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 to real property, that the defendant was using his right of way, or that he entered to abate a nuisance after notice given to the plaintiff to do so; 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. As in an action for money secured by a mortgage, or otherwise charged upon land, or for rent on a lease by deed, or on a bond or other specialty, that the claim had not accrued on plaintiff, or those under whom he claims, within twenty years. But this plea is very rare, for if there has been a partial payment of principal or interest, or an acknowledgment in writing, which in such cases is more than likely, then the date of the last payment or of the acknowledgment in writing, is that from which this period of twenty years runs.

It is different in actions of trespass, or for injuries to personal property, of detinue, trover, replevin, debt on simple contract, and some others. Here the action need only be brought within six years after the cause of action accrued; and the statute of limitations, or actio non accrevit infra sex annos, is accordingly by no means an unfre quent plea. The period is less in some actions of tort. For slander, for instance, it is two years; and in all these cases, if the party entitled to sue, or liable to be sued, labours under any disability, the time of limitation does not begin to run till that disability is removed. Thus if the person entitled to sue happens, when the cause of action accrues, to be an infant, or a feme-covert or non compos, he may sue within the same period allowed him according to the nature of the action, after the removal of either disability. But the disability must exist at the time when the cause of action accrues to or against the party under disability; for if the period of limitation has once begun to run, no subsequent disability can suspend or stop it. And a rule similar to that I have already mentioned applies also to the sexennial limitation as to debts on simple contract. These are, in legal phrase, taken out of the statute, by any payment on account of principal or interest, or by an acknowledgment in writing, any one of which is sufficient to raise a fresh assumpsit or implied promise to pay the debt itself.

I may add here, that all actions on penal statutes, where any forfeiture is to the crown alone, must 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; and that by

various statutes, actions against judges of the county courts, justices of the peace, constables, the local authorities of districts, and other persons holding public offices, must be brought within six, in some cases twelve, in some instances three, months after the cause of action arose. These different periods of limitation it is not, however, necessary to specify.

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 these accounts the law therefore holds, that interest reipublicæ ut sit 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.

A defendant may in some cases plead in bar that he has had no notice of action; to which, by various statutes, justices of the peace, constables, officers of the local boards, officers of the revenue, surveyors of highways, and other persons having public duties to perform, are entitled, when sued for anything done by them, in virtue or in execution or supposed execution of their office. This notice of action, which is necessary in other instances besides those I have mentioned, is required that the defendant may have an opportunity of tendering amends to the plaintiff; and it must, in general, be given one calendar month at least before the action is brought. These officials are also further privileged to plead simply "not guilty," adding the words, "by statute," in order that under this plea they may set up any special defence that they are entitled to. An estoppel is likewise a special plea in bar; which happeng where a man has done some act, or executed some deed, which estops or precludes him from averring anything to the contrary. As where a statement of a particular fact is made in the recital of a bond or other instrument, and a contract is made with reference to that recital, it is not, as between the parties to the instrument, competent to the party bound to deny the recital. And an equitable defence or such facts as would in a court of equity be a complete answer to the case of the plaintiff, and afford ground for a perpetual injunction, may also be pleaded specially; so as to constitute a good plea in bar.

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 upon a bond the defendant pleads solvit ad diem, that he paid the money when due; here the plaintiff in his replica

tion may totally traverse this plea, by denying that the defendant paid it or, he may allege new matter in contradiction to the defendant's plea; or the replication may confess and avoid the plea, by some new matter or distinction consistent with the plaintiff's former declaration. Thus in an action for trespassing upon land whereof the plaintiff is possessed, if the defendant shows a title to the land by descent, and that therefore he had a right to enter, the plaintiff may either traverse or deny the fact of the descent; or he ray 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 a term not yet expired.

To the replication the defendant may rejoin, or put in an answer called a rejoinder. The plaintiff may answer the rejoinder by a sur-rejoinder; upon which the defendant may rebut; and the plaintiff answer him by a sur-rebutter. 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, might occasion endless altercation. Therefore the replication must support the declaration, and the rejoinder must support the plea, without departing out of it. As in the case of pleading no award made, in an action thereon, to which the plaintiff replies, setting forth an actual award; now the defendant cannot rejoin that he has performed this award, for such rejoinder would be an entire departure from his original plea, which alleged that no such award was made: therefore he has now no other choice but to traverse the fact of the replication, or else to demur upon the law of it.

