concludes with declaring, that the defendant had refused to fulfil any of these agreements, whereby he is endamaged to such a value. And if he proves the case laid in any one of his counts, though he fails in the rest, he shall recover proportionable damages. This declaration always concludes with these words: "And thereupon he brings suit," &c., inde producit sectam," &c. By which words, suit or secta (a sequendo), were anciently understood the witnesses or followers of the plaintiff. (f) For in former times, the law would not put the defendant to the trouble of answering the charge, till the plaintiff had made out at least a probable case. (g) But the actual production of the suit, the secta, or followers, is now antiquated, and hath been totally disused, at least ever since the reign of Edward the Third, though the form of it still continues. At the end of the declaration are added also the plaintiff's common pledges of prosecution, John Doe and Richard Roe, which as we before 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. () Nonsuit for failure to declare.- For, if the plaintiff neglects to deliver a declaration for two terms after the defendant appears, or is guilty of other delays 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 [*296] nonsuit or non prosequiter, is entered; and he is said to be nonpros'd.3 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 A retraxit (he hath withdrawn) differs from a nonsuit, in that the one is negative, and the other positive: the nonsuit is a mere default and neglect of the plaintiff, and therefore he is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 retraxit is an open and voluntary renunciation of his suit in court, and by this he forever 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 counts in actions upon contract cannot be joined with counts for wrongs independently of contract, nor can counts in any one species of these actions be joined with counts in another. But debt and detinue can be joined if both are founded on contract. 1 Tidd Pr. 12, 13, and case and trover may be joined. 1 Chitty Pl., p. 201 and notes. 1 When the action is against an officer of the court or attorney it is said that the conclusion should be "and there (h) See page 274. fore he prays relief, &c., unde petit remedium." 1 Chitty Pl., p. 437. 2 This form was not essential, and is now obsolete. 3 Unless this judgment is entered up, the plaintiff is not regarded as out of court till a year from the return day of the writ, and may deliver a declaration within that time. Cooper v. Nias, 3 B. and Ald. 271. As to other practice in entering judgment of non pros, see 1 Tidd Pr. 458-9. 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. Defense, in its true legal sense, signifies not a justification, protection, or guard, which is now its popular signification; but merely an opposing or denial (from the French verb defender) of the truth or validity of the complaint.' It is the contestatio litis (the opening of a case before witnesses) of the civilians: a general assertion that the plaintiff hath no ground of action, which assertion is afterwards extended *and maintained in his plea. For it would [*297] 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 her endowment, (k) and in assizes of land, where also there is no injury alleged, but merely a question of right stated for the determination of the recognitors or jury, the tenant makes no defence. (1) 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 prædicti S. et seisinam ipsius (the right and seisin of the aforesaid S.), (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 defense distinguished from denial.-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 (1) Booth of Real Actions, 118. (m) Book II, Appendix, No. V, § 2. (0) Co. Entr. 182. (p) Nov. Nar. 230, edit. 1534. (k) Rastal, Ent. 234. (n) Appendix, No. I, § 5. (q) The true reason of this, says Booth (on Real Actions, 94, 112), I could never yet find; so little did he understand of principles! 1[In modern works on pleading it is called traverse. The codes have gone back to the original and call it denial.] was pleaded, the plaintiff should recover judgment: (r) and therefore the book entitled novæ 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 waived all pleas of misnomer; (t) by defend[*298] ing the damages, all exceptions to the person of the plaintiff; and by defending either the 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. () 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 holding 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 of Westminster, to demand the cognizance thereof: or with such exclusive words, which also entitles 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) In these cases, by the charters of those learned bodies, confirmed 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)1 (8) Edit. 1534. (t) Theloal. dig. l. 14, c. 1, p. 357. (r) Co. Litt. 127. (u) En la defence sont iij choses entendantz; per tant quil defende tort et force, home doyt entendre quil se excuse de tort a luy surmys per counte, et fait se partie al ple; et per tant quil defende les damages, il affirm le partie able destre respondu; et per tant quil defende ou et quant il devera, il accepte la poiar de court de conustre ou trier lour ple. Mod. tenend. cur. 408, edit. 1534. See also Co. Litt. 127. (x) Carth. 