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the plaintiff is dead; for the death of either party is at once an abatement of the suit. And in actions merely personal, arising ex deliéto, for wrongs actually done or committed by the defendant, as trespass, battery, and sander, the rule is that actio personalis moritur cum perfona?; and it never shall be revived either by or against the executors or other representatives. For neither the executors of the plaintiff have received, nor those of the defendant have committed, in their own personal capacity, any manner of wrong or injury. But in actions arising ex contractu, by breach of promise and the like, where the right descends to the representatives of the plaintiff, and those of the defendant have affets to answer the demand, though the suits shall abate by the death of the parties, yet they may be revived against or by the executors'; being indeed rather actions against the property than the perfon, in which the executors have now the same interest that their testator had before.
THESE pleas to the jurisdiction, to the disability, or in abatement, were formerly very often used as mere dilatory pleas, without any foundation of truth, and calculated only for delay; but now by statute 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. And with respect to the pleas themfelves, it is a rule, that no exception shall be admitted against a declaration or writ, unless the defendant will in the same plea give the plaintiff a betters; that is, shew him how it might be amended, that there may not be two objections 9 4 Init. 315.
• Brownl. 139. r March. 14.
vantage of the partnership, it must be pleaded in abatement, or it is supposed to be waived.
But the plea in abatement must state who are the real partners, 2 Bl. Rep 947. But if an action be brought in the name of some of the partners only, the defendant may avail himself of this objection at the trial.
upon the same account. Neither, by statute 8 & 9 W. III. c. 31. shall any plea in abatement be admitted in any suit for partition of lands ; nor shall the same be abated by reason of the death of any tenant.
All pleas to the jurisdiction conclude to the cognizance [ 303 7 of the court ; praying “ judgment, whether the court will “ have further cognizance of the suit :” pleas to the disability conclude to the person; by praying “ judgment, if the “ said A the plaintiff ought to be answered .” and pleas in abatement (when the suit is by original) conclude to the writ or declaration ; by praying “ judgment of the writ, or “ declaration, and that the same may be quashed,” cassetur, made void, or abated : but, if the action be by bill, the plea must 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 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 obtained from the court'; or to amend and new-frame his declaration. But when on the other hand they are over-ruled 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.
2. 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 harasses his debtor with an action, it then becomes necessary for the defendant to acknowlege the debt, and plead
Co. Entr. 271.
the tender; adding that he has always been ready, tout temps pris, and still is ready, uncore prift, to discharge it: for a tender by the debtor and refusal by the creditor will in all cases discharge the costs v, but not the debt itself; though in some
particular cases the creditor will totally lose his money • (4). I 304 ] But frequently the defendant confesses one part of the com
plaint, (by a cognovit actionem in respect thereof) and traverses or denies the rest: in order to avoid the expense 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 courtw: 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 acknowleges to be due, together with the costs hitherto incurred, in order to prevent the expense 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 fome rule or order of court, which becomes tiecesfary in the progress of a cause ; and it is usually grounded upon an affidavit, (the perfect tense of the verb affido ) 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 afidavit is neceflary for payment of money into court. If, after the money paid in, the plaintiff proceeds in his suit, it is at his own peril: for if he does not prove more due than is fo paid into court, he shall be nonsuited and pay the defendant costs; but he shall still 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 similar to this; for there, if a person be sued for more than he owes, yet he loses v Vent, 21.
w Styl. pra&. Reg. (edit. 1657.) 201. u Litt. $338. Co. Litt. 209. 2 Keb. 555. Salk. 596.
(4) A tender in bank rotès is sufficient, unless the creditor ex: pressly refuses to receive notes and insists upon calh. 3T. R. 554. his cause if he doth not tender so much as he really does owe. To this head may also be referred the practice of what is called a set-off : whereby the defendant acknowleges the juftice 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 sues for ten pounds due on a note of hand, the defendant may set off nine pounds due to himself for merchandize sold to the plaintiff, and, in case he pleads such fet-off, must pay the remaining balance into court. This answers very nearly to the compenfatio, or stoppage, of the civil law *, [ 305 ] and depends on the statutes 2 Geo. II. c. 22. and 8 Geo. II. C. 24. which enact, that, where there are mutual debes between the plaintiff and defendant, one debt may be set against the other, and either pleaded in bar, or given in evidence upon the general issue at the trial; which shall operate as payment, and extinguish so much of the plaintiff's demand (5).
Pleas, that totally deny the cause of complaint, are either the general issue, or a special plea, in bar.
1. 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 trespaís either vi et armis, or on the case, 11011 culpabilis, not w Sp. L. b. 6. c. 4.
* Ff. 16. 2. 1.
(5) The debts between the plaintiff and defendant must be mutual, but may be of different natures ; if the defendant does not specially plead his debt as a set off, he must deliver a notice of set-off together with the plea of the general issue. A notice of set-off ought to be expressed with almost as much certainty as a declaration ; and the delivery of it muf be proved at the trial of the cause. i Cromp. Pr. 157. But in actions by or against the allignees of a bankrupt, the sum juftly due may be recovered under the 5 Geo. II. c. 30. without either pleading, or giving notice of a set-off. T.R. 113..
guiltyy; in debt upon contract, nihil debet, he owes nothing; in debt on bond, non eft factum, it is not his deed; on ani assumpsit, non assumpsit, he made no such promise. Or in real actions, nul tort, no wrong done; nul diffeisin, no disseisin; and in a 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, because, by importing an absolute and general denial of what is alleged in the declaration, they amount at once to an issue ; by which we mean a fact affirmed on one side and denied on the other.
FORMERLY the general issue was seldom pleaded, except when the party meant wholly to deny the charge alleged against him. But when he meant to distinguish away or palliate the charge, it was always usual to set forth the particular facts in what is called a special plea ; which was originally intended to apprize the court and the adverse party of the nature and circumstances of the defence, and to keep the law and the fact distinct. And it is an invariable rule, that every defence, which cannot be thus specially pleaded, may be given in evi
dence, upon the general issue at the trial. But, the science [ 306 ) of special pleading having been frequently perverted to the
purposes of chicane and delay, the courts liave of late in some instances, and the legislature in many more, permitted the general issue to be pleaded, which leaves every thing open, the fact, the law, and the equity of the case; and have allowed special matter to be given in evidence at the trial. And, though it Nould seem as if much confusion and uncertainty would follow from so great a relaxation of the strictness antiently observed, yet experience has shewn it to be otherwise; especially with the aid of a new trial, in case either party be unfairly surprised by the other.
2. Special pleas, in bar of the plaintiff's demand, are very various, according to the circumstances of the defendant's case. As, in real actions, a general release or a fine, 1 Append, No II. $ 4: