5. Replication and Supplemental Pleadings.

§ 1907. Replication necessary to put in issue truth of answer.—A replication is necessary in admiralty pleadings, as in equity, to put in issue the truth of the answer, and if a cause be set down for hearing without such replication, the answer will be taken as true. The Mary Jane,* Bl. & How., 390.

§ 1908. A special replication by the libelant under oath is not admissible, unless it be demanded by the respondent or ordered by the court, and then it is in the nature of a crossbill or reconventio of the civil law. Coffin v. Jenkins, 3 Story, 108.

§ 1909. An answer need not be under oath unless required by a sworn libel; and if an answer is not under oath no replication, or notice in place of a replication, that testimony to contradict the answer will be taken, is required. The Infanta, Abb. Adm., 265.

§ 1910. Where a replication is not filed within the time required by the rules of the court of admiralty, the libelant will be held to have waived the benefit of the rules in that respect, unless he takes advantage of the point when evidence is offered at the hearing. Thomas v. Gray, Bl. & How., 493.

§ 1911. Proof allowed under pleadings.-Libel for destroying spirits by carelessness of storing. Answer, that the spirits were well stored, and any damage was owing to defects in barrels. Replication joined. Under this state of the pleading, proof of destruction by a natural cause was not allowed, on the ground that it would be departure from the answer. Turner v. The Ship Black Warrior, McAl., 181.

§ 1912. Replication, when not necessary. When a libelant intends merely to deny the truth of the allegations in the answer a replication is not necessary; but when the allegations of the answer are admitted, and intended to be avoided by new facts, the matter in avoidance should be put upon the record; and this is usually done by a supplemental libel though sometimes by replication. Gladding v. Constant, 1 Spr., 73; Taber v. Jenny, 1 Spr., 315.

1913. Effect of general replication.— A general replication has only the effect to put both parties to the proof of the allegations in their respective pleadings not admitted to be true; or of permitting the cause, when the answer operates as a plea in bar, to be set down for hearing upon the libel and answer; and if the libelant wishes to impugn a certain stipulation set up in the answer as a bar to a libel for wages, by introducing facts outside such stipulation, he should do so by amending his libel or filing a special replication. He may, under a general replication, however, contend that the stipulation was void as a matter of law, such general replication operating as a demurrer or exception to the answer. The Atlantic, Abb. Adm., 451.

§ 1914. Denial of validity of award pleaded in answer. If an answer sets up an award o referees as a bar to the libel, and the libelants not denying that such an award was made, but insisting, for certain reasons, that it was not binding, this is new matter in avoidance, which should be put on the record. This is sometimes done by replication, but the more reguiar mode is by supplemental libel, to which the respondents should answer. Upon engagement to file supplemental libel and answer the court heard the cause. Taber v. Jenny,* 9 Law Rep., N. S., 27.

§ 1915. Where a supplemental libel is filed before the process is returnable it becomes part of the pleadings without further notice to the respondent, and he is bound to answer it. Thomas . Gray, Bl. & How., 493.

1916. Supplemental bill for extra compensation.- When the libelants are pilots and they cannot recover on a salvage claim, but have a valid claim for extra compensation as pilots, they will be allowed to file a supplemental bill for such extra compensation. Dexter v. Bark Richmond,* 4 Law Rep., 20.

IV. ADMISSIONS IN PLEADING.

§ 1917. Allegations as admissions.- Allegations in pleading are admissions by the pleader, and need no proof unless denied and put in issue; and, as against the pleader, will be taken as matter conceded. Ward v. The Brig Fashion, Newb., 8; Fashion v. Wards, 6 McL., 152.

§ 1918. Averments not denied.— It is a rule of pleading in the courts of common law that every material averment which is not denied will be regarded as admitted; and that rule would seem to apply a fortiori in equity, where formal exceptions are discouraged. Surget r Byers, Hemp., 715.

§ 1919. Where an averment is not traversed it is held to be admitted, but the rule does not apply to a negative averment not essential to the effect of the pleading. Toland v. Sprague, 12 Pet., 300.

