one's own, in rents, suits, and services, fifty years and in actions real for lands grounded upon one's own seisin or possession, such possession must

ence whether the acknowledgment be accompanied with a promise or refusal to pay, a bare acknowledgment is sufficient. 16 East, 420. 2 Burr. 1099. 5 M. & S. 75. 2 B. & Cres. 154. The construction of an ambiguous letter or declaration of a defendant, on being served with a writ, or requested to pay a debt, neither admitting or denying it, is strong intimation that it is an acknowledgment, since, if the defendant knew he owed nothing, he would have declared so. T. R. 760. 1 Bing. 266. A conditional promise to pay when able, or by instalments, &c. is sufficient, without proof of ability, or waiting till instalment become due. 16 East, 420. 2 Stark. 98, 9. 5 M. & S. 75. sed vid. 3 D. & R. 267. Where the original agreement is in writing, in order to take the case out of the statute of frauds, a subsequent promise, or admission of the liability to perform such agreement, need not be in writing to take the case out of the statute of limitations. 1 B. & A. 690. An acknowledgment after action brought, is good. Selw. N. P. tit. Limitations. Burr. 1099. The admission to a third person is sufficient. 3 B. & A. 141. Loft, 86. 2 B. & C. 154.

On the other hand, where the defendant said, "the testator always promised not to distress me," this was held no evidence of a promise to the testator, to take the case out of the statute, 6 Taunt. 210.; so a declaration, "I cannot afford to pay iny new debts, much more my old ones," is insufficient, 4 D. & R. 179. ; and so where in assumpsit by an attorney to recover his charges, relative to the grant of an annuity, evidence that the defendant said, "he thought it had been settled when the annuity was granted, but that he had been in so much trouble since, that he could not recollect any thing about it," is not a sufficient acknowledgment of the debt to save the statute, notwithstanding proof that plaintiff's bill was not paid when the annuity was granted. 1 J. B. Moore, 340. 7 Taunt. 608. S. C. The referring plaintiff to the defendant's attorney, who, he added, was in possession of his determination and ability, is not an admission that any thing is due, 1 New Rep. 20.; and where a defendant, on being applied to by the plaintiff's attorney for the payment of the debt, wrote in answer, "that he would wait on the plaintiff when he should be able to satisfy him respecting the misunderstanding which had occurred between them," this was holden not sufficient to take the case out of the statute, Holt C. N. P. 380, and see 4 Esp. 184. 5 Esp. 81.; a declaration, "I will see my attorney, and tell him to do what is right," is insufficient. 3 D. & R. 267. Payment of money into court on a special count, will not save the operation of the statute, 3 B. & C. 10. 4 D. & R. 632. S. C. : it only admits the debt to the amount paid in. Id. Bunb. 100.

In the second place, where the defendant makes no express acknowledgment of the debt, but says, he is not liable, because it is more than six years since; this will not take the case out of the statute. 3 Taunt. 380. 5 Esp. 81. 4 M. & S. 457. 5 Price, 656. But an acknowledgment that the defendant had been liable, but was not at the time of acknowledgment, because the demand was out of date, and that he would not then pay, as it was not then true, takes the case out of the act. 16 East, 420. 2 Stark. 98, 99.

If a debtor admit that he was once liable, but that he was discharged by a particular mode of performance, to which he, with precision, referred himself, and where he has designated that time and mode of performance so strictly, that he can say it is impossible it had been discharged in any other mode, there the courts have said, that if the plaintiff can disapprove that mode, he lets himself in to recover, by striking from under the defendant the only ground on which he professes to rely, 7 Taunt. 608. 4 B. & A. 568. 1 Salk. 29. Cowp. 548. Peake N. P. C. 93.; so where a party acknowledges, but refuses to pay the debt, relying on the deficiency of his legal liability to pay, this will take the case out of the statute, upon proof of liability. 5 M. & S. 75. 6 Rep. 66. But a qualified admission by a party, who relies on an objection, which would, at any time, have been a good defence to the action, does not take the case out of the statute, as if the defendant said, "if you had presented the protest the same as the rest, it would have been paid, I had then funds in the acceptor's hands," 1 Stark. 7. see 3 Esp. N. P. C. 155. 2 Camp. 161. 2 B. & A. 759. 4 B. & A. 568. 4 East, 599, and cases there cited; this was held no sufficient acknowledgment. Where the defendant, an executor, who was sued for money had and received from his testator, was proved to have said, "I acknowledge the receipt of the money, but the testatrix gave it me," it was held insufficient, Bull. N. P. 148.; and so where the defendant, on being applied to for payment of a debt, said, "you owe me more money, I have a set-off against it." 2 B. & A. 759. Where a party on being asked for the payment of his attor ney's bill, admitted that there had been such a bill, but stated that it had been paid to the deceased partner of the attorney, who had retained the amount out of the floating balance in his hands, it seems, that in order to take the case out of the statute, evidence is inadmissible to shew that the bill had never, in fact, been paid in this manner. 4 B. & A. 568. In all cases, unless the defendant actually acknowledge that the debt or obligation did originally exist, the statute will not be avoided. Maule & S. 457. 2 Camp. 160.

In the third case, with respect to the party from whom the acknowledgment should come to render it sufficient; an acknowledgment by an agent or servant, intrusted by the defendant to transact his business for him, will suffice, 5 Esp. 145.; and so will the admission of the wife who was accustomed to conduct her husband's business. Holt's Ca. N. Pri. 591. In an action against a husband, for goods supplied to his wife, for her accommodation, while he occasionally visited her, a letter written by the wife, acknowledging the debt within six years, is admissible evidence to take the case out of the statute. 1 Camp. 394., and see 2 Esp. N. P. C. 511. 5 Esp. N. P. C.

have been within thirty years. By statute 1 Mar. st. 2. c. 5. this limitation does not extend to any suit for advowsons, upon reasons given in a former chapter. (b) But by the statute 21 Jac. I. c. 2. a time of limitation was extended to the case of the king; viz. sixty years [307] precedent to 18 Feb. 1623; (c) but, this becoming ineffectual by efflux of time, the same date of limitation was fixed by statute 9 Geo. III. c. 16. to commence and be reckoned backwards, from the time of bringing any suit or other process, to recover the thing in question; 'so that a possession for sixty years is now a bar even against the prerogative, in derogation of the ancient maxim "nullum tempus occurrit regi.' By another statute, 21 Jac. I. c. 16. twenty years is the time of limitation in any writ of formedon: and by a consequence, twenty years is also the limita tion in every action of ejectment, for no ejectment can be brought, unless where the lessor of the plaintiff is entitled to enter on the lands, (d) and by the statute 21 Jac. I. c. 26. no entry can be made by any man, unless within twenty years after his right shall accrue. Also all actions of trespass (quare clausum fregit, or otherwise), detinue, trover, replevin, account, and case (except upon accounts between merchants), debt on simple contract, or for arrears of rent, are limited by the statute last mentioned to six years after the cause of action commenced and actions of assault, menace, battery, mayhem, and imprisonment, must be brought within four years, and actions for words within two years after the injury committed." And by the statute 31 Eliz. c. 5. all suits, indictments, and infor mations, upon any penal statutes, where any forfeiture is to the crown alone, shall 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," unb See pag. 250. d See pag. 206.

c 2 Inst. 189.

145. If a demand is owing from two parties, an acknowledgment by one will avoid the statute, 4 T. R. 516.; so an acknowledgment by one of several makers of a joint and several promissory note, will take the case out of the statute, as against any one of the other makers, in a separate action on the note against him, Dougl. 652., and this, though against a surety, 2 Bing. 306.; and in an action against A. on the joint and several promissory note of himself and B. to take case out of the statute, it is enough to give in evidence a letter written by A. to B. within six years, desiring him to settle the debt. 3 Camp. 32., and see 11 East, 585. 1 Stark. 81. But the acknowledgment of one partner to bind the other, must in such case be clear and explicit, and therefore it is not sufficient, in order to take a case out of the statute, in an action on a promissory note, to shew a payment, by a joint maker of a note, to the payee within six years, so as to throw it upon the defendant, to shew that the payment was not made on account of the note. 1 Stark. 488. It has been held, that when one of two drawers of a joint and several promissory note hav ing become bankrupt, the payee received a dividend under the commission on account of the note, this will prevent the other drawer from availing himself of the statute, in an action brought against him for the remainder of the money due on the note, the dividend having been received within six years before the action brought. 2 H. Bla. 340. But in a more recent case, where one of two joint drawers of a bill of exchange became bankrupt, and under his commission the indorsees proved a debt (beyond the amount of the bill) for goods sold, &c. and they exhibited the bill as a security, they then held for their debt, and afterwards received a dividend; it was held, that in an action by the indorsees of the bill against the solvent partner, the statute of limitations was a good defence, although the dividend had been paid by the assignees of the bankrupt partner within six years, 1 B. & A. 463., and see 1 B. & C. 248. 2 D. & R. 363. S. C. So where A. & B. made a joint and several promissory note, and A. died, and ten years after his death B. paid interest on the note, it was holden in an action thereon against the executors of A. that the payment of interest by B. did not take the case out of the statute, so as to make the executors liable. 2 B. & C. 23. 3 D. & R. 200. S. C. An acknowledgment by an accommodation acceptor, within six years, of his liability to the payee, is not sufficient to take the case out of the statute, for the drawer. 3 Stark. 186. Chitty.

