if the commencement pray the proper judgment, it seems to be sufficient, though judgment be prayed in an improper form in the conclusion. [446] And the converse case, as to a right prayer in the conclusion, with an improper commencement, has been decided the same way. So if judgment be simply prayed, without specifying what judgment, it is said to be sufficient; and it is laid down that the court will, in that case, ex officio, award the proper legal consequence. It seems, however, that these relaxations from the rule do not apply to pleas in abatement; the court requiring greater strictness in these pleas, with a view to discourage their use.3

The class and character of a plea depends upon these its formula parts, which is ordinarily expressed by the maxim, conclusio facit placitum. Accordingly, if it commence and conclude as in bar, but contain matter sufficient only to abate the writ, it is a bad plea in bar, and no plea in abatement. [447] And, on the other hand, it has been held that if a plea commence and conclude, as in abatement, and show matter in bar, it is a plea in abatement, and not in bar.

As the commencement and conclusion have this effect of defining the character of the plea, so they have the same tendency in the replication and subsequent pleadings. For example, they serve to show whether the pleading be intended as in confession and avoidance or estoppel, and whether intended to be pleaded to the whole or to part.

RULE IX.

A PLEADING WHICH IS BAD IN PART IS BAD Altogether. [448] The meaning of this rule is that, if any material part of a

2. Talbot v. Hopewood, Fort., 335. 3. The King v. Shakespeare, 10 East. 83; Atwood v. Davis, 1 Barn. & Ald. 172.

4. The conclusion makes the plea. Street V. Hopkinson, Rep. temp. Hardw., 346; Medina v. Stoughton, 1 Ld. Raym. 593.

5. Medina v. Stoughton, supra; Godson v. Good, 6 Taunt. 587.

6. For common law precedents, generally, see 2d and 3d vols. Chitty on Pleading; Puterburgh's (n.) Com. Law Plead. & Practice; Green's (Mich.) New Practice; Burrill's (N. Y., before the Code) Practice, and Wentworth on Pleading, 10 vols. In this last work I have found precedents I was unable to find elsewhere. 7. Com. Dig., Pleader, E. 36, F. 25;

pleading, or in reference to any of the material things which it undertakes to answer, or to either of the parties answering, the pleading be bad, though in other respects it be free from objection, the whole of it is open to demurrer; so, that, if the objection be good, the whole pleading in question is overruled, and judgment given accordingly.

As the declaration contains no commencement or conclusion of the kind to which the last rule relates, so, on the other hand, the declaration does not fall within the rule now in question. [450] Therefore, if a declaration be good in part, though bad as to another part relating to a distinct demand divisible from the rest, and the defendant demur to the whole, instead of confining his demurrer to the faulty part only, the court will give judgment for the plaintiff. It is also to be observed that the rule applies only to material allegations; for where the objectionable matter is mere surplusage, its introduction does not vitiate the rest of the pleading."

SECTION VI.

ON RULES WHICH TEND TO PREVENT PROLIXITY AND DELAY IN

PLEADING. [451]

RULE I.

THERE MUST BE NO DEPARTURE IN PLEADING.1

A departure takes place when, in any pleading, the party

1 Saund. 28, n. 2; Webb v. Martin, 1 Lev. 48; Rowe v. Tutte, Willes, 14; Trueman v. Hurst, 1 T. R. 40; Webber v. Tivill, 2 Saund. 127; Duffield v. Scott, 3 T. R. 374; Hedges v. Chapman, 2 Bing. 523; Earl of St. Germains v. Willan, 2 Barn. & Cres. 216.

8. 1 Saund. 286, n. 9; Bac. Ab., Pleas, etc., B. 6; Cutforthay v. Taylor, Raym., 395; Judin v. Samuel, 1 New Rep. 43; Benbridge v. Day, 1 Salk. 218; Powdick v. Lyon, 11 East.

565; Amory v. Brodrick, 5 Barn. & Ald. 712.

