the action, he has nothing to do but to fuffer a default. If he owns them to be true, and conceives them to be infufficient, he must demur; if he denies them all, he may plead the general iflue; if he owns part and denies part, he must traverse what he denies; if he owns the facts to be true, and has fome fpecial matter to avoid them, he muft plead that matter fpecially, unless it can be given in evidence under the general iffue; if he owns part, and has fome special matter to avoid what he does not own, he may plead that fpecially in avoidance. For the general rule to confefs and avoid, does not imply that you must confefs the whole facts, and avoid them by fome fpecial matter, but that you may confefs part, and then by fome fpecial matter avoid the rest. The rule of pleading that you must confefs and avoid, clearly demonstrates that you cannot plead a matter in bar, which contains nothing but a denial of the whole declaration, because that amounts only to the general iffue; and it is improper to plead those facts fpecially, which must depend upon the proof which will neceffarily be adduced in the trial of the cafe upon the general iffue. If a matter however be pleaded, which amounts to the general iffue, yet if there be special matter of justification joined in the fame plea, it will be good. : Where the fpecial matter pleaded in bar does not operate by the way of denial merely, but as an avoidance, acknowledging the facts to be sufficient, unless avoided by fuch special matter as is pleaded, fuch plea is good. If in an action of trefpafs, the defendant plead that the property of the thing in queftion was in himfelf, it is no good plea because it amounts to a denial of the facts stated in the declaration; for the right of property is the gift of the action---but a plea that the plaintiff gave the thing to the defendant, is good. So in an action of diffeifin, if the defendant pleads that the title to the lands in queftion, is in himself, it amounts to the general iffue, for it directly calls in queftion, and denies the title of the plaintiff, but where the defendant difclofes fome fpecial facts and confeffes that the title is in the plaintiff, unlefs avoided by these facts specially pleaded, then such plea is good; because he does not exprefsly deny the facts, but avoids then by others, which he ayers are truc. This however however contradicts the ufual averments in the declaration, that the plaintiff is well seized of the premiffes, yet it is not a mere denial, because it difclofes facts which avoids the title, by which the plaintiff claims if they are true, and if they are not true, then it admits the title of the plaintiff. It is therefore not juft to fay, that every special plea that does not acknowledge the material facts ftated in the declaration to be true, is ill; but every plea which does not avoid the material facts in the declaration, is ill.-By fuch an admiffion of facts under a special plea, it becomes unneceffary to enquire into the truth of the facts in the declaration. The enquiry will be wholly confined to the matters contained in the plea and if they are found not to be true, the facts in the declaration are admitted to be true, and the plaintiff will be entitled to judgment. In illuftrating the doctrine respecting pleas in bar which amoun ted to the general iffue, we have been obliged pretty fully to confider what is a proper plea in bar. In the cafes excepted in the ftatute refpecting pleas, which are where the special matter arises from fome act done by the plaintiff himself, it is neceflary, that the matter be pleaded fpecially, for it cannot be given in evidence on the general iffue. Pleas in bar, are as various as the circumftances of particular cafes require they all depend upon one general principle. They' must confefs and avoid-according to the nature of the action; the defendant may plead in bar a releafe, accord and fatisfaction, award of arbitrators, nonage of the defendant, performance of conditions, full payment, tendry, ftatute of frauds and perjuries, ftatutes of limiation, durefs, and ufury. a An eftopple is likewife a fpecial plea, which happens where a man has done fome act, or executed fome deed which precludes him from averring any thing to the contrary. A man is eftopped from contradicting a record. A juftification is a special plea, as in actions of trefpafs, where the defendant juftifics the doing of the thing complained of, in right of fome office which warranted him fo to do. b Every plea in bar fhould be proper, pertinent, and adapted to the action, according to the nature and quality of it. It must be good in fubftance, fo Co. Lit. 285,.303. Co. Lit. 352. e 4 Bac. Abr. 86. that a that the effence or gift of the plea fhould fully answer the declaration, and if found for the defendant, muft entitle him to a judg ment in his favour according to law. The plea must be fingle containing one matter only, for duplicity produces confufion and uncertainty. It must be direct and pofitive, and not argumentative. It must have convenient certainty of time, place, and perfons. It must answer the plaintiff's allegations in every material point, and it must be fo pleaded as to be capable of traverse and trial. . In fpecial pleas, things must be pleaded according to their opcration in law; and fo they must in every stage of pleading. If either party alledge more than is neceffary by which they introduce new matter, repugnant and contradictory to what went before in any point not material, this will not vitiate the pleadings; for what is material, is not vitiated by what is immaterial; and what is repugnant or redundant, shall be rejected after verdict; but if the repugnant part be material, it is not aided by verdict; if however the verdict