No. 2927. Book 4, tit. 8, chap. 6, cl. 2, sec. 1, § 2, art. 2. Ne. 2927. the bankruptcy of the plaintiff; or his having been himself discharged from the contract by bankruptcy; or its being too late to sue him by reason of the statute of limitations.(a) 4. Of pleas in excuse. 2927. These also admit the demand or complaint stated in the declaration, and excuse the non-compliance with the plaintiff's claim, or the commission of the acts of which he complains, on account of the defendant's having done all in his power to satisfy the former, or not having been the culpable author of the latter. The following are examples of pleas in excuse: 1. A tender and refusal. Where the defendant tenders to the plaintiff what is due to him, and the plaintiff refuses to accept it, and afterward brings a suit for its recovery, the defendant in his plea may acknowledge the debt, and plead the tender, adding that he has always been and is still ready to pay it; this is called a plea of tender and toujours et uncore prist, and, on payment of the money into court, if the issue is found for him, the defendant will be exonerated from costs, and the plaintiff made justly liable for them. 2. Self-defence. When an action is brought for an assault and battery, the defendant may plead that the plaintiff assaulted him first, which obliged him to defend himself, and that if any harm happened to the plaintiff from such defence, the same was occasioned by his own assault first made upon the defendant. This is called a plea of son assault demesne. In like manner he may plead that the assault was committed in defence of those whom he had a right to defend on account of his relative position; as in defence of his wife, children, or servants. 3. The defendant may also plead that he has not (a) Ham. N. P. 118, 119. No. 2928. Book 4, tit. 8, chap. 6, cl. 2, sec. 1, § 2, art. 2. No. 2929. performed a contract, because he has been prevented by the plaintiff from fulfilling his engagement. 4. In actions of trespass, he may plead that the injury occurred from inevitable accident, and without any fault in him. 5. Of pleas in justification. 2928. Pleas in justification differ from pleas in excuse. In the latter the defendant relies upon the plaintiff's conduct as his apology for his doing or not doing the act in question; in pleas of justification, on the contrary, the defendant professes purposely to have done the acts of which the plaintiff complains, not on account of his negligent or culpable conduct, but in order to exercise that right which he insists in point of law he might exercise, and in the exercise of which he conceives himself not merely excused but justified. The grounds of such justification seem to consist principally of matter of title or interest in or respecting land, or matter of authority, mediately or immediately derived from the plaintiff, or the general operation of law from the particular circumstances of the case. 2929. In form, a plea of justification must show the authority under which the defendant acted, (a) in order that the court, who are alone the judges of the law, may decide on its sufficiency, and also that the plaintiff may know of its existence, and answer it if he can. The defendant is therefore required to set forth the instrument by which the authority was conferred, such as a writ or the like, and also its direction, to show that the defendant was authorized to execute it, (b) and out of what court, and whence it emanated. (c) And a justification under it, showing it has been returned, must aver the fact with a prout patet per recordum, that is, with an averment that such matter appears of (a) Co. Litt. 283, a. (b) Watkins v. West, Ld. Raym. 1530. No. 2930. Book 4, tit. 8, chap. 6, cl. 2, sec. 1, § 2, art. 2. No. 2930. record; which matter would be improper in a case where the defendant only alleged that the writ was sued out, because it is not a record until it is filed.(a) 6. Of pleas in estoppel. 2930. A plea in estoppel, is a preclusion in law, which prevents a man from alleging or denying a fact, in consequence of his own previous act, allegation or denial of a contrary tenor.(b) Lord Coke says, “an estoppel is when a man is concluded by his own act or acceptance, to say the truth."