2887. The form of the conclusion is, "And therefore he brings his suit," etc. In ancient times the plaintiff was required to establish the truth of his declaration in the first instance before it was called into question by the pleadings by the simultaneous production of his secta; that is, a number of persons as witnesses to confirm his allegations.119 The practice of thus producing a secta gave rise to the very ancient formula almost invariably used at the conclusion of a declaration; as, entered of record, "and thereupon he brings his suit,” etc., et inde producit sectam, and though the actual production has for many centuries, even in England, fallen into disuse, the formula still remains. The count in a writ of right never concluded with the ordinary production of suit, nor did the count in dower.120

2888. We have seen when a profert is necessary when the action is founded on a deed of record; a profert is also required in other cases, and it usually follows immediately after the conclusion to the damages. This occurs in cases brought by executors or administrators; in order to show their title to sue they must make a profert of the letters testamentary or letters of administration, which are the foundation of their authority. In a scire facias the profert may be made in the middle or at the end of the declaration. The omission of a profert is now aided, unless the defendant demur specially for the defect.121

2889. It is not usual to insert pledges to prosecute. Anciently it was necessary to find pledges or sureties to prosecute a suit, and the names of the pledges were added at the foot of the declaration; but in the course of time it became unnecessary to find such pledges, because the plaintiff was no longer liable to be amerced, pro falsa clamore, and the pledges were merely nominal persons, and now John Doe and Richard Roe are the universal pledges; but they may be omitted altogether 122 or inserted at any time before judgment.123 In case the plaintiff neglects to deliver or file his declaration within the time prescribed by law or the rules of the court, or is guilty of other delays or defaults, he is adjudged not to follow his suit or his remedy as he ought to do, and thereupon a non suit or non prosequitur is entered, and he is said to be non pros'd. For suffering this non pros the plaintiff was formerly liable to be amerced to the king for making a false complaint, and to pay costs to the defendant.124

2890. Having pointed out the general requisites and the several parts of a declaration, it only remains to be observed that many defects in it may be cured by the acts of the defendant. This is the case particularly with those which are merely formal and not substantial; these may be aided either by a plea or by a verdict for the plaintiff. 125 After verdict, when the issue joined absolutely required on the trial proof of the facts defectively or improperly stated or omitted, and without which it cannot be presumed the judge would have directed the jury to give, or that the jury would have given the verdict, such defect, imperfection, or omission is cured by the verdict at common law.

119 Bracton, 214, a.

120 3 Blackstone, Comm. 395; Gilbert, Civ. Act. 48; Stephen, Pl. 427; 1 Chitty, Pl. 399.

121 Profert and oyer are abolished in England by the Common Law Procedure Act, 15 & 16 Vict. c. 76. In most of the United States profert has been abolished, and any written instrument relied on must be set out in the pleading either wholly or such part as is relied on. 122 Archbold, Civ. Pl. 171; Tidd, Pract. 455; Beardsley v. Southmayd, 2 Green, N. J. 534. Under the modern codes, pledges of prosecution are not in general required, and when required they are real, not nominal. Where the plaintiff is a non-resident, he is sometimes required to furnish security for costs; this is done by having his writ indorsed by a sufficient resident.

123 Baker v. Phillips, 4 Johns. N. Y. 190.

124 3 Sharswood, Blackst. Comm. 295, 296. 125 Comyn, Dig. Pleader, C, 85, 87.

2898-2901. When pleas to the jurisdiction are allowed.
2899. The privilege of the defendant.

2900. Actions arising out of the jurisdiction.
2901. Want of jurisdiction of the subject matter.
2902. The mode of pleading to the jurisdiction.
2903. The time of pleading to the jurisdiction.
2904. Pleas in suspension of the action.

2905-2911. Pleas in abatement.

2906. The disability of the plaintiff.

2907. Misnomer and disability of the defendant. 2908. Pleas in abatement to the declaration. 2909-2911. Pleas in abatement of the writ.

2910. Pleas to the form of the writ.

2911. Pleas to the action of the writ.

2912-2915. The form of dilatory pleas.

2916. The qualities and effect of dilatory pleas.

2917. Proceedings upon dilatory pleas.

2919-2967. Pleas in bar.

2920. The nature of pleas in bar.

2921-2934. Kinds of pleas in bar.

2922. The general issue.

2923-2932. Special pleas in bar.

2924. Special plea in denial of the facts stated.

2925. Pleas in confession and avoidance.

2926. Pleas in discharge.

2927. Pleas in excuse.

2928. Pleas in justification.

2930. Pleas in estoppel.

2933. Special issues.

2934. Sham and issuable pleas.

2935. Color in pleading.

2937-2949. The qualities of pleas in bar.

2938. The plea must be adapted to the action and conformable to the count.

2939. What the plea must answer.

2940. A plea in justification must confess the facts.

2941. A plea must be single.

2942. A plea must be certain.

2946. A plea must be positive not argumentative.

2948. The matter pleaded must be capable of trial.
2949. The plea must be true.

2950-2954. The construction of pleas in bar.

