
    
      James C. Norris ads. James Wolfe.
    
    1. Plaintiff, in an action of covenant, set forth in the first count of his declaration, a covenant by the defendant to pay him, at a certain rate per year, from the date of the covenant to a particular time, for his ‘services as a clerk or attendant to him, alleging a general performance, and assigning as a breach, that there was due him for his salary, at the end of the term, a specific sum, which defendant refused to pay; and in the second count set out the same covenant, and averred performance up to a particular time, that he was ready and offered to perform during the remainder, but was dismissed and ejected by the defendant.
    2. Defendant, amongst others, on which no question is made, alleged in his second plea, that he did pay the plaintiff’s salary “so long as the said plaintiff served and acted as clerk or attendant of him,” the defendant. The third was like the second plea, with the variation that the salary was paid “ so long as the plaintiff faithfully and diligently served the defendant as clerk,” &c.; both of which pleas concluded to the country. The fourth plea was a transcript of the second, the fifth of the third, and both concluding with a verification.
    3. Held, that two of these pleas were bad, as the same plea cannot conclude indifferently to the country, or with a verification.
    4. The same facts stated in different pleas cannot have different conclusions ; they cannot be a direct denial and a confession and avoidance of the cause of action stated in the declaration.
    5. Neither of the four pleas of the defendant were an answer to the declaration, as they neither deny nor admit, and avoid the general performance averred in the first count, nor the partial performance and excuse alleged in the second, but set out a matter foreign ; that he paid the salary so long as the plaintiff' served him:
    6. Held, that these pleas were properly stricken out, on motion under the rule of court.
    
      Before Evans, J. Charleston, March Term, 1843.
    This was an action of covenant. To the plaintiff’s declaration the defendant filed eight pleas, four of which presented either issues of law or fact, but the subjoined four were, on motion of the plaintiff’s attorney, stricken out, under the third rule of court. On the propriety of granting the motion, the question of the case arose. The facts necessary to be stated, as derived from the record, are fully-embraced in the judgment of the court.
    
      
      Pleas.
    
    And for a further plea in this behalf, the said defendant, by leave as aforesaid, by his attorneys aforesaid, comes and says as aforesaid, because he says that he, the said James C. Norris, hath well and truly paid, and did well and truly pay him, the said James Wolfe, a salary at the rate of five hundred dollars per annum, payable quarterly or monthly if required ; and hath granted, and did grant, to the said James Wolfe, the use, rent free, of the two apartments on the ground floor of the said Work House, in the said deed of indenture or instrument of writing in the said first count of the said declaration mentioned, so long as the said James Wolfe served and acted as N N clerk or attendant of the said James C. Norris, as master of the said Work House, according to the form and effect of the said deed of indenture or instrument of writing, in the said first count of the said declaration mentioned, and of the said covenant of the said James C. Norris, in the said first count of the said declaration mentioned, by him in that behalf, made as aforesaid, to wit, at Charleston aforesaid ; and of this he, the said defendant, puts himself on the country, and so fourth.
    Yeadon & Macbeth, Defendant's Attorneys.
    
    And for a further plea in this behalf, the said defendant, by leave as aforesaid, by his attorneys aforesaid, comes and says as aforesaid, because he says that he, the said defendant, hath well and truly paid, and did well and truly pay, the said plaintiff a salary, at the rate of five hundred dollars per annum, payable quarterly or monthly, if required; and hath granted, and did grant, to the said plaintiff, the use, rent free, of the two apartments on the ground floor of the said Work House, in the said deed of indenture or instrument of writing, in the said first count of the said declaration mentioned, so long as the said plaintiff faithfully, truly and diligently served and acted as clerk or attendant of the said defendant, as master of the said Work House, according to the form and effect of the said deed of indenture or instrument of writing, in the said first count of the said declaration mentioned, and of the said covenant of the said defendant, in the said first count of the said declaration mentioned by him, in that behalf, made as aforesaid, to wit, at Charleston, as aforésaid; and of this he, the said defendant, puts himself on the country, and so forth.
    Yeadon & Macbeth, Defenda?it’s Attorneys.
    
    And for a further plea in this behalf, the said defendant, by leave as aforesaid, by his attorneys, aforesaid, comes and says as aforesaid, because he says that he, the said defendant, hath well and truly paid, and did well and truly pay him, the said plaintiff, a salary at the rate of five hundred dollars per annum, payable quarterly or monthly if required; and hath granted, and did grant, to the said plaintiff, the use, rent free, of the two apartments on the ground floor of the said Work House, in the said deed of indenture or instrument of writing, in the said first count of the said declaration mentioned, so long as the said plaintiff served and acted as clerk or attendant of the said defendant, as master of the said Work House, according'to the form and effect of the said deed of indenture or instrument of writing, in the said first count of the said declaration mentioned, and of the said covenant of the said defendant, in the said first count of the said declaration mentioned, by him, in that behalf, made as aforesaid, to wit, at Charleston aforesaid; and this he, the said defendant, is ready to verify ; wherefore he prays judgment if the said plaintiff ought to have or maintain his aforesaid action thereof against him, and so forth.
    Yeadon & Macbeth, Defendant's Attorneys.
    
