Private Wrongs.
Chapter the twentieth.
Of PLEADING.
PLEADINGS are the mutual altercations between the plaintiff and defendant ; which at prefent are fet down and delivered into the proper office in writing, though formerly they were ufually put in by their counfel ore tenus, or viva voce, in court, and then minuted down by the chief clerks, or prothonotaries ; whence in our old law French the pleadings are frequently denominated the parol.
The firft of thefe is the declaration, narratio, or count, antiently called the tale ^a; in which the plaintiff fets forth his caufe of complain at length : being indeed only an amplification or expofition of the original writ upon which his action is founded, with the additional circumftances of time and place, when and where the injury was committed. But we may remember ^b that, in the king's bench, when the defendant is brought into court by bill of Middlefex, upon a fuppofed trefpafs, in order to give the court a jurifdiction, the plaintiff may declare in whatever action, or charge him with whatever injury, he thinks proper ; unlefs he has held him to bail by a fpecial ac etiam, which the plaintiff is then bound to purfue. And fo alfo, in order to have the benefit of a capias to fecure the defendant's perfon, it was the antient practice and is therefore ftill warrantable in the com-
.{FS}
^a Append. N^o. II. §. 2. N^o. III. §. 6.
^b See pag. 285. 288.
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mon
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mon pleas, to fue out a writ of trefpafs quare claufum fregit, for breaking the plaintiff's clofe ; and plaintiff declares in whatever action the nature of his actual injury may require ; as an action of covenant, or on the café for breach of contract, or other lefs forcible tranfgreffion ^c : unlefs by holding the defendant to boil on a fpecial ac etiam, he has bound himfelf to declare accordingly.
In local actions, where poffeffion of land is to be recovered, or damages for an actual trefpafs, or for wafte, & c, affecting land, the plaintiff muft lay his declaration or declare his injury to have happened in the very county and place that it really did happen ; but in tranfitory actions, for injuries that might have happened any where, as debt, detinue, flander, and the like, the plaintiff may declare in what county he pleafes, and then the trial muft be in that county in which the declaration is laid. Though if the defendant will make affidavit, that the caufe of action, if any, arofe not in that but in another county, the court will direct a change of the venue, or vifne, (that is, the vicinia or neighbourhood in which the injury is declared to be done) and will oblige the plaintiff to declare in the proper county. For the ftatute 6 Ric. II. c. 2. having ordered all writs to be laid in their proper counties, this, as the judges conceived, impowered them to change the venue, if required, and not to infift rigidly on abating the writ : which practice began in the reign of James the firft ^d. And this power is difcretionally exercifed, fo as not to caufe but prevent a defect of juftice. Therefore the court will not change the venue to any of the four northern counties, previous to the fpring circuit ; becaufe there the affifes are holden only once a year, at the time of the fummer circuit. And it will fometimes remove the venue from the proper jurifdiction, (efpecially of the narrow and limited kind) upon a fuggeftion, duly fupported, that a fair and impartial trail cannot be had therein ^e.
.{FS}
^c 2 Ventr. 259.
^d 2 Salk. 670.
^e Stra. 874. – Mylock v. Saladine. Trin. 4 Geo. III. B. R.
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It
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It is generally ufual in actions upon the café to fet forth feveral cafes, by different counts in the fame declaration ; fo that if the plaintiff fails in the proof of one, he may fucceed in another. As, in an action on the café upon an affumpfit for goods fold and delivered, the plaintiff ufually counts or declares, firft, upon a fettled and agreed price between him and the defendant ; as that they bargained for twenty pounds : and left he fhould fail in the proof of this, he counts likewife upon a quantum valebant ; that the defendant bought other goods, and agreed to pay him fo much as they were reafonably worth ; and then avers that they were worth other twenty pounds : and fo on in three or four different fhapes ; and at laft concludes with declaring that the defendant had refufed to fulfil any of thefe agreements, whereby he is endamaged to fuch a value. And if he proves the café laid in any one of his counts, though he fails in the reft, he fhall recover proportionable damages. This declaration always concludes with thefe words, “ and thereupon he brings fuit, & c; “inde producit fectam, &c.” By which word, fuit or fecta, (a fequendo) were antiently underftood the witneffes or followers of the plaintiff ^f. For in former times the law would not put the defendant to the trouble of anfwering the charge, till the plaintiff had made out at leaft a probable café ^g. But the actual production of the fuit, the fecta, or followers, is now antiquated ; and hath been totally difufed, at leaft ever fince the reign of Edward the third, though the form of it ftill continues.
At the end of the declaration are added alfo the plaintiff's common pledges of profecution, John Doe and Richard Roe, which, as we before obferved ^h, are now mere names of form ; though formerly they were of ufe to anfwer to the king for the amercements of the plaintiff, in café he were nonfuited, barred of his action, or had a verdict and judgment againft him ⁱ. For, if the plaintiff neglects to deliver a declaration for two terms af-
.{FS}
^f Seld. In Fortefc. C. 21.
^g Bract. 400. Flet. l. 2. c. 6.
^h See pag. 275.
^I 3 Bulftr. 275. 4 Inft. 189.
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ter
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ter the defendant appears, or is guilty of other delays or defaults againft the rules of law in any fubfequent ftage of the action, he is adjudged not to follow or purfue his remedy as he ought to do, and thereupon a nonfuit, or non profequitur, is entered ; and he is faid to be nonpros.' d. And for thus deferting his complaint, after making a falfe claim or complain (pro falfo clamore fuo) he fhall not only pay cofts to the defendant, but is liable to be amerced to the king. A retraxit differs from a nonfuit, in that the one is negative, and the other pofitive :the nonfuit is a default and neglect of the plaintiff, and therefore he is allowed to begin his fuit again, upon payment of cofts ; but a retraxit is an open and voluntary renunciation of his fuit, in court, and by this he for ever lofes his action. A dif-continuance is fome what fimilar to a nonfuit : for when a plaintiff leaves a chafm in the proceedings of h is caufe, as by not continuing the procefs regularly from day to day, and time to time, as he ought to do, the fuit is dif-continued, and the defendant is no longer bound to attend ; but the plaintiff muft begin again, by fuing out a new original, ufually paying cofts to his antagonift. Antiently, by the demife of the king, all fuits depending in his courts were at once difcontinued, and the plaintiff was obliged to renew the procefs, by fuing out a frefh writ from the fucceffor ; the virtue of the former writ being totally gone, and the defendant no longer bound to attend in confequence thereof : but, to prevent the expenfe as well as delay attending this rule of law, the ftatute 1 Edw. VI. C. 7. enacts, that by the death of the king no action fhall be difcontinued ; but all proceedings fhall ftand good as if the fame king had been living.
When the plaintiff hath ftated his café in the declaration, it is incumbent on the defendant within a reafonable time to make his defence and to put in a plea ; or elfe the plaintiff will at once recover judgment by default, or nibil dicit of the defendant.
Defence, in it's true legal fenfe, fignifies not a juftification, protection, or guard, which is now it's popular fignification ; but
merely

