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and his seisin, jus praedicti S. et seisinam ipfius°, (or else the feisin of his ancestor, upon which he counts, as the case may be) and the demandant may reply, that the tenant unjustly defends his, the demandant's right, and the feisin on which he counts P. All which is extremely clear, if we understand by defence an opposition or denial, but is otherwise inexplicably difficult ?. .

The courts were formerly, very nice and curious with respect to the nature of the defence, so that if no defence was made, though a sufficient plea was pleaded, the plaintiff should recover judgment': and therefore the book entitled novae narrationes or the new talyss, at the end of almost every count, narratio, or tale, subjoins such defence as is proper for the defendant to make. For a general defence or denial was not prudent in every situation, since 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 waived all pleas of misnosmer'; by defending the damages, all exceptions to the person of the plaintiff; and by defending either one or the other when and where it should behove him, he acknowleged the jurisdiction of the court". But of late years these niceties have been very deservedly discountenanced w; though they still seem to be law, if ina fifted on.

208

Before defence made, if at all, cognizance of the suit must be claimed or demanded; when any person or body corporate hath the franchise, not only of holding pleas within a particua lar limited jurisdiction, but also of the cognizance of pleas:

• Co. Entr. 182.
p" Nov. Narr. 230. edit. 1534.

1 The true reason of this, says Booth, (on rcal actions, 94. 112.) I could never yet find : so little did he understand of principles !

I Co. Litt. 127.
· Edit. 1534.
i Theloal. dig. I. 14. C. 1. pag. 357.

u En la defence font iij cboles entene dontzi per tant quil defende tort et furcen

Y

bome doye entendre quil se excuse de tort a
luy surmy's por counte, et fait se partie
al ple; et per tant quil difende les dama.
ges, il affirm le parte able defre repordu;
et per lunt quil defende ou et quant il de.
vera, il accepte la poiar de court de com
muffrou trier leur pke (Mod.tenendosure
408. edit. 1534.) See also Co. Litt. 127.
w Salk. 217. Lord Raym. 282.

Carth. 230. Lord Raym. 117.

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and that, either without any words exclusive of other courts, which entitles the lord of the franchise, whenever any suit that belongs to his jurisdiction is commenced in the courts at Westminster, to demand the cognizance thereof; or with such exclusive words, which also entitle the defendant to plead to the jurisdiction of the court'. Upon this claim of cognizance, if allowed, all proceedings fhall cease in the superior court, and the plintiff is left at liberty to pursue his remedy in the special jurisdiction. As, when a scholar, or other privileged person of the universities of Oxford or Cambridge is impleaded in the courts at Westminster, for any cause of action whatsoever, unless upon a question of freehold 2. In these cases, by the charter of those learned bodies, confirmed by act of parliament, the chancellor or vicechancellor may put in a claim of cognizance; which, if made in due time and form, and with due proof of the facts alleged, is regularly allowed by the courts a. It must be demanded before full defence is made or imparlance prayed; for these are a submission to the jurisdiction of the superior court, and the delay is a laches in the lord of the franchise : and it will

not be allowed, if it occasions a failure of justice, or if an [ 299 ) action be brought against the person himself, who claims the

franchise, unless he hath also a power in such case of making another judged.

AFTER defence made, the defendant must put in his plea. But, before he defends, if the suit is commenced by capias or latitat, without any special original, he is entitled to de

y 2 Lord Raym. 836. 10 Mod. 126.
z See pag. 83.
a Hardr. 505.
b Raft. Entr. 128, &c.
€ 2 Ventr. 363.

Hob. 87. Yearbook M. 8 Hen. VI. 20. In this latter case the chancellor of Oxford claimed cognizance of an action of trespass brought against himself; which was disallowed, because he mould not be judge in his own cause. The argument used by serjeant Rolfe, on behalf

of the cognizance, is curious and worth tranfcribing.- Je vous dirai un fable. En afcun temps fuit un pape, et avoir fait un grand offence, et le cardinals vin. drent a luy et disoyent a luy,peccafti :" et il dit, « judica me:" et ils disoyen!, « non poffumus, quia caput is ccclefiae; judica reipfum :" et l'apeffel dit, "ju« dico me cremari;" et fuit combuftus; et apres fuit un sainet. E! in ces cas il fuis fon juge demene, ct iffint n'est pas in. conucnient que una bome foit juge depune.

