68 Ill. 304 | Ill. | 1873
delivered the opinion of the Court:
This was an action of debt, brought by defendant in error, in the St. Clair circuit court, against plaintiff in error. The action was on a lease, and the declaration contained two counts. The first was on a lease, describing the premises by the government surveys, setting out the time the lease was to run and the sum to be paid, and the times of payment, and the rate of interest it was to bear if not punctually paid, with particulars as to terms, conditions, etc.
The second count is on a written lease of certain premises, for certain terms of years, on one part of the premises, commencing on a day specified, and the other part commencing on another, and the term on both ending on the same day, at a specified sum annually, payable in advance on the 1st of January each year, and any part thereof not paid when due to bear ten per cent interest per annum after maturity.
To the first count defendant pleaded non est factum, and to the second nil debet, and to both counts set-off of $300. To the third plea plaintiff added: “General traverse and issue to the country.” To this replication a demurrer was sustained. Plaintiff thereupon filed a replication “that, at and before the time of the commencement of this action the said plaintiff was not indebted, in manner and form, in the sum of money in said plea mentioned, nor in any other sum of money, or any part thereof, for work and labor and services done and performed by said defendant for said plaintiff at his request, and this, plaintiff prays may be inquired of by the country.”
To this replication defendant demurred specially: because it did not traverse the indebtedness in manner and form as alleged in the plea; because it seeks to introduce an immaterial issue, and because the plea is entitled of the October term, instead as of the March term, and because it seeks to traverse indebtedness for a specific sum. The demurrer was overruled and the defendant abided by his demurrer. This replication was filed at the March term, 1872, and on the 12th day of April of that year, and is entitled as of the October term, 1872, and the question of entitling the plea is thus presented.
The modern practice in the courts of both this country and Great Britain is more liberal than it \Aras anciently. Much of the technical rubbish has been brushed aAvay, and the courts left more free and less trammeled in the administration of justice. The tendency of courts in modern times has been, as far as possible, to dispense Avith mere technical forms, so that there is enough to enable justice to be fully and fairly administered. But in pleading, under the statute a party has the right to interpose a special demurrer to pleadings, and thus present questions of form, and, fortunately, but little delay is thus produced, as, Avhen thus challenged, the court, as a matter of course, permits an amendment without a continuance, and, almost Avith out exception, attorneys avail themselves of the easy means of thus amending, thus preventing delay and the presentation of questions on error only im7ol ving form, without profit to any person, unless it be to the officers of the law.
There was a time when the practice required, where a plea or replication was filed at a term subsequent to the declaration, it should recite an imparlance, but that requirement has been long' dispensed with as useless, and the Avant of such a recital can no longer be urged as an objection. It Avas first relaxed in the King’s Bench and Common Pleas, Avhere the suit was brought by original AA'rit.
In Waymark’s case, 5 Coke R. 75 b, in the King’s Bench the practice at that time was, after the bar pleaded the plaintiff has a day to reply, and even íavo or three terms after; no mention in the roll is made of an imparlance or continuance; but when he replies or rejoins, it shall be intended that it was entered at the term at which the bar Avas pleaded.
In the case of Mellor v. Walker, 2 Saund. R. 2, Sergeant Williams, in note 2 to that case, says: “Kor is there any continuance entered on the plea in the record, in the C. B. or of the K. B.. when the proceeding is by original writ, for the declaration and all the other proceedings are supposed to be of the same term.” Even at that early day the useless and cumbrous form of reciting in the beginning of the replication that there had been an imparlance, had grown into disuse, where the suit was by original writ. And our practice being to commence all actions by summons, conforms more nearly to the original writ than to the bill. It is believed that the practice of reciting an imparlance in pleas in bar, has long since gone into disuse in England, where the suit is by bill. The practical tendency of modern times is, to free the courts of useless and unmeaning forms, and there can nowhere be found a disposition to return to this one which has been wisely discarded in practice.
The presumption, then, being that all pleadings are filed at the same term, it was unnecessary to entitle this replication of any term, and it having been entitled of an impossible term, the entitling will be rejected as surplusage. The rule here announced is not intended to apply to pleas in abatement.
As to the special grounds of demurrer, that the replication contains .more than the general issue in the action of debt, the majority of the court are of the opinion that the redundant words may be rejected as surplusage, and the replication sustained.
The replication contains the words “was not indebted in manner and form in the sum of money in the said plea mentioned,” instead of the words “that he does not owe the said sum of money above demanded, or any part thereof, in manner and form,” etc. "We have never understood that the rule requires that a plea, to be in form, must use the precise words employed in the approved precedent. Other equivalent words conveying precisely the same meaning will suffice, and still be good in form.
In a plea of nil debet, the words “is not indebted” convey the same meaning as “does not owe.” We therefore think the court below did right in treating the redundant words as surplusage, and in overruling the demurrer.
As to what is said as to the understanding of counsel about regarding the replication as being amended, we can not regard it, as it is not found in the record, and all know Ave can only consider and be goATerned by what is found therein.
It is urged that the court beloAV erred in admitting the lease in evidence. It is insisted that there AAras a material variance that should have excluded the lease when offered. Had the declaration only contained the first count, then the objection would have been well taken. It counted on a lease of premises described by the government surveys, without any reservation of a portion of the land contained in such boundaries. The lease demises certain lands described by numbers, but reserves from the operation of the demise all right of Avay held by all railways passing through the premises. The reservation in the lease impliedly asserts that raihvays having right of way pass over the land, and thus we see a material variance between the lease and that described in the first count of the declaration.
But the second count presents a different question. It avers generally that plaintiff demised by a written lease, to defendant, certain premises, without describing them, for specified periods of time, for a specified annual rent, stating the times of payment, rate of interest, date of lease, etc., in all of which it corresponds with the lease, and presents no grounds of variance.
But it is urged that the description of the lease in this count is too vague to admit of its introduction in evidence.
This count is almost a literal copy of a precedent found in the second volume of Chitty’s Pleadings, at page 431. It only fills up dates, amounts, and states the times when the rent became due, and in this consists the material .difference. In a note to that form, it is said that this is the only-case in which the plaintiff may declare generally, and produce a deed in evidence in support of the declaration. And Warren v. Causett, 2 Ld. Raym. 1503, is referred to in support of the rule, and the case is found to sustain the form. And note 1 to the case of Luppa v. Mayo, 1 Saund. R. 276, sustains such a precedent. Sergeant Williams gives as the reason for the departure from the general rule of pleading, that in such a case the lease is regarded rather as inducement, and being so, it is only necessary for the lessor to state generally that he demised the premises, without saying that it was by indenture.
At common law, leases were made for any number of years simply by parol agreements, and hence the form of declaration, as in the second count, was adopted; and when the Statute of Frauds was enacted, that form was continued, and the indenture was admissible under such a count. We are, however, aware of no other exception, unless it arise under the Statute of Frauds, as in case of leases.
We are of opinion that the lease was properly admitted under the second count, and that the judgment of the court below must be affirmed.
Judgment affirmed.