9. Duffield v. Scott, 3 T. R. 377.

1. Co. Litt., 304; Richards v. Hodges, 2 Saund. 84; Dudlow v. Watchorn, 16 East. 39; Tolputt v. Wells, 1 M. & S. 395; Fisher v. Pimbley, 11 East. 188; Winstone v. Linn, 1 Barn. & Cres. 460. And see the numerous authorities collected in Com. Dig., Pleader, F. 7, F. 11; Bac. Ab., Pleas, etc., L.; Vin. Ab., tit. Departure; 1 Arch. 247, 253.

[either in point of fact or in point of law] deserts the ground that he took in his last antecedent pleading, and resorts to another.

A departure obviously can never take place till the replication, and it does not occur so frequently in the replication as in the rejoinder.2 [452]

In all cases where the variance between the former and the latter pleading is on a point not material, there is no de parture. [457]

RULE II.

WHERE A PLEA AMOUNTS TO THE GENERAL ISSUE IT SHOULD BE SO

PLEADED. [459]

The meaning of the present rule is, that if instead of traversing the declaration in the appropriate form of the

general issue, the party pleads in a more special way matter which is constructively and in effect the same as the general issue, such plea will be bad, and the general issue ought to be substituted.

RULE III.

5 SURPLUSAGE IS TO BE AVOIDED. [465]

Surplusage is here taken in its large sense, as including unnecessary matter of whatever description. To combine with the requisite certainty and precision the greatest possible brevity is now justly considered as the perfection of pleading.

1. The rule prescribes the omission of matter wholly foreign.

2. The rule also prescribes the omission of matter which, though not wholly foreign, does not require to be stated. [466] Any matters will fall within this description which, under the various rules enumerated in a former section as tending to limit or qualify the degree of certainty, it is unnecessary to allege; for example, matter of mere evidence, matter of law, or other things which the court officially notices, matter coming more properly from the other side, matter necessarily implied, etc.

3. The rule prescribes, generally, the cultivation of brevity, or avoidance of unnecessary prolixity, in the manner of statement.

Surplusage, however, is not a subject for demurrer; the maxim being that utile, per inutile, non vitiatur. But when any flagrant fault of this kind occurs and is brought to the notice of the court, it is visited with the censure of the judges. They have in such cases, on motion, referred the pleadings to the master, that he might strike out such matter as is redundant and capable of being omitted without injury to the material averments, and in a clear case will themselves direct such matter to be struck out; and the

5. Bristow v. Wright, Doug., 667; Yates v. Carlisle, 1 Black. Rep. 270.

6. The useful is not vitiated by the useless.

party offending will sometimes have to pay the costs of the application."

This is not the only danger arising from surplusage. [467] Though traverse cannot be taken on an immaterial allegation, yet it often happens that when material matter is alleged, with an unnecessary detail of circumstances, the essential and non-essential parts of the statement are, in their nature, so connected as to be incapable of separation; and the opposite party is therefore entitled to include, under his traverse, the whole matter alleged. The consequence evidently is, that the party who has pleaded with such unnecessary particularity has to sustain an increased burden of proof, and incurs greater danger of failure at the trial.

SECTION VII.

OF CERTAIN MISCELLANEOUS RULES. [468]

These rules relate either to the declaration, the plea, or pleadings in general, and shall be considered in the order thus indicated.

RULE I.

THE DECLARATION SHOULD COMMENCE WITH A RECITAL OF THE

ORIGINAL WRIT.8

The commencement of the declaration, in personal actions, generally consists of a short recital of the original writ.

Accordingly, where the writ directs the sheriff to summon the defendant, as in debt and covenant, the declaration begins, "C D was summoned to answer A B of a plea," etc. On the other hand, where by the writ the defendant is required to be put by gages and safe pledges, as in trespass and trespass on the case, the commencement is, "CD was attached to answer A B of a plea," etc. The declaration then proceeds further to recite the writ, by showing the nature of the particular requisition

7. Price v. Fletcher, Cowp., 727; Bristow v. Wright, Doug., 667; Tidd, 667, 8th ed.; Nichol v. Wilton, 1 Chitty Rep. 449. 450; Carmack v.

Gundry, 3 Barn. & Ald. 272; Brindley v. Dennett, 2 Bing. 184.

8. Com. Dig., Pleader, C. 12.