Sivut kuvina

sion must 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 (6). But by the statute 21 [*307]
Jac. I. c. 2. a time of limitation was extended to the case of the
king; viz. sixty years precedent to 19 Feb. 1623 (c); but, this becoming
ineffectual by efflux of time, the same date of limitation was fixed by sta-
tute 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 ques-
tion; 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 limitation 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, re-
plevin, 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
(6) See page 250.

(d) See page 206.

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(c) Inst. 189.

363. S. C. So where A. & B. made a joint tors, shall nevertheless be entitled to recover
and several promissory note, and A. died, and against any other or others of the defendants
ten years after his death B. paid interest on by virtue of a new acknowledgment or pro-
the note, it was holden in an action thereon mise, or otherwise, judgment may be given,
against the executors of A., that the payment and costs allowed, for the plaintiff, as to such
of interest by B. did not take the case out of defendant or defendants against whom he
the stalute, so as to make the executors liable. shall recover; and for the other defendant or
2 B. & C. 23. 3 D. & R. 200. S. C. An ac- defendants against the plaintiff.
knowledgment by an accommodation accept- By sect. 2, that is defendant in action on
or, within six years, of his liability to the simple contract shall plead in abatement to
payee, is not sufficient to take the case out of the effect that any other person ought to be
ihe slatute, for the drawer. 3 Stark. 186. jointly sued, and issue be joined on such plea,

It is enacted, by 9 Geo. IV. c. 14, that in and it should appear at the trial that the action
actions of debt or upon the case, grounded up- could not by reason of the said recited acts,
on any simple contract, no acknowledgments or the present act, be maintained against the
or promise by words only should be deemed other person named in such plea, the issue
sufficient evidence of a new or continuing joined on such plea should be found against
contract, whereby to take any case out of the the party pleading the same.
operation of the enactments of the statutes By seci. 3, no indorsement or memorandum
of limitations, or to deprive any party of the of payment made after the lst of January, 1829,
benefit thereof, unless such acknowledgment upon any promissory note, bill of exchange, or
or promise shall be made or contained by or other writing, by or on behalf of the party to
in some writing to be signed by the party whom such payment shall be made, shall be
chargeable thereby. And that where there deemed sufficient proof of such payment, so as
shall be two or more joint contractors, or to take the case out of the operation of either
executors or administrators of any contract- of the said statutes.
or, no such joint contractor, executor or ad. By sect. 4, said recited acts and the present
ministrator, shall lose the benefit of the said act shall apply to the case of any debt on sim-
enactments, or either of them, so as to be ple contracts by way of set-off on the part of
chargeable in respect, or by reason only of any any defendant, either by plea, notice, or other-
written acknowledgment or promise made and wise.
signed by any other or others of them. The By sect. 8, no memorandum or other writing
act not to alter the effect of any payment of made necessary by the act, shall be deemed to
any principal or interest made by any person be an agreement within the meaning of the
whatsoever. And in actions to be commenc- Stamp Acts.
ed against two or more such joint contractors, In New-York, the law, as it was in England
or executors or administrators, if it shall ap- before 9 Geo. IV., is generally adopted as to
pear at the trial, or otherwise, that the plain the statute of limitalion. In some of the
tiff, though barred by either of the said recited other states the statute is construed much
acts, or this act, as to one or more of such more liberally in favour of the defendant,
joint contractors, or executors or administra-
Vol. II.


of assault, menace, battery, mayhem, and imprisonment, must be brought within four years, and actions for words within two years after the injury committed (25). And by the statute 31 Eliz. c. 5. all suits, indictments, and informations, 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 (26), unless where any other time is specially limited by the statnte. Lasily, 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 action for any injury committed at any dis[*308] tance 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 pléad non assumpsit infra sex annos; he made no such promise within six years; which is an effectual bar to the complaint (27), (28).

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 guilty, 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 (29).

(e) Pott. Ant. b. 1, c. 21.

(25) The statute makes an exception for all years after that year ended. persons who shall be under age, feme-coverts, (27) Besides these statutes of limitations, non compos mentis, in prison or abroad, when pointed out by the learned commentator, there the cause of action accrues; and the limita- are various others, as the 4 Ann. c. 16. 8. 17. tions of the statute shall only commence from relating to seamen's wages ; and the 24 Geo. the time when their respective impediments II. c 44. 8. 8. ante, I book, 354, 37). as to or disabilities are removed, sect. 7; and the 4 actions against justices, constables, &c.; and Ann. c. 16. s. 19. extends this provision to de. the 28 Geo. III. c. 37. c. 23. as to actions sendants beyond seas, at the time the cause of against persons in the customs and excise ; action accrues.

and the 43 Geo. III. c. 99. s. 70. as to actions (26) Where the forfeiture is to the crown against tax-collectors, &c. &c. and a subject, a common informer must sue (28) As to the statute of limitations in New. within one year, and the crown may prosecute York, see 2 R. S. 292, &c. for the whole penalty, at any time within two

*Special pleas are usually in the affirmative, sometimes in the [*309] negative; 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. 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 specially, and at the same time give colour to the plaintiff, 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 entered 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 may 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 two titles is the best in point of law).

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 plaiptiff in his replication may totally tra- [*310] verse 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 plaintiff 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 Dr. & Stud. 2, c. 53.

