1810. FORBES against not answer the demande,) Fins de non procéder cannot put in issue the right of action, as it respects either the parties, or the subject of the suit; they have, in ATKINSON. truth, relation to the court only, and are founded upon the principle of some defect of authority in the court to compel an answer; (w) the matter, which they allege, tending upon this ground solely, "to defeat the present proceeding," without inquiry whether the plaintiff hath, or hath not, a right of action; (x) and therefore, fins de non procéder do not pray, "that the action may be dismissed;" but, "that the "writ and process ad respondendum, and the declara"tion, and each of them, be declared null and of "no effect whatever," or, "that all proceedings be "staid until &c." according to the legal import, and effect of the matter pleaded. (y) Fins de non procéder are divided into three classes relating, 1st. To the jurisdiction of the court. 2dly. To the form of the proceedings. 3dly. To some exemption from the common obligation to answer, to which the defendant is entitled. The defendant therefore may show, that he is not by law bound to answer to the demande of the plaintiff in his declaration contained, by pleading, 1st. That by reason of some matter, which he (the defendant) alleges and sets forth, "The Court by law cannot proceed in the cause, nor compel him to 66 answer in any manner unto the demande, nor in any way take cognizance of the action of the plain"tiff, if any he hath &c," (z) for want of jurisdiction; and this is the Exception Declinatoire. (a) (w) Serpileon p. 54. Note 2.... .... (z) Rules and Orders. p. 234.. (a) L. C. Denizart Vol. 8. p. 638. Verbo Fins de non proceder, Sec. 2. 7. Pothier, 17 Jousse C. C. Vol. 2. p. 182. Repertoire. Verbo Fin. Vol. 25. 8vo. p. 62. Serpillon p. 54. n. 2. Jud. M. S. S. 2dly. 1810. against 2dly. That by reason of some imperfection, defect, FORBES or want of form, in the proceedings, as in the writ ATKINSON. or declaration, which he specifically setsforth, and of some law rule or order, which he also setsforth, the Court cannot proceed in the cause nor compel "him to answer, in any manner, unto the demande," because the proceedings are null; and this is the Exception à la forme. (b) 3dly. That by reason of some matter which he alleges and sets out, "the court cannot, at this time, 66 proceed in the cause, nor compel him to answer "in any manner unto the demande," because the matter so pleaded is such, as entitles the defendant, at this time by law, to an exemption from the common obligation to answer; and this is the Exception dilatoire. (c) When Fins de non procéder are allowed, the Instance or suit is either suspended until the Court has authority to proceed, and to compel an answer, or the writ and process ad respondendum, and the declaration are declared to be null and of no effect; the defendant in the latter case being discharged or dismissed out of Court, and the plaintiff obliged to sue out a new process ad respondendum; but when they are overruled as frivolous, the defendant, within the time limited by the practice of the court, is bound "to answer to the plaintiff of the demande "contained in his declaration," by a plea to the action, of which we will now enquire. (d) As that is a preliminary plea, or fin de non procéder, which questions the authority of the court to compel an answer, and does not put in issue the right (b) Rules and Orders, p. 236. Jousse C. C. Vol. 1. p. 182. L. C. Denizart, Verbo, Fins de non procéder S. 2. Vol. 8. p. 638. Repertoire, Verbo, Fin. Vol. 25, 8vo. p. 62. 7 Pothier, 15..........(c) L. C. Denizart, Vol. 8. p. 638. Verbo Fins de non proeéder S. i. and 2. Repertoire, Verbo, Fin, vol. 25. 8vo. p. 62. 7. Pothier 16. Jud. M. S. S. (d) Rules and Orders, Sec. 7. Art. 8. and 9. p. 68, 69. of 1810. FORBES against of action as it respects either the parties to the suit, or the subject matter of the suit; so, e converso, a plea to the action is that which does put in issue the ATKINSON. right of action as it respects the parties, or the subject matter of the suit, and does not question the authority of the Court in any manner. The right of action is put in issue by a negative plea, denying the case, stated in the declaration, in point of fact, or, in point of law; and all such pleas are “Defenses au fonds;" for as they contest the very grounds or fonds of the plaintiff's demande, by denying the truth of the facts set forth in his declaration, of the validity of the law which he avers to be the result of the facts setforth; they are distinguished from the aggregate of pleas, which is implied by the word Defense in its general acceptation, and from all other pleas, by the particular descriptive title of "Defenses au fonds. (e) The right of action is also put in issue by any affirmative plea, which setsforth and pleads any matter relating