(41) The statute makes an exception for all persons 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 shall only commence from the time when their respective impediments or disabilities are removed, sect. 7. ; and the 4 Ann. c. 16. s. 19. extends this provision to defendants beyond seas, at the time the cause of action accrues.

(42) Where the forfeiture is to the crown and a subject, a common informer must sue within VOL. II. 32

less where any other time is specially limited by the statute. Lastly, by statute 10 W. III. c. 14. no writ of error, scire facias, or other suit, shall be brought to reverse any judgment, fine, or recovery, for error, unless it be prosecuted within twenty years. 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 ac[308] tion for any injury committed at any distance of time. Upon

both these accounts the law therefore holds, that "interest reipublicae 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. (e) If therefore in any suit, the injury or cause of action happened earlier than the period expressly limited by law, the defendant may plead the statutes of limitations in bar: as upon an assumpsit, or promise to pay money to the plaintiff, the defendant may plead non assumpsit infra sex annos; he made no such promise within six years; which is an effectual bar to the complaint.43

44

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 (which, as well as the doctrine of estoppels, will also hold equally, mutatis mutandis, with regard to other parts of pleading) 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; as, in an action of assault and battery, these three, not guil ty, son assault demesne, 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 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.46

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

one year, and the crown may prosecute for the whole penalty, at any time within two years after that year ended.

(43) Besides these statutes of limitations, pointed out by the learned commentator, there are various others, as the 4 Ann. c. 16. s. 17. relating to seamen's wages; and the 24 Geo. II. c. 44. s. 8. ante, 1 Book, 354, n. (33). (38). as to actions against justices, constables, &c.; and the 28 Geo. III. c. 37. s. 23. as to actions against persons in the customs and excise; and the 43 Geo. III. c. 99. s. 70. as to actions against tax-collectors, &c. &c.

(44) As to pleas of estoppel, see 1 Chit. on Pl. 4 ed. 407. vid. index, tit. Estoppel; Stephen's index, Estoppel; such pleas are not favoured. 2 B. & A. 662. (45) As to pleading several pleas, see 1 Chit. on Pl. 477 to 480. Tidd, 8 ed. 706 to 713.

Com. Dig. Pleader, E. 2. and

(46) In addition to these qualities, it should be observed, that every plea in bar, must be adapted to the nature of the action, and conformable to the count, Co. Lit. S03. a. 285. b. Bac. Ab. Pleas, I. per tot. 1 Rol. Rep. 216.; must answer the whole declaration or count, or rather all that it assumes in the introductory part to answer, and no more, Co. Lit. 303. b. Com. Dig. Pleader, E. 1. 36. 1 Saund. 28. 2 B. & P. 427. 3 B. & P. 174.; must admit or confess the fact it justifies. 3 T. R. 298. 1 Salk. 394. Carth. 380. 1 Saund. 28.; must be certain, Com. Dig. tit. Pleader, E. 5. &c. ; and must be true, and not too large. Hob. 295. Bac. Ab. tit. Pleas, Ĝ. 4. For more particular information as to these qualities, see 1 Chit. on Pl. 451. to 463.; as to their forms and particular parts, see [d. 467 to 477.

Special pleas are usually in the affirmative, sometimes in the ne. [309] gative; but they always advance some 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 necessary in pleas of the general issue; those 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 specially such a plea as amounts only to the general issue, or a total denial of the charge; but in such case he shall be driven to plead the general issue in terms, whereby the whole question is referred to a jury.47 But if the defendant, in an assise or action of trespass, be desirous to refer the validity of his title to the court rather than the jury, he may state his title speci. ally, and at the same time give colour to the plantiff, or suppose 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 extered on the lands in question, he cannot plead this by itself, as it amounts to no more than the general issue, nul tort, nul disseisin, in assise, or not guilty in an action of trespass. But he my allege this specially, provided he goes farther and says, that the plaintiff claiming by colour of a prior deed of feoffment without livery, entered; upon whom he entered; and may then refer himself to the judgment of the court which of these wo titles is the best in point of law. (ƒ)

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 of 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 [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 plantiff may reply and set forth an actual award, and assign a breach : (g) 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 seised, 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.49 To the replication the deg Append. No. III. § 6.