2951. When a plea is construed against the pleader.
2952. When a plea bad in part is bad for the whole.
2953. Surplusage and repugnancy.

2955-2967. The forms and parts of pleas.

2956. The title of the court.

2957. The title of the term.

2958. The names of the parties.

2959-2963. The commencement of the plea.

2960. The name of the defendant.

2961. The appearance of the defendant.

2962. The defence.

2963. The actio non.

2964. The body or substance of the plea. 2965-2967. The conclusion of the plea.

2966. Conclusion to the country.

2967. Conclusion with a verification.

2891. The plaintiff having stated his claim in his declaration, his opponent is now bound to set up his defence. By defence is meant the denial of the truth or validity of the complaint, and not a justification. It is a general assertion that the plaintiff has no ground of action, which assertion is afterward extended and maintained in the plea. It is somewhat similar to the contestatio litis of the civil law, though the contestatio litis is rather the joinder of issue than a defence.2

Defence is of two descriptions, first, half defence, which is as follows: "venit et defendit vim et injuriam, et dicit," etc.; or, second, full defence, “venit et defendit vim et injuriam, et dicit," etc., (meaning "quando et ubi curia consideravit," or, when and where it shall behoove him,) "et damna et quickquid quod ipse defendere debet et dicit," etc.3 In strictness, the words quando, etc., ought not to be added when only half defence is made, and after the words "venit et defendit vim et injuriam," the subject matter of the plea should be immediately stated.*

It has now become the practice in all cases, whether full defence or half defence be intended, to state it as follows: "And the said A B, by C D, his attorney, comes and defends the wrong (or in trespass, force) and injury when, etc., and says," which will be considered only as half defence where such defence should be made, and as full defence when the latter is necessary."

If full defence were made expressly by the words "when and where it shall behoove him," and "the damages and whatever else he ought to defend," the defendant would be precluded from pleading to the jurisdiction or in abatement, for by defending when and where it shall behoove him, the defendant acknowledges the jurisdiction of the court, and by defending the damages, he waives all objections to the person of the plaintiff.

Although, formerly, defence was a matter of substance it is now only a matter of form, and the omission of it is aided by general demurrer."

1 3 Sharswood, Blackst. Comm. 296; Coke, Litt. 127.

See 2 Brown, Civ. and Adm. Law, 358, n. 21; Code of Pr. of Louisiana, art. 357; Code 3, 9, 1; Dig. 5, 1, 14, 1; Code 2, 59, 2.

3 Coke, Litt. 127, b; Bacon, Abr. Pleas, D.

Gilbert, Civ. Act. 188; 3 Bos. & P. 9, n. a.

Wilkes v. Williams, 8 Term, 633; Willis, 41; 2 Saund. 209, c; 3 Bos. & P. 9.

62 Saund. 209, c; Bacon, Abr. Pleas, D; 3 Blackstone, Comm. 297, 298.

'Hole v. Burgoigne, 3 Salk. 271. It is apprehended that in no state is it now of the slightest consequence whether the defendant commences his plea with the formula given in the text or not, or which he uses; and in the states which have adopted codes of practice neither of these forms is in use.

2892. Imparlance, from the French parler, to speak, or licentia loquendi, in its most general signification, means time given by the court to either party to answer the pleading of his opponent; as, either to plead, reply, rejoin, etc., and it is said to be nothing but the continuance of the cause till a further day. But the more common signification of the term is time to plead."

Formerly the parties were allowed time to speak or confer together, so that they might endeavor to settle the matter in dispute. Now, time for pleading is allowed in most cases by general rules of practice, without any formal entry of an imparlance.

2893. Imparlances are of three kinds, a common or general imparlance; a special imparlance; and a general special imparlance.

A general imparlance is the entry of a general prayer and allowance of time to plead till the next term, without reserving to the defendant the benefit of any exception, so that after such general imparlance the defendant cannot object to the jurisdiction of the court, nor plead any matter in abatement. This kind of imparlance is always from one term to another.

A special imparlance reserves to the defendant all exceptions to the writ, bill, or count, and after it the defendant may plead in abatement, though not to the jurisdiction of the court, because by praying an imparlance he admits its jurisdiction.

A general special imparlance contains a saving of all exceptions whatsoever, so that the defendant after this may plead not only in abatement, but also plead a plea which affects the jurisdiction of the court, as a privilege. He cannot plead a tender, and that he always was ready to pay, because, by craving time, he admits he is not ready, and so falsifies his plea.10 The last two kinds of imparlances are, it seems, sometimes from one day to another in the same term. When, after an imparlance, the defendant pleads any thing which the imparlance waives or falsifies, the plaintiff may sign judgment as for want of a plea, or apply to the court to set it aside, or demur, or finally specially reply the imparlance, by way of estoppel, that is, by showing in the replication that the defendant is precluded, by his own act appearing upon the record, from availing himself of the matter alleged in his plea."

