Since the date of my last letter to you I have been led to a more critical examination of the question which arises in the case of the Post master general vs Reeder viz if the plea offers no legal bar to the action what Judgment is to be rendered? than I had before taken, and the difficulties which attend it, instead of being cleared away, have thickened upon me, so that I feel more at a loss than I ever was in my life upon any other question to come to a satisfactory conclusion. As I know you are fond of these investigations, I shall state my difficulties that you may, if you can, assist me in getting rid of them, for I freely acknowledge my inability to master them.

The general doctrine is laid down in 1st Chit. plead. 634 and is exemplified in the cases which I shall mention; but upon exam[in]ing those cases it will be found that in all the plea or the avowry contains a Justification, and of course a confession of the whole matter alleged in the declaration, and in most of these cases, the ground¹ for setting aside the verdict and entering Judgt for the plf. notwithstanding the issue is found for the deft, is the confession & the insufficiency of the defence—Lacy vs. Reynolds Cro. El. 214. Lovelace vs. Grimsden H. 227. Wilkes vs. Broadbent 1 Wils. 63. Jones vs. Bodinner Carth. 370. Broome vs. Rice 2 Stra. 873— Rex vs. Philips 1 Burr 292. Love vs. Wotton Cro. El. 245. Tryon vs. Carter 2 Stra. 994. Rex vs Philips Stra. 394. Pitts vs. Polehampton 1 L. Ray. 390 Craven vs Hanley Barns notes 255. Staple vs. Heydon 6 mod. 1-10. 2 L. Ray 922 L.C.— Jones vs. Bodenham 1 Salk. 173—1 Ld Ray 90. Knight vs. Harvey Cro. Car. 25. 14 Vin. 586 pl. 3. Harrison vs Metcalf Cro. Ja. 442. Broadbent vs. Wilks Willes rep. 360. 2 Stra. 1224 S.C. King vs. Nowell 1 T. rep. 118—2 do 758 Selby vs. Robinson. 5 vin. 347-8.

But what is to be done where the plea does not from its nature confess the cause of action & avoid it by a Justification or does not confess it directly as by the words "tho true it is" &c. and so on confessing & avoiding? Where the plea confesses & avoids, there is an intellible principle to warrant Judgt for the plf or. the confession, non obstante veredicto if the defence set up be in point of law insufficient. But if there be no confession, can Judgt be given for the insufficiency of the law unless upon demurrer? And if it cannot, what Judgment can the Court give. not a repleader, because that can only be upon the form & manner of pleading, not where the defect is inherent in the defence itself which no form or pleading can improve 2 Tidds prac. 831 & many of the above case.

The Court cant give Judgt for deft on an issue which is so substantially immaterial as to offer no defense to the action. They cant award a ven. de novo, as the result of another trial must be the same.

But if the plea is merely in avoidance without confessing or denying the cause of action, does it not implicitly admit it, and may this be considered as quasi a confession. on which the Judgt may be founded for the plf notwithstanding the issue is found for the deft? See 5 Com. deg. 518 Pleader S. 17. 18 Johns. 14 15 massa. rep. 54 Cro. Car. 25 which seem to be cases implied admissions. whatever is not traversed is in effect admitted 1 Chit. plead. 591. See also 2 Saund 319 note 6.

The above questions arise on the 9th plea. But the 4th plea which alleges the omission of the P.M.G. to bring suits & his concealment of the defaults of the principal from the deft to the surety to have been fraudulent, on which an issue in fact was taken, confesses the whole of action & avoids it upon the alleged ground of fraud. Can the confession in one plea be made the ground of a Judgt for the plf upon the insufficiency of the bar set up in another plea? Clearly you can't cure the defect of one plea by speang on it any part of another plea. But a confession in one plea dispenses with proof of the fact upon the trial of all the other issues. 75 massach. rep. 54—64.5.— Could not the court give Judgt for the plf. on the 9th plea notwithstanding the verdict, where there is one, or the issue on the part of the deft being maintained by the evidence in case of a demurrer to Evidence, the deft having in his 4th plea confessed the plfs cause of action?

Write to me as soon as you have had time to consider this question, & to make up your mind on it, but do not hurry yourself, as I shall hold up the opinion which I had profered at Philadelphia until I can perfectly satisfy myself on this point. As to the insufficiency of the bar I have no doubt, particularly after the opinion of the Supreme Court in Necols' case, the desire to see which caused me to take the above case under advisement.

The wine will be sufficiently fixed to be drawn off in ten days when I will send you the demijohn of it by the first vessel to Salem or Boston. Believe me to be my dear Sir your faithful friend and affect. Servt