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plead at all, but suffer Yet sometimes, after

the matter sooner; or not judgment to go by default.

tender and refusal of a debt, if the creditor harasses 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, tout temps prist, and still is ready, uncore prist, 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 (by a cognovit actionem in respect thereof) and traverses or denies the rest. 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 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 some rule or order of court, which becomes necessary in the progress of a cause. 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 so paid into court, he shall be nonsuited and pay the defendant costs; but he shall still have the money so

paid in, for that the defendant has acknowledged to be his due.

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

1. The general issue is what traverses, thwarts, and denies at once the whole declaration; without offering any special matter whereby to evade it. These pleas amount at once to an issue; by which we mean a fact affirmed on one side and denied on 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, both of which may destroy and bar the plaintiff's title. Or, in personal actions, an accord, arbitration, conditions performed, nonage 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, son assault 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 slander, 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.

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 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 estopped from saying, that he had no freehold at the time, and therefore was incapable of levying it.

The conditions and qualities of a plea 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. 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.

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 for debt upon bond the defendant pleads solvit ad diem, that he paid the money when due, here the plaintiff in his replication may totally traverse this plea, by denying that the defendant paid it: or he may allege new matter in contradiction to the plaintiff'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; as, in an action for trespassing upon land whereof the plaintiff is seized, 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.

The whole of this process is denominated the pleading; in the several stages of which it must be carefully observed, not to depart or vary from the title or defence, which the party has once insisted on. For this (which is called a departure in pleading) might occasion endless altercation.

In any stage of the pleadings, when either side advances or affirms any new matter, he usually avers it to be true. 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.

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; their debates being at last contracted into a single

all

point, which must now be determined either in favour of the plaintiff or of the defendant.

CHAPTER XXI.

OF ISSUE AND DEMURRER.

ISSUE, exitus, being the end of all the pleadings, is the fourth part or stage of an action, and is either upon matter of law, or matter of fact.

An issue upon matter of law is called a demurrer and it confesses the facts to be true, as stated by the opposite party; but denies that, by the law arising upon those facts, any injury is done to the plaintiff, or that the defendant has made out a legitimate excuse; according to the party which first demurs, demoratur, rests or abides upon the point in question.

The form of such demurrer is by averring the declaration or plea, the replication or rejoinder, to be insufficient in law to maintain the action or the defence; and therefore praying judgment for want of sufficient matter alleged. Sometimes demurrers are merely for want of sufficient form in the writ or declaration. But in case of exceptions to the form, or manner of pleading, the party demurring must set forth the causes of his demurrer, or wherein he apprehends the deficiency to consist. And upon either a general, or such a special demurrer, the opposite party avers it to be sufficient,

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