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fore observed (h), are now mere names of form; though formerly they were of use to answer to the king for the amercement of the plaintiff

, in case he were nonsuited, barred of his action, or had a verdict or judgment against him (i). For, if the plaintiff neglects to deliver a declaration for

two terms after the defendant appears, or is guilty of other de[*296] lays or defaults against the rules of law in any subsequent *stage

of the action, he is adjudged not to follow or pursue his remedy as he ought to do, and thereupon a nonsuit, or non prosequitur, is entered ; and he is said to be nonpros'd (9). And for thus deserting his complaint, after making a false claim or complaint (pro falso clamore suo), he shall not only pay costs to the defendant, but is liable to be amerced to the king. A retraxit differs from a nonsuit, in that the one is negative, and the other positive: the nonsuit is a mere default and neglect of the plaintiff, and therefore he is allowed to begin his suit again, upon payment of costs; but a retracit is an open and voluntary renunciation of his suit, in court, and by this he for ever loses his action. A discontinuance is somewhat similar to a nonsuit; for when a plaintiff leaves a chasm in the proceedings of his cause, as by not continuing the process regularly from day to day, and time to time, as he ought to do, the suit is discontinued, and the defendant is no longer bound to attend ; but the plaintiff must begin again, by suing out a new original, usually paying costs to his antagonist. Anciently, by the demise of the king, all suits depending in his courts were at once discontinued, and the plaintiff was obliged to renew the process, by suing out a fresh writ from the successor; the virtue of the former writ being totally gone, and the defendant no longer bound to attend in consequence thereof; but, to prevent the expense as well as delay attending this rule of law, the statute 1 Edw. VI. c. 7. enacts, that by the death of the king no action shall be discontinued; but all proceedings shall stand good as if the same king had been living.

When the plaintiff hath stated his case in the declaration, it is incumbent on the defendant within a reasonable time to make his defence and to put in a plea ; else the plaintiff will at once recover judgment by default, or nihil dicit of the defendant.

Defence, in its true legal sense, signifies not a justification, protection, or guard, which is now its popular signification, but merely an oppos. ing or denial (from the French verb defender) of the truth or validity of the complaint.61 It is the contestatio litis of the civilians: a general asser

tion that the plaintiff hath no ground of action, which assertion [*297] is afterwards extended *and maintained in his plea. For it

would be ridiculous to suppose that the defendant comes and defends (or, in the vulgar acceptation, justifies) the force and injury, in one line, and pleads that he is not guilty of the trespass complained of, in the next. And therefore in actions of dower, where the demandant doth not count of any injury done, but merely demands ber endowment (k), and in assises of land,62 where also there is no injury alleged, but merely a question of right stated for the determination of the recognitors or jury,

(k) Rastal. Ent. 134.

(h) See page 274.
(i) 3 Bulstr. 275. 4 Inst. 189.

(9) Blit unless the defendant take advantage defendant is entitled to, and how he should of the plaintiff's neglect, by signing such sign a judgment of, and the costs on a non judgment, the plaintiff may deliver his decla- pros, see Tidd, 8 ed. idex, tit. Non Pros. ration at any time within a year next after the In New-York the defendant must enter & return of the writ. 3 T. R. 123. 5 ib. 35. 7 rule for the plaintiff to declare, before he can ib. 7. sed vide 2 N. R. 404. As to when the non pros the plaintiff.

(60) See Hov. n. (60) at end of the Vol. B. III. (61) Ib. (61) B. III. (62) Ib. (62) B. III.

the tenant makes no such defence (?). In writs of entry (m), where no injury is stated in the count, but merely the right of the demandant and the defective title of the tenant, the tenant comes and defends or denies his right, jus suum ; that is, (as I understand it, though with a small grammatical inaccuracy), the right of the demandant, the only one expressly mentioned in the pleadings, or else denies his own right to be such, as is suggested by the count of the demandant. And in writs of right (n) the tenant always comes and defends the right of the demandant and his seisin, jus praedicti S. et seisinam ipsius (o) (or else the seisin of his ancestor, upon which he counts, as the case may be), and the demandant may reply, that the tenant unjustly defends his, the demandant's, right, and the seisin on which he counts (p). All which is extremely clear, if we understand by defence an opposition or denial, but it is otherwise inexplicably difficult (9).