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merely an oppofing or denial (from the French verb defender) of the truth or validity of the complaint. It is the conteftatio litis of the civilians : a general affertion that the plaintiff hath no ground of action, which affertion is afterwards extended and maintained in his plea. For if would be ridiculous to fuppofed that the defendant comes and defends (or, in the vulgar acceptation juftifies) the force and injury, in one line, and pleads that he is not guilty of the trefpafs complained of, in the next. And therefore in actions of dower, where the demandant does not count of any injury done, but merely demands her endowment ^k, and in affifes of land, where alfo there is no injury alleged, but merely a queftion of right ftated for the determination of the recognitors or jury, the tenant makes no fuch defence ^l. In writs of entry ^m, where no injury is ftated in the count, but merely the right of the demandant and the defective title of the tenant, the tenant comes and defends or denies his right, jus fuum, that is (as I underftand it, though with a fmall grammatical inaccuracy) the right of the demandant, the only one expreffly mentioned in the pleadings : or elfe denies his own right to be fuch, as is fuggefted by the count of the demandant. And in writs of right ⁿ the tenant always comes and defends the right of the demandant and his feifin, jus praedicti S. et feifinam ipfius ^o, (or elfe the feifin of his anceftor, upon which he counts, as the café may be) and the demandant may reply, that the tenant unjuftly defends his, the demandant's right, and the feifin on which he counts ^p. All which is extremely clear, if we underftand by defence an oppofition or denial, but is otherwife in-explicably difficult ^q.
The courts were formerly very nice and curious with refpect to the nature of the defence, fo that if no defence was made, though a fufficient plea was pleaded, the plaintiff fhould recover
.{FS}
^k Raftal. Entr. 234.
^l Booth of real actions. 118.
^m Vol.II. append. N^o. V. §.2.
ⁿ Append. N^o. I. §. 5.
^o Co. Entr. 182.
^p Nov. Narr. 230. edit. 1534.
^q The true reafon of this, fays Booth, (on real actions. 94. 112.) I could never yet find.
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judgment^r: and therefore the book, entitled novae narrationes or the new talys^s, at the end of almoft every count, narratio, or tale, fubjoins fuch defence as is proper for the defendant to make. For a general defence or denial was not prudent in every fituation, fince thereby the propriety of the writ, the competency of the plaintiff, and the cognizance of the court, were allowed. By defending the force and injury the defendant waved all pleas of mifnofmer^t; by defending the damages, all exceptions to the perfon of the plaintiff; and by defending either one or the other when and where it fhould behove him, he acknowleged the jurifdiction of the court^u. But of late years thefe niceties have been very defervedly difcountenanced^w; though they ftill feem to be law, if infifted on^x.

