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both of which may destroy and bar the plaintiff's title. Or,
in personal actions, an accord, arbitration, conditions per-
formed, nonage of the defendant, or some other fact which
precludes the plaintiff from his action 2. A juftification is
likewise a special plea in bar; as in actions of assault and
battery, fon affault demesne, 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 flander, that the plaintiff is
really as bad a man as the defendant said he was.

Also a man may plead the statutes of limitation in bar; or the time limited by certain acts of parliament, beyond which no plaintiff can lay his cause of action. This, by the statute of 32 Hen. VIII. c. 2. in a writ of right is fixty years: in assises, 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 feisin or possession, such possession must have been within thirty years. By statute i Mar. ft. 2. c. 5. this limitation does not extend to any suit for advowfons, upon reasons given in á former chapter 6. But by the statute 21 Jac. I. c. 2. a time [ 307 1 of limitation was extended to the case of the king; viz. fixty years precedent to 19 Feb. 1623 °; but, this becoming ineffectual by esllux of time, the same date of limitation was fixed by statute 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 fixty years is now a bar even against the prerogative, in derogation of the antient maxim, nullum tempus oc currit regi.By another statute, 21 Jac. I. c. 16. twenty years is the time of limitation in any writ of formedón: and, by a consequence, twenty years is also the limitation in every action of ejectment; for no ejectment can be brought, unless where the lessor of the plaintiff is entitled to enter on the

2. Append. No III. $6. * See pag. 188. 196.

VOL. III.

6 See pag. 250.
<3 Inst. 189.

lands,

lands", and by the statute 21 Jac. I. c. 16. no entry can be made by any man, unless within twenty years after his right Mall accrue. Also all actions of trespass, ( quare clausum fregit, or otherwise) detinue, trover, replevin, account, and case (6), (except upon accounts between merchants) (7) debt on simple contract, or for arrears of rent, are limited by the statute last mentioned to fix years after the cause of action commenced : and actions of affault, menace, battery, mayhem, and imprisonment, must be brought within four years, and actions for words within two years, after the injury committed (8).

d See pag. 206.

(6) Under the head of actions upon the case are included actions for libels, criminal conversation, seduction, and actions for words, which are not actionable without a special damage.

(7) This exception does not extend to a tradesman's account with his customer; for in this case there are not mutual dealings, and the tradesman is barred by the statute from recovering for more than those articles, which have been fold within fix years. Bull. N. P. 149.

(8) The statute makes an exception for all persons who shall be under age, feme coverts, non compos mentis, in prison, or abroad, when the caule of action accrues; and the limitations of the statute fhall only commence from the time when their respective impediments or disabilities are removed ; Sec. 7. But if one only of a number of partners lives abroad, they must bring their action 'within fix years after the cause of it accrued. 41. R. 516. And where a party 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. 3 P. Wms. 143. Doug. 630.

Any acknowledgment of the existence of the debt, however flight, will take it out of the statute, and the linitation will then run from that time ; and where an expression is ambiguous, ic fall be left to the consideration of the jury, whether it amounts of not to such acknowledgment. 2 T. R. 760. Where there are two or more drawers of a joint and several promissory note, the acknowledgment of one may be given in evidence in a separate action against another, and will defeat the effect of the statute. Doug. 629.

And

And by the statute 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 (9); unless where any other time is specially limited by the statute. Lastly, by statute 10 W. III. c. 14. no writ of error, fcire facias, or other suit, shall be brought to reverse any judgment, fine, or recovery, for error, unless it be prosecuted within twenty years(10). The use of these statutes of limitation is to preserve the peace of the kingdom, and to prevent those innumerable perjuries which might ensue, if a man were allowed to bring an action for any injury committed at any distance of time. Upon both ( 308 ] these accounts the law therefore holds, that “ interest reipuba licae ut fit finis litium ;" and upon the same principle the Athenian laws in general prohibited all actions, where the injury was committed five years before the complaint was made . If therefore in any fuit, the injury, or cause of action, happened earlier than the period expressly limited by law, the de. fendant may plead the statutes of limitations in bar : as upon an aflumpit, or promise to pay money to the plaintiff, the defendant may plead non assumpsit infra sex annos; he made no such promise within six years; which is an effectual bar to the complaint.

An estoppel is likewise a special plea in bar: which happens where a man hath done some act, or executed fome deed,

e Pott. Ant. b. 3. c. 21,

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(9) Where the forfeiture is to the crown and a subject, a common informer must fue within one year, and the crown may prosecute for the whole penalty at any time within two years after that year ended.

(10) No ftatúte 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 it discharged, and to find a verdict for the de. fendant, 2T.R. 270. 2 2

which

which estops or precludes him from averring any thing to the contrary. As if tenant for years (who hath no freehold) levies 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 brings an action to recover these lands, and his fine is pleaded against him, he shall thereby be eitopped from saying, that he had no freehold at the time, and therefore was incapable of levying it.

Tue conditions and qualities of a plea (which, as well as the doctrine of eftoppels, will also hold equally, mutatis mutandis, with regard to other parts of pleading) are, 1. That it be single and containing only one matter ; for duplicity begets confusion. But by statute 4 & 5 Ann. c. 16. a man with leave of the court may plead two or more distinct matters or single pleas; as in an action of assault and battery, these three, not guilty, fon a fault demesne, and the statute of limitations. 2. That it be direct and positive, and not argumentative. 3. That it have convenient certainty of time, place, and persons. 4. That it answer the plaintiff's allegations in every material point. 5. That it be so pleaded as to be capable of trial.

2001 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.”—This is not necessary in pleas of the general
iflue; those always containing a total denial of the facts
before advanced by the other party, and therefore putting
him upon the proof of them.

It is a rule in pleading, that no man be allowed to plead specially such a plea as amounts only to the general issue, or a total denial of the charge ; but in such case he shall be driven to plead the general issue in terms, whereby the whole question is referred to a jury. But if the defendant, in an allise or action of trespass, be desirous to refer thc validity of his title to the court rather than the jury, he may state his title specially, and at the same time give colour to the plaintiff, or suppose 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 feoffinent with livery from A, by force of which he entered on the lands in question, he cannot plead this by itself, as it amounts to no more than the general issue, nul tort, nul diffeisin, in aslıse, or not guilty in an action of trespass. But he may allege this specially, provided he goes farther and says, that the plaintiff claiming by colour of a prior deed of feoffment, without livery, entered; upon whom he entered ; and may then refer himself to the judgment of the court which of these two titles is the best in point of law f.

When the plea of the defendant is thus put in, if it does not amount to an issue or total contradiction of the declaration but only evades it, the plaintiff may plead again, and reply to the defendant's plea : either traversing 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 traverse [ 310 ] 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 set forth an actual award, and allign a breach :: or the replication may confess and avoid the plea, by some new matter or distinction, consistent with the plaintiff's former declaration; as, in an action for trespassing upon land whereof the plaintiff is feised, if the defendant shews a title to the land by descent, and that therefore he had a right to enter, and gives colour to the plaintiff, the plaintiff may either traverse and totally deny the fact of the descent ; or he may confess and avoid it, by replying, that true it is that such descent happened, but that since the descent the defendant himself demised the lands to the plaintiff for term of life.

i Dr. & Stud. 2. c. 53.

Append. N° III. $ 6.

23

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