mal words absque hoc, &c.; but when a particular fact alleged in the plea was selected and denied, the replication should conclude with a verification. 1 Salk. 4. 1 Bur. 317. Doug. 91. 412, 413. (n. 1.) 2 T. R. 442. 1 Saund. 103 a. But now, by Reg. Pl. H. 4 W. 4, I. s. 13, "all special traverses, or traverses with an inducement of affirmative matter, shall conclude to the country; provided that this regulation shall not preclude the opposite party from pleading over to the inducement, when the traverse is immaterial.

A replication of de son tort demesne sans tiel cause, must conclude to the country.

Where a replication confesses and avoids the matter of the plea, it should conclude with a verification. See 1 Saund. 103 (n. 1.) Thus, if the defendant plead the statute of limitations, and the plaintiff shew a writ sued out within the time, he must not conclude to the country; for he would thereby deprive the defendant of the opportunity of answering the new matter stated in the replication. R. Lutw. 101. R. 4 Mod. 376. So, where to a scire facias against bail, it was pleaded that the principal died before the return of any ca. sa.; it was holden that a replication stating the particular ca. sa, and that the principal was alive at the return of it, should conclude with a verification. 2 T. R. 576, and sce Com. Dig. Pleader, E. 32. 4 Mcd. 285. 10 Co. 52 a. 9 Bing. 51, ante, p. 232. It must be owned that there is some difficulty in this subject: not as to the general principle, which is plain and obvious; but in determining whether cach particular case comes within it. In doing so, it is necessary first to inquire whether the replication states any new matter, which the defendant should have an opportunity of answering; or whether the issue which may be taken by the rejoinder, differ in substance from that which might have been taken on the plea : and if so, the replication should conclude with a verification.

If the replication consist of matter of record, the conclusion is thus: "and this he the said plaintiff is ready to verify by the said record." The conclusion of a replication of an estoppel, is the same as in the case of a plea of matter of estoppel, as stated ante, p. 212. *It may be necessary to mention that the want of a verification was aided after verdict, by stat. 16 & 17 C. 2, c. 8; and after judgment by confession or default, by 4 Ann. c. 16, s. 2. See 2 Arch. Pr. C. P. 281. wrong conclusion, either to the country or with a verifica

And now,

tion, is mere matter of form, and can be taken advantage of by special demurrer only. 4 Ann. c. 16, s. 1.

3. Replication, where the Plea concludes with a verification by the Record.

When the plea concludes with a verification by the record, the replication of nul tiel record is thus: "And the said plaintiff, as to the plea of the said defendant by him [secondly] above pleaded, saith that there is not any record of the said supposed recovery" (or " recognizance" &c.) "in the said plea mentioned, remaining in the said court of our said lord the king before the king himself" (or other court, according to the plea) "at Westminster aforesaid, in manner and form as the said defendant hath above in his said plea alleged; and this he the said plaintiff is ready to verify, when where and in such manner as the court here shall order direct and appoint." See 1 Barn. & Ald. 153. If the record pleaded be a record of the same court, the issue concludes with an entry of a curia advisari vult, giving a day for the inspection of the record; see the form, Arch. Forms, 315, 316, 324, and which is usually inserted by the pleader at the end of the replication. But if it be a record of a different court, the entry in that case states that the defendant is commanded to have the record in court on such a day, and to fail not therein at his peril. See the form, Arch. Forms, 321. 327. and see Com Dig. Pleader, 2 W. 13. 1 Arch. Pr. C. B. 311. 314. Or, when the record of another court is pleaded, the plaintiff may conclude his replication with a prayer of judgment and damages, &c. as ante, p. 230; but this is a very dilatory mode of pleading, as it requires a rejoinder re-asserting the record; and it is consequently much preferable to adopt the mode of pleading above-mentioned, See 1 Saund. 92. (n. 3.)

