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tainty, and that the substance of the matters charged in the declaration were neither confessed and avoided, traversed or denied, by either of the pleas, which were evasive, uncertain and wholly insufficient. The replication to the fifth plea, protesting that the matters contained in that plea were wholly insufficient in law, traversed the allegation therein; that the notes of the bank and its deposits were not depreciated in value and lost to the holders and owners during the suspension. To this replication the bank demurred generally.
The cause was argued upon the demurrers before Justice Butler at Charleston, during the May term of 1841, by Mr. Memminger, Mr. Burt and Attorney-General Bailey for the State, and by Mr. Petigru, Mr. Legare and Mr. Walker for the defendant.
Judge Butler in an elaborate opinion delivered his judgment in favor of the defendant, whereupon the AttorneyGeneral, in behalf of the State, appealed from the judgment of the court.
The writ of error in this cause sets forth eighteen grounds of exceptions to the judgment of the circuit court. I do not deem it necessary to place these several grounds of exception before the reader, as the argument of Mr. Memminger which follows will enable him to gather the points embraced in each of these. The appellate court consisted then of the several judges of the circuit courts, conformably to the provisions of the act of 1831. The case was referred to the "court for the correction of errors," composed of all the chancellors and law judges. It was argued before that tribunal in Charleston at the sittings in February, 1842, by Mr. Memminger, Mr. Hunt and Attorney-General Bailey for the State and Mr. Petigru and Mr. Walker for the defendant.
No judgment was pronounced by the court, but a reargument was ordered, which was had in Columbia at the
May term of 1843, when the case was again argued by Mr. Memminger, Mr. Hunt and Attorney-General Bailey for the State, and Mr. Walker and Mr. King for the defendant.
I am enabled to present the argument of Mr. Memminger as it is printed in a volume of reports by special act of the Legislature in 1844. It is as follows:
Mr. Memminger, on behalf of the State, opened the argument by stating that it became the duty of the counsel for the State, in the first place, to extricate from the pleadings on the record, the questions which are to be decided by the court; and in doing so, they must premise that they have desired to meet these questions fairly; that they have answered the special pleading of the defendants with replications intended, merely, to keep them to the real issue; and that if, as they believe, it will be found that the defendants themselves have become entangled by these pleadings, the counsel for the State design to make no further use of their advantage, than to bring back the court to the question raised by the scire facias, and to ask judgment only upon the broad proposition, that by suspending specie payments, the bank has forfeited its charter.
The allegations of the declaration on the scire facias, then, must make out, by proper averments, a sufficient cause of forfeiture of the charter. In point of fact, the declaration sets forth what is usually termed a suspension of specie payments by alleging four distinct facts:
1. That the Bank of South Carolina having received a charter as a bank, and having issued a large amount of notes as a circulating medium, payable in gold and silver, and accepted a large amount of deposits payable also in gold and silver, afterwards resolved to suspend the payment of these notes and deposits in gold and silver coin. 2. That the said bank publicly declared this its determination. 3. That it actually refused to pay its notes and deposits in current coin for a long space of time; and, 4, that during such space of time it nevertheless continued to do business under its charter as a bank, making discounts, receiving deposits, issuing notes and declaring dividends among its stockholders.
The declaration then charges a repetition of the same acts, after a temporary resumption of specie payments. And the simple question of law raised by these allegations is whether these acts make out a cause of forfeiture, or in other words, whether such a suspension of a bank, confessedly without actual fraud, is a sufficient ground in law to declare the charter forfeited. In any view of the pleadings which may be taken, coming up as they now do before the court upon a general demurrer,
the sufficiency of the first pleading must necessarily be the first question. This presents the very point which the counsel for the State desire to have adjudged; and if the court shall be of opinion that such suspension is not cause of forfeiture, the other pleadings need not be investigated. But if, as our case undertakes to prove, the court should think that it is cause of forfeiture, it then becomes our duty to proceed further, and show to the court how the remaining pleadings have affected the form in which the question is presented.
The first plea of the defendant is not guilty, and seems to be predicated upon the idea of a general issue. It would not be difficult, perhaps, to show that such a plea is inconsistent with this form of action, and cannot be sustained. But proceeding upon the rule above stated, the counsel for the State conceived that as the plea could do no more than refer the facts averred to the verdict of a jury, and left the question of law precisely where it stood, they should make no objection to the plea, and they have, therefore, joined issue upon it. This plea, therefore, stands for trial by a jury, and is not involved in the present argument.
The second and third pleas each profess to answer the whole declaration; but the second avers only that the bank did not continually refuse to pay their notes in current coin; and the third avers that they did not continually refuse to pay their deposits in current coin.
It is a rule of pleading, that where a plea is offered in bar to the whole action, it must answer the whole allegation, except only in those cases where the allegation passed by is wholly immaterial or of matter of aggravation merely. Stephen's Pl. 215-217. 1 Chitty's Pl. 554. Now, the allegations of the declaration are: First, that the defendants resolved to suspend; second, that they published this resolution; third, that they refused to pay both notes and deposits; and, fourth, that they still continued to do business and divide profits as a bank. The second plea, therefore, which merely avers that they did not refuse to pay their notes, denies only a part of the third allegation, and gives no answer whatever to the other allegations; and vice versa, the third plea, while denying a refusal to pay deposits, says nothing as to the notes or any of the other allegations. The allegations thus left unanswered cannot certainly be considered immaterial, for they constitute the very foundation of the action.
