The plaintiff's answer to the defendant's plea.
Replications will be considered, 1. With regard to their several kinds. 2. To their form. 3. To their qualities.
They are to pleas in abatement and to pleas in bar.- 1. When the defendant pleads to the jurisdiction of the court, the plaintiff may reply, and in this case the replication commences with a statement that the writ ought not to be quashed, or that the court ought not to be ousted of their jurisdiction, because etc., and concludes to the country, if the replication merely deny the subject-matter of the plea. As a general rule, when the plea is to the misnomer of the plaintiff or defendant, or when the plea consists of matter of fact which the plaintiff denies, the replication may begin without any allegation that the writ or bill ought not to be quashed.
- 2. The replication is, in general, governed by the plea, and most frequently denies it. When the plea concludes to the country, the plaintiff must, in general, reply by adding a similiter; but when the plea concludes with a verification, the replication must either, 1. Conclude the defendant by matter of estoppel; or, 2. May deny the truth of the matter alleged in the plea, either in whole or in part; or, 3. May confess and avoid the plea; or, 4. In the case of an evasive plea, may new assign the cause of action.
The form of the replication will be considered with regard to, 1. The title. 2. The commencement. 3. The body. 4. The conclusion.
- 1. The replication is usually entitled in the court and of the term of which it is pleaded, and the names of the plaintiff and defendant are stated in the margin, thus "A B against C D."
- 2. The commencement is that part of the replication which immediately follows the statement of the title of the court and term, and the names of the parties. It varies in form when it replies to matter of estoppel from what it does when it denies, or confesses and avoids the plea; in the latter case it commences with an allegation technically termed the preclude non. It generally commences with the words, "And the said plaintiff saith that the said defendant," etc.- 3. The body of the replication ought to contain either. 1. Matter of estoppel. 2. Denial of the plea. 3. A confession and avoidance of it; or, 4. In case of an evasive plea, a new assignment. 1st. When the matter of estoppel does not appear from the anterior pleading, the replication should set it forth; as, if the matter has been tried upon a particular issue in trespass, and found by the jury, such finding may be replied as an estoppel. The second kind of replication is that which denies or traverses the truth of the plea, either in part or in whole. The third kind of replication admits, either in words or in effect, the fact alleged in the plea, and avoids the effect of it by stating new matter. If, for example, infancy be pleaded, the plaintiff may reply that the goods were necessaries, or that the defendant, after he came of full age, ratified and confirmed the promise. 4th. When the plea is such as merely to evade the allegation in the declaration, the plaintiff in his replication may reassign it.
- 4. With regard to the conclusion, it is a general rule, that when the replication denies the whole of the defendant's plea, containing matter of fact, it should conclude to the country.
The qualities of a replication are, 1. That it must answer so much of the defendant's plea as it professes to answer, and that if it be bad in part, it is bad for the whole. 2. It must not depart from the allegations in the declaration in any material matter. It must be single.