4. Replication to a Plea of Nul Tiel Record.

To a plea of nul tiel record, the replication is in this form; "And the said plaintiff, as to the plea of the said defendant by him [secondly] above pleaded, saith that there is such a record of the said recovery" (or "recognizance") "remaining in the said court of our said Lord the King before the King himself" (or other court, as in the declaration "as he the said plaintiff' hath above in his said declaration in that behalf alleged; and this he the said plaintiff is ready to verify by the said record, when where and in such manner as the court here shall order direct and appoint. And he prays that the said record may be seen and inspected by the said court now here." Then, if the record pleaded be a record of the same court, follows an entry of a curia advisari vull, giving a day for the inspection of the record; see the

form, Arch. Forms, 316. 325: but if it be a record of a different court, the entry states that the plaintiff is commanded to have the record in court, on such a day, and to fail not therein at his peril. *See the form, Arch. Forms, 321. 327. 1 Saund. 92. (n. 3.) and see 2 Arch. Pr. C. B. 311. 314.

SECT. II.

The Requisites of a Replication.

It must be triable.] The matter of a replication must consist of either matter of fact, or matter of record &c., in the same manner as has been already mentioned with reference to pleas; see ante, p. 171; so that issue may be joined upon it, triable by the country, or by the record &c.

It must not be double.] A replication must not be double: that is, it must not contain two or more replies to the same defence. Therefore if the plaintiff reply de son tort demesne sans tiel cause, sans ceo that there is such a record, it is bad. 3 Lev. 243. Fortesc. 379. see ante, p. 174-176. Com. Dig. Pleader, F. 16. and see 1 Str. 317. But where several facts constitute the single point of defence upon which it is intended to take issue, the replication may traverse them all, without being objectionable for duplicity. 1 Bur. 316. Ante, p. 245. Where to a plea in abatement that another action was pending by B. and C. for the same cause, the plaintiff replied that they were both dead; the replication was holden not to be double, for it was necessary to shew the death of both B. and C., to entitle the plaintiff to bring his action alone. 2 Lev. 82. 1 Vent. 236. So, in all cases where several facts constitute one entire answer to the defence, the replication may of course state them all, without being liable to objection for duplicity. So, in the cases already mentioned (ante, p. 246.) where the replication assigns a breach, the replication is not on that account bad for duplicity, although it also contain an implied traverse of the plea : thus. if the defendant plead no award, and the plaintiff in his replication set out the award and assign a breach, the replication is good. 1 Mod. 227. So, if the defendant plead that he enjoyed an office for the life of B., and paid during his life; and the plaintiff reply that he enjoyed diutius, and did not pay: the replication is not bad for duplicity. R. 1 Mod. 227. So, it seems, where matter is added, merely for maintenance of the count, it will not make the replication bad: as, in quare impedit, if the ordinary plead that he presented on a lapse; and the plaintiff reply that he presented before a lapse, and that the

ordinary refused and afterwards presented on pretence of a lapse: the replication is not bad for duplicity; for the additional matter namely, that the ordinary presented on pretence of a lapse is alleged merely to maintain the cause of action mentioned in the count. Hob. 198.

Nor can a plaintiff, in general, plead different replications to different parts of the same plea. To this however there are a few exceptions. If an executor, defendant, plead several judgments &c. outstanding, the plaintiff may reply to any or all of them, at his option; although by avoiding any one of the judgments, the plaintiff will be entitled to recover. Yet the better way seems to be to answer only such judg ment &c. as the plaintiff knows to have been obtained by fraud &c. 1 Saund. 336, 337. (n. 2.) 2 Saund. 49, 50. 2 Saund. 49, 50. *1 Lev. 281. 1 L. Raym. 263. 1 Salk. 298. Carth. 431. See 1 Salk. 312. Hardw. 289. So, when a defendant pleads a set-off of different species of debts, as debt by judgment or recognizance, bebt by bond, debt by simple contract &c., the plaintiff may reply to each. See 1 East. 369. So, in the common case of a plea of infancy, the plaintiff may reply that the goods mentioned in such a count were necessaries, that the money mentioned in such a count was laid out for necessaries, and he may enter a nolle prosequi as to such counts as he thinks he cannot sustain.

