entitled to demand one imparlance; and may, before he pleads, have more time granted by consent of the court, to see if he can end the matter amicably, without farther suit, by talking with the plaintiff.

PLEAS.

When these proceedings are over, the defendant must then put in his excuse or plea. Pleas are of two sorts; dilatory pleas, and pleas to the action. Dilatory pleas are such as tend merely to delay or put off the suit, by questioning the propriety of the remedy, rather than by denying the injury: pleas to the action are such as dispute the very cause of suit. The former cannot be pleaded after a general imparlance, which is an acknowledgment of the propriety of the action.

Dilatory pleas are-1. To the jurisdiction of the court; alleging. that it ought not to hold plea of this injury, it arising in Wales or beyond sea; or because the land in question is of an ancient demesne, and ought only to be demanded in the lord's court, &c. 2. To the disability of the plaintiff; by reason whereof he ist incapable to commence or continue the suit; as, that he is an alien, enemy outlawed, excommunicated, attainted of treason or felony, under a præmunire, not in rerum naturâ (being only a fictitious person), an infant, a feme covert, or a monk professed. 3. In abatement: which abatement is either of the writ, or the count, for some defect in one of them; as, by misnaming the defendant, which is called a misnomer; giving him a wrong addition, as esquire instead of knight; or other want of form in any material respect. Or, it may be, that the plaintiff is dead; and in actions merely personal, arising ex delicto, for wrongs actually done or committed by the defendant, as trespass, battery, and slander, the rule is, that actio personalis moritur cum personá, and it never shall be revived either by or against the executors or other representatives.

By 4 & 5 Ann. c. 16. no dilatory plea is to be admitted without affidavit made of the truth thereof, or some probable matter shewn to the court to induce them to believe it true.

When these dilatory pleas are allowed, the cause is either dismissed from that jurisdiction, or the plaintiff is stayed till his disability be removed; or he is obliged to sue out a new writ, by leave from the court; or to amend and new-frame his declaration. But when they are overruled as frivolous, the defendant has judgment of respondeat ouster, or to answer over in some better manner; it is then incumbent on him to plead.

Secondly, a plea to the action; that is, to answer to the merits of the complaint. This is done by confessing or denying it.

A confession of the whole complaint is not very usual; for then the defendant would probably end the matter sooner, or not plead at all, but suffer judgment to go by default. Yet sometimes, after tender and refusal of a debt, if the creditor harass his

debtor with an action, it then becomes necessary for the defendant to acknowledge the debt, and plead the tender, adding that he has always been ready and still is ready to discharge it; for a tender by the debtor, and refusal by the creditor, will in all cases discharge the costs, but not the debt itself, though in some particular cases the creditor will totally lose his money. But frequently the defendant confesses one part of the complaint, and traverses or denies the rest; in order to avoid the expence of carrying that part to a formal trial, which he has no ground to litigate.

A species of this sort of confession is the payment of money into court, which is for the most part necessary upon pleading a tender, and is itself a kind of tender to the plaintiff, by paying into the hands of the proper officer of the court as much as the defendant acknowledges to be due, together with the costs hitherto incurred, in order to prevent the expence of any farther proceedings. This may be done upon what is called a motion; which is an occasional application to the court by the parties, or their counsel, in order to obtain some rule or order of court, which becomes necessary in the progress of a cause, and is usually grounded upon an affidavit, being a voluntary oath before some judge or officer of the court, to evince the truth of certain facts upon which the motion is grounded; though no such affidavit is necessary for payment of money into court.

If, after the money is paid in, the plaintiff proceed in his suit, it is at his own peril; for if he do not prove more due than is so paid into court, he shall be nonsuited, and pay the defendant's costs; but he shall still have the money so paid in, for that the defendant has acknowledged to be his due. To this head may also be referred the practice of what is called a set-off: whereby the defendant acknowledges the justice of the plaintiff's demand on the one hand, but on the other sets up a demand of his own, to counterbalance that of the plaintiff, either in the whole or in part; as, if the plaintiff sue for ten pounds due on a note of hand, the defendant may set off nine pounds due to himself for merchandise sold to the plaintiff; and in case he plead such set-off, must pay the remaining balance into court.

