the defendant must put in his plea. But before he defends, if the suit has been commenced by capias or latitat, without any special original, he is entitled to demand one imparlance, and may before he pleads, have time granted by the court to see if by "talking" with the plaintiff, an amicable arrangement can be effected. This was founded on the biblical injunction: "Agree with thine adversary quickly, whilst thou art in the way with him;" which has a plain reference to the Roman law of the twelve tables.

Oyer. Before a defendant puts in his plea, he may in real actions demand a view, to ascertain the identity of the thing in question. He may crave oyer of the writ, or of the bond, or other specialty sued upon, that is, to hear it read to him, as in olden times few people could read 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.

Real Actions. Aid Craved. New Defendant, The tenant may call for the assistance of another to help him plead, because of the feebleness of his own estate. Thus a tenant for life may pray aid of the remainder man or reversioner, that is, that he shall be joined in the action and help to defend the title.

Real Action. Common Recovery. Voucher, Voucher is the calling in of some person to answer the action, who has warranted the title to the tenant or defendant. This we still use in the form of common recoveries, which are grounded on the writ of entry, a species of action which relies chiefly on the weakness of the tenant's title, who therefore vouches another person to warrant it. If the vouchee appear, he is made the defendant, instead of the voucher, but if he afterwards make default, recovery shall be had against the original defendant, and he shall recover an equivalent in value against the deficient vouchee.

PLEAS.

Divisions.

Pleas are of two sorts: dilatory, and to the action.

1. Dilatory. Imparlance. These tend merely to delay or put off the suit, by questioning the propriety of the remedy, rather than by denying the injury. They cannot be pleaded after a general imparlance, which is an acknowledgement of the propriety of the action. Imparlances are either general, 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, and be granted by discretion of the court.

Dilatory. Kinds. Dilatory pleas are: 1. To the jurisdiction of the court, alleging that it ought not to hold plea of this injury, as it occurred in another jurisdiction. 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, attainted of treason or felony, under a praemunire, an infant or a feme covert. 3. In abatement, which abatement is either of the writ or the count, for some defect in one of them, as by a misnomer of the defendant, or other want of form in any material respect.

Abatement. Actions ex Delicto. In actions for wrongs actually done or committed by the defendant, as trespass, battery and slander, the rule is that actio personalis moritur cum persona, and that 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.2

Abatement, Actions ex Contractu. 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, being indeed rather actions against the property than the person, in which the executors have now the same interest that their testator had before.

Must be Under Oath. No dilatory plea shall be admitted, without affidavit made of the truth thereof, or some probable matter shown to the court to induce it to believe it true.

1 Formerly the death of either the plaintiff or the defendant abated the suit, but now it may be continued by the legal representatives, after a suggestion on the record.

2 By statute, an action of trespass or on the case may be maintained by an executor or administrator for injury to a decedent's real estate in his life time, if such injury was committed within six months before his death, and suit brought within one year after the death, and also against executors or administrators for wrongs committed by the deceased to another man's property, real or personal, within six months of the death, and suit brought within six months after administration taken.-Cooley.

When Not Allowed. With respect to the pleas themselves, it is a rule, that no exception shall be admitted against a declaration or writ, unless the defendant will in the same plea give plaintiff a better, that is, show how it might be amended, that there may not be two objections upon the same account. Nor shall any plea in abatement be admitted in any suit for partition of lands, nor shall the same be abated by reason of the death of any tenant.

Plea to the Jurisdiction or Person. All pleas to the jurisdiction conclude to the cognizance of the court, praying judgment, "whether the court will have further cognizance of the suit." Pleas to the disability, pray judgment, "whether the plaintiff ought to be answered.

Pleas in Abatement. These conclude to the writ or declaration, by praying judgment of the writ of declaration, and that the same may be quashed 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.

Result, when Allowed, When these dilatory pleas are allowed, the cause is either dismissed from that jurisdiction, or the plaintiff is stayed till his disability is removed; or he is obliged to sue out a new writ, by leave obtained from the court, or to amend and frame anew his declaration.

Judgment of Respondeat Ouster, Where the dilatory pleas are not allowed, but are overruled as frivolous, the defendant has judgment of respondeat ouster, or to answer over in some better manner. It is then incumbent on him to plead.

2. Pleas to the Action. These are answers to the merits of the complaint. They dispute the very cause of suit. This is done by confessing or denying it.

