§ 41. But a videlicit can never be rejected, unless repugnant to what goes before it (v). For when consistent with what precedes it, there can be no more propriety in rejecting it, than there would be in rejecting and treating as surplusage any, and every other averment, which the pleader may find to operate against himself. 6 CHAP. III. by way of recital, are in good. § 42. The general rule, (ante, § 28), requiring Material material facts to be alleged in terms of direct and overments, positive averment, is itself by no means universal. For in declarations, facts which are material, and even of the gist of the action, may in some instances be stated under a whereas.' And the distinction, collectible from the precedents, appears to be, that all those facts which are directly denied by the terms of the general issue, or which may, by the established usage of pleading, be specially traversed, must be averred in direct and positive terms: But that facts, however material, which are not directly denied by the terms of the general issue, though liable to be contested under it, and which, according to the usage of pleading, cannot be specially traversed, may be alleged in the declaration by way of recital. § 43. The reason of this distinction appears to be, that as facts of the former class are directly traversable, either by the general or a special issue; they ought to be so alleged, that the issue which may be taken upon them shall consist, (as all issues (v) 5 East, 244. 1 Saund. 169. III. CHAP. regularly must), of a direct affirmative on one side, and a direct negative on the other-which could not be the case, if they were alleged by way of recital : Whereas, facts of the latter class—i. e. all material facts, which, though not in terms denied by the general issue, are yet liable to be contested under it, and which cannot be made the subject of a special traverse may as well be alleged by way of recital, as in direct and positive terms; because all such facts may always be controverted, without being direetly and in terms put in issue. And as it can never be necessary, in pleading, to answer the averment of any such fact, by a direct negative; it can, of course, never be necessary to make the averment in terms of direct affirmation. 44. To illustrate this distinction:- In trespass quare clausum fregit, or for taking and carrying away the plaintiff's goods, the forcible breaking and entering of the plaintiff's close, in the one case, and the forcible taking and carrying away of his goods, in the other, must be directly and positively alleged in the declaration (w). In trespass for an assault and battery, the act of assaulting and beating must be averred in the same manner (x). In the same manner also must be alleged the conversion in trover (y) -the ouster in ejectment (z) the erection of the nuisance, in an action for that injury (a) and the (w) 1 Lil. Ent. 431. 453. 2 Chitt. Pl. 382. 391. 393. 377. (z) 2 Chitt. Pl. 395. 402. (a) 2 Chitt. Pl. 240-1. 331-8. taking of the cattle or goods, in replevin (6) — the neglect of a bailee, in a special action on the case, by the bailor, for damage occasioned by such neglect (c) the being indebted, in debt on simple contract (d) — the permitting of the escape, in an action against a sheriff for an escape, &c. (e). For the acts, or facts, specified in these examples (to which many others, falling within the same rule, might be added) are such as the general issue, in the several cases supposed, would directly and necessarily deny. This will be very obvious, when it is considered that in no one of these examples, can the fact specified be admitted by the defendant consistently with the general issue. And as the particular fact, mentioned in each of these examples, is liable to be thus directly denied by the general issue; it must be directly and positively alleged. In assumpsit also, the promise must be stated, in terms direct and positive (f); because the general issue (non assumpsit) purports to be a direct denial of the promise (13). § 45. So also in declaring on specialties as in covenant broken, debt on a covenant, or a special (b) 2 Lil. Ent. 356. 369. 2 Chitt. Pl. 364–368. (c) 2 Chitt. Pl. 103-125. 274-5. (d) 2 Chitt. Pl. 141. 237. (e) 1 Lil. Ent. 60. 2 Chitt. Pl. 147-151. 299-302. (f) Chitt. on Bills, tit. Precedents, passim. (13) The application of the general rule to the action of assumpsit requires a distinct explanation; (for which vide post. § 47, and note 15). III. III. CHAP. declaration on a bond (14)—if the right of action depends on a condition precedent; performance of the condition must be alleged, in terms of direct averment (g). For as the fact of performance, on the plaintiff's part, is of the gist of his action; the defendant must be at liberty in some way to contest it. But as he cannot do this under the plea of non est factum — inasmuch as that plea is not adapted to such a defence; he must of course be at liberty to take a special issue upon the plaintiff's allegation of performance, by a traverse. That allegation must, therefore, be so made, that an issue, thus taken upon it, may consist of a direct affirmative on one side, and a direct negative on the other. The same rule holds, as to all material facts alleged in the declaration, and which cannot be controverted under the general issue. § 46. And even in assumpsit, in which, (for reasons peculiar to that action) advantage may be taken of a condition precedent, under the general issue; performance of such a condition must, nevertheless, be averred in direct terms (h): Because the defendant may, if he so elects, take a special issue upon the fact of performance. Thus, if A. promises. to pay money to B., in consideration of B.'s hereafter (g) 2 Chitt. Pl. 197. 485-6. (h) Hob. 106. Cro. Eliz. 201. Com. Dig. Pleader, G. 11. C. 69. (14) A special declaration on a bond is one, which counts as well on the condition, as the penal part, and assigns a breach. (Bac. Abr. Pleas, &c. B. 1. Doct. Pl. 84.) 3976 |