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time of payment be mentioned, the instrument should be declared upon as payable on demand. If a bill be drawn or accepted, or a deed be made by an agent in the name of his principal, it should be pleaded as the act of the principal himself.? And a bill

pay. able to a fictitious person or his order is, in effect, a bill payable to bearer, and may be declared on as such, in favor of a bona fide holder ignorant of the fact, against all the parties who had knowl. edge of the fiction.3

§ 15. Literal exactness not always sufficient. But, on the other hand, it will not always suffice to adhere to the literal terms of the instrument, in setting it forth in the declaration ; for sometimes the true interpretation of the instrument itself may lead to a result totally different from the intendment of law upon the face of the declaration. Thus, where a bill was drawn and dated at Dublin, for a certain sum, and in the pleadings it was described as drawn “at Dublin, to wit, at Westminster," without any mention of Ireland, or of Irish currency, it was held that here was a material variance between the allegation and the evidence. For though the place and the sum corresponded even to the letter, yet by the legal interpretation of the bill, the currency intended was Irish, whereas by the allegation in the record the court could not legally understand any other than British sterling, because no other was averred, and the bill was not alleged to have been drawn in Ireland.4 So, where a note was made without any mention of the time of payment, and none was averred in the declaration, the judgment was reversed upon error brought, the plaintiff not having declared upon the contract according to its legal effect, but on the evidence only.5

§ 16. Execution of instruments. In regard to the proof of the formal execution of deeds, bills of exchange, and other written documents, it was formerly the right of the adverse party to require precise proof of all signatures and documents, making part of the chain of title in the party producing them. But the great and unnecessary expense of this course, as well as the incon

Gaylord v. Van Loan, 15 Wend. 308. 2 Heyes v. Haseltine, 2 Campb. 604. 8 Chitty on Bills, 178 ; Bayley on Bills, 26, 431 ; Grant v. Vaughan, 3 Burr. 1516 ; Minet v. Gibson, 1 H. Bl. 569 ; Story on Bills, $ 56.

* Kearney v. King, 2 B. & Ald. 301. Proof of a contract for bushels oats according to the Hartland Quay measure, will not support a declaration for the same quantity without any mention of the kind of measure. Hockin v. Cooke, 4 T. R. 314.

6 Bacon v. Paige, 1 Conn. 404. But see Herrick v. Bennett, 8 Johns. 374, where such a declaration was held well on demurrer.

venience and delay which it occasioned, have led to the adoption of salutary rules restricting the exercise of the right to cases where the genuineness of the instrument is actually in controversy, being either put in issue by the pleadings or by actual notice given pursuant to the rules of the court.1

§ 17. Loss of instrument to be stated. If the instrument declared on is lost, the fact of the loss may be proved by the affidavit of the plaintiff, a foundation being first laid for this proof by evidence that the instrument once existed, and that diligent search has been made for it in the places where it was likely to be found.2

We now proceed to the consideration of the evidence to be offered under particular issues in their order.

1 By the rules of Hil. T. 1834, Reg. 20 (10 Bing. 456), either party after plea pleaded, and a reasonable time before trial, may give notice to the other of his intention to adduce in evidence certain written or printed documents; and unless the adverse party shall consent in the manner therein prescribed, to admit their formal execution, or the truth of the copies to be adduced, he may be summoned before a judge to show cause why he should not consent to such admission, and ultimately, if the judge shall deem the application reasonable, may be compelled to pay the costs of the proof. See also Tidd's New Practice, pp. 481, 482. "In some of the United States, the original right to require formal proof of documents remains as at common law, unrestricted by rules of court. In others, it has been restricted either to cases where the genuineness of the document has been put in issue by the pleadings, or where the previous notice of an intention to dispute it has been seasonably given. (Reg. Gen. Snp. Jud. Court, Mass. 1836, Reg. LIII. 24 Pick. 399); (a) or where the attorney has been instructed by his client that the signature is not genuine ; or where the defendant, being present in court, shall expressly deny that the signature is his. (Reg. Gen. Sup. Jud. Court, Maine, 1822, Reg. XXXIII. 1 Greenl. 421.) In the Circuit Court, V. S., First Circuit, the defendant is not permitted to deny his signature to a note or bill of exchange, or the signature of a prior indorser, unless upon affidavit made of reasonable cause, necessary for his defence. Reg. 34. In the Seventh Circuit, the rule requires that the defendant shall first make affidavit that the instrument was not executed by him. And this rule has been held to be legal, under the Judiciary Act of March 2, 1793, c. 22. Mills v. Bank of the United States, 11 Wheat. 439, 440. By the law of South Carolina, the plaintiff is not obliged to produce the subscribing witnesses to a bond or note, but may prove its execution by any other witness, unless the defendant will swear that it is not his signature. Statutes at Large, vol. v. p. 435. As to the proof in equity, of the execution of instruments, see post, vol. iii. & 308, and note.