AFTER defence made, the defendant muft put in his plea. But, before he pleads, he is intitled to demand one imparlance^y, or licentia loquendi, and may have more granted by confent of the plaintiff; to fee if he can end the matter amicably without farther fuit, by talking with the plaintiff: a practice, which is^z fuppofed to have arifen from a principle of religion, in obedience to that precept of the gofpel, “agree with thine adverfary quickly whilft thou art in the way with him^a.” And it may be obferved that this gofpel precept has plain reference to the Roman law of the twelve tables, which expreffly directed the plaintiff and defendant to make up the matter, while they were in the way, or going to the praetor; --- in via, rem uti pacunt orato. There are alfo many other previous fteps which may be taken by a defendant before he puts in his plea. He may, in real actions, demand a view

.{FS}
^r Co. Litt. 127.
^s edit. 1534.
^t Theloal. dig. l.14. c. I. pag. 357.
^u En la defence font iij chofes entendantz: per tant quil defende tort et force, bome doyt entendre quil fe excufe de tort a luy furmys per eounte, et fait fe partie al ple; et per tant quil defende les damages, il affirme le partie able deftre refpondu; et per tant quil defende ou et quant il devera, il accepte la poiar de courte de conuftrs ou trier lour ple. (Mod. tenend. cur. 408. edit 1534.) See alfo Co. Litt. 127.
^w Salk. 217. Lord Raym. 282.
^x Carth. 230. Lord Raym. 117.
^y Append. N^o. III. §. 6.
^z Gilb. Hift. Com. Pl. 35.
^a Matth. V. 25.
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of
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of the thing in queftion, in order to afcertain it's identity and other circumftances. He may crave oyer^b of the writ, or of the bond, or other fpecialty upon which the action is brought; that is to hear it read to him; the generality of defendants in the times of antient fimplicity being fuppofed incapable to read it themfelves: whereupon the whole is entered verbatim upon the record, and the defendant may take advantage of any condition or other part of it, not ftated in the plaintiff's declaration. In real actions alfo the tenant may pray in aid, or call for affiftance of another, to help him to plead, becaufe of the feeblenefs and imbecillity of his own eftate. Thus a tenant for life may pray in aid of him that hath the inheritance in remainder or reverfion; and an incumbent may pray in aid of the patron and ordinary: that is, that they fhall be joined in the action and help to defend the title. Voucher alfo is the calling in of fome perfon to anfwer the action, that hath warranted the title to the tenant or defendant. This we ftill make ufe of in the form of common recoveries^c, which are grounded on a writ of entry; a fpecies of action that we may remember relies chiefly on the weaknefs of the tenant's title, who therefore vouches another perfon to warrant it. If the vouchee appears, he is made defendant inftead of the vouchor: but, if he afterwards makes default, recovery fhall be had againft the original defendant; and he fhall recover over an equivalent in value, againft the deficient vouchee. In affifes indeed, where the principal queftion is whether the demandant or his anceftors were or were not in poffeffion till the oufter happened, and the title of the tenant is little (if at all) difcuffed, there no voucher is allowed; but the tenant may bring a writ of warrantia chartae againft the warrantor, to compel him to affift him with a good plea or defence, or elfe to render damages and the value of the land, if recovered againft the tenant^d. In many real actions alfo^e, brought by or againft an infant under the age of twenty one years, and alfo in actions of debt bought againft him, as heir to any deceafed anceftor, either party may fuggeft the nonage of the in-

.{FS}
^b Append. N^o. III. §. 6.
^c Vol. II. append. N^o. V. §. 2.
^d F. N. B. 135.
^e Dyer. 137.
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O o 2
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fant, and pray that the proceedings may be deferred till his full age, or in our legal phrafe that the infant may have his age, and that the parol may demur, that is that the pleadings may be ftaid; and then they fhall not proceed till his full age, unlefs it be apparent that he cannot be prejudiced thereby^f. But, by the ftatutes of Whftm. I. 3 Edw. I. c. 46. and of Glocefter 6 Edw. I. c. 2. in writs of entry fur diffeifin in fome particular cafes, and in actions aunceftrel brought by an infant, the parol fhall not demur: otherwife he might be deforced of his whole property, and even want a maintenance, till he came of age. So likewife in a writ of dower the heir fhall not have his age; for it is neceffary that the widow's claim be immediately determined, elfe fhe may want a prefent fubfiftence^g. Nor fhall an infant patron have it in a quare impedit^h, fince the law holds it neceffary and expedient, that the church be immediately filled. It is in this ftage alfo of the caufe, if at all, that cognizance of the fuit muft be claimed or demanded; when any perfon or body corporate hath the franchife, not only of bolding pleas within a particular limited jurifdiction, but alfo of the cognizance of pleas: and that, either without any words exclufive of other courts, which entitles the lord of the franchife, whenever any fuit that belongs to his jurifdiction is commenced in the courts at Weftminfter, to demand the cognizance thereof; or with fuch exclufive words, which alfo entitle the defendant to plead to the jurifdiction of the courtⁱ. Upon this claim of cognizance, if allowed, all proceedings fhall ceafe in the fuperior court, and the plaintiff is left at liberty to purfue his remedy in the fpecial jurifdiction. As when a fcholar or other privileged perfon of the univerfities of Oxford or Cambridge is impleaded in the courts at Weftminfter for any caufe of action whatfoever, unlefs upon a queftion of freehold^k. In thefe cafes, by the charter of thofe learned bodies, confirmed by act of parliament, the chancellor or vice-chancellor may put in a claim of cognizance; which,