Yet in some actions the plaintiff, who has alleged in his declaration a general wrong, may in his replication, after an evasive plea by the defendant, reduce that general wrong to a more particular certainty, by assigning the injury affesh, in such manner as clearly to ascertain and identify it, consistently with his general complaint, which is called a new or novel assignment. As if the plaintiff in an action of trespass declares on a breach of his close and pulling down his fences; and the defendant pleads that he did so as occupier of another close, the occupiers of which had a right to dig and carry away sand and marl from the close of the plaintiff, and that he knocked down the plaintiff's fences because the enclosure prevented the free exercise of this right; the plaintiff may reply, by new assignment, that he sues not only for the trespasses admitted in the plea, but for other and different trespasses; to which the plaintiff must again plead either by denying these latter trespasses, or justifying them in some other way than that already stated in his plea. If the plaintiff simply denies the plea, he puts in issue the defendant's alleged right

to dig sand and marl, and that only; and if such right exists, the verdict must be for the defendant; whereas by new assigning the trespasses, he compels the defendant, if he has also joined issue on the plea, to show not only that the alleged right exists, but that he committed the trespasses in exercise of that right, and that in so doing, he did nothing but what could be justified by him in the exercise of his right.

In any stage of the pleadings, when either side advances or affirms any new matter, he is understood to aver it to be true. So when either side traverses or denies the facts pleaded by his antagonist, he is understood to tender an issue, as it is called. Thus sooner or later the parties come to a point which is affirmed on one side and denied on the other. They are then said to be at issue, all their debates being at last contracted into a single point, which must now be determined either in favour of the plaintiff or of the defendant.

CHAPTER XII.

OF ISSUE AND DEMURRER.

Issue in fact or in law-Demurrer-Joinder in demurrer-Plea puis darrein continuance-Law Latin-Argument.

ISSUE, exitus, being the end of all the pleadings, is the third 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. As, if the matter of the plaintiff's complaint, or declaration be insufficient in law, as by not assigning any sufficient trespass, then the defendant demurs to the declaration if, on the other hand, the defendant's excuse or plea be invalid, as if he pleads that he committed the trespass by authority from a stranger, without making out the stranger's right; here the plaintiff may demur in law to the plea: and so on in every other part of the proceedings, where either side perceives any material objection in point of law upon which he may rest his case.

The form of such demurrer is by averring the declaration or plea, the replication or rejoinder, to be bad in substance, that is, insufficient in law to maintain the action or the defence; and the party demurring is thereupon understood to pray judgment for want of sufficient matter alleged. Upon a demurrer, the opposite party must aver his pleading to be good in substance, which is called a joinder in demurrer, and then the parties are at issue in point of law. Which issue in law, or demurrer, the judges of the court before which the action is brought must determine.

An issue of fact is where the fact only, and not the law, is disputed. And when he that denies or traverses the fact pleaded by his antagonist has tendered the issue, the other party may immediately join issue; or if affirmative matter be set out in the pleading, he may at once take issue thereon. Which done, the issue is said to be joined, both parties having agreed to rest the fate of the cause upon the truth of the fact in question. And this issue of fact must, generally speaking, be determined by the country, per pais, in Latin per patriam, that is, by jury.

And here it will be proper to observe, that during the whole of these proceedings, from the time of the defendant's appearance in obedience to the writ, it is necessary that both the parties be in theory kept or continued in court from day to day, till the final determination of the suit. For the court can determine nothing, unless in the presence of both the parties, in person or by their attorneys, or upon default of one of them, after his original appearance. Therefore it is that if in the course of pleading, either party neglects to put in his declaration, plea, replication, rejoinder, and the like, within the time allotted by the standing rules of the court, the plaintiff, if the omission be his, is said to be nonsuit or not to follow and pursue his complaint, and shall lose the benefit of his writ; or if the negligence be on the side of the defendant, judgment may be had against him for such his default. No entry of these continuances is indeed put upon the record; but the theory remains, and either party may accordingly agree with the other to discontinue the suit; a course which it is not unusual for a plaintiff to adopt when he finds he has misconceived his action, or wishes to abandon it.

Again it may sometimes happen, that after the defendant has pleaded, nay, even after joinder of issue or in demurrer, there may have arisen some new matter, which it is proper for him to plead; as that the plaintiff has given him a release, or the like: here, if the defendant takes advantage of this new matter he is permitted to plead it in what is called a plea of puis darrein continuance, so designated, because it is supposed to be pleaded since the last adjournment of the court, and, of course, during a continuance of the