? Ante, vol. i. $$ 349, 558.

(a) This is now enacted by statute in special denial of the genuineness thereof, Massachusetts. Mass. Pub. Stat. c. 167, and a demand that they shall be proved at $ 21. “Signatures to written instruments the trial.” And similar provisions exist in declared on or set forth as a cause of action, other States. California : Hittell's Code, or as a ground of defence or set-off, shall $ 887. Delaware : Laws 1874, c. cvi, $ 5. be taken as admitted unless the party Illinois : Rev. Stat. (Hurd), c. 110, $ 34. sought to be charged thereby files in court, Kentucky: Bullitt's Codes (Civil), § 527, within the time allowed for an answer, a p. 110.

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ABATEMENT.

§ 19.

§ 18. Matters in abatement. Such of the causes of abatement as may also be pleaded in bar will generally be treated under their appropriate titles. It is proposed here to consider those only which belong more especially to this title. (a)

Alien enemy. The plea of alien enemy must be pleaded with the highest degree of legal certainty, or, as it is expressed in the books, with certainty to a certain extent in particular; that is, it must be so certain as to exclude and negative every case in which an alien enemy may sue.

It therefore states the foreign country or place in which the plaintiff was born; that he was

(a) A plea in abatement should exclude The burden of proof on a plea in abateall matter which, it alleged on the oppo- ment, if it alleges new matter and any fact site side, would defeat the plea. There alleged in it is denied by the plaintiff, is fore, where the plea is founded upon on the defendant who alleges the fact, and defective service of the process, it is in- he must offer evidence to support it. Belsufficient if alleges that no summons lows v. Murray, 66 Me. 199. But if the was served on the defendant, unless it plea in abatement is itself merely a denial also sets forth that the defendant was at of some fact alleged in the declaration or the time an inhabitant of the State. writ, the burden of proof is thereby put Tweed v. Libbey, 37 Me. 49. See Bank upon the plaintiff. Hawkins v. Albright, of Rutland v. Barker, 27 Vt. 293. See 70 Ill. 87. Gould v. Smith, 30 Conn. 88, in which a It is said in State v. Flemming, 66 Me. plea in abatement, on the ground of a 142, that the strictest technical accuracy, material variance between the copy left such as has sometimes been required in in service and the original, alleged that purely dilatory pleas in civil suits, should “there was and is a material variance not be exacted in criminal cases ; and if between said pretended copy, so left in the plea states a valid ground of defence service, and the original writ and decla. in language too clear to be misunderstood, ration, in this, that in said original writ and is free from duplicity, nothing more and declaration, between the words - fourth should be required. cf. Heyman v. l'ovell, Tuesday of January' and the words 36 Mich. 157. The rule in civil cases is then and there to answer,' were the to require that a plea in abatement should figures *1861,' while in said pretended not only aver what is necessary to supcopy, between the same words, were the port the defence, but should anticipate figures . 1860,' and the figures 1861,' and and negative all matter which would, if it any words indicating the same thing were were alleged by the other side, defeat the entirely omitted in said pretended copy; plea. Tweed v. Libbey, 37 Me. 49. Houswhich figures, so omitted, were a material ton, &c. R. R.Co. v. Graves, 50 Tex. 181. part of said writ and declaration.” And The allegations should also be direct, it was held that it sufficiently appeared positive statements, and not suppositions from the plea that the variance was a ma- or arguments. Severy v. Nye, 58 Me. terial one.

See also dissenting opinion in 246. 1 Chitt. Pl. 395. So where, in a plea the same by Sanford, J. A plea in abate. in abatement for want of sufficient service, ment, setting up several defects, not prova. the allegation was "it appears that the ble by the same evidence, is bad on special only service," &c., this was held bad. Perry demurrer. State v. Ward, 63 Me. 225. v. New Brunswick Ry. Co., 71 Me. 359.

born and continues under allegiance to its sovereign; of parents under the same allegiance, or adherents to the same sovereign; that such sovereign or country is an enemy to our own; and if he is here, that he came hither or remains without a safe-conduct or license ;) and that he has been ordered out of the country by the President's proclamation. If the plaintiff should reply that he is a native citizen and not an alien, concluding as seems proper in such cases, to the country, the defendant has the affirmative, and must prove that the plaintiff is an alien, as alleged in the plea. If the plaintiff should reply that he was duly naturalized, the proper evidence of this is the record of the court in which it was done. If the judgment is entered of record in legal form it closes all inquiry, it being, like other judgments, complete evidence of its own validity. These proceedings in naturalization have been treated with great indulgence, and the most liberal intendments made in their favor. The oath of allegiance appearing to have been duly taken, it has been held, that no order of the court that he be admitted to the rights of a citizen was necessary, the record of the oath amounting to a judgment of the court for his admission to those rights. And such record is held conclusive evidence that all the previous legal requisites were complied with.7