Pleas that totally deny the cause of complaint, are either the general issue, or a special plea in bar.

The general issue, or general plea, is what traverses, thwarts, and denies at once the whole declaration, without offering any special matter whereby to evade it. As in trespass, either vi et armis, or on the case, not guilty; in debt upon contract, he owes nothing; in debt on bond, it is not his deed; on an assumpsit, he made no such promise; or in real actions, no wrong done, no disseisin. And in writ of right, the mise or issue is, that the tenant has more right to hold than the demandant has to demand. These pleas are called the general issue; by which is meant a fact affirmed on one side, and denied on the other.

Special pleas are various, according to the circumstances of the defendant's case. As, in real actions, a general release or a fine, both of which may destroy and bar the plaintiff's title. Or, in personal actions, an accord, arbitration, conditions performed, non-age of the defendant, or some other fact which precludes the plaintiff from his action..

A justification is likewise a special plea in bar; as, in actions of assault and battery, that it was the plaintiff's own original assault; in trespass, that the defendant did the thing complained of in right of some office which warranted him so to do; or, in an action of slander, that the plaintiff is really as bad a man as the defendant said he was.

STATUTE OF LIMITATIONS.

Also, a man may plead the Statute of Limitation in bar. This, by the 32 Hen. VIII. c. 2. in a writ of right, is sixty years; in assizes, writs of entry, or other possessory actions real, of the seisin of one's ancestors in lands, and either of their seisin or one's own in rents, suits, and services, fifty years; and in actions real, for lands, grounded upon one's own seisin or possession, such possession must have been within thirty years. By the 1 Mar. st. 2. c. 5. this limitation does not extend to any suit for advowsons. But by the 21 Jac. I. c. 2. a time of limitation was extended to the case of the king, viz. sixty years precedent to 19 Feb. 1623; but this becoming ineffectual by efflux of time, the same date of limitation was fixed by the 9 Geo. III. c. 16. to commence, and be reckoned backwards, from the time of bringing any suit, or other process, to recover the thing in question; so that a possession for sixty years is now a bar even against the prerogative.

By another statute, 21 Jac. I. c. 16. twenty years is the time of limitation in any writ of formedon; and, by a consequence, twenty years is also the limitation in every act of ejectment: for no ejectment can be brought, unless where the lessor of the plaintiff is entitled to enter on the lands; and by the 21 Jac. I. c. 26. no entry can be made by any one, unless within twenty years after his right shall accrue.

Also, all actions of trespass, or otherwise, detinue, trover, replevin, account and case (except upon account between merchants), debt on simple contract, or for arrears of rent, are limited by the statute last-mentioned to six years after the cause of action commenced: and actions of assault, menace, battery, mayhem, and imprisonment, must be brought within four years, and actions for words within two years, after the injury committed.

And by the 31 Eliz. c. 5. all suits, indictments, and informations, upon any penal statutes, where any forfeiture is to the crown alone, shall be sued within two years; and where the forfeiture is to a subject, or to the crown and a subject, within one year after the offence committed, unless where any other time

is specially limited by the statute. Lastly, by the 10 W. III. c. 14. no writ of error, scire facias, or other suit, shall be brought to reverse any judgment, fine, or recovery, for error, unless it be prosecuted within twenty years. If therefore, in any suit, the cause of action happened earlier than the period expressly limited by law, the defendant may plead the statute of limitation in bar; as, upon an assumpsit, or promise to pay money to the plaintiff, the defendant may plead, he made no such promise within six years; which is an effectual bar to the action.

