Judges: CREW, C. J.
Attorneys: Calthrop , for the plaintiff. The traverse is bad , on account of its repugnancy . He confessed the writing and delivery of the deed, and denied that it was modo et forma; which is repugnant. For if he had not said modo et forma it would most clearly be repugnant, and his saying so does not mend it; for it goes only to a circumstantial part of the plea, and not to the material one. Littleton, 483, on a cui in vita; 19 H., 6, 47; 20 H., 6, 14. The defendant pleaded not guilty modo et forma; he may be found guilty on another day or place that the plaintiff has counted. So the date of the deed is not a material , but a circumstantial part, and therefore it is as if modo et forma had *been out, and then, if the traverse is repugnant , the plea is bad . 3 E., 6, 65; 2 Mont. 121 ; and 41 Eliz.; sands and Leigh . In trespass for taking beasts in D., the defendant justifies quia damage feasant in the frank tenement of S., and afterwards he carried them from S. to the pound of D. and impounded them there, and that is the same taking, etc., absque hoc , that he took them at D. and it was adjudged repugnant, for the driving them from D. to the pound was a continuance of the taking.Damport . In a case where the deed bears date on a certain day, and if it be done on the same day, the plaintiff has a cause of action, and otherwise he has not, the day becomes material and traversable. But it is not material in this case; if it were, still the form is not here, absque hoc quod cognovit se debere et teneri modo et forma , as the deed itself.
Athow, contra . The words are to perform an award respecting all matters of controversy then depending. And there may be matters depending on the 28th of April which did not exist on the 20th of November, so that the date
and time are material here.
Filed: Jul. 05, 1793
Latest Update: Mar. 03, 2020
Summary: 2. Admitting that the modo et forma helps the repugnancy, still the plea is bad, 36 H., 8, 13. Where a traverse is modo et forma it is as *Page 673 if all had been particularly expressed. And if it had been particularly expressed, absque hoc cognovit se deliberare , 30 Nov. 20 Jac. it is not well; for notwithstanding that this traverse be good, still we have a cause of action, for perhaps it was on the 10th of July. 18 H., 7; Kell., 50, in a quare impedit . 3. In the allegation, viz., that no aw
Summary: 2. Admitting that the modo et forma helps the repugnancy, still the plea is bad, 36 H., 8, 13. Where a traverse is modo et forma it is as *Page 673 if all had been particularly expressed. And if it had been particularly expressed, absque hoc cognovit se deliberare , 30 Nov. 20 Jac. it is not well; for notwithstanding that this traverse be good, still we have a cause of action, for perhaps it was on the 10th of July. 18 H., 7; Kell., 50, in a quare impedit . 3. In the allegation, viz., that no awa..
More
The traverse is not good. For a traverse of circumstances is bad, and the date is not material. For a deed may have an impossible date, as the 30th of February, and still be good. As to the second point ut supra. Jones, 66; Bendl., 146; 1 Cr., 705; 1 Cr., 667.