230. Lord Raym. 217. (w) Salk. 217. Lord Raym. 282. (d) Hob. 87. Year-book, M. 8 Hen. VI, 20. In this latter case the chancellor of Oxford claimed cognizance of an action of trespass brought against himself, which was disallowed, because he should not be judge in his own cause:- The argument used by Serjeant Rolfe on behalf of the cognizance is curious and worth transcribing:-Jeo bous dirai unfable. En ascun temps fuit un pape, et avoit fait un grand offence et le cardinals vindrent a luy et disoyent a luy, “peccasti;" et il dit, "judica me;" et ils disoyent, "non possumus, quia caput es ecclesiæ: judica teipsum;" 1 While the rule generally is that no one be judge of his own cause, yet if a party agree to refer a controversy to the decision of an interested party, he is bound by such decision. Ranger v. Railway Co., 5 H. L. Cas. 72; Monongahela, etc. Co. v. Fenton, 4 Watts and S. 205. Defendant's plea.- *After defence made, the defendant [*299] must put in his plea. Imparlance.- 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 (liberty of speaking); 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 (ƒ) 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 precept 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 prætor,— 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. Demand of view.- He may, in real actions, demand a view of the thing in question in order to ascertain its identity and other circumstances. Oyer. He may crave oyer (h) of the writ, or of the bond, 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 advantage of any condition or other part of it, not stated in the plaintiff's declaration. *In real actions [*300] also the tenant may 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 (2) 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 assizes, indeed, where the principal question is, whether the demandant or his ancestors were or were not et l'apostol dit, “judico me cremari;" et fuit combustus; et apres fuit un sainct. Et in ceo cas il fuit son juge demene, et issint n'est pas inconvenient que un home soit juge demene. (I will tell you a story. There was formerly a pope, and he committed a great crime, and the cardinals came to him, and said, "thou hast sinned:" and he said "judge me: and they answered, we cannot, for thou art the head of the church; judge thyself: " and the apostle said, "I sentence myself to be burned;" and burned he was; and afterwards he was made a saint. And in that case he was his own judge, and therefore it is not improper that a man should judge himself.) (e) Appendix, No. III, § 6. (f) Gilb. Hist. Com. Pl. 35. (g) Matt. v. 25. (h) Appendix, No. III, § 6. 1 Oyer of the original writ cannot now be had. See note 1 *294. As to the practice on demand of oyer where (i) Book II, Appendix, No. V, § 2. allowed, see 1 Tidd Pr. 586; 1 Chitty Pl. 429, and notes. 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 charta 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. (j) aurrer Parol demurrer.-In many real actions also, (k) brought by or against an infant under the age of twenty-one years, 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, that is, that the pleadings may be stayed: and then they shall not proceed till his full age, unless it be apparent that he cannot be prejudiced thereby. (1) But, by the statutes of Westm. 1, 3 Edw. I, c. 46, and of Gloucester, 6 Edw. I, c. 2, in writs of entry sur disseisin in some particular cases, and in actions ancestral brought by *an infant, the parol shall not demur: otherwise he might be deforced of his whole property, and even want of main- [*301] tenance 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. (m) Nor shall an infant patron have it in a quare impedit, (n) since the law holds it necessary and expedient that the church be immediately filled. Pleading. 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, 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 may 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. (0) 1. Dilatory pleas are, 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. 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 præmunire not in rerum natura (in the nature of things, or, in the world) (being only a fictitious person), an infant, a feme-covert, or a monk (j) F. N. B. 135. (n) Ibid. 138. 1 But now the against infants. (68) (k) Dyer, 137. (0) 12 Mod. 529. (1) Finch, L. 360. (m) 1 Roll. Abr. 137. parol may not demur in actions, suits or other proceedings 1073 |