but, if he afterwards makes default, recovery shall be had against the original defendant; and he fhall recover over an equivalent in value against the deficient vouchee. In affifes indeed, where the principal question is, whether the demandant or his ancestors were or were not in poffeffion till the oufter happened, and the title of the tenant is little (if at all) difcuffed, 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 elfe to render damages and the value of the land, if recovered against the tenant. In many real actions also1, brought by or against an infant under the age of twenty one years, and alfo in actions of debt brought against him, as heir to any deceafed ancestor, either party may fuggeft 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 ftaid; and then they fhall not proceed till his full age, unless it be apparent that he cannot be prejudiced thereby ". But, by the ftatutes of Westm. 1. 3 Edw. I. c. 46. and of Glocefter, 6 Edw. I. c. 2. in writs of entry fur disseisin in some particular cases, and in actions aunceftrel brought by [301] an infant, the parol fhall not demur: otherwise he might be deforced of his whole property, and even want a maintenance, till he came of age. So likewife in a writ of dower the heir shall not have his age; for it is neceffary that the widow's claim be immediately determined, else she may want a prefent fubfiftence". Nor fhall an infant patron have it in a quare impedit, fince the law holds it neceffary and expedient that the church be immediately filled. WHEN these proceedings are over, the defendant must then put in his excufe or plea. Pleas are of two forts; dilatory pleas, and pleas to the action. Dilatory pleas are fuch äs tend merely to delay or put off the fuit, by questioning * F. N. B. 135. 1 Dyer. 137. Roll. Abr. 137. • Ibid. 138. the the propriety of the remedy, rather than by denying the injury pleas to the action are fuch as difpute the very cause of fuit. The former cannot be pleaded after a general imparlance, which is an acknowlegement of the propriety of the action. For imparlances are either general, of which we have before fpoken, and which are granted of course; or Special, with a faving of all exceptions to the writ or count, which may be granted by the prothonotary; or they may be ftill more fpecial, with a saving of all exceptions whatsoever, which are granted at the difcretion of the court P. 1. DILATORY pleas are, 1. To the jurifdiction of the court: alleging, that it ought not to hold plea of this injury, it arifing in Wales or beyond fea; or because the land in question is of antient demesne, and ought only to be demanded in the lord's court, &c, 2. To the difability of the plaintiff, by reafon whereof he is incapable to commence or continue the fuit; 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 profeffed. 3. In abatement: which abatement is either of the writ, or the count, for fome defect in one of them; as by [302] mifnaming the defendant, which is called a misnosmer; giving him a wrong addition, as efquire inftead of knight; or other want of form in any material respect (3). Or, it may be, that 12 Mod. 529, (3) All dilatory pleas are called pleas in abatement, in contradiftinction to pleas in bar. By the 4 & 5 Ann. c. 16. and the practice of the courts, no plea in abatement can be received unless the defendant proves the truth of it by affidavit. 1 Cromp. 132. 3 Burr, 1618. Thefe pleas are not favoured by the courts, and they must be filed within four days after the day upon which the declaration is delivered, both days being inclufive. 1 T. R. 277. 5 T. R. 210. Where an action is brought against one or fome only of a number of partners, if the defendant or defendants intend to take advantage 12 the plaintiff is dead; for the death of either party is at once an abatement of the suit. And in actions merely personal, arifing ex delicto, for wrongs actually done or committed by the defendant, as trespass, battery, and flander, the rule is that actio perfonalis moritur cum perfona ; and it never fhall be revived either by or against the executors or other reprefentatives. For neither the executors of the plaintiff have received, nor thofe of the defendant have committed, in their own personal capacity, any manner of wrong or injury. But in actions arifing ex contractu, by breach of promise and the like, where the right defcends to the representatives of the plaintiff, and thofe of the defendant have affets to anfwer the demand, though the suits fhall abate by the death of the parties, yet they may be revived against or by the executors!: being indeed rather actions against the property than the perfon, in which the executors have now the fame interest that their teftator had. before. THESE pleas to the jurifdiction, to the disability, or in abatement, were formerly very often used as mere dilatory pleas, without any foundation of truth, and calculated only for delay; but now by ftatute 4 & 5 Ann. c. 16. no dilatory plea is to be admitted, without affidavit made of the truth thereof, or fome probable matter fhewn to the court to induce them to believe it true. And with refpect to the pleas them-94 Inst. 315.' March. 