.{FS}
^f Finch. L. 360.
^g I Roll. Abr. 137.
^h Ibid. 138.
ⁱ 2 Lord Raym. 836. 10 Mod. 126.
^k See pag. 83.
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if
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if made in due time and with due proof of the facts alleged, is regularly allowed by the courts^l. It muft be demanded before any imparlance, for that is a fubmiffion to the jurifdiction of the fuperior court: and it will not be allowed if it occafions a failure of juftice^m, or if an action be brought againft the perfon himfelf who claims the franchife, unlefs he hath alfo a power in fuch cafe of making another judgeⁿ.

WHEN thefe proceedings are over, the defendant muft then put in his excufe or plea. Pleas are of two forts; dilatory pleas, and pleas to the action. Dilatory pleas are fuch as tend merely to delay or put off the fuit, by queftioning the propriety of the remedy, rather than by denying the injury: pleas to the action are fuch as difpute the very caufe of fuit. The former cannot be pleaded after a general imparlance, which is an acknowlegement of the propriety of the action.

I. DILATORY pleas are, I. To the jurifdiction of the court: alleging, that it ought not to hold plea of this injury, it arifing in Wales or beyond fea; or becaufe the land in queftion is of antient demefne, and ought only to be demanded in the lord's court, &c. 2. To the difability of the plaintiff, by reafon whereof he is incapable to commence or continue the fuit; as, that he is an alien enemy, outlawed, excommunicated, attainted of treafon or felony, under a praemunire, not in rerum natura (being only a fictitious perfon) an infant, a feme-covert, or a monk profeffed. 3. In abatement: which abatement is either of the

.{FS}
^l Hardr. 505.
^m 2 Ventr. 363.
ⁿ Hob. 87. Yearbook, M. 8 Hen. VI. 20. In this latter cafe the chancellor of Oxford claimed cognizance of an action of trefpafs brought againft himfelf; which was difallowed, becaufe he fhould not be judge in his own caufe. The argument ufed by ferjeant Rolfe, on behalf of the cognizance, is curious and worth tranfcribing. – feo vous dirai un fable. En afcun temps fuit un pape, et avoit fait un grand offence, et le cardinals vindrent a luy et difoyent a luy, “ peccafti:” et il dit. “judica me:” et ils difyent, “non poffumus, quia caput es ecclefiae; jufica teipfum:” ed l apoftof dit, “judico me cremair;” et fuit combuftus; et apres fuit un fainct. Et in ceo cas il fuit fon juge demene, et iffint m' eft pas inconvenient que un bome foit juge demene.
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writ,
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writ, or the count, for fome defect in one of them; as by mifnaming the defendant, which is called a mifnofmer; giving him a wrong addition, as efquire inftead of knight; or other want of form in any material refpect. Or, it may be, that the plaintiff is dead; for the deat of either party is at once an abatement of the fuit. And in actions merely perfonal, arifing ex delicto, for wrongs actually done or committed by the defendant, as trefpafs, battery, and flander, the rule is that action perfonalis moritur cum perfona^o; and it never fhall be revived either by or againft the executors or other reprefentatives. For neither the executors of the plaintiff have received, nor thofe of the defendant have committed, in their own perfonal capacity, any manner of wrong or injury. But in actions arifing ex contractu, by breach of promife and the like, where the right defcends to the reprefentatives of the plaintiff, and thofe of the defendant have affets to anfwer the demand, though the fuits fhall abate by the death of the parties, yet they may be revived againft or by the executors^p: being indeed rather actions againft the property than the perfon, in which the executors have now the fame intereft that their teftator had before.
These pleas to the jurifdiction, to the difability, or in abatement, were formerly very often ufed as mere dilatory pleas, without any foundation of truth, and calculated only for delay ; but now by ftatute 4 & 5 Ann. c. 16. no dilatory pela is to be admitted, without affidavit made of the truth thereof, or fome probable matter fhewn to the court to induce them to believe it true. And with refpect to the pleas themfelves, it is a rule, that no exception fhall be admitted againft a declaration or writ, unlefs the defendant will in the fame plea give the plaintiff a better^q; that is, fhew him how it might be amended, that there may not be two objections upon the fame account.
.{FS}
^o 4 Inft. 315.
^p Mar. 14.
^q Brownl. 139.
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All
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ALL pleas to the jurifdiction conclude to the cognizance of the court; praying “judgment, whether the court will have farther cognizance of the fuit:” pleas to the difability conclude to the perfon; by praying “judgment, if the faid A the plaintiff ought to be anfwered:” and pleas in abatement (when the fuit is by original ) conclude to the writ or declaration; by praying “judgment of the writ, or declaration, and that the fame may be quafhed,” caffetur, made void, or abated: but, if the action be by bill, the plea muft pray “judgment of the bill,” and not of the declaration; the bill being here the original, and the declaration only a copy of the bill.