    And for a further plea in this behalf, the said defendant, by his attorneys aforesaid, comes and says as aforesaid, because he says that he, the said defendant, hath well and truly paid, and did well and truly pay him, the said plaintiff, a salary, at the rate of five hundred dollars per annum, payable quarterly or monthly, if required ; and hath granted, and did grant, to the said plaintiff, the use, rent free, of the two apartments on the ground floor of the said Work House, in the said deed of indenture or instrument of writing, in the said first count of the said declaration mentioned, so long as the said plaintiff faithfully, truly and diligently served and acted as clerk or attendant of the said defendant, as master 'of the said Work House, according to tíre form and effect of the said deed of indenture or instrument of writing, in the said first count of the said declaration mentioned, and of the covenant aforesaid, of the said defendant, in the said first count of the said declaration mentioned, by him, in that behalf, made as aforesaid, to wit, at Charleston ; and this he, the said defendant, is ready to verify; wherefore he prays judgment if the said plaintiff ought to have or maintain his aforesaid action thereof against him, and so forth.
    Yeadon & Macbeth, Defendant's Attorneys.
    
    
      Defendant appealed, on the following grounds.
    1. That the pleas ordered to be stricken out were in no sense “ frivolous or deceitful” under the rule of court.
    2. That the said pleas, setting up the non-performance of a condition precedent by the plaintiff, were substantial and meritorious pleas, and should have been replied or demurred to by the plaintiff.
    3. That if the said pleas were at all objectionable, in form or substance, they were only so by way of general or special demurrer, and to suffer them to be stricken out in' this short handed way, is to give the plaintiff all the advantages without the perils of a demurrer.
    4. That the decision of his-Honor was, in other respects, contrary to law.
    
      Yeadon, for the motion.
    Are the pleas deceptive? Cited 1 Chit. PI. 535.
    A wrong conclusion is only a ground of special demurrer. Cited 1 Chit. Plead. 540; 5th rule of court, (Riley’s Cases ;) 2 Brev. Rep. 428. Pleas cannot be set aside as frivolous, unless they be impertinent or nonsensical.
    
      B. F. Hunt, contra.
    The question is important, as it will settle the power of the court over the pleadings, and restore the ancient practice, by which the pleadings were so shaped by the court as to present the exact questions raised by the parties, and thus cut off all unnecessary testimony. When the pleadings were viva voce, the court on the spot rectified them, and the true issue was reduced to writing by the prothonotory. Afterwards, special pleading degenerated into a pitiful contest who should entrap the other ; and the pleadings were drawn out to a most inordinate length, to the great advantage of scriveners and pettifoggers, and the scandal of the profession. To compensate for this, a practice has grown up of admitting, under the plea of the general issue, what, in truth, is matter of special defence. This was to avoid the complication of special pleading. But this, too, has its defects. The general issue, naturally, is confined to the execution of the contract. Matter of special defence should be pleaded for the obvious purpose of advising the plaintiff, that he may be prepared to meet it. Without this a defendant may surprise the plaintiff with a defence which his witnesses are not ready to re-b,ut. To palliate this, new trials were liberally granted. Both systems are wrong, and in some States all special matter must be notified. A conformity to the true law is, after all, the most convenient. The general issue should be confined to the execution of the contract. Special defences should be plainly pleaded ; not to entrap or catch, not, as it was in this case avowed, to save a desperate case by special pleading, as if this could be done unless by surprising the opposite party. If bona fide pleaded matter of defence, by bringing the parties to the only true issue, dispenses with all unnecessary witnesses, confines the attention of the court to the true question, the rules are simple and easy of application. If the defendant traverses the declaration, then an issue is made of that. If he pleads new matter, then the plaintiff must elect. All pleadings tend to two issues, of fact and of law. An issue requires an affirmation and a denial; then, and then only, a reference is had to a mode of trial. Until one party affirms what the other denies, there is nothing to try. If, then, new matter is stated in the plea, the plaintiff, if he denies it, raises an issue of fact, and concludes to the jury or country. If he admits the facts, but denies their sufficiency to bar his action, he demurs; that is, alleges, that, in law, the facts are no’t a bar; the defendant must join in demurrer, and an issue of law is presented to the court. These simple rules show that the two first pleas stricken out are bad ; they conclude to the country, that is, offer trial, before the facts are denied, which is premature. The two next pleas only differ in concluding with a verification, that is, leaving the facts open to denial. And this leads to another enquiry ; do these pleas cover the whole declaration 'l If not, they are bad, for it is frivolous to deny part of the plaintiff’s case. The denial maybe true as far as it goes; bat still the plaintiff may be entitled to recover. Now, as special pleading, when understood, is plain, clear logic, it follows that a special plea, which covers only part of plaintiff’s case, is mere idle prevarication, and no pleading at all. This leads to the enquiry, how is the plaintiff to get rid of this trifling. He can do it by demurrer ; but that takes time, and wastes one’s strength in vain. Hence the rule of court restores the ancient common law, and submits these pleas to the court, on motion to strike them out as frivolous. That is not calculated to reduce the pleadings to a single issue, but only to distract. So that the court, by this means, simplifies its record by lopping off these excrescencies of ' prurient pleading ; and so the court below did the State some service by excinding these four superflous pleas.
   Curia, per

