material variance between the allegation and the evidence. For though the place and the sum corresponded, even to the letter, yet by the legal interpretation of the bill, the currency intended was Irish, whereas by the allegation in the record, the Court could not legally understand any other than British sterling, because no other was averred, and the bill was not alleged to have been drawn in Ireland.1 So, where a note was made without any mention of the time of payment, and none was averred in the declaration, the judgment was reversed, upon error brought, the plaintiff not having declared upon the contract, according to its legal effect, but on the evidence only.2 § 16. In regard to the proof of the formal execution of deeds, bills of exchange, and other written documents, it was formerly the right of the adverse party to require precise proof of all signatures and documents, making part of the chain of title in the party producing them. But the great and unnecessary expense of this course, as well as the inconvenience and delay which it occasioned, have led to the adoption of salutary rules, restricting the exercise of the right to cases, where the genuineness of the instrument is actually in controversy, being either put in issue by the pleadings, or by actual notice, given pursuant to the rules of the Court.3 1 Kearney v. King, 2 B. & Ald. 301. Proof of a contract for bushels oats according to the Hartland Quay measure, will not support a declaration for the same quantity without any mention of the kind of measure. Hockin v. Cooke, 4 T. R. 314. 2 Bacon v. Page, 1 Conn. R. 404. But see Herrick v. Bennett, 8 Johns. 374, where such a declaration was held well on demurrer. 3 By the Rules of Hill. T. 1834, Reg. 20, (10 Bing. 456,) either party, after plea pleaded, and a reasonable time before trial, may give notice to the other of his intention to adduce in evidence certain written or printed documents; and unless the adverse party shall consent, in the manner therein prescribed, to admit their formal execution, or the truth of the copies to be adduced, he may be summoned before a Judge to show cause why he should not consent to such admission, and ultimately, if the Judge shall deem the application reasonable, may be compelled to pay the costs of the proof. See § 17. If the instrument declared on is lost, the fact of the loss may be proved by the affidavit of the plaintiff, a foundation being first laid for this proof, by evidence, that the instrument once existed, and that diligent search has been made for it in the places where it was likely to be found.' We now proceed to the consideration of the evidence to be offered under particular issues, in their order. also Tidd's New Practice, p. 481, 482. In some of the United States, the original right to require formal proof of documents, remains as at Common Law, unrestricted by rules of Court. In others, it has been restricted either to cases where the genuineness of the document has been put in issue by the pleadings, or where previous notice of an intention to dispute it has been seasonably given; (Reg. Gen. Sup. Jud. Court, Mass. 1836, Reg. LIII. 24 Pick. 399); or, where the attorney has been instructed by his client that the signature is not genuiue; or, where the defendant, being present in Court, shall expressly deny that the signature is his. (Reg. Gen. Sup. Jud. Court, Maine, 1822, Reg. XXXIII., 1 Greenl. 421.) In the Circuit Court, U. S., First Circuit, the defendant is not permitted to deny his signature to a note or bill of exchange, or the signature of a prior indorser, unless upon affidavit made of reasonable cause, necessary for his defence. Reg. 34. In the Seventh Circuit, the rule requires that the defendant shall first make affidavit that the instrument was not executed by him. And this rule has been held to be legal, under the Judiciary Act of March 2, 1793, c. 22. Mills v. Bank of United States, 11 Wheat. 439, 440. By the law of South Carolina, the plaintiff is not obliged to produce the subscribing witnesses, to a bond or note, but may prove its execution by any other witness, unless the defendant will swear that it is not his signature. Statutes at Large, Vol. 5, p. 435. As to the proof, in equity, of the execution of instruments, see post, Vol. III., § 308, and note. 1 Ante, Vol. 1, § 349, 558. ABATEMENT. § 18. SUCH of the causes of abatement as may also be pleaded in bar, will generally be treated under their appropriate titles. It is proposed here to consider those only, which belong more especially to this title. § 19. The plea of alien enemy must be pleaded with the highest degree of legal certainty, or, as it is expressed in the books, with certainty to a certain intent in particular; that is, it must be so certain as to exclude and negative every case in which an alien enemy may sue. It therefore states the foreign country or place in which the plaintiff was born; that he was born and continues under allegiance to its sovereign, of parents under the same allegiance, or adherents to the same sovereign; that such