Art. 9. § 28. So, held, that pleading, one Saunders having been le- CH. 177. gally possessed, as tenant at will to B, is a sufficient averment that A was tenant at will, &c., though the whole merits of the plea depended on A's being tenant at will, &c.; "for Willes, 131, pleas must be construed according to a common intent; and Southby. a man must strain indeed, to say this plea does not plainly intend that G. Saunders was tenant at will." The word as tenant at will affords no objection. Eaton v. 358, Coffin v. Coffin. § 29. In this action the declaration in trespass for an as- 2 Mass. R. sault and battery. Held, good and well avered, though it was, for that whereas, &c. by way of recital. This was a case fully considered by the whole court; and in which a contrary decision, on this point, in 1 Mass. R. was overruled. § 30. When a lease is made by tenant for life, any one 1 Saun. 230. claiming under it, ought to aver he is alive; but quere, if by tenant in tail. Plant, Co. § 31. General estates in fee simple may be averred gener- Thursbye v. ally; but the commencement of estates in tail, and other par- Lit. 305.-2 ticular estates, must be averred and shewn, unless where Esp. 169. alleged only by way of inducement: so, the life of tenant in tail, or for life, must be averred. Rawson &al. v.Johnson. § 32. How the plt. avers performance. Case for not deliv- 1 East, 203, ering malt, the deft. had engaged to deliver on request, at a certain price. Held, sufficient for the plt. in his declara- Same, 2 Bos. tion, to aver such request; and that he was ready to receive & P. 447, the malt, and to pay for it according to the terms of the sale, but the deft. refused to deliver it, without averring any actual tender of the price. Waterhouse v. Skinner. Bac. 81,100. What is necessarily implied, need not be averred. Nor Amer. Prec. what may be fairly intended; and either may be traversed; for ch. 7.-4 what is necessarily implied or intended, is as if expressed in pleading. 2 Salk. 629, Gilbert v. § 33. Not any parts in pleadings are more material to be attended to than these; as the question so repeatedly arises as to what, from matters expressly stated or averred, may be necessarily implied, fairly intended, or reasonably presumed; but mere supposal is not traversable; but "whatever is Parker. necessarily understood, intended, or implied, is traversable as 4 Bac. 81. much as if it were expressly stated or averred." As when one pleads he is seized in fee of such a close, it is necessarily intended sole seized, and may be traversed as a sole seizin, as much as if so averred. § 34. So, a husband seized in right of his wife, avows for rent in arrear; this necessarily implies she is alive; and her being alive may be denied, as it might be if averred. 2 Lev. 88.Com. D. 5 362. Сн. 177. Liford's case, 11 Co. 52, &c. § 35. If I grant trees in my land to A, he has an implied power to come with carts and teams, and take them away; and in pleading, it may be averred, or stated by legal construction, as much, as if expressly given in the grant. § 36. The plea was that A, was siezed; that he died seized; it was intended, A died seized, though not averred who died 1 Salk.325.Lutw. 1172. seized. Stra. 394, Davis. Cro. El. 819, Maynard. § 37. This was assumpsit on a note, stated to be made Carbonel v. November 2, to pay 31st. December next; was intended next after the date of the note, not next after the action brought. § 38. If a jury, by their verdict, find a bargain and sale of goods, a consideration shall be intended, and may be averred in pleading, in giving the contract a legal construction; and so if the jury find a retainer of a deputy, it shall be intended by deed, and may be so stated or averred, as the true construction. 1 L. Ray. 111; consideration presumed. So, if they find the lessee by indenture made a covenant to Coatsworth. pay the rent, it shall be intended he sealed; and in pleading, it may be so averred, for one to make his deed, is in legal 5 Com. D. 515. Stra. 512, Atkinson v. Taylor v. Cro. El. 742, al.v.Onslow. construction to seal it. So, to state, or aver one made his note of hand, imports he signed it; and in a declaration in such case it is a good averment. § 39. Joint-tenant and tenant in common has partition on 759, Moore & the 31 H. VIII. 1. Held, his general writ on the statute is sufficient, if concluding against the form of the statute, without averring or reciting the case specially, so as to bring it within the act for the framing of the writ is left to the clerks Co.L. 175. in chaucery, and must be according to their form; but a parcener, whose writ is at common law, and her sister's grantee, whose writ is on the statute, cannot join. 3 Bac. 211. 