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that a possession for sixty years is now a bar even against the prerogative, in derogation of the antient maxim "nullum tempus occurrit reg- 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.

(€) See page 206. If a debtor admit that he was once liable, but that he was discharged by a particular mode of performance, to which he with precision referred himself, and where he has designated that time and mode of performance so strictly that he can say it is impossible it had been discharged in any other mode, there the courts have said, that if the plaintiff can disprove that mode, he lets himself in to recover, by striking from under the defendant the only ground on which he professes to rely. 7 Taunt. 608. 4 B. & A. 568. 1 Salk. 29. Cowp. 548. Peake, N. P. C. 93. So where a party acknowledges but refuseg to pay the debt, relying on the deficiency of his legal liability to pay, this will take the case out of the statute, upon proof of liability. 5 M. & S. 75. 6 Rep.66. But a qualified admission by a party who relies on an objection which would at any time have been a good defence to the action does not take the case out of the statute, as if the defendant had said, “ If you had presented the protest the same as the rest, it would have been paid : I had then funds in the acceptor's hands,” (1 Stark. 7; see 3 Esp. N. P. C. 155. 2 Camp. 161. 2 B. & A. 759. 4 B. & A. 568. 4 East, 599, and cases there cited :) this was held no sufficient acknowledgment. Where the defendant,-an executor,—who was sued for money had and received from his testator, was proved to have said, “I acknowledge the receipt of the money, but the testatrix gave it me,” it was held insufficient, (Bull. N. P. 148;) and so where the defendant, on being applied to for payment of a debt, said, “You owe me more money: I have a set-off against it.” 2 B. & A. 759. Where a party, on being asked for the payment of his attorney's bill, admitted that there had been such a bill, but stated that it had been paid to the deceased partner of the attorney, who had retained the amount out of the floating balance in his hands, it seems that, in order to take the case out of the statute, evidence is inadmissible to show that the bill had never, in fact, been paid in this manner. 4 B. & A. 568. In all cases, unless the defendant actually acknowledge that the debt or obligation did originally exist, the statute will not be avoided. 4 Maule & S. 457. 2 Camp. 160.

In the third case, with respect to the party from whom the acknowledgment should come to render it sufficient, an acknowledgment by an agent or servant intrusted by the defendant to transact his business for him will suffice, (5 Esp. 145;) and so will the admission of the wife who was accustomed to conduct her husband's business. Holt's Ca. Ni. Pri. 591. In an action against a husband for goods supplied to his wife for her sccommodation while he occasionally visited her, a letter written by the wife, acknowedging the debt within six years, is admissible evidence to take the case out of the statute. 1 Camp. 394; and see 2 Esp. N. P. C. 511. 5 Esp. N. P. C. 145. If a demand is owing from two parties, an acknowledgment by one will avoid the statute. 4 T. R. 516. So an acknowledgment by one of several makers of a joint and several promissory-note will take the case out of the statute, as against any one of the other makers, in a separate action on the note against him, (Doug. 652:) and this though against a surety, (2 Bingh. 306;) and in an action against A. on the joint and several promissory-note of himself and B. to take case out of the statute, it is enough to give in evidence a letter written by A. to B. within six years, desiring him to settle the debt. 3 Camp. 32; and Bee 11 East, 585. 1 Stark. 81. But the acknowledgment of one partner to bind the other must in such case be clear and explicit; and therefore it is not sufficient in order to take a case out of the statute, in an action on a promissory-note, to show a payment by a joint maker of a note to the payee within six years, so as to throw it upon the defendant, to show that the payment was not made on account of the note. i Stark. 488. It has been held that when, one of two drawers of a joint and several promissorynote having become bankrupt, the payee received a dividend under the commission on account of the note, this will prevent the other drawer from availing himself of the statute in an action brought against him for the remainder of the money due on the note, the dividend having been received within six years before the action brought. 2 H. Bla. 340. But in a more recent case, where one of two joint drawers of a bill of exchange became bankrupt, and under his commission the endorsees proved a debt (beyond the amount of the bill) for goods sold, &c., and they exhibited the bill as a security, they then hed for their debt, and afterwards received a dividend: it was held that in an action by the endorsees of the bill against the solvent partner, the statute of limitations was a good defence, although the dividend had been paid by the assignees of the bankrupt partner within six years. 1 B. & A. 463 ; and see i B. & C. 248. 2 D. & R. 363, S. C. So where A. & B. made a joint and several promissory-note, and A. diec, 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 other. wise,) detinue, trover, replevin, account, and case, (except upon accounts between merchants,) debt on simple contract, or for arrears of rent, are limited

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and ten years after his death B. paid interest on the cote, it was holden, in an action thereon against the executors of A., that the payment of interest by B. did not take the case out of the statute, so as to make the executors liable. 2 B. & Č. 23. 3 D. & R. 200, 8. C. An acknowledgment by an accommodation acceptor, within six years, of his liar bility to the payee, is not sufficient to take the case out of the statute for the drawer. 3 Stark. 186.