WHEN thefe dilatory pleas are allowed, the caufe is either difmiffed from that jurifdictiom; or the plaintiff is ftayed till his difability be removed; or he is obliged to fue out a new writ, by leave obtained from the court^r, or to amend and new-frame his declaration. But when on the other hand they are overruled as frivolous, the defendant has judgment of refpondeat oufter, or to anfwer over in fome better manner. It if then incumbent on him to plead

2. APLEA to the action; that is, to anfwer to the merits of the complaint. This is done by confeffing or denying it.

A CONFESSION of the whole complaint is not very ufual, for then the defendant would probably end the matter fooner; or not plead at all, but fuffer judgment to go by default. Yet fometimes, after tender and refufal of a debt, if the creditor haraffes his debtor with an action, it then becomes neceffary for the defendant to acknowlege the debt, and plead the tender; adding that he has always been ready, tout temps prift, and ftill is ready, uncore prift, to difcharge it: for a tender by the debtor and refufal by the creditor will in all cafes difcharge the cofts^s, but not the debt itfelf; though in fome particular cafes the creditor will

.{FS}
^r Co. Entr. 271.
^s I Vent. 21.
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totally lofe his money^t. But frequently the defendant confeffes one part of the complaint (by a cognovit actionem in refpect thereof ) and traverfes or denies the reft: in order to avoid the expenfe of carrying that part to a formal trial, which he has no ground to litigate. A fpecies of this fort of confeffion is the payment of money into court: which is for the moft part neceffary upon pleading a tender, and is itfelf a kind of tender to the plaintiff; by paying into the hands of the proper officer of the court as much as the defendant acknowleges to be due, together with the cofts hitherto incurred, in order to prevent the expenfe of any farther proceedings. This may be done upon what is called a motion; which is an occafional application to the court by the parties or their counfel, in order to obtain fome rule or order of court, which becomes neceffary in the progrefs of a caufe; and it is ufually grounded upon an affidavit, (the perfect tenfe of the verb affido) being a voluntary oath before fome judge or officer of the court, to evince the truth of certain facts, upon which the motion is grounded: though no fuch affidavit is neceffary for payment of money into court. If, after the money paid in, the plaintiff proceeds in his fuit, it is at his own peril: for, if he does not prove more due than is fo paid into court, he fhall be nonfuited and pay the defendant cofts; but he fhall ftill have the money fo paid in, for that the defendant has acknowleged to be his due. In the French law the rule of practice is grounded upon principles fomewhat fimilar to this; for there, if a perfon be fued for more than he owes, yet he lofes his caufe if he does not tender fo much as he really does owe^v. To this head may alfo be referred the practice of what is called a fet-off: whereby the defendant acknowleges the juftice of the plaintiff's demand on the one hand; but, on the other, fets up a demand of his own, to counterballance that of the plaintiff, either in the whole or in part: as, if the plaintiff fues for ten pounds due on a note of hand, the defendant may fet off nine pounds due to himfelf for merchandize fold to the plaintiff, and, in cafe he pleads fuch fet-off, muft pay the remaining ballance into court. This an-

.{FS}
^t Litt. §. 338. Co. Litt. 209.
^y Sp. L. b. 6. c. 4.
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fwers


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fwers very nearly to the compenfatio, or ftoppage, of the civil law^u, and depends on the ftatutes 2 Geo. II. c. 22. and 8 Geo. II. c. 24. which enact, that, where are mutual debts between the plaintiff and defendant, one debt may be fent againft the other, and either pleaded in bar, or given in evidence upon the general iffue at the trial; which fhall operate as payment, and extinguifh fo much of the plaintiff's demand.

PLEAS, that totally deny the caufe of complaint are either the general iffue, or a fpecial plea, in bar.

I. THE general iffue, or general plea, is what traverfes, thwarts, and denies at once the whole declaration; without offering any fpecial matter whereby to evade it. As in trefpafs either vi et armis, or on the cafe, non culpabilis, not guilty^w; in debt upon contract, nil debet, he owes nothing; in debt on bond, non eft factum, it is not his deed; on an affumpfit, non affumpfit, he made no fuch promife. Or in real actions, nul tort, no wrong done; nul diffeifin, no diffeifin; and in a writ of right, that the tenant has more right to hold than the demandant has to demand. Thefe pleas are called the general iffue, becaufe, by importing an abfolute and general denial of what is alleged in the declaration, they amount at once to an iffue; by which we mean a fact affirmed on one fide and denied on the other.

