No. 2919. Book 4, tit. 8, chap. 6, cl. 2. No. 2919. specially. In general, the judgment on the demurrer in favor of the plaintiff, to a plea in abatement, or to a replication to such plea, is only interlocutory, that the defendant answer over, quod respondeat ouster. (a) But when a plea contains matter which can be pleaded only in abatement, improperly commences or concludes in bar, the judgment on demurrer may be final. (b) It is a rule that when the judgment is respondeat ouster, no other plea in abatement will be allowed. When the judgment, on a plea in abatement, is for the defendant, it is that the writ or bill be quashed; or if a temporary disability or privilege be pleaded, that the plaintiff remain without day, until, etc. 3. A judgment may be signed by the plaintiff, as for want of a plea, in some cases where the plea is defective in substance; when the plea is defective in form the plaintiff should demur.(c) 4. When a misnomer has taken place, either of the plaintiff or defendant, and this is pleaded in abatement, the plaintiff may amend his declaration, and need not enter a cassetur breve. But when there is a non-joinder of one of several defendants, and this matter is pleaded, the plaintiff cannot amend, and must enter a cassetur before he commences a new action, or at least before the replication of nul tiel record to a plea in such new action of autre action pendant.(d) CLASS II.-OF PLEAS IN BAR. 2919. When no dilatory plea has been offered, or any, or all which the law allows, have been pleaded, and overruled as insufficient, the defendant may then plead to the action; for no judgment can be rendered against him, until he has been required to answer, (a) 2 Saund. 210, n. 3. (b) Bac. Ab. Abatement, P. (c) Gray v. Sidneff, 3 Bos. & Pull. 395; Hixon v. Binns, 3 T. R. 185. (d) Grah. Pr. 98; Bouv. L. D. Lis Pendens. No. 2920. Book 4, tit. 8, chap. 6, cl. 2, sec. 1, § 1, 2. No. 2921. and has had an opportunity to contest, the merits or grounds of the suit; and these he is not bound to answer until he has exhausted or waived his right to interpose all dilatory exceptions. By pleading in bar to the action, the defendant waives all dilatory pleas of which he could have taken advantage before so pleading in bar; though he does not waive a right to plead to matters which may afterward accrue. By denying the cause of action itself, he tacitly admits the mode in which the remedy is pursued, to be correct. Pleas in bar will be considered, 1, as to their nature; 2, as to their qualities; 3, their construction; 4, their form. SECTION 1.-OF THE GENERAL NATURE AND KINDS OF PLEAS IN BAR. § 1. Of their nature. 2920. A plea in bar to the action is one which shows some ground for defeating the action, and contains a prayer to that effect. Such a plea is unlike a dilatory plea, because it impugns the right of action altogether, instead of merely diverting the proceedings to another jurisdiction, or suspending them, or abating the particular writ; it is a conclusive answer to the action. Such a plea must, in general, deny all, or some essential part of the averments of facts in the declaration; or, admitting them to be true, allege new facts which obviate or repel their legal effect. In the first case, in the language of pleading, the defendant is said to traverse the matter of the declaration; in the latter to confess and avoid it; pleas of this kind, are, therefore, divided into pleas by way of traverse, and pleas by way of confession and avoidance. § 2. Of kinds of pleas in bar. 2921. Pleas in bar are also classed into two other kinds: 1, the general issue; 2, a special plea in bar. No. 2922. Book 4, tit. 8, chap. 6, cl. 2, sec. 1, § 2, art. 1. Art. 1.—Of pleading the general issue. No. 2922. 2922. The general issue denies in direct terms the whole declaration; as in personal actions, where the defendant pleads nil debet, that he owes the plaintiff nothing; or non culpabilis, that he is not guilty of the facts alleged in the whole declaration; or in real actions, where the defendent pleads nul tort, no wrong done; or nul disseisin, no disseisin committed. These pleas and the like are called general issues; by importing an absolute and general denial of all matters alleged in the declaration, they at once put them all in issue. Formerly the general issue was seldom pleaded, except when the defendant meant wholly to deny the charge against him; for when he meant to avoid and justify the charge, it was usual for him to set forth the particular ground of his defence as a special plea, which appears to have been necessary, to apprise