mand

mand one imparlance", or licentia loquendi ; and may, before he pleads, have more granted by consent of the court; to see if he can end the matter amicably without farther suit, by talking with the plaintiff; a practice, which ist supposed to have arisen from a principle of religion, in obedience to thaç precept of the gospel, “ agree with thine adversary quickly, « whilst thou art in the way with him &.” And it may be observed that this gospel precept has a plain reference to the Roman law of the twelve tables, which expressly 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 also many other previous steps which may be taken by a defendant before he puts in his plea. He may, in real actions, demand a view of the thing in queftion, in order to ascertain it's identity and other circumstances. He may crave oyer of the writ, or of the bond, or other specialty 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 supposed incapable to read it themselves : whereupon the whole is entered verbatim upon the record, and the defendant may take advantage of any condition or other part of it, not stated in the plaintiff's declaration. In real actions also the tenant may pray in aid, or call for af. [ 300) fistance of another, to help him to plead, because of the feebleness or imbecillity of his own estate. Thus a tenant for life may pray in aid of him that hath the inheritance in remainder or reversion; and an incumbent may pray in aid of the patron and ordinary: that is, that they shall be joined in the action and help to defend the title. Voucher also is the calling in of some person to answer the action, that hath warranted the title to the tenant or defendant. This we still make use of in the form of common recoveries', which are grounded on a writ of entry; a species of action that we may remember relies chiefly on the weakness of the tenant's title, who therefore vouches another person to warrant it. If the vouchee appears, he is made defendant instead of the vouchor: e Append. N° III. $ 6.

h Append. NO III. $ 6. f Gilb. Hift. Com. Pl. 35.

i Vol. II. Append. No V. $ 2. $ Matth. 1. 25.

but,

but, if he afterwards makes default, recovery shall be had against the original defendant; and he shall recover over an equivalent in value against the deficient vouchee. In allises indeed, where the principal question is, whether the demandant or his ancestors were or were not in possession till the ouster happened, and the title of the tenant is little (if at all) difcussed, there no voucher is allowed ; but the tenant may bring a writ of warrantia chartae against the warrantor, to compel him to aslift him with a good plea or defence, or elfe to render damages and the value of the land, if recovered against the tenantk. In many real actions also", brought by or against an infant under the age of twenty-one years, and also in actions of debt brought against him, as heir to any deceased ancestor, either party may suggest the nonage of the infant, and pray that the proceedings may be deferred till his full age; or (in our legal phrase) that the infant may have his age, and that the parol may demur, that is, that the pleadings may be staid ; and then they shall not proceed till his full age, unless it be apparent that he cannot be prejudiced thereby. But, by the statutes of Westm. 1. 3 Edw. I. c. 46. and of Glocester, 6 Edw. I. c. 2. in writs of entry fur disseisin in

some particular cafes, and in actions auncestrel brought by [ 301 ) an infant, the parol shall not demur: otherwise he might be

deforced of his whole property, and even want a maintenance, till he came of age. So likewise in a writ of dower the heir shall not have his age; for it is necessary that the widow's claim be immediately determined, else she may want a prefent subsistence". Nor shall an infant patron have it in a quare impedito, since the law holds it neceffary and expedient that the church be iminediately filled.

When these proceedings are over, the defendant must then put in his excufe or plea. Pleas are of two forts; dilatory pleas, and pleas to the action. Dilatory pleas are such as tend merely to delay or put off the suit, by questioning k F. N. B. 135.

ni Roll. Abr. 137. I Dyer. 137.

ibid, 138. m Finch. L, 360.

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 acknowlegement of the propriety of the action. For imparlances are either general, of which we have before spoken, and which are granted of course; or Special, with a saving of all exceptions to the writ or count, which may be granted by the prothonotary; or they may be still more special, with a saving of all exceptions whatsoever, which are granted at the discretion of the court P. .

1. DILATORY pleas are, 1. To the jurisdiction of the court : alleging, that it ought not to hold plea of this in jury, it arising in Wales or beyond sea ; or because the land in question is of antient demesne, and ought only to be demanded in the lord's court, &C. 2. To the disability of the plaintiff, by reason whereof he is incapable to com, mence or continue the fuit; as, that he is an alien enemy, outlawed, excommunicated, attainted of treason or felony, under a praemunire, not in rerum natura (being only a fic

titious person), an infant, a feme-covert, or a monk pro- fessed. 3. In abatement : which abatement is either of the

writ, or the count, for some defect in one of them; as by [ 302 7 misnaming the defendant, which is called a misnosmer; giving him a wrong addition, as esquire instead of knight; or other want of form in any material respect (3). Or, it may be, that

· P 12 Mod. 529.

(3) All dilatory pleas are called pleas in abatement, in contra. distinction to pleas in bar. By the 4 & 5 Ann. c. 16. and the practice of the courts, no plea in abatement can be received unless the defendant proves the truth of it by affidavit. Cromp. 132. 3 Burr. 1618.

These pleas are not favoured by the courts, and they must be filed within four days after the day upon which the declaration is delivered, both days being inclusive. T. R. 277.

Where an action is brought against one or some only of a number of pastners, if the defendant or defendants intend to take ad.

vantage

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