FORMERLY the general iffue was feldom pleaded, except when the party meant wholly to deny the charge alleged againft him. But when he meant to diftinguifh away or palliate the charge, it was always ufual to fet forth the particular facts in what is called a fpecial plea; which was originally intended to apprize the court and the adverfe party of the nature and circumftances of the defence, and to keep the law and the fact diftinct. And it is an invariable rule, that every defence, which cannot be thus fpecially pleaded, may be given in evidence, upon the general iffue at the trial. But, the fcience of fpecial plead-

.{FS}
^u Ff. 16. 2. I.
^w Append. N^o. II. §. 4.
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ing having been frequently perverted to the purpofes of chicane and delay, the courts have of late in fome inftances, and the legiflature in many more, permitted the general iffue to be pleaded, which leaves every thing open, the fact, the law, and the equity of the cafe; and have allowed fpecial matter to be given in evidence at the trial. And, though it fhould feem as if much confufion and uncertainty would follow from fo great a relaxation of the ftrictnefs antiently obferved, yet experievce has fhewn it to be otherwife; efpecially with the aid of a new trial, in cafe either party be unfairly furprized by the other.

2. SPECIAL pleas, in bar of the plaintiff's demand, are very various, according to the circumftances of the defendant's cafe. As, in real actions a general releafe or a fine, both of which may deftroy and bar the plaintiff's title. Or, in perfonal actions, an accord, arbitration, conditions performed, nonage of the defendant, or fome other fact which precludes the plaintiff from his action^x. A juftification is likewife a fpecial plea in bar; as in actions of affault and battery, fon affault demefne, that it was the plaintiff's own original affault; in trefpafs, that the defendant did the thing complained of in right of fome office which warranted him fo to do; or, in an action of flander, that the plaintiff is really as bad a man as the defendant faid he was.

ALSO a man may plead the ftatutes of limitations in bar; or the time limited by certain acts of parliament, beyond whcih no plaintift can lay his caufe of action. This, by the ftatute of 32 Hen. VIII. c. 2. in a writ of right is fixty years: in affifes, writs of entry, or other poffeffory actions real, of the feifin of one's anceftors, in lands; and either of their feifin, or one's own, in rents, fuits, and fervices; fifty years: and in actions real for lands grounded upon one's own feifin or poffeffion, fuch poffeffion muft have been within thirty years. By ftatute I Mar. ft. 2. c. 5. this limitation does not extend to any fuit for advcwfons, upon reafons given in a former chapter^y. But by the ftatute

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^x Append. N^o. III. §. 6.
^y See pag. 250.
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21 Jac. I.
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21 Jac. I. c. 2. a time of limitation was extended to the cafe of the king; fo that poffeffion for fixty years precedent to 19 Febr. 1623^z, is a bar even againft the prerogative, in derogation of the antient maxim “nullum tempus occurrit regi.” By another ftatute. 21 Jac. I. c. 16. twenty years is the time of limitation in any writ of formedon: and, by a confequence, twenty years is alfo the limitation in every action of ejectment; for no ejectment can be brought, unlefs where the leffor of the plaintiff is intitled to enter on the lands^a, and by the ftatute 21 Jac. I. c. 16. no entry can be made by any man, unlefs within twenty years after his right fhall accrue. As to all perfonal actions, they are limited by the ftatute late mentioned to fix years after the caufe of action commenced; except actions of affault, battery, amyhem, and imprifonment, which muft be brought within four years, and actions for words, which muft be brought within two years, after the injury committed. And by the ftatute 31 Eliz. c. 5. all fuits, indictments, and informations, upon any penal ftatutes, where any forfeiture is to the crown, fhall be fued within two years, and where the forfeiture is to a fubject, within one year, after the offence committed; unlefs where any other time is fpecially limited by the ftatute. Laftly, by ftatute 10 W. III. c. 14. no writ of error, or fcire facias, fhall be brought to reverfe any judgment, fine, or recovery, for error, unlefs it be profecuted within twenty years. The ufe of thefe ftatutes of limitation is to preferve the peace of the kingdom, and to prevent thofe unnumerable perjuries which might enfue, if a man were allowed to bring an action for any injury committed at any diftance of time. Upon both thefe accounts the law therefore holds, that “intereft reipublicae ut fit finis litium:” and upon the fame principle the Athenian laws in general prohibited all actions, where the injury was committed five years before the complaint was made^b. If therefore in any fuit, the injury, or caufe fo action, happened earlier than the period expreffly limited by law, the defendant may plead the ftatutes of limitations in bar: as upon an affump-

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^z 3 Inft. 189.
^a See pag. 206.
^b Pott. Ant. b. I. c. 21.
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P p 2
fit,
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fit, or promife to pay money to the plaintiff, the defendant may plead non affumpfit infra fex annos; he made no fuch promife within fix years; which is an effectual bar to the complaint.