It is enacted, by 9 Geo. IV. c. 14, that in actions of debt or upon the case, grounded upon any simple contract, no acknowledgments or promise by words only should be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the enactments of the statutes of limitations, or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby. And that where there shall be two or more joint contractors, or executors or administrators of any contractor, no such joint contractor, executor, or administrator shall lose the benefit of the said enactments, or either of them, so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them. The act not to alter the effect of any payment of any principal or interest made by any person whatsoever. And in actions to be commenced against two or more such joint contractors, or executors or administrators, if it shall appear at the trial, or otherwise, that the plaintiff, though barred by either of the said recited acts, or this act, as to one or more of such joint contractors, or executors or administrators, shall nevertheless be entitled to recover against any other or others of the defendants by virtue of a new acknowledgment or promise, or otherwise, judgment may be given and costs allowed for the plaintiff as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff.

By sect. 2, that if defendant in action on simple contract shall plead in abatement to the effect that any other person ought to be jointly sued, and issue be joined on such plea, and it should appear at the trial that the action could not, by reason of the said recited acts, or the present act, be maintained against the other person named in such plea, the issue joined on such plea should be found against the party pleading the

By sect. 3, no endorsement or memorandum of payment made after the 1st of January, 1829, upon any promissory-note, bill of exchange, or other writing, by or on behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of either of the said statutes.

By sect. 4, said recited acts and the present act shall apply to the case of any debt on simple contracts by way of set-off on the part of any defendant, either by plea, notice, or otherwise.

By sect. 8, no memorandum or other writing made necessary by the act shall be deemed to be an agreement within the meaning of the Stamp Acts.—Chitty.

25 Some important alterations have been made by two recent statutes as to the limitation of actions and suits. By one of these statutes, (3 & 4 W. IV. c. 27, s. 2,) one period of limitation is established for bringing suits and actions relating to lands and l'ents, it being enacted that after the 31st day of December, 1833, no person shall bring an action to recover any land or rent but within twenty years next after the time at which the right to bring such action shall have first accrued, except in cases of disability, when ten years longer is allowed, (s. 16 ;) but no action or suit shall be brought beyond forty years after the right of action accrued. S. 17. By s. 41, no arrears of dower shall be recovered for more than six years; and (s. 42) no arrears of rent or interest are to be recovered for more than six years. By the other of these statutes, (3 & 4W. IV. c. 42, s. 3,) an action of debt for rent upon an indenture, actions of covenant or debt upon bond or other specialty, action of debt or scire facias upon recognizance, action of debt upon awards, where the submission is not by specialty or for fines in respect of copyhold estates, or for an escape, or for money levied on fieri facias, and actions for penalties, damages, or sums of money given to the party grieved by any statute, shall be com. menced within the following times:-Actions of debt for rent or covenant, or debt upon bond or other specialty, actions of debt or scire facias upon recognizance, within twenty years after the cause of action; actions by the party grieved, two years after the cause of such actions; and other actions within six years after the cause of action. But it is provided that nothing herein enacted shall extend to any action by statute specially imitod.-STEWART.

same.

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by the statute last mentioned to six years after the cause of action commenced and actions of assault, menace, battery, mayhem, and imprisonment, must . brought within four years, and actions for words within two years, after the injury committed.* 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, anless where any other time is specially limited by the statute. Lastly, by statute 10 W. III. c. 14, no writ of error, scire facias, or other suit, shall bi 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 distance of time. *Upon both these accounts the law Therefore holds, that “interest reipublicæ ut sit finis litium:" and upon

the

[*308 same principle the Athenian laws in general prohibited all actions where the injury was committed five years before the complaint was made.(e) If there. fore 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 plead non assumpsit infra sex annos; he made no such promiso within six years; which is an effectual bar to the complaint. 29

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 free. hold) 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) are1. That it be single and containing only one matter; for duplicity begets confusion. But by statute 4 & 5 Anne, c. 16, a man with leave of the court may plead two or more distinct matters or single pleas; as,

( Pott. Ant. b. i. c. 21.

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* The statute makes an exception for all persons who shall be under age, feme-coverts, non compos mentis, in prison, or abroad, when the cause of action accrues ; and the limita. tions of the statute shall only commence from the time when their respective impedi ments or disabilities are removed, (s. 7;) and the 4 Anne, c. 16, s. 19 extends this pro vision to defendants beyond seas at the time the cause of action accrues.-Chitty.

By the statute 9 Geo. IV. c. 14, usually called Lord Tenterden's Act, in actions upon any simple contract, no acknowledgment or promise by words only shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of the statute 21 Jac. I. c. 16; but any such acknowledgment or promise must be in writing, signed by the party chargeable thereby. That statute also enacts that, when there are several joint contractors or executors or administrators of a contractor, one of them shall pot lose the benefit of the statute by reason of a written acknowledgment or promise made by another; and the statute 19 & 20 Vict. c. :37 contains an enactment to the same effect with respect to a payment by any joint contractor or joint debtor, or the executor or alministrator of any contractor. -KERR.

