1810. FORBES against these distinguishing titles are derived from the legal effect of these pleas respectively. Both are equally ATKINSON. peremptory because both equally destroy the action to which they are pleaded but their ulterior effect is not the same. A judgment, in favor of the defendant, upon a perpetual Exception peremptoire en droit, is a perpetual bar to the action in which it is pronounced, and hence the name of "Exception per"petuelle." But a judgment, in favor of a defendant, upon a temporary exception peremptoire en droit, does no more than abate the plaintiff's action, until the disability, or other effect of the matter pleaded and allowed, is removed, and therefore, it is a bar to the action for a time only, and hence the title of exception temporaire. (n) In the perpetual exception peremptoire en droit, the defendant, "for answer, unto the demande of the "plaintiff in his declaration contained," setsforth and libels the special facts which constitute the ground of his exception, which he offers to prove "when and as the Court shall direct," averring that by reason thereof," the plaintiff by law cannot at any time, "have or maintain any action against him the defend"ant, for, or by reason of, the matters or things in "his declaration setforth and alleged, or of any or "either of them;" and therefore (by his conclusion,) he prays "That for the causes aforesaid, by the judg"ment of the Court, the action of the plaintiff in "in this behalf may be dismissed." (o) In the Temporary exception peremptoire en droit, the defendant, in like manner, "for answer unto the demande of the plaintiff in his declaration contained," setsforth and libels the special facts, which constitute the ground of the exception, which he offers "to prove when "and as the Court shall direct," averring that by (n) The Epithets "perpetuæ." and "temporales" were applied to exceptions in the Roman law....Vide Harris's Justinian's Institutes, Lib. 4, Tit. 13, S. 8, p. 70.-Pothier's Pandects. vol. 3, p. 251. -Ferrieres Just. Instit. vol. 6, p. 574 to 278.—and Brown's practice of the Civil Law, 1st. Edit. Vol. 2d. p. 32. (0) Rules and Orders, 243, 244, Jud. MSS. reason reason thereof, "The plaintiff by law cannot, at this 66 1810. FORBES against time, have or maintain his action, against him the defendant, for or by reason of the matters and ATKINSON. things in his declaration setforth and alleged, or "of any or either of them," and therefore by his conclusions he prays, "that for the causes aforesaid, by the judgment of the court, the action of the plaintiff in this behalf be, for the present, (p) dismissed. 66 66 6. Exceptions peremptoires en droit do not impeach or deny the case stated in the declaration, and therefore cannot in any instance involve, or call for any consideration of the intrinsic merits of that case; they invariably setforth some new matter which shows, (notwithstanding the matter setforth in the declaration) that the plaintiff's action must by law be dismissed, for the present, or forever. But as the new matter, which they setforth, is sometimes foreign to the matter setforth in the declaration, and sometimes connected with it, they are distinguished (by reference to that which they allege, and on which they are respectively founded) into "Fins de non recevoir," and Fins de non valoir," (q) those exceptions are fins de non recevoir, in which the matter setforth is sufficient in law (whether the case stated in the declaration be true or false) to authorise a judgment in the defendant's favor, dismissing the plaintiff's action for the present, or for ever, as where the defendant pleads, that the plaintiff is an alien enemy, which is a Temporary Exception peremptoire en droit, or pleads the long prscription of thirty years, which is a perpetual exception peremptoire en droit; (r) and such Exceptions are denominated Fins de non recevoir, because the matter, which they plead, shows that the plaintiff cannot legally be received, or admitted by the court to prosecute the suit which he has instituted. (s) Those Exceptions, on the other hand, (p) Rules and Orders, 241, 242. 2. Pothier, 4to. p. 729. 1. Pigeau, 199. Repertoire, 8vo. Vol. 17. p. 479. Verbo. Demande....(q) 1. Bornier, 39, Note I....(r) I. Pothier, 346....