§ 20. Insufficient service. If the plea is founded on a defective or improper service of the proce88, as, for example, that it was served on Sunday, the day will be taken notice of by the court, and any almanac may be referred to. So if the service is made on any other day on which, by public statute, no service can be made, the like rule prevails ; and this whether the day is fixed by the statute, or by proclamation by the executive.8 (a)

i Casseres v. Bell, 8 T. R. 166 ; Wells v. Williams, 1 Ld. Raym. 282; 1 Chitty on Pl. 214 ; Stephen on Pl. 67. License and safe-conduct are implied, until the President shall think proper to order the party, either by name or character, out of the United States. 10 Johns. 72.

? Stat. United States, July 6, 1798 (c. 75); Clark v. Morey, 10 Johns. 69, 72 ; Bagwell v. Babe, 1 Rand. 272; Russell v. Skipwith, 6 Binn. 241.

Jackson on Pleading in Real Actions, pp. 62, 65; Smith v. Dovers, 2 Dong. 428.

Spratt v. Spratt, 4 Pet. 393, 408. 3* Priest v. Cummings, 16 Wend. 617, 625. 6 Campbell v. Gordon, 6 Cranch, 176.

7 Stark v. The Chesapeake Ins. Co., 7 Cranch, 420 ; Ritchie v. Putnam, 13 Wend. 524; Spratt v. Spratt, 4 Pet. 393.

Ante, vol. i. $$ 5, 6. (a) If a partnership is sted, and service take advantage of this defect in service, is not made on all the partners, any one and should do so by a plea in abatement. of those on whom service was made may Draper v. Moriarty, 45 Conn. 476.

8

§ 21. Misnomer. If the defendant, in pleading a mirnomer, allege that he was baptized by such a name, though the averment of his baptism was unnecessary, yet he is bound to prove the allegation, as laid, by producing the proper evidence of his baptism.1 This may be proved by production of the register of his baptism, or a copy of the register or record, duly authenticated, together with evidence of his identity with the person there named. If there is no averment of the fact of baptism, the name may be proved by any other competent evidence, showing that he bore and used that name. (a)

§ 22. Indictment improperly found. In criminal cases, it is a good objection in abatement that twelve of the grand jury did not concur in finding the bill ; in which case the fact may be shown by the testimony of the grand jurors themselves, it not being a secret of State, but a constitutional right of the citizen. (6)

§ 23. Non-tenure. In real actions, non-tenure is classed among pleas in abatement because it partakes of the character of dilatory pleas; though it shows that the tenant is not liable to the action in any shape, inasmuch as he does not hold the land. The replication, putting this fact in issue, alleges that the tenant “ was tenant as of freehold of the premises,” and concludes to the country. Tenure may be proved prima facie, by evidence of actual possession. It is also shown by proof of an entry with

1 Ante, vol i. $ 60 ; Weleker v. Le Pelletier, 1 Campb. 479.
? Ante, vol. i. SS 484, 493.
3 Holman v. Walden, 1 Salk. 6. 4 Low's Case 4 Greenl. 439.

6 Saund. 44, n. (4); Jackson on Plead. in Real Actions, p. 91. The form of the plea is this : “And the said T. comes and defends his right, when, &c., and says, that he cannot render to the said D. the tenements aforesaid with the appurtenances, because, he says, that he is not, and was not on the day of the purchase of the original writ in this action, nor at any time afterwards, tenant of the said tenements as of freehold ; and this he is ready to verify. Wherefore he prays judgment of the writ aforesaid, and that the same may be quashed ; and for his costs." See Jackson on Plead. in Real Actions, p. 93 ; Story's Pleadings, p. 41 ; Stearns on Real Actions,

Newhall v. Wheeler, 7 Mass. 189, 199.

App. No. 49.

(a) If a defendant is sued by his sur ceedings of a grand jury should be made name only, (Seely v. Boon, Coxe (N. J.), by plea in abatement.

Brown v.

State, 138), or if an initial letter is put instead of 13 Ark. 96; Sayle v. State, 8 Tex. 120. his Christian name, a plea in abatement is If a plea in abatement tenders an the proper mode of taking advantage of issue upon two or more separate matters the error. State v. Knowlton, 70 Me. 200. of fact, each one of which is a sufficient So if the name of the defendant in the ground for the plea, it is bad for duplicity. writ is different from the name as alleged State v. Heselton, 67 Me. 598. State v. in the declaration. Simons v. Waldron, Ward, 63 Me. 225. As to the right of 70 II. 281.

the grand jurors to testify to what took (6) Any objection based on irregularity place before them in their deliberations, in the iinpanelling or in the subsequent pró- see ante, vol. i. & 252 and notes.

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