5 Com. D. Com. 31. § 40. If one avers what cannot be by law, his averment 363.-P. is of no avail; as if he aver land is appurtenant to a mesHob. 78.-1 suage, as this cannot be by law. Nor need he aver what appears to the court; nor matter surmised ex abundanti; nor matter in defeasance of the action; for this properly comes from the other side. Lev. 18. § 41. Averments of pleas. Averments of pleas in contradistinction to concluding to the country, or offering an issue, is a part of averments that deserves the most attention. Hardly any question more frequently arises in pleadings, than the one, whether the party ought to conclude his plea, replication, rejoinder, &c. to the country, or with this averment; to wit," and this he is ready to verify;" or "et hoc paratus verificare." Hundreds of cases have already occurred in this work in which this question has arisen, and in which either the conclusion to the country, or with this averment, Art. 9. has been adjudged to be the proper conclusion; and many CH. 177. more such cases will occur in all the stages of pleadings. On this branch in pleadings nothing more will be attempted here than to lay down a few rules, and to adduce a few cases to explain them. son v. Rayley. Dougl. 60. § 42. Rule 1. The first rule is, that where the whole 1 Burr. 317, plea is denied, the replication ought to conclude to the coun- 323, Robintry.-Rule 2. Where only a particular fact in the plea is denied, the replication ought to conclude with an averment.-Rule 3. Where the replication introduces new matter it ought also 2 D. & E. to conclude with an averment; but to the country if it deny Johns. R. the substance of the plea. 576.-2 428. § 43. As in trespass. Deft. pleads, his soil and freehold. 3 Salk. 275. Plt. replies, his soil and freehold, and not the deft's. ; replication ought to conclude to the country. Loder v. Loder. § 44. This was debt on a bond conditioned that A should 3 Salk. 211, not revoke his will. Plea, that he did not revoke it. Replication, that he made another will, and thereby revoked the first; hoc paratus, &c.; and held, on demurrer to this replication, it was good; though an affirmative to a precedent negative in the plea; because in this replication new matter was suggested, and so it ought to conclude with an averment. 45. So, to conclude with one when it should be the 4&5 of Ann. other, is cause of special demurrer; or want of hoc para--Cowp.577. tus, &c. vies. § 46. Where the absque hoc comprises the whole matter Salk.4, Haygenerally, as absque tali causa, it may conclude to the coun- wood v. Datry; but where it only traverses a particular matter, as absque tali warranto, it ought to be averred. al. v. Minns. § 47. This was debt on a bond given to the sheriffs of Cowp. 575, Middlesex, by Minns, as surety of Jos. Stanhope, one of 578, Sayre & their bailiffs, conditioned to perform his duties, as serve writs and return them, receive prisoners, &c. pay over monies, exonerate the plts. in certain cases, &c. Deft. pleaded a special plea, stating the indenture in said condition mentioned, and the several covenants in it to be performed. The plea, as to the negative covenants, stated, the said Jos. had not done; so in the words of each as to the affirmative, that the said Joseph had performed them generally. The plts. replied, a writ of fieri facias issued on a judgment for £400, against one Pigot, at Grove's suit, and was delivered to said bailiff, and he neglected to return it, by reason of which the plts. had to pay, &c.; and also replied, other such special and new matter, and concluded to the country. Deft. demurred specially, for this cause, &c.; and judgment for him; for when new matter is introduced, it is necessary to conclude with an averment, that the opposite party may have an op CH. 177. portunity of answering such new matter; and the court said, Art. 9. it was a rule in pleading, you cannot go to issue on a general averment of performance; for the question ought to be brought to some degree of certainty, and notice given of what is to be agitated at the trial. Here there is a general averment ; and no issue is offered by the replication. 10 Mod. 243, liams. This replication averred a general performance of many matters, (and concluded to the country;) it was bad therefore, on this account, as well as because it contained new matter. § 48. Debt on bond, against husband and wife; her bond dum Miles v. Wil- sola; they pleaded his bankruptcy and discharge, and concluded hoc paratus, &c. Special demurrer, for they ought to have concluded to the country, and of this opinion was the court: and his discharge was her's. It may seem at first view that hoc paratus in this case was right, as the defts. pleaded the husband's bankruptcy, a commission issued, his conformity to the statutes in all points, and his discharge; but it will be observed, these several facts pleaded, were all connected and essentially tended to one point, his discharge, and so her's. Both baron and feme pleaded, as was proper, and if their tender of an issue had involved in it many matters, it would have been no more than is sometimes done in a special plea, nor more than what is usually done in a tender of the general issue; and issue taken brought all the matters into trial fairly. 