiff moved for judgment by nil dicit as to so much as the pleas did not cover.

§ 510. Discussion of authorities as to pleas answering only part of the actionable matter in declaration.

Opinion by CRANCH, J.

The case of Patcher v. Sprague, 2 Johns., 462, is cited by the plaintiff to show that "whatever is traversable in pleading, and which is not traversed, is admitted." This is certainly true. 1 Chitty, 591. But in that case the replication, which was supposed to admit the fact not traversed, was a replication which purported to be an answer to the whole plea. That case, therefore, only shows that the doctrine applies to such pleas as purport to answer the whole count, or, at least, such traversable matter as is within that part of the count which the plea purports to answer when the plea purports to answer only a part of the count.

In the case of Currie & Witney v. Henry, 2 Johns., 437, Spencer, J., in delivering the opinion of the court, said: "Pleas pleaded under the leave of the court must contain in each of them sufficient matter in law to bar the plaintiff's action, and they cannot be made to depend on facts stated in other pleas." This doctrine is stated as the reason for adjudging the defendant's third and fifth pleas in that case to be bad on special demurrer. Each of those pleas

purported to answer the whole count. The doctrine, therefore, so far as that case goes, is only applicable to pleas which profess to answer the whole count. "When the body of a replication contains an answer to a part of a plea the commencement should recite or specify that part intended to be answered; for should the commencement assume to answer the whole plea, but the body contain an answer only to part, the whole replication will be insufficient, and so vice versa." "In this case," says Mr. Chitty, "the form may run thus: 'And the said A. B., as to so much of the said plea of the said C. D. by him secondly above pleaded as relates to the said supposed recognizance in the said plea mentioned, says that he ought not to be barred from having or maintaining his aforesaid action thereof against him, because he says,' etc., and the other part of the plea may commence as follows: 'And the said A. B., as to the residue of the said plea, saith, "precludi non," etc., "because," etc.

"On the other hand, when the matter to be replied is equally an answer to several pleas, it is proper, in order to avoid expense, to answer all the pleas in one replication." "In these cases the commencement should apply to and profess to answer all the pleas. So where to a plea of judgment outstanding the plaintiff replied that each is fraudulent, he may conclude with one verification. 1 Chitty, 573.

"It is said that matter which is the ground of the suit, or upon which issue might be taken, cannot be protested, and that a protestation which is repugnant to or inconsistent with the plea is inartificial and improper. In these cases the replication should either admit the part of the plea which is not disputed, by saying 'true it is that,' etc., or should at once deny the matter. intended to be tried, though the latter mode, as being the most concise, appears preferable, for whatever is not traversed is, in effect, admitted." 1 Chitty, 590.

"The qualities of a replication in a great measure resemble those of a plea, which are, that it answers so much of the plea as it professes to answer; and that if bad in part it is bad for the whole, and that it must be single. If it do not answer so much of the plea as it professes to answer it will be a discontinuance." 1 Chitty, 617; Marsteller v. McLean, 7 Cranch, 156; Com. Dig., Pleader, F. 4, W. 2; Hancock v. Prowd, 1 Saund., 338. See, also, 1 Chitty, 511, 512, 540, 592, 618; Co. Lit., 304, a; Coombe v. Talbot, Salk., 218; Curtis v. Bateman, 1 Sid.. 39; Wilson v. Law, Carth., 334; S. C., Skin., 554; Middleton v. Cheeseman, Yelv., 65; Bray v. Fisher, 2 Roll., 390; 1 Roll. Ab., 487, b, 43; 7 H. 6, 27; Johnson v. Turner, Yelv., 5; S. C., 1 Brownlow, 192; Penton v. Robert, 2 East, 88; 4 Co., 62; Herlakenden's Case, Gilb. Hist. C. L., 155, 185; Woodward v. Robinson, 1 Str., 302; Wilson v. Dodd, 1 Roll., 176; Wats v. King, Cro. Jac., 353.

§ 511. The rule where the plea professes to answer only a part of the actionable matter in declaration.

From all the cases which I have found the rule seems to be, that where the plea professes to answer only a part of the actionable matter charged in the count, if the plaintiff, by his replication or demurrer, treats it as a plea to the whole matter, it is a discontinuance. But if the plaintiff, by his replication or demurrer, treat it as a plea to that part only which it purports to answer, it is no discontinuance; provided that at the time of replying or demurring he take judgment, by nil dicit, for that part of the count which is unanswered by the plea.