(c) And Blackstone(d) defines "an estoppel to be a special plea in bar, which happens when a man has done an act, or executed some deed, which estops or precludes him from averring any thing to the contrary." A plea of this kind, like a plea in avoidance of the declaration, always advances new matter; but it differs from the latter in this, that instead of confessing or avoiding the plaintiff's allegations, it neither admits nor denies them, merely relying on the estoppel, and (a) Brigstock v. Stanion, Ld. Raym. 108. Mr. Hammond, in his excellent work on Nisi Prius, gives the reason why a prout patet is necessary. He says, "The defendant, we will suppose, concludes his pleading with a general verification, the effect of which is, that he will establish the allegations comprised in his plea, to the satisfaction of a jury. This averment embraces every part of a plea, so that if it contains matter of record, the defendant has affirmed, that he will submit the question whether or not the record exists, to a jury; but this mode of proceeding is improper, inasmuch as that question must be decided by the court; therefore, he must single out the matter of record from the mass of the other allegations, and aver it with a prout patet, thereby affirming in effect that he will establish its existence by inspection of the court. The same rule will be observed in all other pleadings; and with regard to a count or declaration, the conclusion, and therefore he brings his suit,' is, in substance, that he brings his witnesses to prove the truth of its contents; and as their testimony is not competent to establish a record, matters of that description must be averred here with a prout patet, the same as in other pleadings. However, the omission of the averment in any case can only be objected to by demurring specially, because the opposite party may, notwithstanding, reply nul tiel record, and so is not inconvenienced by the omission." Ham. N. P. 115. (b) Steph. Pl. 239. (c) Co. Litt. 352, a. (d) 3 Com. 308. No. 2931. Book 4, tit. 8, chap. 6, cl. 2, sec. 1, § 2, art. 3. No. 2933. after stating the previous act, allegation or denial of the opposite party, prays judgment if he shall be received or admitted to aver contrary to what he before did or said. 2931. An estoppel may arise either from matter of record; from the deed of the party; or from matter in pays, that is, matter of fact. 1. Any confession or admission made in pleading, in a court of record, whether it be express, or implied from pleading over without a traverse, will forever preclude the party from afterward contesting the same fact, in any subsequent suit with his adversary. (a) This is called an estoppel by matter of record. 2. As an instance of estoppel by deed, may be mentioned the case of a bond reciting a certain fact; the party executing that bond will be precluded from afterward denying, in any action brought upon that instrument, the fact so recited. 3. An example of an estoppel by matter in pays, occurs when one man has accepted rent of another; he will be estopped from afterward denying in any action with that person, that he was at the time of such acceptance, his tenant. (b) 2932. Every estoppel ought to be reciprocal, that is, to bind both parties; and this is the reason that regularly a stranger shall neither take advantage of nor be bound by an estoppel. But privies in blood, privies in estate, and privies in law, are bound by, and may take advantage of estoppels. Art. 3.-Of special issues, sham and issuable pleas. 2933. There is a plea in bar, which does not strictly fall under either of these denominations, called a special issue. It differs from a special plea in bar in this: that the latter is, universally, a plea advancing new matter, (a) Com. Dig. Estoppel, A 1. · No. 2934. Book 4, tit. 8, chap. 6, cl. 2, sec. 1, § 3. No. 2935. whereas the plea called the special issue, never advances such matter, but merely denies some material allegation, the denial of which is in effect a denial of the entire cause' of action. These several pleas are called, indifferently, pleas to the action, pleas in bar, or pleas in chief. 2934. Besides the general issue and special pleas, there is another kind known by the name of sham pleas. These are pleas known to be false, and are put in merely for the purpose of delay; as judgment recovered, that is, a plea that judgment has already been recovered for the same cause of action. These pleas are generally discouraged by the courts, and are treated as nullities. An issuable plea is one which goes in chief to the merits, upon which the plaintiff may take issue and go to trial; or a demurrer for some defect in substance. § 3. Of color in pleading. 2935. One of the principal rules relating to pleas by confession and avoidance, is, that they must give color. By color is meant an apparent or prima facie right. The meaning of the rule that every plea in confession and avoidance, must give color, is, that it must admit an apparent right in the opposite party, and, therefore, rely on some new matter, by which that apparent right is defeated. An example will render this familiar. Suppose that an action is brought for the breach of a covenant, and the declaration fully states it; to this declaration the defendant pleads a release; the tendency of this plea is to admit an apparent right in the plaintiff, namely, that the defendant did, as alleged in the declaration, execute the deed on which the action is founded, and breach therein contained, and would, therefore, prima facie, be chargeable with damages on that ground; but shows new matter, not before disclosed, by which that apparent right is done away, |