So, too, it is another rule of pleading that whatever is not traversed or avoided is confessed. Stephen, 217. The second plea, therefore,
1 As there are various editions of Chitty and Stephen, each differing both in matter and arrangement from the other, it will be as well to mention that the editions cited in this argu. ment are of Chitty the 6th American from the 5th London edition, printed in Springfield in 1833; and of Stephen, the 3d American from the 3d London edition, printed in Philadelphia in 1837. The references are to the English or marginal paging.
which traverses only the refusal to pay notes, virtually admits the refusal to pay deposits; and the third plea, on the other hand, by traversing only the refusal to pay deposits, confesses the refusal to pay notes; and so it follows that taking both pleas together, all the allegations in the scire facias are confessed by the defendants' pleading.
Besides these objections, the word continually inserted in the pleas makes them both bad. It is no answer to an allegation that A owes B one hundred pounds, to aver that B does not owe the said one hundred pounds, but the plea must add, "or any part thereof." The allegation is, that the bank suspended during the whole time stated: the answer is, that they did not suspend during the whole time; thus making the time and not the suspension, the matter put in issue. This traverse, therefore, comes within that class of traverses which are said in law to be too large; and they are bad according to all the authorities: 1 Chitty, 647. Stephen, 224. Colborne v. Stockdale, 1 Str. 493. Cro. Eliz. 84. 3 Bos. and Pul. 348.
To have suffered these pleas to remain would have been to entangle the question and divided the issues to the detriment of the State; and the counsel for the State have, therefore, demurred specially to them, and it is conceived that this demurrer has disposed of both of them, and that no further notice need be taken of either.
The fourth plea is substantially a plea of nul tiel record, and as it does no more than to bring the charter under the judicial inspection of the court, the purpose of the State is accomplished, by making no objection to the plea.
The fifth plea seems to be that upon which the defendants intend to rely, and it will, therefore, require a more minute examination. It appears to have been conceived in the nature of a special traverse, one of the most subtle and technical forms of pleading. It alleges: 1. That before the suspension of specie payments in Charleston the banks in New York and elsewhere had suspended, and thereby created an extraordinary scarcity of specie, whereby the payment of notes and deposits by the defendants became impossible. 2. That the two suspensions by the Northern banks, as well as by banks elsewhere, rendered the demand for gold and silver extraordinary and irregular, having no reference to the quantity of specie in circulation or to the credit or solvency of the banks, and that the defendant was solvent, but unable, by reason of this extraordinary demand for coin, to pay in gold and silver without ruinous exactions of its own debtors. 3. That during the suspension the notes issued by the defendants were not greater in amount than was allowed by the charter or than it was ordinarily prudent to issue. And 4, that neither the notes nor deposits were lost or depreciated to the holders or owners of them. The plea then concludes with an absque hoc that the said suspensions are in violation of any rules or conditions in the char
ter, or to the perversion of the ends, objects and purposes of the corporation.
To ascertain the proper mode of replying to the multifarious allegations of this plea it becomes necessary to examine into its nature, and in this inquiry the court will have reason to thank Mr. Stephen for the very clear elucidation which his work on pleading affords of this intricate and perplexed form of pleading. All pleas in bar must be by way of traverse or by way of confession and avoidance. Stephen, 137. To which of these does the fifth plea belong? Its matter would seem to place it among pleas of confession and avoidance, but its form is technically that which is termed a special traverse. The absque hoc at the end of it fixes its character and compels us to consider it in that form, in which the defendants have chosen to put it; and the result, to which our examination into it as a special traverse will conduct us, would be substantially the same if it be treated as a plea of confession and avoidance, for in this latter case the matter of avoidance could be replied to in pleading precisely as we have replied to the special traverse.
A special traverse consists of two parts-the inducement and the abeque hoc, or denial. The inducement is an allegation of new affirmative matter indirectly denying the adverse pleading, but amounting, in fact, to a complete denial. The absque hoc is intended to deny in form that which the inducement has substantially but only indirectly denied. See the instances put in Stephen, 165, 168, 172, 174; 1 Chitty's Pl. 655. The formal denial contained in the absque hoc is intended to avoid that rule of pleading which would condemn the inducement as a mere argumentative pleading on account of its inferential and indirect character. The design of a traverse is to put the parties at once at issue, for it is a rule that to a special traverse well pleaded there can be no further pleading, either by way of confession and avoidance or by way of traverse, but the adverse party is compelled to join issue. Stephen, 188.
And this renders obvious the reason why the law has laid it down as an essential rule in relation to these traverses that the inducement must be a complete denial of the allegation on the other side. Stephen, 189. Is this rule complied with by the fifth plea? Which of the four allegations in the declaration does this plea deny? Is it denied that the bank refused payment of its notes, or deposits, or resolved to suspend specie payments, or published their resolution, or carried on business as a bank while in this state of suspension? These allegations are, in fact, admitted, and it is pleaded in extenuation, or by way of excuse, or justification, that a certain state of things existed which excused the default. This is the precise character of what would be held a plea of justification, and not a traverse at all, and the plea is therefore a direct violation of the distinction which the law makes between traverses and pleas of confession and avoidance. It also conflicts with another positive rule of