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

The same rules which prevail in the construction and allowance of a declaration, do so in the case of pleas in bar. See ante, 293, notes 1, 2, 3. If the plea be bad in part, it is so for the whole. Com. Dig. Pleader, E. 36. 3 T. R. 376. S B. & P. 174. 1 Saund. 337. The rules, as to surplusage in a declaration, here also prevail, ante, 293, notes 1, 2, 3. Chitty. (47) As to what plea amounts to the general issue, see 1 Chit. on Pl. 442, 3. Stephen on Pl.

412.

(48) As to giving colour in general, see Stephen on Pl. 220. 225. 231. 1 Chit. 446. 10 Co. 88. 1 East, 215. Bac. Ab. Pleas, I. 8.

on Pl. 443 to

(49) As to the several replications in general, see 1 Chit. on P. 4 ed. 500 to 518. ; and as to their forms and parts in particular, Id. 518 to 555. The general qualities of a replication are, that it must answer the plea, and answer so much of it as it professes to answer, or it will be a discontinuance, Com. Dig. tit. Pleader, F. 4. W. 2. 1 Saund. 338.; and it must answer the plea

fendant 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. Which pleas, replications, rejoinders, sur-rejoinders, rebutters, and sur-rebutters, answer to the exceptio, replicatio, duplicatio, triplicatio, and quadruplicatio of the Roman laws. (h)

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, with the party has once insisted on." For this (which is called a departure in pleading) 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 consequence of a bond of arbitration, to which the plaintiff replies, setting forth an actual award; now the defendant can

not rejoin that he hath performed this award, for such rejoinder [311] 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 many 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 afresh with all its specific circumstances in such manner as clearly to ascertain and identify it, consistently with his general complaint; which is called a new or novel assignment.5 As if the plaintiff in trespass declares on a breach of his close in D; and the defendant pleads that the place where the injury is said to have happened is a certain close of pasture in D, which descended to him from B his father, and so is his own freehold; the plaintiff may reply and assign another close in D, specifying the abuttals and boundaries, as the real place of the injury. (i)

It hath previously been observed (k) that duplicity in pleading must be avoided. Every plea must be simple, entire, connected, and confined to one single point: it must never be entangled with a variety of distinct independent answers to the same matter; which must require as many differ. ent replies, and introduce a multitude of issues upon one and the same dispute. For this would often embarrass the jury, and sometimes the court itself, and at all events would greatly enhance the expense of the parties. Yet it frequently is expedient to plead in such a manner as to avoid any implied admission of a fact, which cannot.with propriety or safety be positively affirmed or denied. And this may be done by what is called h Inst. 4. 14. Bract. l. 5. tr. 5. c. 1. Bro. Abr. t. trespass, 205. 234. k P. 308.

directly, not argumentatively, 10 East, 205.; it must not depart from the declaration. 2 Saund. 84. a. n. 1. Co. Lit. 304. a. 2 Wils. 98. See 1 Chit. on Pl. 556 to 560. It must be certain, and it is said that more certainty is requisite in a replication than a declaration, though certainty to a common intent is in general sufficient, Com. Dig. Pleader, F. 17. 12 East, 263.; and lastly, it must not be double, or in other words, contain two answers to the same plea, 10 East. 73. 2 Camp. 176, 177. Com. Dig. Pleader, F. 16.; and the plaintiff cannot reply double under the 4 Ann. c. 16. Fortes. 335. unless in replevin, 2 B. & P. 368. 376.; and more particularly as to these qualities, see 1 Chit. on Pl. 566 to 562. An entire replication bad in part is bad for the whole. Com. Dig. Pleader, F. 25. 3 T. R. 376. 1 Saund. 28. n. 3. Chitty. (50) As to these, see 1 Chit. on P. 4 ed. 563, 4.

(51) As to departure in general, see 1 Chit. on Pl. 556 to 560. 2 Saund. 84, a. n. 1. Co. Lit. 304. (52) As to new assignments in general, see 1 Chit. on Pl. 542 to 554. 1 Saund. 299. n. 6. Com. Dig. Pleader, 3 M. 34. Bac. Ab. Trespass, I, 4. 2. Vin. Ab. Trespass, U. a. 4.