37 Where the forfeiture is to the crown and a subject, a common informer must suo within one year, and the crown may prosecute for the whole penalty at any time within two years after that year ended.-Chitty.

28 But now, by the Common-Law Procedure Act, 1852, s. 146, error must be brought within six years.-STEWART.

* Besides these statutes of limitations pointed out by the learned commentator, there are various others, as the 4 Anne, c. 16, s. 17, relating to seamen's wages; and the 24 Geo. 11. c. 44, s. 8, ante, 1 book, 354, n. (37), as to actions against justices, constables, &c.; and the 28 Geo. III. c. 37, s. 23, as to actions against persons in the customs and excise ; and the 43 Geo. III. c. 99, s. 70, as to actions against tax-collectors, &c. &c.-Catty.

*309 ]

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.30

*Special pleas are usually in the affirmative, sometimes in the nega

tive; 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 assize 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 disseisen, in assize, or not guilty in an action of trespass. But he may allege this specially, provided he goes further, 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. (f)

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 in an action of debt upon bond the defendant *310]

pleads solvit ad diem, that he paid the money when *due; here the

plaintiff in his replication may totally traverse 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 ;(9) 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 shows 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 (2) Dr. & Stud. 2, c. 53.

() Append. No. III. & 6.

30 In addition to these qualities, it should be observed that every plea in bar must be adapted to the nature of the action and conformable to the count, (Co. Litt. 303, a., 285, b. Bac. Abr. Pleas, I. per tot. 1 Roll. Rep. 216 ;) must answer the whole declaration or count, or rather all that it assumes in the introductory part to answer, and no more, (Co. Litt. 303, b. Com. Dig. Pleader, E. 1, 36. 1 Saund. 28. 2 B. & P. 427. 3 B. & P. 174;) must admit or confess the fact it justifies, (3 T. R. 298. 1 Salk. 394. Carth. 380 1 Saund. 28;) must be certain, (Com. Dig. tit. Pleader, E. 5, &c.;) and must be true, and not too large. Hob. 295. Bac. Abr. tit. Pleas, G. 4. For more particular information as to these qualities, see 1 Chitt. on Pl. 451 to 463; as to their forms and particular parts, Bee id. 467 to 477.

The same rules which prevail in the construction and allowance of a declaration do so in the case of pleas in bar. See ante, 289, notes 1, 2, 3. If the plea be bad in part, it is so for the whole. Com. Dig. Pleader, E. 36. 3 T. R. 376. 3 B. & P. 174. 1 Saund. 337. The rules as to surplusage in a declaration here also prevail. Ante, 293, notes 1, 2, 3.СитTY.

31 But this form of pleading is now abolished, and other facilities for referring questions of title directly to the court are given by the Common-Law Procedure Act, 1852.-STEWART.

demur upon

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 a term of life.82 To the replication the defendant inay 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 01 vary from the title or defence which the party has once insisted on. For tais (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 no such award was made: therefore he has now no other *choice but to traverse the fact of the replication, or else to the law of it.

[*311 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 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 assignment. 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.(2)

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 different replies, and introduce a multitude of issues upon one and the same dispute. For this would often embarrass a 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 (*) Inst. 4, 14. Bract. l. 5, tr. 5, c. 1.

(*) P. 308. () Bro. Abr. tit. trespass, 205, 248. 32 As to the several replications in general, see 1 Chitt. on Pl. 4th ed. 500 to 518; and as to their forms and parts in particular, id. 518 to 555. The general qualities of a replication are that it must answer the plea, and answer so much of it as it professes to answer, or it will be a discontinuance, (Com. Dig. tit. Pleader, F. 4, W. 2. 1 Saund. 338;) and it must answer the plea directly, not argumentatively, (10 East, 205;) it must not depart from the declaration. 2 Saund. 84, a., n. 1. Co. Litt. 304, a. 2 Wils. 18. See 1 Chitt. on Pl. 556 to 560. It must be certain ; and it is said that more certainty is roquisite in a replication than a declaration, though certainty to a common intent is in general sufficient, (Com. Dig. Pleader, F. 17. 12 East, 263 ;) and, lastly, it must not be double, or, in other words, contain two answers to the same plea, (10 East, 73. 2 Camp. 176, 177. Com. Dig. Pleader, F. 16 ;) and the plaintiff cannot reply double, under the 4 Anne, c. 16, (Fortes. 335,) unless in replevin, (2 B. & P. 368, 376;) and more particularly as to these qualities, see 1 Chitt. on Pl. 556 to 562. An entire replication bad in part is bad for the whole. Com. Dig. Pleader, F. 25. 3 T. R. 376. 1 Saund. 28, n. 3.-Catty.

* Formerly but one replication and but one rejoinder were allowed; but the rule hag been altered by the Common-Law Procedure Act, 1852. A party, however, can only bare several replications, rejoinders, &c. by leave of the court or a judge.-STEWARF.

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