1 Wils. 6. Tomlin v. 2 Johns. R. See 3 Cain. f49. Debt on bond. Plea, by duress. Replication, the deft. executed the bond of his own free will, and not for fear of imprisonment. Conclusion to the country held good. § 50. In trespass the deft. pleaded that the goods taken 462, Patcher were seized by an officer, on a warrant, as an absconding 2. Sprague- debtor's property, (stating the proceedings under the act, 160.-2 D. and that from him the plt. held the goods by a fraudulent conveyance) and that the deft. acted in aid of the officer. Held, a good plea; for several dependent facts, making but one defence, may be pleaded together. & E. 439 Cro. El. 107. 5 Johns. R. § 51. Held, where a plea contains matter of law and of 112, Lytle v. fact, it may properly conclude to the country. Lee & al. 5 Com. D. 359. § 52. It is a general rule in forming a declaration or plea, &c., the party ought to aver every fact, without being informed of which, the court cannot judge whether he has Lutw. 1089. right or not : as in an action on a statute, the plt. must aver every fact necessary to inform the court his case is within it. So, what is made requisite by the purview of a statute, must be averred; as where a statute makes a feoffment, &c. by cestuy qui use of full age, sane, at large, &c., good: one who pleads a feoffment by cestuy qui use, must aver he was sane, of full age, and at large; for only such a one is authorized by the act, to make a feoffment. § 53. An averment need not be in express words: licet is a sufficient word: so, pro eo quod: so, he demanded proferendo satisfactionem, is a good averment of a tender; 5 Com. D. 361; 2 Cro. 383; Salk. 686. So, any facts stated are a sufficient averment from which the fact may be inferred, that might be expressly alleged; as where it is stated the executor paid a debt of the testator and took a term in satisfaction; as it may be inferred hence, the executor paid with his own money, this fact is well averred; and see Lutw. 1172; 1 Lev. 154; 2 Lev. 50; Stra. 512; Cowp. 672; 1 Vent. 136; 1 Lev. 75. CH. 177. Art. 9. § 54. Debt on bond, conditioned to deliver up certain 2 Ld. Raym. goods, if by law adjudged prize. Plea, the law had not ad- 891, Grant judged them prize: this admits they were not delivered up, and so the plt. need not allege that fact in his replication. v. Waller. § 55. Hoc paratus, or hoc petit; as in debt on bond, the 2 D. & E. deft. pleads the plt. won money of him at cards, and the 439, Hodges bond was given to secure payment thereof. Replication, it v. Sandon. was given to secure payment of a just debt, and not to secure payment of money won. This replication may conclude to the country, or with an averment; either is good. case. § 56. A material fact well proved, not averred; as when the 1 Wils. 115, plt. borrowed money of the deft., and pledged a bond as se- 118,Alcorn's curity, which the deft. promised to return on payment. Plt. sued on this promise, but did not aver he had paid or tendered the debt; but held well after verdict, as he proved he tendered it, and the deft. refused, &c. This seems to be an exception to the general rule, that nothing material can be proved but what is alleged in pleading; 1 Phil. Evid. 161. § 57. Case for perjury; the plt. must aver the deft. knew what he testified was false. § 58. In suits in inferior courts, the plt. must expressly aver the cause of action arose within their jurisdiction, and particularly allege the places. Kirby, 7, Kirby 27, al. v. Par § 59. Case on a note, absolutely promising to pay, or fur- sons. ther secure a debt due, on the contract of one of the defts., Kirby, 128, Bulkley v. the plt. need not aver that notice was given to the deft. of Elderkin. the amount of the demand. § 60. In qui tam for usury the plt. must prove the contract 4 Day's Ca. precisely, as he avers it was made; Wilmot v. Monson; see 114. Ch. 180, a. 9, s. 6. Dennison. § 61. In an action on a bail bond, an averment that the Kirby, 430, plt. was lawfully authorized to serve and return, &c., is a Gulley v. sufficient averment of the officer's authority to make the arrest and take bail. So, an averment, he made diligent search after the person or estate of the principal throughout his precinct, but could find neither, and thereon, on such a day, |