CHAPMAN AND NELSON vs. WILLIAM S. SLOAN

The right to plead more than one plea to ¶,j. •,,,, the same declaration did not exist at common law.(l) W e have no statute authorizing it; and consequently have introduced the right here, I presume, by a gradual adoption of the practice under the 4th and 5th of Anne, which, in England, confers the right, “ with the leave of the court.” With this leave, that statute allows any pleas whatever, except in penal actions and in appeals of felony. But their courts have added to these exceptions, by never.granting this leave in cases where the king is a party, and where the pro- seeding is a writ of error. Tidd 610.—1 Chitt. Pl. 541.—1 Mass. Rep, 230.

(l) is Mas». §⅞ en,

(2) 2 Wils 118.

(3) x N. H. Laws 286 174.

They have, likewise, exercised a discretion in granting this leave in all cases, so that though the motion to plead double is allowed as a matter of course, yet all the pleas offered will not of course be received.(l)

As I am not aware of any variance between our practice and theirs on this subject, the question in this case must be settled by reference to their decisions. We have been able to extract from numerous cases on this subject only the following general rules:

First, two pleas of a like or similar import will not, if objected to, be received. 1 Bos. & Pull. 222, Shaw vs. Everett.—2 ditto 72.—2 Mass. Rep. 543.—6 ditto 6. Because both are unnecessary, and at the same time occasion useless prolixity on the record, as well as useless trouble in replying to them. Yelv. 174, b., note.—1 Chitt. Pl. 498.—6 Bac. Ab. “ Pleading,” K. 448. The instances given of two such pleas are the general issue, and a special plea tantamount to the general issue.

Second, two pleas will not be received, which must be tried by different tribunals, or courts; as in England, in dower, the pleas of never married and never seized. Com. Rep. 148.—2 Bl. Rep. 1157, 1207. Because there, the first plea must be tried in an ecclesiastical forum by a bishop, and the last in a common law court by a jury.(2) But here both being tried by a jury, they may well be pleaded together. The reason for this second general rule probably rests on the inconvenience of settling different issues in the same cause indifferent and distinct courts. It does not, therefore, apply to the trial of different issues by different persons in the same court; and trials of this kind are constantly happening of issues, some of which terminate in questions of fact, and some in questions of law. The only exceptions to this practice arise under our statute upon usury, and our statute concerning trustees of debtors.(3) Under both of those, the fact of usury and the fact whether trustee or not, may to the jury, or be tried by the oath of the defendant; but it has very properly been held, that by these provisions it was not intended to give the party both modes of trial to settle one and the same fact, but merely an election of either mode.

(1)5D. & E. Edwards,

(2) n John, Shutervs! Page-

(3)2 Strange 289‘

Third, it is frequently laid down in the books, that to the same action two pleas will not be received, which are in appearance inconsistent or contradictory. 2 Bl. Rep. 1157.— 12 East 20.

The reason given for this rule is, that such pleas would spread an “ incongruity on the record.”(1) No little difficulty exists in determining what pleas come within the spirit of thh rule. But probably no single test is so accurate as that two pleas are inadmissible in the same action, if one exmv.-ssly a knits what the other denies. Should they be deemed inadmissible when one impliedly admits what the denies, almost every case of double pleading would be excluded. 5 Bac. Jib. u Pleading,” K. — Com. Di. “ Pleader” E. 2.

Thus in replevin, a plea of property in the avowant impliedly admits the taking, but still it has been allowed with a plea of non'ceptf.(2) Because it is not necessarily founded on the idea, that the avowant took the property, but merely alleges, that, whether he took it or not, the property was his. Thus, also, the statute of limitations may be pleaded with non assumpsit; for though it impliedly confesses, that a cause of action once existed, it in substance only alleges, that no such cause has existed within six years.(3) So are the pleas of non est factum and bankruptcy to the same action. Bac. Ab. “ Pleading" K.—2 Stra. 100, 871. But it has been adjudged, that a plea of tender and another of alien enemy are not admissible to the same action; because the first plea expressly admits, that the plaintiff has a locus standi in court, while the last one denies it. 10 East 326, Shombeck vs. De la Cour. — 12 ditto 20. For the like reason, that one pica expressly admits what the other denies, tender and non assumpsit cannot both be pleaded to the same count, or rather the same sum. 4 D. & E. 194, M'Lellan vs. Howard.—3 Wils. 145.—2 Stra. 949. So sol-vitpost diem, or ad diem are inadmissible with non est factum. 2 Bl. Rep. 905, 993. So as to tender and non est fcaum. 5 D. & E. 97, 98. But payment and non assumpsit are admissible together;(1) because, 1 presume, non assumpsit relates to the time of trial, rather than the alleged time of the promise, and consequently does not expressly contradict that a cause of action once existed and may.have since been paid. When we leave actions sounding in contract, the adherence to this third rule seems to have been very loose. For in trespass, pleas of not guilty, of a justification and of tender of amends have all been admitted together. 2 Bl. Rep. 1093, Martin vs. Kesterton. And, indeed, many cases, sounding in contract as well as tort, are altogether irrecon-cileable with it. 1 Chitt. Pl. 542.—1 Str. 436, Cary vs. Jenkins.—Com. Di. “ Pleader,” E. 2.

(1) 10 Eafc 326, note,

Other decisions in Barnes, Forlescue, &c. frequently support and as frequently impugn what seems under this rule to be the true criterion; and, on mere authority, it would hardly be proper to hold parties in all cases to this criterion concerning the inconsistency or contradiction of their pleas, but the court on this point should exercise a sound discretion in their leave to plead double, and withhold it whenever the case seems to conflict with this rule, if the object of the two pleas appears to be to make “ an oppressive use of that liberty,’’which may be given under the statute. But whenever both pleas appear to be material to the defence, they may well be admitted, though apparently inconsistent. 2 Bos. & Pull. 12, Lechmere vs. Rice.

When a party has more than one defence, it is impossible in all cases to anticipate which will prove the strongest; and it would be oppressive to debar one of them, because it might admit some facts, which in the course of the other defence are denied. The pleas are only hypothetical statements of the defendant’s case, and are each independent of the other, and to most purposes must stand or fall by their own merits. Cilley vs. Jenness, ante. The-pleas in the present case militate with none of the preceding rules unless it may be with the third. But as the record of the judgment may in law have some radical defect, and still a payment or a release have been made, the pleas are all admitted.