The courts were formerly very nice and curious with respect to the nature of the defence, so that if no defence was made, though a sufficient plea was pleaded, the plaintiff should recover judgment (r): and therefore the book entitled novae narrationes or the new talys (s), at the end of almost every count, narratio, or tale, subjoins such defence as is proper for the defendant to make. For a general defence or denial was not prudent in every situation, since thereby the propriety of the writ, the competency of the plaintiff, and the cognizance of the court, were allowed. By defending the force and injury, *the defendant waved [*298] all pleas of misnosmer (t); by defending the damages, all exceptions to the person of the plaintiff; and by defending either one or the other when and where it should behove him, he acknowledged the jurisdiction of the court (u). But of late years these niceties have been very deservedly discountenanced (w): though they still seem to be law, if insisted on (x).

Before defence made, if at all, cognizance of the suit must be claimed or demanded ; when any person or body corporate hath the franchise, not only of holdiny pleas within a particular limited jurisdiction, but also of the cognizance of pleas : and that, either without any words exclusive of other courts, which entitles the lord of the franchise, whenever any suit that belongs to his jurisdiction is commenced in the courts at Westminster, to demand the cognizance thereof: or with such exclusive words, which also entitle the defendant to plead to the jurisdiction of the court (y). Upon this claim of cognizance, if allowed, all proceedings shall cease in the superior court, and the plaintiff is left at liberty to pursue his remedy in the special jurisdiction. As, when a scholar, or other privileged person of the universities of Oxford or Cambridge, is impleaded in the courts at Westminster, for any cause of action whatsoever, unless upon a question of freehold (2) (10). In these cases, by the charter of those learned bodies, con(1) Booth of real actions, 118.

tant quil defende tort et force, home doyt entendre (m) Book II. Append. No. V. 02.

quil se excuse de tort a luy surmys per counte, et (n) Append. No. I. $ 5.

fait se partie al ple ; et per tant quil defende les damages, il affirm le parte able destre respondu; et

per tant quił defende ou et quant il devera, il oc(q) The true reason of this, says Booth, (on real cepte la poiar de court de conustre ou trier lour ple. actions, 94. 112.) I could never yet find; so little did (Mod. tenend. cur. 408. edit. 1534.) See also Co. he understand of principles ! (1) Co. Litt. 127.

(ro) Salk. 217. Lord Raym. 282. () edit. 1534.

(2) Carth. 230. Lord Raym. 217. (1) Theloal. dig. l. 14, c. 1, pag. 357.

(y) 2 Lord Raym. 836. 10 Mod. 126 (u) En la defence sont iij choses entendantz; per (2) See page 83.

(10) But only resident members of either university are entitled to this privilege, it being local as well as personal. 2 Wils. 310.

(0) Co. Entr. 182.
(p) Nov. Nar. 230. edit. 1534.

Litt. 127.

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firmed by act of parliament, the chancellor or vice-chancellor may put in a claim of cognizance; which, if made in due time and form, and with due proof of the facts alleged, is regularly allowed by the courts (a). It must be demanded before full defence is made (b) or imparlance prayed ; for these are a submission to the jurisdiction of the superior court, and the delay is a laches in the lord of the franchise : and it will not be allowed, if it occasions a failure of justice (c), or if an action be brought against the person himself, who claims the franchise, unless he hath also a power in

such case of making another judge (d) (11). (*299] *After defence made, the defendant must put in his plea. But,

before he defends, if the suit is commenced by capias or latitat, without any special original, he is entitled to demand one imparlance (e), or licentia loquendi; and may, before he pleads, have more time granted by consent of the court; to see if he can end the matter amicably without farther suit, by talking with the plaintiff: a practice, which is (f) supposed to have arisen from a principle of religion, in obedience to that precept of the gospel, “ agree with thine adversary quickly, whilst thou art in the way with him (g)." And it may be observed that this gospel pre

" cept has a plain reference to the Roman law of the twelve tables, which expressly directed the plaintiff and defendant to make up the matter, while they were in the way, or going to the praetor,-in via, rem uti pacunt orato. There are also many other previous steps which may be taken by a defendant before he puts in his plea. He may, in real actions, demand a view of the thing in question, in order to ascertain its identity and other circumstances. He may crave oyer (h) of the writ (12), or of the bond (12), or other specialty upon which the action is brought : that is, to hear it read to him ; the generality of defendants in the times of ancient simplicity being supposed incapable to read it themselves, whereupon the whole is entered verbatim upon the record, and the defendant may take ad

vantage of any condition or other part of it, not stated in the [*300] plaintiff's declaration (12). "In real actions also the tenant may

", (a) Hardr. 505.

disoyent a luy " peccasti :" et il dit, " judica me : (6) Rast. 128, &c. 1 Chitty on Pl. 364.

et ils disoyent, "non possumus, quia caput es eccle(c) 2 Ventr. 363.

