both of which may destroy 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. A justification is likewise a special plea in bar; as in actions of affault and battery, fon affault demefne, that it was the plaintiff's own original assault; in trespass, 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 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 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 ancestors, 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 must have been within thirty years. By ftatute 1 Mar. ft. 2. c. 5. this limitation does not extend to any fuit for advowfons, upon reafons given in a former chapter. But by the ftatute 21 Jac. I. c. 2. a time [307] of limitation was extended to the cafe of the king; viz. fixty years precedent to 19 Feb. 1623 ; but, this becoming ineffectual by efflux of time, the fame date of limitation was fixed by ftatute 9 Geo. III. c. 16. to commence and be reckoned backwards, from the time of bringing any fuit or other process, to recover the thing in question; so that a poffeffion for fixty years is now a bar even against the preroga tive, in derogation of the antient maxim, "nullum tempus oc"currit regi." By another ftatute, 21 Jac. I. c. 16. twenty years is the time of limitation in any writ of formedón: 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 entitled to enter on the

Book III. lands, and by the ftatute 21 Jac. I. c. 16. no entry can be made by any man, unless within twenty years after his right fhall accrue. Alfo all actions of trespass, (quare claufum fregit, or otherwise) detinue, trover, replevin, account, and cafe (6), (except upon accounts between merchants) (7) debt on fimple contract, or for arrears of rent, are limited by the ftatute laft 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 cafe are included actions for libels, criminal converfation, feduction, and actions for words, which are not actionable without a special damage.

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

(8) The ftatute makes an exception for all perfons who shall be under age, feme coverts, non compos mentis, in prison, or abroad, when the cause of action accrues; and the limitations of the statute fhall only commence from the time when their respective impediments or difabilities are removed; fec. 7. But if one only of a number of partners lives abroad, they muft bring their action within fix years after the cause of it accrued. 4 T. 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 fhall only protect himself by the ftatute of limitations from the time his fraud is difcovered. 3 P. Wms. 143. Doug. 630.

Any acknowledgment of the existence of the debt, however flight, will take it out of the ftatute, and the limitation will then run from that time; and where an expreflion is ambiguous, it fhall be left to the confideration of the jury, whether it amounts or not to fuch acknowledgment. 2 T. R. 760. Where there are two or more drawers of a joint and feveral promiffory note, the acknowledgment of one may be given in evidence in a separate action against another, and will defeat the effect of the ftatute. Doug. 629.

And

And by the statute 31 Eliz. c. 5. all fuits, indictments, and informations, upon any penal ftatutes, where any forfeiture is to the crown alone, fhall be fued within two years, and where the forfeiture is to a subject or to the crown and a fubject, within one year, after the offence committed (9); unless where any other time is specially limited by the ftatute. Lastly, by ftatute 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 profecuted within twenty years (10). The ufe of thefe ftatutes of limitation is to preferve the peace of the kingdom, and to prevent thofe innumerable perjuries which might enfue, if a man were allowed to bring an action for any injury committed at any distance of time. Upon both [308] thefe accounts the law therefore holds, that "intereft reipub licae 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. If therefore in any fuit, the injury, or caufe of action, happened earlier than the period exprefsly limited by law, the defendant may plead the flatutes of limitations in bar: as upon an affumpfit, or promife to pay money to the plaintiff, the defendant may plead non affumpfit infra sex annos; he made no fuch promife within fix years; which is an effectual bar to the complaint.

AN eftoppel is likewife a special plea in bar: which happens where a man hath done some act, or executed fome deed,

e Pott. Ant. b. 1. c. 21,

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

(10) No ftatute has fixed any limitation to a bond or specialty; but where no intereft has been paid upon a bond, and no demand proved thereon for twenty years, the judges recommend it to the jury to prefume it difcharged, and to find a verdict for the defendant. 2 T.R. 270.

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Book III. 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 these lands, and his fine is pleaded against him, he fhall thereby be eítopped 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, 1. 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 distinct matters or fingle pleas; as in an action of affault and battery, thefe three, not guilty, fon affault demefne, 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 perfons. 4. That it anfwer the plaintiff's allegations in every material point. 5. That it be fo pleaded as to be capable of trial.

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 must be averred to be true in the common form :-" and this he is ready to "verify."-This is not neceflary 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 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 ifiue in terms, whereby the whole queftion is referred to a jury. But if the defendant, in an aflife 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 specially, 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 itself, 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 fcoffment, 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 iffue 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 traverfe [ 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 fet forth an actual award, and aflign a breach 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 trefpafling upon land whereof the plaintiff is feifed, if the defendant fhews 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 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 himself demifed the lands to the plaintiff for term of life. ¤ Append. N° III. § 6.

f Dr. & Stud. 2. c. 53.