§ 1920. Failure to answer matter not well pleaded. If matter be not well pleaded, and there is no answer to the breach assigned in the declaration, it cannot be considered as an admission of the cause of action stated in the declaration. Simonton v. Winter, 5 Pet., 140. $1921. Patents Effect of neglect to answer. When no answer is made to an alleged infringement of a patent the charge is admitted. Parker v. Bamker, 6 McL., 631.

§ 1922. Plea in bar admits ability of plaintiff to sue.— The rule is general that a plea in bar admits the ability of the plaintiff to sue; and if the parties go to trial on that issue the presumption is reasonable that this admission continues. Yeaton v. Lynn, 5 Pet., 223.

§ 1923. Administrator's ability to sue, how admitted. When a suit is brought by an administrator during the minority of the executor, his powers as administrator are determined when the executor has attained his majority; and the fact that he has not attained his full age must be averred in the declaration. But if this averment be omitted, and the defendant pleads in bar, he admits the ability of the plaintiff to sue, and the judgment is not void. Ibid.

§ 1924. Failure to deny averment of citizenship.- An averment that plaintiffs are aliens, uncontradicted, is admitted. Breedlove v. Nicolet, 7 Pet., 413.

§ 1925. Pleading to the merits admits plaintiff's capacity to sue. Conard v. The Atlantic Insurance Co., 1 Pet., 386.

§ 1926. Infants unprejudiced by omissions of guardians.- Infants cannot be prejudiced by misstatements or omissions of their guardian in his answer. Lenox v. Notrebe, Hemp., 251. § 1927. A plea of payment admits all the allegations in the plaintiff's declaration essential to support the action, and it is unnecessary for the plaintiff to prove them. Archer v. Morehouse, Hemp., 184.

§ 1928. The plea of no rent arrear admits the demise as laid in the avowry. Alexander v. Harris, 4 Cr., 299.

§ 1929. Allegations not denied - Iowa code. By the code of Iowa every material allegation of a declaration must be specifically denied, or it will be held to be admitted. Per Clifford, J., dissenting, in Smith v. Sac. Co., 11 Wall., 139.

V. ERRORS AND DEFECTS IN PLEADING. WAIVER. AIDER BY VERDICT. SUMMARY - Defects of form and substance, how reached, §§ 1930-31.-Motions to strike out apply only to entire pleadings, § 1932. — Variance between record and recital thereof, § 1933.— Variance between writ and declaration not ground for arrest of judgment, § 1934.- Variance between writ and declaration, how objected to, § 1935.— Immaterial issue, § 1936.- Repleader not awarded by court of error, § 1937.- Repleader rarely in favor of party making first fault, § 1938.— Immaterial matter, when to be rejected, § 1939.— Informality in plea, when cured by verdict, § 1940.— Demurrer, though not disposed of, may sometimes be considered as waived, §§ 1941-42.- Clerical misprision, § 1943.- Law favors curing of defects in pleadings, § 1944.- Extension of time for pleading waives no rights, § 1945.— Exceptions and motions to strike out in equity, § 1946.— Motion to dismiss, § 1947.— Motion to substitute one answer for another, § 1948.

§ 1930. When a pleading has not issuable facts sufficient to constitute a cause of action or a defense, the opposite party should demur. Gause v. Knapp, §§ 1949-50.

§ 1931. When a pleading is confused by the intermingling of material and immaterial, issuable and non-issuable allegations, the opposite party should move to make the pleading more definite and certain. Ibid.

§ 1932. Motions to strike out must be directed not to special sentences, but to entire pleadings or counts. Ibid.

§ 1933. A material variance between the record of a recognizance of special bail and the recital of it in scire facias is fatal. Barnes v. Lee, §§ 1951-53.

§ 1934. A variance between the writ and declaration is no ground for arrest of judgment. Wilson v. Berry, § 1954-55.

§ 1935. Variance between writ and declaration should be objected to by plea in abatement or special demurrer. How v. McKinney, § 1956.

§ 1936. When the charge is that goods were unladen at Boston without permission from the collector, and the plea that the goods were not unladen without a permit from the collector of the port where they were first entered, to wit, Memphremagog, an issue formed on this plea is immaterial, as the plea does not deny nor confess and avoid the matter of the information. United States v. Burnham, §§ 1957-62.

§ 1937. When a verdict for defendant is rendered on bad plea and replication, a court of error can only award final judgment for plaintiff, as it cannot award a repleader. Ibid.