(g) Append. No. III. $ 6. (29) In addition to these qualities, it should and must be true, and not too large. Hob. 295. be observed, that every plea in bar, must be Bac. Ab. tit. Pleas, G. 4. For more particular adapted to the nature of the action, and con- information as to these qualities, see 1 Chit. formable to the count, Co. Lit. 303. a. 285. b. on Pl. 451 to 463; as to their forms and parBac. Ab. Pleas, I per tot. 1 Rol. Rep. 216; ticular parts, see Id. 467 to 477. must answer the whole declaration or count, The same rules which prevail in the conor rather all that it assumes in the introductory struction and allowance of a declaration, do so part to answer, and no more; Co. Lit. 303. b. in the case of pleas in bar. See ante, 289, Com. Dig. Pleader, E. 1. 36. 1 Saund. 28. 2 notes 1, 2, 3. If the plea be bad in part, it is B. & P. 427. 3 B. & P. 174; must admit or so for the whole. Com. Dig. Pleader, E. 36. confess the fact it justifies, 3 T. R. 293. 13 T. R. 376. 3 B. & P. 174. 1 Saund. 337. Salk. 394. Carth. 380. I Saund. 28; must be The rules, as to surplusage in a declaration, certain, Com. Dig. tit. Pleader, E. 5, &c.; here also prevail, ante, 293, notes 1, 2, 3.

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 (30). 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. 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, which 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 cannot rejoin that he hath performed this award, for such rejoinder would

be an entire departure from his original plea, which alleged that [*311] 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 bis 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 assig..ment. 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

(k) p. 308 (i) Bro. Abr. t, trespass, 205. 246.

(h) Inst. 4. 14. Bract. 1. 5, tr. 5, c. 1.

(30) As to the several replications in gene. than a declaration, though certainty to a comral, see I Chit. on P. 4 ed. 500 to 518; and as mon intent is in general sufficient, Com. Dig. to their forms and parts in particular, Id. 518 Pleader, F. 17. 12 East, 263; and lastly, it to 555. The general qualities of a replication must not be double, or, in other words, contain are, that it must answer the plea, and answer two answers to the same plea, 10 East, 73. 2 so much of it as it professes to answer, or Camp. 176, 177. Com. Dig. Pleader, F. 16; it will be a discontinuance, Com. Dig. tit. and the plaintiff cannot reply double under the Pleader, F. 4. W. 2. 1 Saund. 338; and it 4 Ann. c. 16.+ Fortes. 335. unless in replevin, must answer the plea directly, not argumenta. 2 B. & P. 368. 376 ; and more particularly as tively, 10 East, 205; it must not depart from to these qualities, see 1 Chit. on Pl. 556 to the declaration. 2 Saund. 84. a. n. 1. Co. 562. An entire replication bad in part is bad Lit. 304. a.. 2 Wils. 98. See 1 Chit. on Pl. for the whole. Com. Dig. Pleader, F. 25. 3 556 to 560. It must be certain, and it is said T. R. 376. 1 Saund. 28. n. 3. that more certainty is requisite in a replication

+ In New-York the plaintiff may reply, and the defendant rejoin several matters by the special leave of the court. (2 R. S. 356, $ 27).

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 a protestation ; whereby the party interposes an oblique allegation or denial of some fact, protesting (by the gerund protestando) that such a matter does or does not exist: and at the same time avoiding a direct affirmation or denial. Sir Edward Coke hath defined (?) a protestation (in the pithy dialect of that age) to be “an exclusion of a conclusion.” *For the use of it is, to save the party from being [*312] concluded with respect to some fact or circumstance, which cannot be directly affirmed or denied without falling into duplicity of pleading; and which yet, if he did not thus enter his protest, he might be deemed to have tacitly waved or admitted. Thus, while tenure in villenage subsisted, if a villein had brought an action against his lord, and the lord was inclined to try the merits of the demand, and at the same time to prevent any conclusion against himself that he had waved his signiory; he could not in this case both plead affirmatively that the plaintiff was his villein, and also take issue upon the demand ; for then his plea would have been double, as the former alone would have been a good bar to the action : but he might have alleged the villenage of the plaintiff, by way of protestation, and then have denied the demand. By this means the future vassalage of the plaintiff was saved to the defendant, in case the issue was, found in his (the defendant's) favour (m): for the protestation prevented that conclusion, which would otherwise have resulted from the rest of his defence, that he had enfranchised the plaintiff (n); since no villeio could maintain a civil action against his lord. So also if a defendant, by way of inducement to the point of his defence, alleges (among other matters) a particular mode of seisin or tenure, which the plaintiff is unwilling to admit, and yet desires to take issue on the principal point of the defence, he must deny the seisin or tenure by way of protestation, and then traverse the defensive matter. So lastly, if an award be set forth by the plaintiff, and he can assign a breach in one part of it (viz. the non-payment of a sum of money), and yet is afraid to admit the performance of the rest of the award, or to aver in general a non-performance of any part of it, lest something should appear to have been performed : he may save to himself any advantage he might hereafter make of the general non-performance, by alleging that by protestation; and plead only the nonpayment of the money (v).

*In any stage of the pleadings, when either side advances or [*313] affirms any new matter, he usually (as was said) avers it to be true ; "and this he is ready to verify.” On the other hand, when either side traverses or denies the facts pleaded by bis antagonist, he usually tenders an issue, as it is called ; the language of which is different according to the party by whom the issue is rendered ; for if the traverse or denial comes from the defendant, the issue is tendered in this inanner, “and of this he puts himself upon the country," thereby submitting himself to the judgment of his peers (p): but if the traversé lies upon the plaintiff (1) I Inst. 124.

(0) Appendix, No. III. 06.

(p) Appendix, No. II. 04 (*) See book ll. chap. 6, page 94.


(m) Co. Litt. 126.

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