siae : judica teipsum :" et l'apostol dit, " judico (d) Hob. 87. Year-book, M. 8 Hen. VI. 20. In me cremari ;" ei fuit combustus ; et apres fuit un this latter case the chancellor of Oxford claimed sainct. Et in ceo cas il fuit son juge demene, et iscognizance of an action of trespass brought against sint n'est pas inconvenient que un home soit juge himself; which was disallowed, because he should not be judge in his own cause. The argument used (e) Append. No. III. 6 6. by serjeant Rolfe, on behalf of the cognizance, is (f) Gilb. Hist. Com. Pl. 35. curious and worth transcribing.-Jeo vous dirai un fable. En ascun temps fuil un pape, et avoit fait () Append. No. III. 6 6. un grand offence, et le cardinals vindrent a luy et

(11) But a parly may waive, and preclude and the archbishop brought his action; and it himself from taking, any objection to a deci. coming to a trial at the assizes in Kent, the sion on this account ; for if a defendant agree serjeant, by rule of court, referred it to the to refer the matter to the plaintiff, he cannot archbishop, to set the price of the horse, which object to the award that the plaintiff was a was done accordingly, and the serjeant afterjudge in his own cause. Thus in Matthew v. wards moved the court to set aside the award Ollerton, 4 Mod. 226. Comb. 218. Hard. 44. for the reason now offered, but it was denied which was an action of debt upon an award, by lord Hale and per totam curiam. and a verdict for the plaintiff; and, upon its (12) But now a defendant is not allowed being moved in arrest of judgment, the excep. oyer of the writ. 1 B. & P. 646. 3 B. & P. tion taken was, that the matter in difference 395. 7 East, 383. As to the demand and was referred to the plaintiff himself, who made giving of oyer, and the manner of setting out an award. Sed non allocatur. And the case deeds, &c. therein, see 1 Saund. 9. (1). 289. of serjeant Hards was remembered by Dolben, (2). 2 Saund. 9. (12, 13). 46. (7). 366. (1). justice, viz. The serjeant took a horse from 405. (1). 410. (2). Tidd, 8 ed. 635 to 638. and my lord of Canterbury's bailiff, for a deodand, index, tit. Oyer. i Chit. on Pl. 369 to 375.


(g) Matt. v. 25.

pray in aid, or call for assistance of another, to help him to plead, because of the feebleness or imbecility of his own estate. Thus a tenant for life may pray in aid of him that hath the inheritance in remainder or reversion; and an incumbent may pray in aid of the patron and ordinary : that is, that they shall be joined in the action, and help to defend the title. Voucher also is the calling in of some person to answer the action, that hath warranted the title to the tenant or defendant. This we still make use of in the form of common recoveries (i), which are grounded on a writ of entry; a species of action that we may remember relies chiefly on the weakness of the tenant's title, who therefore vouches another person to warrant it. If the vouchee appears, he is made defendant instead of the voucher : but, if he afterwards makes default, recovery shall be had against the original defendant ; and he shall recover over an equivalent in value against the deficient vouchee. In assises indeed, where the princi. pal question is, whether the demandant his ancestors were or were not in possession till the ouster happened, and the title of the tenant is little (if at all) discussed, there no voucher is allowed ; but the tenant may bring a writ of warrantia chartae against the warrantor, to compel him to assist him with a good plea or defence, or else to render damages and the value of the land, if recovered against the tenant (k). In many real actions also (1), brought by or against an infant under the age of twenty-one years, and also in actions of debt brought against him, as heir to any deceased ancestor, either party may suggest the nonage of the infant, and pray that the proceedings may be deferred till his full age; or (in our legal phrase) that the infant may have his age, and that the parol may demur, 63that is, that the pleadings may be staid ; and then they shall not proceed till his full age, unless it be apparent that he cannot be prejudiced thereby (m). But, by the statutes of Westm. 1. 3. Edw. I. c. 46. and of Glocester, 6 Edw. I. c. 2. in writs of entry sur disseisin in some particular cases, and in actions ancestrel brought by "an infant, [*301] the parol shall not demur : otherwise he might be deforced of his whole property, and even want a maintenance till he came of age. So likewise in a writ of dower the heir shall not have his age ; for it is necessary that the widow's claim be immediately determined, else she may want a present subsistence (n). Nor shall an infant patron have it in a quare impedit (c), since the law holds it necessary and expedient that the church be immediately filled (13).

