Bishop of Norwich v. Cornwallis, 1 N.C. 59, 1 Mart. 59 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 59, 1 Mart. 59

Bishop of Norwich vs. Cornwallis.

Pasch. 1 Car.

DEBT on an obligation for £. 1000. The plaintiff declared on a deed bearing date the 30th of November. 20 Jac. The defendant had oyer and it was entered in hæc verba. It was to stand to the award of Mr. Rich, in all controversies between the plaintiff and the defendant on the first day of June. The defendant replied that it was true he did write such a deed, bearing date as the plaintiff has counted, but that sigillavit, signavit et deliberavit it on the 28th of April, 21 Jac. after which day and before the 1st of June next ensuing, no award was made; absque hoc, quod cognovit se teneri et firmiter obligari, modo et forma, prout the plaintiff has counted. Whereupon the plaintiff demurred specially.

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 M. 121, and 41 Elzi. 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 is the same taking &c. 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.

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 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 award was made after the 28th of April, and before the 10th of June, they have not excluded the 28th of April, and perhaps the award was done on that day, and is to be performed. 4 Rep. 14. Buckley’s case. 22 El. 4 El. Dallison’s reports. In 31 Eliz. is was resolved, that where the statute is, that a deed shall be enrolled within six months after the date, if it be enrolled on the day of the date, it is well enough.

4. He has not performed the words of the condition, which were to perform an award made before, Whit-Sunday, being the 1st of June, and perhaps Whit-Sunday was on another day, in which case, utile per inutile non vitiatur. But Whit-Sunday shall be the day, in the performance of the condition.

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 was, 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.

Jones, J.

I agree that if the award be made on the same day as that of the date of the bond, although the words be that the award is to be made after the date, still it is well, and 5 Rep. Clayton's case, has been often overruled, (he did not particularize any case.) I have been a case adjudged, where an act was to be done within eleven days after the date, and the other pleaded, that it was not done within eleven days, after the day of the date, and the plea was adjudged bad, and the traverse repugnant.

Doderidge, J.

A traverse ought to be of the thing in dispute, between the parties. Here they agree on the fact; the dispute is on the date of the traverse: absque hoc, quod cognovit goes to the fact. Two are bound jointly and severally in an obligation, delivered by one of them on the 1st of May, and the other on the 1st of July: in debt against both, one pleads that he delivered it on the 1st of July, absque hoc, that he was jointly bound; it is bad. For after the delivery it is a joint obligation, and the deed prima facie shall be intended to have been delivered on the day of the date. With respect to the exclusion of the 28th of April, I agree with my brother Jones. An assize may be on the day of the disseisin. It has been objected that the bar is good to common intent: but that cannot supply the place of a special matter; and it ought to have been said that after the confection no award was made.

Crew, C. J.

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.