Evans, J.

The object of pleading is not to embarrass and encumber a case with a multiplicity of pleading on immaterial points, but to strip the case of undisputed facts, to ascertain wherein the parties differ, and what is in dispute between them. To decide the question made in this case, it is necessary to refer to the pleadings themselves. The first countin the declaration sets forth a covenant by the defendant to pay the plaintiff, at the rate of five hundred dollars a year, from the date of the covenant to a particular time, for the plaintiff’s services as a clerk or attendant on the defendant, as master of the Work House. It alleges a general performance, and assigns, as a breach, that there was due him for his salary, at the end of the term, two hundred and fifty dollars twenty-five cents, which the defendant refused to pay. The second count seis out the same covenant, and avers performance up to a particular time, and that he was ready and offered to perform during the remainder, but that he was dismissed and ejected by the defendant. To this declaration the defendant filed eight pleas. On the first, sixth, seventh and eight, there are issues of law or fact, and on these it is unnecessary to make any observations. The other four, as stated by the report, were ordered to be struck out by the court. The second plea alleges that the defendant did pay the plaintiff’s salary “ so long as the said James Wolfe served and acted as clerk or attendant of the said James 0. Norris.” The third is like the second, with this variation, that the salary was paid “ so long as the said plaintiff faithfully and diligently served the defendant as clerk,” <fec. These two pleas conclude to the country. The fourth plea is a transcript of the second, and the fifth of the third, and conclude with verification. There can be no doubt that two of these pleas are bad, for the same plea cannot conclude indifferently to the country, or with a verification. If the plea deny the whole allegation of the declaration, it should conclude to the country, and there is an issue of fact; but if the plea confess and avoid, by stating some new matter, then it must conclude with a verification, to give the plaintiff an opportunity to admit, deny or avoid such new matter. The same facts, stated in different pleas, cannot have different conclusions; they cannot be a direct denial and a confession and avoidance of the cause of action stated in the declaration. But it is another rule of pleading, that the plea must be an answer to the whole declaration ; if it be to any particular count, it must be so stated. None of these four pleas are an answer to the plaintiff's declaration. They neither deny nor admit and avoid the general performance averred in the first count nor the partial performance and excuse alleged in the second count, but set out a matter foreign to both, viz : that he paid the salary so long as the plaintiff served him. This may be true, and yet the plaintiff may be entitled to recover for the whole time, although he served only a part, if he was willing and ready, and offered to perform, and the defendant, without cause, dismissed and ejected him from his service. The whole of these four pleas, therefore, are bad. They are no answer to the declaration, and if followed up to an issue, would present an immaterial one. The only remaining question is, whether these pleas were properly ordered to be struck from the record, or whether the plaintiff should not have been required to demur to them. By the 5th rule of court, “ if any frivolous or deceitful plea shall be filed, the adverse party shall not be obliged to demur to the same, but such plea shall, on motion, be rejected by the court.” What pleas come under this description, it is very difficult to define with any precision. Cases illustrate principles, and convey a clearer idea to the mind, than definitions.- In Winn vs. Waring, 3 Bre. R. 428, it is said that pleas, to be rejected under this rule, “must be such as are unimportant, a nonsensical trifling with the dignity of the court and the majesty of the law, such pleas on w7hich no serious question of fact or law can arise.” The object of the rule of court was, no doubt, to disencumber the case from all irrelevant, immaterial and impertinent pleading, which, when decided, would leave the matter in dispute between the parties .still open and undecided. In rejecting these pleas, it is not intended to say they are nonsensical, or to apply the terms of the rule of court to them” in any offensive sense. The real defence of the defendant is contained in the other four pleas. Those which were rejected were no answer to the declaration ; whether the fact stated was true or not, was immaterial; they presented a sham, or not a real defence; and it is the opinion of this court, that the motion to reverse the decision of the circuit court should be dismissed.

Richardson, O’Neall, Butler, Wardlaw, and Frost, JJ. concurred.  