be given on a material point, the repugnant part may be released, In pleading, the parties muft avoid negatives pregnant, and affirmatives pregnant with a negative. Negative pregnant, is where a negative fuppofes or implies an affirmative. As where it is pleaded that the thing was not given by deed, it implies a gift by parol. An affirmative pregnant with a negative, is where the affirmative implies a negative. ƒ Whenever the plaintiff declares upon a deed, or the defendant pleads a deed it must regularly be with a profert, so that the adverse party may hear it read, without which he is not bound to anfwer. The reason why deeds must be fhewn, or produced to the court is, because it is the proper office of the court to judge of the fufficiency of them, to fee that they are duly executed, that there has been no rafure, interlineation, or alteration, and whether they are absolute, conditional, or revokeable. In all cafes where a thing cannot be demanded, but by deed, the deed must be produced, but where the deeu is only an inducement to the action, it need not be pleaded with a profert. Co. Lit. 303. . Idem, 126. b Cro Eiz. 268. f4 Bac. Ab. 109. e Co. Lit. 193. Oyer of a deed d Idem, 303. deed, or any writing, is always to be had by him who is to becharged by it; and he who pleads, or declares upon it, muft produce the deed or writing. A former recovery may be pleaded in bar of an action, for it is a maxim of law, that no one fhall be twice vexed with a fuit for the fame matter, cause and thing. But this rule is to be taken under certain restrictions. If the writ abates (when the trial is not upon an iffue in fact) for fome defect in form, or fervice, this will be no bar to another fuit. So if the declaration be ill in point of form, or if it fails by reafon of fome mistake, this will be no bar to an action well brought. If the plaintiff mifconceives his action and fails, this is no bar to a proper action. But where a judgment has been rendered upon the merits of a cause, in favour of either party, it is a bar to any future action. When the title of land has been tried upon an action of diffeifin, it is conclufive; but when the title has been incidentally tried in an action of trefpafs, it is no bar to a future action that respects the title. The statute of frauds and perjuries and statutes of limitations, may be pleaded in bar to actions. The statute to prevent frauds and perjuries, enacts that no fuit in law or equity, fhall be brought or maintained upon any contract or agreement whereby to charge any executor or administrator upon any special promife, to answer damages out of his own eftate, or whereby to charge the defendant upon any special promife to answer for the debt, default or mifcarriages of another perfon, or to charge any perfon upon any agreement made upon confideration of marriage, or upon any contract or fale of lands, tenements, or hereditaments, or any interest in or concerning them, or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which fuch action fhall be brought, or fome memorandom or note thereof shall be made in writing, and figned by the party to be charged therewith, or fome other person thereunto by him lawfully authorifed. That no fuit in law or equity fhall be brought or maintained upon any contract or agreement, not required to be reduced to writing as aforefaid, but within three years next after entering into and making the fame. It It has been decided, that the plaintiff in an action grounded upon a contract, which the ftatute requires to be in writing, need not aver in his declaration, that the contract was reduced to writing-but if he can produce the written contract on trial it will be fufficient. The defendant may plead this ftatute in bar to fuch action with an averment that fuch contract was not reduced to writing, and then the plaintiff must reply a contract in writing, otherwife he fails of his action. But the defendant may plead the gene ral iffue, and on trial may object to the admiffion of parol proof to fupport a contract required to be in writing; and if he cannot produce the contract in writing, the court may exclude all parol proof, and the iflue of courfe must be decided against him. In either of thofe ways, the queftion may be brought before the court, to decide whether the contract declared on comes within the ftatute, fo as to be required to be in writing. Where a contract contains fundry things to be done, if the fubftance of the contract be within the statute, no action can be maintained upon it, the fome parts of the coutract are not within the statute. Whenever the parties in the course of pleadings, admit the exiftence of the contract, it shall be binding, the not reduced to writing, and fuch admiffion will take it out of the statute. In all cafes of parol executory agreements, a part execution will take them out of the statute: for the object of the statute is to prevent perjury, and fraud; and if the agreement be in part executed, there is fuch. certainty refpecting the proof, that the danger of perjury is removed, and if one party has performed his part of the contract, it. will be the greatest encuragement to fraud, to permit the other party to be excufed. A promise to marry, is not confidered within the ftatute. But a promife to do any thing on the confideration of marriage, is clearly within the letter of the ftatute. A parol promife to pay a certain fum of money upon the return of fuch a ship, which ship happened not to return within two years after the promise made, is not within the statute; for the ship might poffibly have returned within the year, and the ftatute extends only to fuch promifes, where by the exprefs agreement of the parties, the thing itself is not té be performed within a year. |