When these proceedings are over, the defendant must then put in his excuse or plea. Pleas are of two sorts ; dilatory pleas, and pleas to the action. Dilatory pleas are such as tend merely to delay or put off the suit, by questioning the propriety of the remedy, rather than by denying the injury: pleas to the action are such as dispute the very cause of suit. The former cannot be pleaded after a general imparlance, which is an acknowledgment of the propriety of the action. For imparlances are either general, (i) Book II. Append. No. V. 62

(m) Finch, L. 360. (1) Dyer, 137.


B. 135.

(n) 1 Roll. Abr. 137.
(0) Ibid. 138.

(13) In New York, imparlances, vouchers, appointed for them, (id. 454, 0 43); but the aid prayers, and receipts are abolished, (2 R. execution on the decree against such infants S. 341, $17): this was proper in consequence is not to be executed for one year after the of abolishing the old real actions for trying decree. (Id. 455, 9 54.) title. Suits against heirs are not here delayed By the rules of the court, and by special or. on account of their infancy, but guardians are ders, the defendant has time to plead.

(63) See Hov. n. (63) at the end of the Vol. B. III.

of which we have before spoken, and which are granted of course ; or special, with a saving of all exceptions to the writ or count, which


be granted by the prothonotary; or they may be still more special, with a saving of all exceptions whatsoever which are granted at the discretion of the court (p).

1. Dilatory pleas are (14), 1. To the jurisdiction of the court : alleging, that it ought not to hold plea of this injury, it arising in Wales or beyond sea ; or because the land in question is of ancient demesne, and ought only to be demanded in the lord's court, &c. 2. To the disability of the plaintiff, by reason whereof he is incapable to commence or continue the suit ; as, that he is an alien enemy, outlawed, excommunicated, attainted of treason or felony, under a praemunire, not in rerum natura (being only a fictitious

person), an infant, a feme-covert, or a monk professed (15). In [*302] abatement, which abatement is either of the *writ or the count, for

some defect in one of them; as by misnaming the defendant, which is called a misnomer ; giving him a wrong addition, as esquire instead of knight ; or other want of form in any material respect (16). Or, it may be, that the plaintiff is dead ; for the death of either party is at once an abatement of the suit. And in actions merely personal, arising ex delicto, for wrongs actually done or committed by the defendant, as trespass, battery, and slander, the rule is that actio personalis moritur cum persona (9) ; and it never shall be revived either by or against the executors or other representatives. For neither the executors of the plaintiff have received, nor those of the defendant have committed, in their own personal capacity, any manner of wrong or injury. But in actions arising ex contractu, by breach of promise and the like, where the right descends to the representatives of the plaintiff, and those of the defendant have assets to answer the demand, though the suits shall abate by the death of the parties, yet they may be revived against or by the executors (r): being indeed rather actions against the property than the person, in which the executors have now the same interest that their testator had before (17).

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(14) These pleas are not favoured by the termed rather from their effects, than from their courts, and they must be filed within four days being strictly such pleas; for as oyer of the after the day upon which the declaration is writ can no longer be craved, no objection can delivered, both days being inclusive. IT. R. be taken by plea to matter which is merely 277. 5 T. R. 210.

contained in the writ. 3 B. & P. 399. IB. & P. (15) As to this plea, see 1 Chit. on Pl. 387, 645. But if the mistake in the writ be carried 388. Whenever the subject matter of the plea also into the declaration, or ratherif the declaraor defence is, that the plaintiff cannot main- tion, which is presumed to correspond with the lain any action at any time, in respect of the writ or bill, be incorrect in respect of some exsupposed cause of action, it may, and usually trinsic matter, it is then open to the defendant to should, be pleaded in bar ; but matter which plead in abatement to the writ or bill, 1 B. & usually defeats the present proceeding, and P. 648; and as to such pleas, see I Chit. on does not shew that the plaintiff is for ever pre- Pl. 390 to 394. Consequently, a misnomer of cluded, should in general be pleaded in abate. the defendant, or giving him a wrong addition, ment. 4 T. R. 227. Some matters may be or other want of form in the writ, unless it be pleaded either in abatement or bar; as out- contained in the declaration, is not now pleadlawry for felony, alien enemy, or attainder, &c. able in abatement. See I Saund. 318. n. 3.3 Bac. Ab. Abatement, N. Com. Dig. Abate. B. & P. 395. And the desendant, to take ad. ment, K.

vantage of any defect in the writ, should in The defendant may also plead in abatement, general, before appearance, move to set it bis, or her, own personal disability; as in case aside for irregularity. 1 B. & P. 647. 5 of coverture, when the husband ought to Moore, 168. have been joined. 3 T. R. 627. Bac. Ab. (17) In New York, actions of trespass may Abatement, G.

be brought by executors and administrators (16) Pleas in abatement to the writ, are so against any one who has wasted, destoyed,

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