either to the parties, or to the subject of the suit, which of itself is sufficient in law to authorise a judgment for the defendant, notwithstanding the facts setforth in the declaration of the plaintiff; and all such pleas, for the reasons before given are Exceptions; (f) but as exceptions of this kind have a tendency in law to bar the plaintiff's action for ever, or to abate it, until the disability, or other effect of the matter pleaded, shall be removed, they are distinguished from that class of Exceptions, which under the title of preliminary pleas, or fins de non procéder, tend merely to show, that the defendant is not bound to answer; by the descriptive title of "Exceptions peremptoires en droit ;" the word peremptoire (from the latin perimere to destroy) being used to express their legal effect. (g) It is obvious that a defendant can have but two VOL. I. sources 1810. FORBES against ATKINSON. sources of defence, his own strength, and the weakness of his adversary; and consequently all pleas to the action must be either "Exceptions peremptoires en droits," or "Defenses au fonds"; the former comprehending all pleas to the action which are founded upon the defendant's own strength, that is, upon new facts not stated in the declaration, upon which, (having set them forth) they tender an issue to the plaintiff the latter comprehending all pleas to the action which are founded upon the weakness of the plaintiff, that is, upon the intrinsic inefficiency of the case, which he setsforth in his declaration, in fact or in law, upon which they take issue. As every défense au fonds refers entirely to the matter which is stated in the declaration, and is grounded wholly upon the insufficiency of that matter, in point of fact, or in point of law, to support the plaintiff's suit, a direct denegation of the fact, or of the law, is all that is requisite in such pleas, to put the right of action safely in issue, with respect to the defendant, and to throw the onus probandi upon the plaintiff. But where the demande must be answered by new facts, not stated in the declaration, the defendant, for his own safety, must necessarily set them forth with certainty as to time, place, person, and circumstance; for if he does not, the facts, on which he relies for his defence, cannot benefit him, because they cannot be shewn to the Court in evidence; it being one among the first principles of pleading, that the Court must judge secundum allegata et probata; and that although facts only should be stated in pleading, yet, all material facts must be set out, to enable the Court to declare the law, which arises upon such facts, and authorises a judgment for the defendant, (notwithstanding the facts setforth in the plaintiff's declaration,) and to apprise the plaintiff of what is meant to be proved, and thereby enable him to deny what is alleged, or to aver new matter in answer to it, and to come prepared with with proof, according to the exigencies of the case. (h) 66 66 Pleas of" défense au fonds" are divided into two classes. 1st." Défense au fonds en droit," which denies the law averred by the plaintiff to be the result of the matters stated in the declaration, (i) and 2dly Défense au fonds en fait," which denies the truth of the matters stated in the declaration. (k) In the défense au fonds en droit, the defendant, "for answer au fonds to the demande of the plaintiff in his "declaration contained," avers, "that the allega"tions of the plaintiff and the matters and things in "his declaration setforth and contained, and each "and every of them, is and are wholly and altoge"ther unfounded in law and not sufficient therein "for the plaintiff to have or maintain, against him "the defendant, the conclusions in his declaration taken, or any or either of them, or the action of "him the said plaintiff in this behalf," and therefore (by his conclusions) " he prays that by the judgment "of the Court, the action of the plaintiff in this "behalf may be dismissed."(1) In the défense au fonds en fait the defendant, in like manner, "for answer 66 66 au fonds to the demande of the plaintiff in his de"claration contained," avers, "that the allegations "of the ptaintiff, and the matters and things in the "said declaration contained, and each and every of "them is and are wholly and altogether unfound"ed in fact and untrue &c. and therefore" (by his conclusion) "he prays that by the judgment of the "court, the action of him the said plaintiff in this "behalf be dismissed."(m) Pleas of "Exceptions peremtoires en droit" are, in like manner, divided into two classes, 1st. PERPETUAL Exceptions peremptoires en droit, and 2dly. TEMPORARY Exceptions peremptoires en droit; and .... (h) Code Civile, Tit. 20, Art. 1. Chitty, 215.. (i) 7. Pothier, 14 (k) Ib.....(1) Rules and Orders, p. 244.. .(m)Ib. p. 246. Jud. MSS. D 2 these 1810. FORBES against ATKINSON. |