2894. When an action is founded on a deed, pleaded with a profert in curia, as before explained, the defendant is entitled, upon demanding it, to oyer of the instrument, the original meaning of which is to hear it read. Oyer, then, is a prayer or petition to the court that the party may hear read to him the deed, stated in the pleadings of the opposite party, for such deed is by intendment of

Bacon, Abr. Pleas, C. 10 Tidd, Pract. 418, 419.

"Tidd, Pract. 419; 1 Chitty, Pl. 420, 424; Bacon, Abr. Pleas, C; Comyn, Dig. Pleader, D; 1 Sellon, Pract. 265; Gould, Pl. c. 2, 22 16, 20; Stephen, Pl. 90. In modern practice, the term imparlance is rarely used, and in most of the states the step taken by the defendant at this stage is an appearance. Under the statutes and rules of court the defendant must appear or enter an appearance within a certain time, either after the service of process or after the beginning of the return term or the entry of the action. The plea, answer, or demurrer, must be filed within a fixed time after the appearance, unless for cause shown upon motion the court allow further time, in which case the action may be continued to the next term. A general appearance has this effect of a general imparlance, that after it the defendant cannot plead in abatement. A special appearance is entered when the defendant intends to plead in abatement or other dilatory pleas. A general appearance is made by an entry of the name of the defendant or his attorney on the docket, or by filing his pleading, or in some states by filing an affidavit, that the defendant is advised and believes he has a good defence, and intends to bring the cause to trial. This is called an affidavit of merits or of defence. A special appearance may be by entry on the docket, or by filing a plea.

A general appearance waives all defects in the process. Free v. Haworth, 19 Ind. 404; Hayes v. Shattuck, 21 Cal. 51; State v. Doane, 14 Wisc. 483. All defects in the service. Lawrence v. Bassett, 5 All. Mass. 140; Ringle v. Bickle, 17 Ind. 325.

12

law in court, when pleaded with a profert. The origin of this sort of pleading, we are told, is that in ancient times the generality of defendants were themselves incapable of reading. By the modern practice, a compliance with the demand of oyer is to furnish the attorney of the opposite party with a copy of the deed, or file it in the proper office.

Oyer is demandable in all actions, real, personal, and mixed.

Though formerly oyer was demandable of the writ and of records, as well as of deeds, now it is not granted of a record or of the original writ, and can be had only in cases of deeds, probates, letters of administration, etc., of which profert is made on the other side. Oyer never was demandable of private writings not under seal.1

13

When the party is not bound to plead the specialty or instrument with a profert, as in the case of a promissory note, and he pleads it with one, such profert is mere surplusage, and the court will not compel him to give oyer of it. And if profert be omitted when it ought to have been made, the adversary cannot have oyer, but must demur.

Oyer is allowed to enable the party to plead with a full understanding of his case, and therefore he has a right to it whenever a profert is properly made; and the refusal of oyer in such case is error, though it is not error to grant oyer where it is not demandable of right. For the ordering of oyer is supposed to have been no prejudice to the party giving it; but the refusal of it is presumed to have been injurious to him who demanded it, as he is supposed to have been unable to plead advantageously without it.14

14

2895. A plea is the defendant's answer, by matter of fact, to the plaintiff's declaration. It is distinguished from a demurrer, which opposes matter of law to the declaration.15

Pleas are divided into pleas dilatory, or those which delay the plaintiff's remedy, not by questioning the cause of action, but the propriety of the suit, or the mode in which the remedy is sought; or peremptory, which deny the plaintiff's cause of action. Pleas were thus divided in imitation of the division of exceptions in the civil law. Exceptiones aut perpetuæ sunt, aut temporales et dilatoriæ.16

Subordinate to this there is another division; they are either to the jurisdiction of the court, in suspension of the writ, in abatement of the writ, or in bar to the action. The first three belong to the dilatory class, the last is of the peremptory kind."

The most natural order of pleading is that established by law, and which the defendant must pursue, to wit: first, to the jurisdiction of the court; second, to the disabilities of the parties; third, to the count or declaration; fourth, to the writ.

This appears to be the natural order of pleading, because each subsequent plea admits that there is no foundation for the former. But although this is the order generally adopted in the United States, yet it is not universal, for the want of jurisdiction may be taken advantage of at any stage of the case.

These various kinds of pleas will be separately considered; and for that purpose this chapter will treat first of dilatory pleas, and, second, of pleas in bar."

12 2 Sharswood, Blackst. Comm. 299; Stephen, Pl. 87.

13 Gatton v. Dimmitt, 27 Ill. 400; Mississippi R. R. v. Cross, 20 Ark. 443.

14 The doctrine of profert has no place under the New York code. Livingstone v. White, 30 Barb. N. Y. 72.

15

Stephen, Pl. 62.

17 Stephen, Pl. 63; 1 Chitty, Pl. 425; Lawes, Pl. 36.

16

Dig. 44, 1, 3.

18 A plea jointly pleaded by several for one of whom it is good, but bad for the others, is bad as to all; otherwise where the plea is several. Clark v. Lathrop, 33 Vt. 140; Morton v. Morton, 10 Iowa, 58.