§ 1938. Repleader is not ordinarily awarded in favor of the party making the first fault, but it may be done if required by substantial justice. Ibid.

§ 1939. That immaterial matter may be rejected as surplusage is not always true. If it constitute a part of a material averment, so that the whole cannot be stricken out without destroying the cause of action or defense, the immaterial matter cannot be rejected as surplusage, but may be traversed, and must be proved as laid. Ibid.

§ 1940. Informality in a good plea will be cured by verdict. A bad plea also will be cured, provided it contain enough of substance to put in issue the material parts of the declaration. Garland v. Davis, § 1963-70.

§ 1941. A demurrer appearing on the record not disposed of may be deemed from circumstances to have been waived. Townsend v. Jemison, §§ 1971–80.

§ 1942. A demurrer may be deemed to have been waived by defendant from his proceeding in the case without securing a hearing or decision thereon. Ibid.

§ 1943. Clerical misprision is not a ground for reversing the judgment if substance enough appear on the record.

Ibid.

§ 1944. It is the policy of the law that defects, as far as possible, be cured by verdict. Ibid.

§ 1945. A defendant, by allowing an extension of time for filing the declaration, estops himself from taking advantage of the plaintiff's laches in the matter, but waives no other rights. Ricard v. New Providence, §§ 1981-83.

§ 1946. Semble, that filing of exceptions is not the only method of testing the sufficiency or regularity of an answer, but that in some cases a motion to strike from the files may be entertained. Allis v. Stowell, § 1984.

§ 1947. A motion to dismiss a suit for want of a replication will not be granted pending a motion to strike the answer from the files for irregularity. Ibid.

§ 1948. A motion to take one answer from the files and substitute another, though not as favorably received as a motion for amendment, yet may be granted in a clear case. Coster v. Wood, § 1985-86.

[NOTES.- See §§ 1987-2082.]

GAUSE v. KNAPP.

(Circuit Court for Missouri: 1 McCrary, 75-78. 1880.)

Opinion by McCRARY, J.

STATEMENT OF FACTS.-This is a motion to strike out a special defense. This cause was before the court at a previous term, Judge Dillon presiding, at which time it was suggested that the questions designed to be raised could be presented in a better form under a special answer. Since then an amended petition and an answer thereto have been filed.

It is of importance, not for this cause alone but for the general practice of the court, that the modes of proceeding should be clearly understood, and I therefore take this occasion to restate some well settled rules which prevail in this court.

$ 1949. Rules of pleading.

Mr. Justice Miller, at an early day, with the concurrence of Judges Dillon and Treat, held:

First. That in pleading the parties respectively must aver the issuable facts and nothing more.

If irrelevant and redundant matter is inserted in the petition or answer the court will not entertain a motion to eliminate the same, but will receive a motion to make said pleading more certain and definite. The reason for this ruling is based not only on the essential requisites of good pleading, but on the duty of attorneys to so plead as not to drive the opposing attorney, with the aid of the court, to do the pleading for the party. The function of the court is to pass upon the papers filed, and not to become the pleader for the parties. Let the plaintiff and defendant respectively come to an issue, not on matters of evidence, relevant or irrelevant, but on the ultimate facts deter

mining their respective rights. There is nothing in the Missouri practice act which abrogates these essential rules of pleading. The very object of pleading is to bring the parties face to face with the issuable facts on which their rights depend.

Second. If a pleading has not issuable facts sufficient to constitute a cause of action or a defense, or is mixed with statements as to evidence to support the same, the opposite party may demur, so that the court, disregarding the irrelevant matter, may determine whether the alleged cause of action or special defense has any foundation in law.

Third. If the vicious pleading is so vague and confused that the material and immaterial allegations are intermixed, or a mass of statements are contained therein, some issuable and others non-issuable, the proper practice is a motion to make the pleading more definite and certain.

Fourth. Motions to strike out special clauses or sentences in a pleading this court will not entertain, for it cannot determine in advance of the trial to what issuable facts they may pertain; nor will the court, through such motions, be driven to the necessity, after repeated experiments, of doing practically the pleading for the party in default. This court recognizes, therefore, demurrers and motions to make pleadings more definite and specific. A motion to strike out, if admissible at all, must be directed to an entire pleading or a whole count or division. Matter appearing to be scandalous would form an exception to the rule.