The statute of limitation makes an exception for all persons who shall be under age, feme-coverts, non compotes mentis, in prison, or abroad, when the cause of action accrues; and the limitations of the statute shall only commence from the time when their respective impediments or disabilities were removed. But if one only of a number of partners live abroad, they must bring their action within six years after the cause of it accrued. And where a partner has been guilty of any fraud in his dealings or accounts, the courts of law and equity have determined that he shall only protect himself by the Statute of Limitations from the time his fraud is discovered.

Any acknowledgment of the existence of the debt, however slight, will take it out of the statute, and the limitation will then run from that time: and where an expression is ambiguous, it shall be left to the consideration of the jury, whether it amounts, or not, to such acknowledgment. Where there are two or more drawers of a joint and several promissory note, the acknowledgment of any one may be given in evidence in a separate action against another, and will defeat the effect of the statute.

An estoppel is likewise a special plea in bar; which happens where a man hath done some act, or executed some deed, which estops or precludes him from averring any thing to the contrary. As if a tenant for years (who hath no freehold) levy a fine to another person; though this is void as to strangers, yet it shall work as an estoppel to the cognizor; for if he afterwards bring an action to recover these lands, and his fine is pleaded against him, he shall thereby be estopped from saying that he had no freehold at the time, and therefore was incapable of levying it.

Special pleas are usually in the affirmative, sometimes in the negative; but they always advance some new fact not mentioned in the declaration; and then they must be averred to be true in the common form, "And this he is ready to verify."

When the plea of the defendant is thus put in, if it do not amount to an issue, or total contradiction of the declaration, but .only evade it, the plaintiff may plead again, and reply to the

* No statute has fixed any limitation to a bond or specialty: but where no interest has been paid upon a bond, and no demand proved thereon for twenty years, the judges recommend it to the jury to presume that it is discharged, and to find a verdict for the defendant. 2 T.R. 270. Lord Ellenborough has declared, that after a lapse of twenty years, a bond will be presumed to be satisfied; but there must either be a lapse of twenty years, or a less time coupled with some circumstance to strengthen the presumption. Camp. N.P. 29.

defendant's plea: either traversing it, that is, totally denying it; as if, on an action of debt upon bond, the defendant pleads, that he paid the money when due; here the plaintiff in his replication may totally traverse the 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 set forth an actual award, and assign a breach; or, the replication may confess and avoid the plea, by some new matter or distinction, consistent with the plaintiff's former declaration.

To the replication the defendant may rejoin, or put in an answer called a rejoinder. The plaintiff may answer the rejoinder by a sur-rejoinder; upon which the defendant may rebut; and the plaintiff may answer him by a sur-rebutter.

In any stage of the pleadings, when either side advances or affirms any new matter, he usually avers it to be true," And this he is ready to verify." On the other hand, when either side traverses or denies the facts pleaded by his antagonist, he usually. tenders an issue, as it is called; the language of which is different, according to the party by whom the issue is tendered. For if the traverse or denial come from the defendant, the issue is tendered in this manner, 66 And of this he puts himself upon the country," thereby submitting himself to the judgment of his peers: but if the traverse lie upon the plaintiff, he tenders the issue, or prays the judgment of his peers against the defendant in another form, thus, "And this he prays may be inquired of by the country."

But if either side (as, for instance, the defendant) plead a spe cial negative plea, not traversing or denying any thing that was before alleged, but disclosing some new negative matter; as, where the suit is on a bond conditioned to perform an award, and the defendant pleads, negatively, that no award was made; he tenders no issue upon this plea, because it does not yet appear whether the fact will be disputed, the plaintiff not having yet asserted the existence of any award: but when the plaintiff replies, and sets forth an actual specific award, if then the defendant traverse the replication, and deny the making of any such award, he then, and not before, tenders an issue to the plaintiff. For when, in the course of pleading, they come to a point which is affirmed on one side, and denied on the other, they are then said to be at issue; all their debates being at last contracted into a single point, which must now be determined either in favour of the plaintiff or of the defendant.

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