14. vantage of the partnership, it must be pleaded in abatement, or it is fuppofed to be waived. And the plea in abatement must state who are the real partners. 2 Bl. Rep. 947. If one of feveral partowners of a chattel, as of a fhip fue alone, and although this appears by the declaration, for an injury done to the chattel, the defendant can only take advantage of this by a plea in abatement; but if there is no fuch plea, the plaintiff may recover damages for kis fhare. 6 T. R. 766. And if another part-owner brings a fimilar action, then the defendant cannot plead in abatement that the former part-owner is not joined in the action, for he has already obtained a compenfation for the injury done to him. 7 T. R. 279; 1 basish to feabusieb eris 21 (ez$ntung Telves, * felves, it is a rule, that no exception fhall be admitted against a declaration or writ, unless the defendant will in the fame plea give the plaintiff a better; that is, fhew him how it might be amended, that there may not be two objections upon the fame account. Neither, by ftatute 8 & 9 W. III. c. 31. fhall any plea in abatement be admitted in any fuit. for partition of lands; nor shall the fame be abated by reafon of the death of any tenant. ALL pleas to the jurifdiction conclude to the cognizance [303] of the court; praying judgment, whether the court will have further cognizance of the fuit:" pleas to the difabi. lity conclude to the perfon; by praying "judgment, if the "faid A the plaintiff ought to be anfwered:" and pleas in abatement (when the fuit is by original) conclude, to the writ or declaration; by praying " judgment of the writ, or "declaration, and that the fame may be quafhed," caffetur, made void, or abated: but, if the action be by bill, the plea must pray" judgment of the bill," and not of the declaration; the bill being here the original, and the declaration only a copy of the bill. WHEN thefe dilatory pleas are allowed, the caufe is either dismissed from that jurifdiction; or the plaintiff is ftayed till his difability be removed; or he is obliged to fue out a new writ, by leave obtained from the court; or to amend and new-frame his declaration. But when on the other hand they are over-ruled as frivolous, the defendant has judgment of refpondeat cufter, or to answer over in fome better manner. It is then incumbent on him to plead. ་་ 2. A PLEA to the action; that is to anfwer to the merits of the complaint. This is done by confeffing or denying it. A CONFESSION of the whole complaint is not very ufual, for, then the defendant would probably end the matter/fooner; or not plead at all, but fuffer judgment to go by default. Yet fometimes, after tender and refufal of a debt, if the creCo. Ent. 271, Brownl. £39. Book III. ditor haraffes his debtor with an action, it then becomes neceffary for the defendant to acknowlege the debt, and plead the tender; adding that he has always been ready, tout temps prist, and still is ready, uncore prift, to discharge it: for a tender by the debtor and refusal by the creditor will in all cafes discharge the costs, but not the debt itfelf; though in fome particular cafes the creditor will totally lofe his money "(4). [304] But frequently the defendant confeffes one part of the com plaint, (by a cognovit actionem in respect thereof) and traverses or denies the reft: in order to avoid the expense of carrying that part to a formal trial, which he has no ground to litigate. A fpecies of this fort of confeffion is the payment of money into court": which is for the most part necessary upon pleading a tender, and is itself a kind of tender to the plaintiff; by paying into the hands of the proper officer of the court as much as the defendant acknowleges to be due, together with the cofts hitherto incurred, in order to prevent the expense of any farther proceedings. This may be done upon what is called a motion; which is an occasional application to the court by the parties or their counfel, in order to obtain fome rule or order of court, which becomes neceffary in the progress of a cause; and it is usually grounded upon an affidavit, (the perfect tense of the verb affido,) being a voluntary oath before fome judge or officer of the court, to evince the truth of certain facts, upon which the motion is grounded though no fuch affidavit is neceffary for payment of money into court. If, after the money paid in, the plaintiff proceeds in his fuit, it is at his own peril: for if he does not prove more due than is so paid into court, he shall be nonfuited and pay the defendant cofts; but he shall still have the money fo paid in, for that the defendant has acknowleged to be his due (5). In the French law the rule of practice Styl. pract. Reg (edit. 1657.) 201. Litt. $338. Co. Litt. 209. 2 Keb. 555. Salk. 596. ▾ Vent. 21. W (4) A tender in bank notes is sufficient, unless the creditor exprefsly refuses to receive notes and infifts upon cafh. 3 T. R. 554. (5) Where goods have been taken under a mistake without any lofs to the owner, the court upon motion will stay the proceedings |