There is a very important consideration in this ruling, which every good pleader will recognize, viz.: that while a demurrer cuts back to the first bad pleading it is by no means sure that a motion to strike out will effect the same end; nor is it sure that the decision on such a motion could be considered a final judgment, entitling the party to a writ of error or appeal.

These general propositions are now reduced to form, not because this case requires the statement of them, but that it may be understood that the rulings of Mr. Justice Miller, and Judges Dillon and Treat, heretofore made on the points stated, are to be adhered to.

As to the motion now before the court it must suffice to say that the question intended to be presented would have been more properly raised on demurrer to the answer, instead of a motion to strike out. But, waiving that technical question, we find that the answer as to the special defense is somewhat vague; yet, if true, it makes it appear that the alleged agreement set up in the petition, if made, was fraudulent and void. The defendants ought to have put themselves distinctly on record by positive averments, yet they have, by liberal construction, done so, and if a demurrer instead of a motion had been interposed, the objection made would have cut back to the petition.

§ 1950. A contract to give one creditor a preference over others, for consenting to a composition, is void.

The cause of action as set out discloses imperfectly a contract on the part of plaintiffs to receive a sum of money beyond what other creditors were to receive, for assenting to a quasi composition; and such a contract, if the assent of all was required, the law pronounces void.

We regard the answer, liberally construed, as charging in substance that the contract sued on, if made, was one under which the plaintiffs were to receive a secret preference over other creditors of the same debtor, and this, if true, is a perfect defense.

The motion to strike out is overruled. If plaintiff desires a more specific

statement of the points of defense he may move therefor, or he may demur to the answer and thus secure a more concise and clear statement. But the present motion, for reasons stated, cannot prevail.

BARNES v. LEE.

(Circuit Court for the District of Columbia: 1 Cranch, C. C., 430-432. 1807.)

Scire facias against special bail.

§ 1951. Material variance between the record and its recital in the scire facias is fatal.

Opinion by CRANCH, J.

To this scire facias Mr. Lee has pleaded nul tiel record, upon which an issue is joined which must be decided by the court upon inspection of the record. If there be such a record as that set forth in the scire facias the judgment must be for the plaintiff. But if there be a material variance between the record and the recital of it in the scire facias the judgment must be for the defendant.

The first question is, What is the record? The record as made up at large in the record-book is in these words: "Whereupon Edmund J. Lee came into court and undertook, for the said defendant, to satisfy and pay the condemnation of the court, if he should be cast at the trial of this suit, or render his body to prison in execution for the same."

The scire facias states, "Edmund J. Lee heretofore," "to wit, on," etc., came before the court and became pledge and bail for the said David Easton, that if it should happen that the said David Easton should be convicted at the suit of the said John Barnes, in the action aforesaid, then the same bail granted that as well the said damages as all such costs and charges as should be adjudged to the said John Barnes in that behalf should be made of the goods and chattels of the said Edmund J. Lee, and to be levied to the use of the said John Barnes, if it should happen that the said David Easton should not pay the said damages and costs aforesaid, or should not on that account render himself to the prison of our said county."

It is contended by the defendant that the undertaking, as stated in the record, is materially variant from that set forth in the scire facias, because the former does not show that the defendant "granted that the damages and costs should be made of his goods and chattels" in case Easton did not pay them or render himself to prison on that account. The undertaking of the defendant, as stated in the record, is only that Easton should pay or render himself to prison; it does not include the usual alternative, "or that the bail will pay it for him," which is the very substance and essence of the undertaking upon which the scire facias is grounded.

But it is answered on the part of the plaintiff: 1st. That the obligation of special bail is well known and settled by law and cannot be altered, and when the record states that he came into court and acknowledged himself to be special bail, it states in substance that he acknowledged himself to be bound by all the legal obligations of bail; and that when the record states that he undertook for Easton to pay or render himself to prison, in execution, it implies that if he did not the bail would do it for him; so that the record states the substance of the whole legal obligation of special bail, and the scire facias has stated nothing more. 2d. It is also contended that the entry on the minute-book of the day, in these words, "Edmund J. Lee, special bail," au