sovereign or country is an enemy to our own; and, if he is here, that he came hither, or remains, without a safe conduct or license; 1 and that he has been ordered out of the country by the President's proclamation. If the plaintiff should reply, that he is a native citizen and not an alien, concluding, as seems proper in such cases, to the country, the defendant has the affirmative, and must prove, that the plaintiff is an alien, as alleged in the plea. If the plaintiff should reply, that he was duly naturalized, the proper evidence of this is the record of the Court in which it was done. If the judgment is entered of record 1 Casseres v. Bell, 8 T. R. 166; Wells v. Williams, 1 Ld. Raym. 282; 1 Chitty on Pl. 214; Stephen on Pl. 67. License and safe conduct are implied, until the President shall think proper to order the party, either by name or character, out of the United States. 10 Johns. 72. 2 Stat. U. S. July 6, 1798 (ch. 75); Clarke v. Morey, 10 Johns. 69, 72; Bagwell v. Babe, 1 Rand. 272; Russell v. Skipwith, 6 Binn. 241. 3 Jackson on Pleading in Real Actions, p. 62, 65; Smith v. Dovers, 2 Doug. 428. in legal form, it closes all inquiry, it being, like other judgments, complete evidence of its own validity. These proceedings in naturalization have been treated with great indulgence, and the most liberal intendments made in their favor. The oath of allegiance appearing to have been duly taken, it has been held, that no order of the Court, that he be admitted to the rights of a citizen, was necessary, the record of the oath amounting to a judgment of the Court for his admission to those rights. And such record is held conclusive evidence, that all the previous legal requisites were complied with.* § 20. If the plea is founded on a defective or improper service of the process, as, for example, that it was served on Sunday, the day will be taken notice of by the Court, and any almanac may be referred to. So, if the service is made on any other day, on which, by public statute, no service can be made, the like rule prevails; and this, whether the day is fixed by the statute, or by proclamation by the Executive.5 § 21. If the defendant, in pleading a misnomer, allege that he was baptized by such a name, though the averment of his baptism was unnecessary, yet he is bound to prove the allegation, as laid, by producing the proper evidence of his baptism. This may be proved by production of the register of his baptism, or, a copy of the registry or record, duly authenticated, together with evidence of his identity with the person there named. If there is no averment of the fact 1 Spratt v. Spratt, 4 Pet. 393, 408. 2 Priest v. Cummings, 16 Wend. 617, 625. 3 Campbell v. Gordon, 6 Cranch, 176. 4 Stark v. The Chesapeake Ins. Co. 7 Cranch. 420; Ritchie v. Putnam, 13 Wend. 524; Spratt v. Spratt, 4 Pet. 293. 5 Ante, Vol. 1, § 5, 6. 6 Ante, Vol. 1, § 60; Weleker v. Le Pelletier, 1 Campb. 479. 7 Ante, Vol. 1, § 484, 493. of baptism, the name may be proved by any other competent evidence, showing that he bore and used that name.1 § 22. In criminal cases, it is a good objection, in abatement, that twelve of the grand jury did not concur in finding the bill; in which case the fact may be shown by the testimony of the grand jurors themselves, it not being a secret of State, but a constitutional right of the citizen.2 § 23. In real actions, non-tenure is classed among pleas in abatement, because it partakes of the character of dilatory pleas; though it shows that the tenant is not liable to the action, in any shape, inasmuch as he does not hold the land.3 The replication, putting this fact in issue, alleges that the tenant "was tenant as of freehold of the premises," and concludes to the country. Tenure may be proved prima facie by evidence of actual possession. It is also shown, by proof of an entry with claim of title; 5 or, by a deed of conveyance from a grantor in possession. If a disclaimer is pleaded in abatement, the only advantage in contesting it seems to be the recovery of costs, where they are given by statute to the party prevailing. In such cases, the only 1 Holman v. Walden, 1 Salk. 6. 2 Low's case, 4 Greenl. 439. : 3 Saund. 44, n. (4); Jackson on Plead. in Real Actions, p. 91. The form of the plea is this: "And the said T. comes and defends his right, when, &c., and says, that he cannot render to the said D. the tenements aforesaid with the appurtenances, because he says, that he is not, and was not on the day of the purchase of the original writ in this action, nor at any time afterwards, tenant of the said tenements as of freehold; and this he is ready to verify. Wherefore he prays judgment of the writ aforesaid, and that the same may be quashed; and for his costs." See Jackson on Plead. in Real Actions, p. 93; Story's Pleadings, p. 41; Stearns on Real Actions, App. No. 49. 4 Newhall v. Wheeler, 7 Mass. 189, 199. 5 1 Mass. 484, per Sewall, J.; Prop'rs Kennebec Purchase v. Springer, 4 Mass. 416; Higbee v. Rice, 5 Mass. 344, 352. 6 Pidge v. Tyler, 4 Mass. 541; Knox v. Jenks, 7 Mass. 488. |