(s) 1. Pigeau, 165. Jud. MSS. D 3 are 1810. FORBES against ATKINSON. are Fins de non valoir in which the matter setforth necessarily admits and confesses the case stated in the declaration, but avoids or discharges it, for the present, or for ever, and is therefore sufficient in law to authorise a judgment in the defendant's favor dismissing the plaintiff's action; as where the defendant pleads "Term for payment unexpired," which is an exception peremptoire en droit temporaire, or pleads "Accord and satisfaction," or "chose jugée" (res judicata) which are exceptions peremptoires en droit perpétuelles, and such Exceptions are denominated "Fins "de non valoir," because the matter, which they plead, shows, that although the plaintiff may have a legal cause of action hereafter, or heretofore had a legal cause of action, yet, that he cannot now avail himself of it. (t) Fins de non recevoir, and Fins de non valoir, are thus sometimes, in their effect, perpetual, sometimes temporary: but the classes of exceptions peremptoires en droit perpétuelles, and exceptions peremptoires en droit temporaires, comprehend the entire list of Fins de non recevoir and Fins de non valoir, and the two latter are therefore subdivisions, only, of the two former. To pleas of Defenses au fonds en droit, or en fait, because they are negative pleas and take issue, nothing can be offered on the part of the plaintiff but a general replication, (u) by which the issue being completed, the pleadings are concluded. But to pleas of exception, because they are affirmative pleadings, and tender an issue, the plaintiff must put in an answer, which is either general or special. A general answer takes issue upon the matter of the exception, by a general denegation; (v) and (t) 1 Bornier, 39....(u) Rules and Orders, 231. such such general answer completes the issue, and consequently concludes the pleadings; (w) but a special answer tenders a new issue by setting forth fresh matter in answer to the matter of the exception, which is sufficient to destroy it, and in such case, the issue is completed, by a general Replication, on the part of the defendant, to such special answer, (x) the Legislature having forbid the use of all further pleadings. (y) The principles which I have stated decide the present case. The declaration demands of the defendant a large sum of money, for the sale and delivery of a quantity of timber, under a special contract in writing. To this, the defendant has filed a plea which he has intituled a Défense au fonds en fait, in which he pleads specially: 1st. That he is not indebted, does not owe, and did not undertake, as in the declaration is alleged. 2dly. That he has not failed, or made default, in the performance of the agreement declared on. 3rdly. That no greater quantity of pine timber, than that expressed in the agreement, has been delivered, to or received, by him. 4thly. That he has paid in part for the 20,000 feet of pine and 6700 Staves delivered, and 5thly. That he made a tender of the balance due which the plaintiff had refused before the institution of the action. (w) Rules and Orders, Sec. 7, Art. 1, p. 73....(x) Ib. 229. D 4 Of 1810. FORBES against ATKINSON. Of these answers to the declaration, three, viz: the 1st. 2d. and 3d. amount to the Défense au fonds en fait, and to no more. They are merely negative. They deny the allegations of the declaration, and disaffirm the very matter which the plaintiff, on the general issue would be bound to prove, in the first instance, in support of his action; and as this is all that they do, they ought to have been pleaded generally, in the form prescribed by the Rules and orders for the défense au fonds en fait. A defendant cannot be permitted to plead specially that which amounts to no more than a total denial of the charge. Of the remaining answers, one alleges payment, and the other a tender or offres. Now a plea of pay ment is a perpetual Exception peremptoire en droit; (2) it is so, because it does not impeach, or deny, the ground or fonds of the plaintiff's demande, but on the contrary admits a cause of action, and discharges it by new matter, which is not stated in the Declaration, and which consequently it sets out, that new matter being a legal "fin de non valoir." To plead payment of a debt and at the same time to deny its existence is inconsistent; payment, therefore, ought not to have been pleaded, by way of Defense au fonds, but by way of Exception in the form of the perpetual Exception peremptoire en droit prescribed by the Rules and Orders. And the tender, or offres, for the balance, which is alleged, ought to have been pleaded in the same manner, because an offre valable, or tender validly made, is in law equivalent to payment. (a) The plea therefore is entirely defective. The defendant by pleading payment, and tender, by way of Defense au fonds, deprived the plaintiffs of the benefit of putting in "an answer" to the new matter of his plea, to which they were entitled, and (z) 1 Pigeau, 203; 1 Bornier, 39; 2 Argon, 473; 2 Domat, 230 (a) 1 Pothier, Obligations, No. 573. Jud. MSS. drove |