Tender. Effect of. A confession of the whole complaint is unusual, for then the defendant would probably end the matter sooner, or not plead at all, but suffer judgment to go by default. Yet sometimes after tender and refusal of a debt, if the creditor harass his debtor with an action, it becomes necessary for the defendant to acknowledge the debt, and plead the tender, adding that he has always been ready, and is still ready to discharge it. A tender by the debtor and refusal by the creditor will in all cases discharge the costs, but not the debt itself, though in some particular cases the creditor will totally lose his money.

Confession and Avoidance. Frequently the defendant confesses one part of the complaint by a cognovem actionem in respect thereof, and denies the rest, in order to avoid the expense of carrying that part to a formal trial, which he has no ground to litigate.

Payment into Court. This is necessary upon pleading a tender, and is itself a kind of tender to the plaintiff, by paying into the hands of a proper officer of the court, as much as the defendant acknowledges to be due, together with the costs hitherto incurred, in order to prevent the expense of any further proceedings. This may be done upon a motion, which is an occasional application to the court by the parties or their counsel, in order to obtain some rule or order of court. It is usually grounded upon ar affidavit (Latin affido) before some judge or officer of the court, to evince the truth of certain facts, upon which the motion is grounded, though no such affidavit is necessary for payment of money into court.

Effect. If after the money be paid in, the plaintiff proceeds, it is at his own peril, for if he does not prove more to be due than has been paid into court, he shall be nonsuited and pay the defendant costs, but he shall still have the money so paid in, for that much the defendant acknowledged to be his due.

Set-off. In this case, the defendant acknowledges the justice of the plaintiff's demand on the one hand, but on the other, sets up a demand of his own to counterbalance that of the plaintiff, either in whole or in part. Where there are mutual debts between the plaintiff and the defendant, one debt may be set against the other, and either pleaded in bar, or given in evidence upon the general issue at the trial, which shall operate as payment, and extinguish so much of the plaintiff's demand.

Division of Pleas to the Action. Pleas that totally deny the cause of complaint, are either the general issue or a special plea in bar.

(1.) The General Issue. This general plea traverses and denies at once the whole declaration, without offering any special matter, whereby to evade it. As in trespass vi et armis, or on the case, not guilty; in debt upon contract, nil debet, he owes nothing; in debt on bond, non est factum, it is not his deed; on an assumpsit, non assumpsit, he made no such promise. Or in real actions; nul tort, no wrong done, nul disseisin, no disseisin ;

or in a writ of right, that the tenant has more right to hold, than the demandant to demand. These pleas are called the general issue, because by importing an absolute and general denial of what is alleged in the declaration, they amount at once to an issue; by which we mean a fact affirmed on one side and denied on the other.

What may be Given in Evidence. Formerly the general issue was seldom pleaded, except when the party meant wholly to deny the charge alleged against him. But when he desired to palliate the charge, it was usual to set forth the facts in a special plea, which was originally intended to apprise the court and the adverse party of the nature and circumstances of the defence, and to keep the law and the fact distinct. It is an invariable rule, that every defence, which cannot be thus specially pleaded, may be given in evidence upon the general issne at the trial. Of late years to avoid chicanery and delay, the courts have usually permitted the general issue to be pleaded, which leaves everything open; the fact, the law and the equity of the case, and have allowed special matter to be given in evidence at the trial.

(2.) Special Pleas in Bar. These are in bar of the plaintiff's demand, and vary with the circumstances of the defendant's case. As in real actions, a general release or a fine, both of whieh may destroy the plaintiff's title. Or in personal actions, an accord, arbitration, conditions performed, nonage of the defendant or other fact, which precludes the plaintiff from his action. A justification is likewise a special plea in bar, as in actions of assault, that it was the plaintiff's own original assault; in trespass, that the defendant did the thing complained of in right of some office, which warranted him so to do; or in an action of slander, that the plaintiff was really as bad as the defendant represented him.

STATUTES OF LIMITATION.

Real Estate.1 A man may plead the statutes of limitation in bar, or the time limited by statute, beyond which no plaintiff can lay his cause of action. This in a writ of right is sixty years; in writs of entry or other possessory actions real of the seisin of one's ancestors, in lands, and either of their seisin or one's own, in rents, suits and services, fifty years, and in actions real, for lands grounded upon one's own seisin, thirty years. Posses

1 Modified somewhat in England by later statutes.