the court and the plaintiff of the particular nature and circumstances of the defendant's case, and was originally intended to keep the law and the facts distinct. And, even now, it is an invariable rule that every defence which cannot be specially pleaded, may be given in evidence at the trial upon the general issue, so that the defendant is in many cases obliged to plead the particular circumstances of his defence specially, and cannot give them in evidence on that general plea. But the science of special pleading having been frequently perverted to the purpose of chichane and delay, the courts have in some instances, and the legislature in others, permitted the general issue to be pleaded, and special matter to be given in evidence under it at the trial, which at once includes the facts, the equity, and the law of the case. (a) In a writ of right the general issue is called the mise. (a) 3 Bl. Com. 305, b; 2 Greenl. Ev. § 9. No. 2923. Book 4, tit. 8, chap. 6, cl. 2, sec. 1, § 2, art. 2. No. 2924. As a general rule, the defendant is not allowed to plead specially such facts as amount to a total denial of the charge made against him, and may be given in evidence under the general issue, which, in such cases, must be pleaded. (a) But in many instances, where the defence consists of matter of law, the defendant may plead it specially, or give it in evidence under the general issue. Art. 2.-Of special pleas in bar. 2923. Special pleas in bar are very various, according to the circumstances of the defendant's case; as in personal actions, the defendant may plead any special matter in denial, avoidance, discharge, excuse or justification of the matter alleged in the declaration, and which destroys the plaintiff's action; or he may plead any matter, which estops or precludes him from averring or insisting on any matter relied upon by the plaintiff in his declaration. These special pleas either, 1, deny the facts stated in the declaration; 2, confess and avoid them; 3, are in discharge; 4, in excuse; 5, in justification; or 6, in estoppel. 1. Of special pleas in denial of the facts stated in the declaration. 2924. When a special plea denies the facts stated in the declaration, it is usually called a special traverse. All pleas in denial are generally traverses, for the meaning of this word is a denial; and, therefore, in pleading, to traverse is to deny, or controvert any thing which is alleged in the declaration, plea, replication, rejoinder, surrejoinder, or other pleading. But special traverses are not the only pleas which may properly be called special pleas in denial of the declaration; for the defendant may in his plea allege new (a) 3 Bl. Com. 309. No. 2925. Book 4, tit. 8, chap. 6, cl. 2, sec. 1, § 2 art. 2. No. 2926. matter in contradiction to what is expressly stated in the declaration, or what is necessary to support it, though not expressly mentioned in it; as in an action on an arbitration bond, (that is, a bond given by a party to perform an award of arbitrators, to be made of some matter left to their arbitration,) if the plaintiff declares, as he may, upon the penal part of the bond merely, without setting forth the condition of it, the defendant, after craving oyer of the condition, may set it forth in his plea, and plead nullum fecerunt arbitrium, or that the arbitrators made no award. 2. Of pleas in confession and avoidance. 2925. These are pleas which confess the matters contained in the declaration, and avoid their effect by some new matter, which shows that the plaintiff is not entitled to maintain his action; as by admitting the contract declared upon, and showing that it is void or voidable on account of the want of ability of one of the parties to make it, as by coverture, or infancy, or the like; or by the mode in which the contract was executed, as by duress; or that it was contrary to law, as being against some statute which makes it void; for these circumstances are sufficient to defeat the plaintiff's claim. 3. Of pleas in discharge. 2926. Pleas in discharge are distinguished from those in avoidance; they are such as admit the demand, but instead of avoiding its payment or satisfaction, show that it has been discharged by some matter of fact or of law; as by having been already paid, or settled by the rendition of an award or judgment, or that the plaintiff has released the defendant; though he may not have given up his right, that he cannot recover because of the defendant's right of set off. So the defendant may avail himself of the discharge of the plaintiff's claim by matter of law, as alienage, or |