AN eftoppel is likewife a fpecial plea in bar: which happens where a man hath done fome act, or executed fome deed, which eftops or precludes him from averring any thing to the contrary. As if tenant for years (who hath no freehold) levies a fine to another perfon. Though this is void as to ftrangers, yet it fhall work as an eftoppel to the cognizor; for, if he afterwards brings an action to recover thefe lands, and his fine is pleaded againft him, he fhall thereby be eftopped from faying, that he had no freehold at the time, and therefore was incapable of levying it.

THE conditions and qualities of a plea (which, as well as the doctrine of eftoppels, will alfo hold equally, mutatis mutandis, with regard to other parts of pleading) are, I. That it be fingle and containing only one matter; for duplicity begets confufion. But by ftatute 4 & 5 Ann. c. 16. a man with leave of the court may plead two or more diftinct matters or fingle pleas; as in an action of affault and battery, thefe three, not quilty, fon affault demefne, and the ftatute of limitations. 2. That it be direct and pofitive, and not argumentative. 3. That it have convenient certainty of time, place, and perfons. 4. That it anfwer the plaintiff's allegations in every material point. 5. That it be fo pleaded as to be capable of trail.

SPECIAL pleas are ufually in the affirmative, fometimes in the negative, but they always advance fome new fact not mentioned in the declaration; and then they muft be averred to be true in the common form: --- “ and this he is ready to verify.” --- This is not neceffary in pleas of the general iffue; thofe always containing a total denial of the facts before advanced by the other party, and therefore putting him upon the proof of them.
IT
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IT is a rule in pleading, that no man be allowed to plead fpecially fuch a plea as amounts only to the general iffue, or a total denial of the charge; but in fuch cafe he fhall be driven to plead the general iffue in terms, whereby the whole queftion is referred to a jury. But if the defendant, in an affife or action of trefpafs, be defirous to refer the validity of his title to the court rather than the jury, he may ftate his title fpecially, and at the fame time give colour to the plaintiff, or fuppofe him to have an appearance or colour of title, bad indeed in point of law, but of which the jury are not competent judges. As if his own true title be, that he claims by feoffment with livery from A, by force of which he entered on the lands in queftion, he cannot plead this by itfelf, as it amounts to no more than the general iffue, nul tort, nul diffeifin, in affife, or not guilty in an action of trefpafs. But he may allege this fpecially, provided he goes farther and fays, that the plaintiff claiming by colour of a prior deed of feoffment, without livery, entered; upon whom he entered; and may then refer himfelf to the judgment of the court which of thefe two titles is the beft in point of law^c.

WHEN the plea of the defendant is thus put in, if it does not amount to an iffue or total contradiction of the declaration but only evades it, the plaintiff may plead again, and reply to the defendant's plea: either traverfing it, that is, totally denying it; as if on an action of debt upon bond the defendant pleads folvit ad diem, that he paid the money when due, here the plaintiff in his replication may totally traverfe this plea, by denying that the defendant paid it: or he may allege new matter in contradiction to the defendant's plea; as when the defendant pleads no award made, the plaintiff may reply, and fet forth an actual award, and affign a breach^d: or the replication may confefs and avoid the plea, by fome new matter or diftinction, confiftent with the plaintiff's former declaration; as, in an action for the trefpaffing upon land whereof the plaintiff is feifed, if the defendant fhews a

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^c D^r & St. d. 2. c. 53.
^d Append. N^o. III. §. 6.
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title

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title to the land by defcent, and that therefore he had a right to enter, and gives colour to the plaintiff, the plaintiff may either traverfe and totally deny the fact of the defcent; or he may confefs and avoid it, by replying, that true it is that fuch defcent happened, but that fince the defcent the defendant himfelf demifed the lands to the plaintiff for term of life. To the replication the defendant may rejoin, or put in an anfwer called a rejoinder. The plaintiff may anfwer the rejoinder by a fur-rejoinder; upon which the defendant may rebut; and the plaintiff anfwer him by a fur-rebutter. Which pleas, replications, rejoinders, fur-rejoinders, rebutters, and fur-rebutters anfwer to the exceptio, replicatio, duplicatio, triplicatio, and quadruplicatio of the Roman laws^e.

THE whole of this procefs is denominated the pleading; in the feveral ftages of which it muft be carefully obferved, not to depart or vary from the title or defence, which the party has once infifted on. For this (which is called a departure in pleading) might occafion endlefs altercation. Therefore the replication muft fupport the declaration, and the rejoinder muft fupport the plea, without departing out of it. As in the cafe of pleading no award made, in confequence of a bond of arbitration, to which the plaintiff replies, fetting forth an actual award; now the defendant cannot rejoin that he hath performed this award, for fuch rejoinder would be an entire departure from his original plea, which alleged that no fuch award was made: therefore he has now no other choice, but to traverfe the fact of the replication, or elfe to demur upon the law of it.

