sion for sixty years is a bar against even the king's prerogative. Twenty years is a limitation in an action of ejectment, for no ejectment can be brought, unless where the lessor of the plaintiff is entitled to enter upon the lands, and by statute, no entry can be made by any man, unless within twenty years after his right shall accrue.

Limitations. Personal Actions. All actions of trespass quare clausum fregit, or otherwise, detinue, trover, replcvin, account and case, except upon accounts between merchants, debt upon simple contract, or for arrears of rent, are limited to six years after the cause of action commenced. In assumpsit, the plea is non assumpsit infra sex annos.

Limitations,

Crimes, Actions of assault, menace, battery, mayhem and imprisonment may be brought within four years, and actions for words within two years after the injury committed. All suits, indictments and informations upon any penal statutes, where the 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 was committed, unless where any other time is specially limited by the statute.

Limitations, Error or Appeal, 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.1

Athenian Law. Interest reipublicae ut sit finis litium. The Athenian laws generally prohibited all actions, where the injury occurred more than five years before the complaint was made.

Estoppel. This is likewise a special plea in bar. It happens, where a man has done some act or executed some deed, which estops or precludes him from averring anything to the contrary.2

Conditions and Qualities of a Plea, 1. The plea must be single and contain only one matter, for duplicity begets confu

son.

1 Reduced to six years by Act of 1852.-Cooley.

2 As if a tenant for years who has no freehold, levies a fine to another perThough 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 the lands, and his fine be pleaded against him, he is thereby estopped from saying, that he had no freehold at the time.

sion. But by statute of queen Anne, by leave of court, a man may plead two or more distinct matters or single pleas.

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 allegation in every material

I point.

5. That it be so pleaded as to be capable of trial.

Form of a Special Plea. Special pleas are usually in the affirmative, sometimes in the negative, but they always advance some new fact not mentioned in the declaration, and they must be averred to be true, "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.

Rule as to Special Pleas, 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 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.1

Replication. When the plea of the defendant is filed, if it does not amount to an issue or total contradiction of the declaration, but only evades it, the plaintiff may reply to the defendant's plea.

plea.

He may traverse the plea, that is, totally deny it.

He may allege new matter in contradiction of the defendant's

He may confess and avoid the plea, by some new matter or distinction, consistent with the plaintiff's former declaration. Rejoinder. To the plaintiff's replication, the defendant may rejoin, or put in an answer. This is termed a rejoinder. The plaintiff may reply to this by a sur-rejoinder.

Rebutter. Upon which, the plaintiff may rebut, and the defendant answer him by a sur-rebutter.

Pleading must be Consistent. The whole of this process

1 This form of special pleading in actions of trespass is now abolished.

is termed the pleading, and in its several stages, one must not depart or vary from the title or defence, which he has once insisted upon. A departure in pleading might cause endless altercation. Therefore the replication must support the declaration, and the rejoinder the plea, without departing from it. The pleadings of each party must be consistent one with the other.

Replication, Assigning Facts. 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 this general wrong to a more particular certainty, by assigning the injury afresh, with all its particular circumstances, in such manner as clearly to ascertain and identify it, consistently with his general complaint, which is called a new or novel assignment.

Duplicity in Pleading. This 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 different replies, and introduce a multitude of issues upon one and the same dispute. This would often embarrass both court and jury, and would add greatly to the expense. Protestations were once allowed in pleading, whereby a party interposed an oblique allegation or denial of some fact, protesting that such a matter does or does not exist, and at the same time avoiding a direct affirmation or denial. Coke defined a protestation, to be "an exclusion of a conclusion."

Conclusion of the Plea. In any stage of the pleadings, when either side advances or affirms any new matter, he usually 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, he usually tenders an issue, as it is called, the language of which is different according to the party by whom the issue is tendered, for if the traverse or denial comes from the defendant, the issue reads, "and of this he puts himself upon the country," thereby submitting himself to the judgment of his peers, but if the traverse lies upon the plaintiff, he tenders the issue, or prays the judgment of the peers against the defendant, "and this he prays may be inquired of by the country."

Issue Tendered. But if either side, as for instance, the defendant, pleads a special negative plea, not traversing or denying anything that was before alleged, but disclosing some

new negative matter, he then, and not before tenders an issue to the plaintiff. For when, in the course of pleading, they come to a point, which is affirmed on one side and denied on the other, they are said to be at issue, all their debates being at last contracted to a single point, which must now be determined, either in favor of the plaintiff or of the defendant.

CHAPTER XXI.-ISSUE AND DEMURRER.

Issue Defined. Issue, exitus, being the end of all the pleadings, is either upon matter of law, or matter of fact.

DEMURRER.

Defined. An issue upon matter of law is termed a demurrer. It confesses the facts to be true, as stated by the opposite party, but denies that, by the law arising upon those facts, any injury is done to the plaintiff, or that the defendant has made out a legitimate excuse. The party, first demurring, rests upon the point in question.

Example of Demurrer. As if the matter of the plaintiff's complaint or declaration be insufficient in law, as by not assigning any sufficient trespass, then the defendant demurs to the declaration; if on the other hand the defendant's excuse or plea be invalid; as if he pleads, that he committed the trespass by authority from a stranger, without showing the stranger's right, here the plaintiff may demur in law to the plea, and so on in every part of the proceedings, where either side perceives any material objection in point of law, upon which he may rest his

case.

Form. The form of such demurrer, is by averring the declaration or plea, the replication or rejoinder, to be insufficient in law to maintain the action or the defence, and therefore praying judgment for want of sufficient matter alleged. Sometimes demurrers are for want of sufficient form in the writ or declaration. In such cases the demurrer must set forth, in what the deficiency exists.

Joinder in Demurrer. And upon either a general or a special demurrer, the opposite party must aver it to be sufficient,

which is called a joinder in demurrer. and then the parties are at issue in point of law. The judges must then determine this demurrer or issue in law.

Issue of Fact. This is where the fact only and not the law is disputed. When he, who denies or traverses the fact pleaded by his opponent, has tendered the issue thus: "And this he prays may be inquired of by the country", or "and of this he puts himself upon the country ", it may be immediately subjoined by the other party: "and the said A. B. doth the like". Which done, the issue is said to be joined, both parties having agreed to rest the fate of the cause upon the truth of the fact in question. And this issue of fact must, generally speaking, be determined, not by the judges of the court, but by a jury. This establishment of different tribunals for determining questions of fact from those that decided questions of law, is similar to the course pursued in the Roman republic.

Continuance in Court. During all these proceedings, from the date of the defendant's appearance in obedience to the writ, it is necessary that both the parties be kept or continued in court, till the final determination of the suit, The court can determine nothing, unless in the presence of both the parties, in person or by their attorneys, or upon default of one of them, after his original appearance.

Non-suit. Therefore in the course of pleading, if either party neglects to put in his declaration, plea, replication, rejoinder and the like, within the times allotted by the standing rules of the court, the plaintiff, if the omission be his, is said to be nonsuit, or not to follow or pursue his complaint, and shall lose the benefit of his writ.

Judgment by Default. If the negligence be on the side of the defendant. judgment may be had against him, for such his default.

Continuance. After issue or demurrer joined, a day is continually given and entered of record, for the parties to appear from time to time, as the exigence of the case may require; if these continuances are omitted, the cause is thereby discontinued and the defendant discharged.1

Plea, puis darrein Continuance. Sometimes after the defendant has pleaded, nay, even after issue or demurrer joined,

1 These continuances are now a mere matter of form.