A plaintiff cannot have leave to reply double, under the stat. 4 Ann. c. 16; Fortesc. 335. Barnes, 363; unless he be plaintiff in replevin, in which case that statute expressly allows him to plead several pleas in bar, with leave of the court. See ante, p. 235 &c. Where the de. fendant pleads several pleas, of course the plaintiff may reply to each of them. And even where a plea is double, and would therefore be bad on a special demurrer, yet if the plaintiff reply to it, instead of demurring for the duplicity, it is said he must answer the double matter; 1 Vent. 272; but in a more recent case, where the defendant, in an action of trespass, justified under a prescriptive right to a duty, and also a prescriptive right to distrain for it; and the plaintiff in his replication traversed the prescription for the duty, but not the prescriptive right to distrain; yet, on demurrer for this cause, the replication was holden good. 1 Wils. 338.

Where a defendant in assumpsit pleads that the contract declared upon was a guarantie for the debt of another, and that no memorandum thereof, stating the consideration, was or is in writing, signed by the defendant or any person authorized by him: it was holden that the plaintiff might reply, that a memorandum of agreement in writing, stating the consideration, was signed by the defendant, without setting out such

memorndum in the replication. Wakeman v. Sutton. 2 Ad. & E. 78. See Lowe v. Eldred, ante, p. 504 f.

The only mode of objecting to a replication for duplicity, is by special demurrer. 1 Saund. 336, 337. See ante, p. 176.

It must be certain.] A replication requires more certainty than a declaration. Semb. 1 Salk. 140. [See ante, p. 108-111.] But certainty to a common intent is sufficient: as, in trespass for taking three loads of oats, if the defendant justify for damage feasant, and the plaintiff reply that tempore quo et diu antea he was parson, and took for tithes ; though he do not say that he was parson at the time of the severance, yet it shall be intended. R. Cro. Car. 63, and see 4 Bing. 202. So, if the defendant justify under a devise from B., and the plaintiff say that the land descended to him as cousin and heir to B., and traverse the devise; it is sufficient, without saying how cousin. R. 2 Cro. 86. Com. Dig. Pleader, F. 17. So, in debt on bond conditioned to prosecute a writ of error in the court of Hustings with effect, a replication stating that the writ of error was non-prossed in the Hustings, was holden good, although it did not state before whom the court of Hustings was holden, or that the writ of error was returnable. 1 Wils. 123. So, much certainty is not required, where the certainty lies within the knowledge of the defendant, and probably rot of the plaintiff: thus, in debt on bond, the defendant having prayed oyer of the condition, (which was, that the defendant, who was appointed agent of a regiment, should well and duly pay all monies he should receive for the use of the regi. ment, and faithfully account, and indemnify the plaintiff,) pleaded a general performance, and that the plaintiff was not damnified; to which the plaintiff replied that the defendant received from the paymaster-general, for and on account of the said regiment, "several sums of money, amounting in the whole to 14007." but that the defendant had not paid them on demurrer to the replication, the court held the breach therein to be alleged with sufficient certainty; 2 Bur. 772; because the certainty as to the sums received, and when, where and from whom, must be deemed to be within the knowledge of the defendant, rather than of the plaintiff. See 1 B. & P. 640. 8 T. R. 459. S. P. But where in debt on bond conditioned to perform articles of agreement, (by which the defendant agreed to take all his malt liquors from the plaintiff and to pay for the same, reserving to himself a liberty to purchase his other liquors from other persons,) the defendant having pleaded performance generally, the plaintiff replied that there was such a quantity of liquors unpaid for; the court, upon demurrer, held the replication bad for uncertainty, because it did not state whether the liquors unpaid for were malt