YET in many actions the plaintiff, who has alleged in his declaration a general wrong, may in his replication, after an evafive plea by the defendant, reduce that general wrong to a more particular certainty, by affigning the injury afrefh with all it's fpecific circumftances in fuch manner as clearly to afcertain and identify it, confiftently with his general complaint; which is

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^e Inft. 4. 14. Bract. l. 5. tr. 5. c. I.
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called
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called a new or novel affignment. As, if the plaintiff in trefpafs declares on a breach on a breach of his clofe in D; and the defendant pleads that the place where the injury is faid to have happened is a certain clofe of pafture in D, which defcended to him from B his father, and fo is his own freehold; the plaintiff may reply and affign another clofe in D, fpecifying the abuttals and boundaries as the real place of the injury^f.

IT hath previoufly been obferved^g that duplicity in pleading muft be avoided. Every plea muft be fimple, intire, connected, and confined to one fingle point: it muft never be entangled with a variety of diftinct independent anfwers to the fame matter; which muft require as many different replies, and introduce a multitude of iffues upon one and the fame difpute. For this would often embarrafs the jury, and fometimes the court itfelf, and at all events would greatly enhance the expenfe of the parties. Yet it frequently is expedient to plead in fuch a manner, as to avoid any implied admiffion of a fact, which cannot with propriety or fafety be pofitively affirmed or denied. And this may be done by what is called a proteftation; whereby the party interpofes an oblique allegation or denial of fome fact, protefting (by the gerund, proteftando) that fuch a matter does or does not exift; and at the fame time avoiding a direct affirmation or denial. Sir Edward Coke hath defined^h a proteftation (in the pithy dialect of that age) to be “an exclufion of a conclufion.” For the ufe of it is, to fave the party from being concluded with refpect to fome fact or circumftance, which cannot be directly affirmed or denied without falling into duplicity pleading; and which yet, if he did not thus enter his proteft, he might be deemed to have tacitly waived or admitted. Thus, while tenure in villenage fubfifted, if a villein had brought an action againft his lord, and the lord was inclined to try the merits of the demand, and the lord was inclined to try the merits of the demand, and at the fame time to prevent any conclufion againft himfelf that he had waived his figniory; he could not in this

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^f Bro. Abr. t. trefpafs. 205. 284.
^g pag. 308.
^h I Inft. 124.
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cafe
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cafe both plead affirmatively that the plaintiff was his villein, and alfo take iffue upon the demand; for then his plea would have been double, as the former alone would have been a good bar to the action: but he might have alleged the villenage of the plaintiff, by way of proteftation, and then have denied the demand. By this means the future vaffalage of the plaintiff was faved to the defendant, in cafe the iffue was found in his (the defendant's ) favourⁱ: for the proteftation prevented that conclufion, which would otherwife have refulted from the reft of his defence, that he had enfranchifed the plaintiff^k; fince no villein could maintain a civil action againft his old. So alfo if a defendant, by way of inducement to the point of his defence, alleges (among other matters) a particular mode of feifin or tenure, which the plaintiff is unwilling to admit, and yet defires to take iffue on the principal point of the defence, he muft deny the feifin or tenure by way of proteftation, and then traverfe the defenfive matter. So, laftly, if an award be fet forth by the plaintiff, and he can affign a breach in one part of it (viz. the non-payment of a fum of money) and yet is afraid to admit the performance of the reft of the award, or to aver in general a non-performance of any part of it, left fomething fhould appear to have been performed; he may fave to himfelf any advantage he might hereafter make of the general non-performance, by alleging that by proteftation; and plead only the non-payment of the money^l.

IN any ftage of the pleadings, when either fide advances or affirms any new matter, he ufually (as was faid) avers it to be true; “and this he is ready to verify.” On the other hand, when either fide traverfes or denies the facts pleaded by his antagonift, he ufually tenders an iffue, as it is called; the language of which is different according to the party by whom the iffue is tendered: for if the traverfe or denial comes from the defendant, the iffue is tendered in this manner, “and of this he puts

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ⁱ Co. Litt. 126.
^k See book II. ch. 6. pag. 94.
^l Append. N^o. III. §. 6.
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“himfelf
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“himfelf upon the county,” thereby fubmitting himfelf to the judgment of his peers^m: but if the traverfe lies upon the plaintiff, he tenders the iffue or prays the judgment of the peers againft the defendant in another form; thus, “and this he prays may be enquired of by the country.”

BUT if either fide (as, for inftance, the defendant) pleads a fpecial negative plea, not traverfing or denying any thing that was before alleged, but difclofing fome new negative matter; as where the fuit is on a bond, conditioned to perform an award, and the defendant pleads, negatively, that no award was made, he tenders no iffue upon this plea; becaufe it does not yet appear whether the fact will be difputed, the plaintiff not having yet afferted the exiftence of any award; but when the plaintiff replies, and fets forth an actual fpecific award, if then the defendant traverfes the replication, and denies the making of any fuch award, he then and not before tenders an iffue to the plaintiff. For when in the courfe of pleading they come to a point which is affirmed on one fide, and denied on the other, they are then faid to be at iffue; all their debates being at laft contracted into a fingle point, which muft now be determined either in favour of the plaintiff or of the defendant.

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^m Append. N^o. II. §. 4.
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