PLEA, in Law, is what either party alleges for himself in court, in a cause there depending; and in a more restrained sense, it is the defendant's answer to the plaintiff's declaration.
Pleas are usually divided into those of the crown and common pleas. Pleas of the crown are all suits in the king's name, or in the name of the attorney-general in behalf of the king, for offences committed against his crown and dignity, and against his peace; as treason, murder, felony, &c. See ARRAIGNMENT.
Common pleas are such suits as are carried on between common persons in civil cases. These pleas are Comment. of two sorts; dilatory pleas, and pleas to the action. Dilatory pleas are such as tend merely to delay or put off the suit, by questioning the propriety of the remedy, rather than by denying the injury: pleas to the action are such as dispute the very cause of suit.
I. Dilatory pleas are, 1. To the jurisdiction of the court: alleging, that it ought not to hold plea of this injury, it arising in Wales or beyond sea: or because the land in question is of ancient demesne, and ought only to be demanded in the lord's court, &c. 2. To the disability of the plaintiff, by reason whereof he is incapable to commence or continue the suit; as, that he is an alien enemy, outlawed, excommunicated, attainted of treason or felony, under a præmunire, not in rerum natura (being only a fictitious person), an infant, a feme-covert, or a monk professed. 3. In abatement: which abatement is either of the writ, or the count, for some defect in one of them; as by misnaming the defendant, which is called a misnomer; giving him a wrong addition, as esquire instead of knight; or other want of form in any material respect. Or, it may be that the plaintiff is dead; for the death of either party is at once an abatement of the suit.
These pleas to the jurisdiction, to the disability, or in abatement, were formerly very often used as mere dilatory pleas, without any foundation in truth, and calculated only for delay; but now by stat. 4 & 5 Ann. c. 16. no dilatory plea is to be admitted without affidavit made of the truth thereof, or some probable matter shown to the court to induce them to believe it true. And with respect to the pleas themselves, it is a rule, that no exception shall be admitted against a declaration or writ, unless the defendant will in the same plea give the plaintiff a better; that is, show him how it might be amended, that there may not be two objections upon the same account.
All pleas to the jurisdiction conclude to the cognizance of the court; praying "judgment whether the court will have farther cognizance of the suit." Pleas to the disability conclude to the person; by praying "judgment, if the said A the plaintiff ought to be answered." And pleas in abatement (when the suit is by original) conclude to the writ, or declaration; by praying "judgment of the writ, or declaration, and that the same may be quashed," cassetur, made void, or abated: but if the action be by bill, the plea must pray "judgment of the bill," and not of the declaration; the bill being here the original, and the declaration only a copy of the bill.
When these dilatory pleas are allowed, the cause is either dismissed from that jurisdiction, or the plaintiff is stayed till his disability be removed; or he is obliged to sue out a new writ, by leave obtained from the court, or to amend and new-frame his declaration. But when, on the other hand, they are overruled as frivolous, the defendant has judgment of respondeat ouster, or to answer over in some better manner. It is then incumbent on him to plead.
2. A plea to the action; that is, to answer to the merits of the complaint. This is done by confessing or denying it.
A confession of the whole complaint is not very usual; for then the defendant would probably end the matter sooner, or not plead at all, but suffer judgment to go by default. Yet sometimes, after tender and refusal of a debt, if the creditor harasses his debtor with an action, it then becomes necessary for the defendant to acknowledge the debt, and plead the tender; adding, that he has always been ready, tout temps prist, and is still ready, uncore prist, to discharge it: for a tender by the debtor and refusal by the creditor will in all cases discharge the costs, but not the debt itself; though in some particular cases the creditor will totally lose his money. But frequently the defendant confesses one part of the complaint (by a cognovit actionem in respect thereof), and traverses or denies the rest; in order to avoid the expense of carrying that part to a formal trial, which he has no ground to litigate. A species of this sort of confession is the payment of money into court: which is for the most part necessary upon pleading a tender, and is itself a kind of tender to the plaintiff; by paying into the hands of the proper officer of the court as much as the defendant acknowledges to be due, together with the costs hitherto incurred, in order to prevent the expence of any farther proceedings. This may be done upon what is called a motion; which is an occasional application to the court by the parties or their counsel, in order to obtain some rule or order of court, which becomes necessary in the progress of a cause; and it is usually grounded upon an affidavit (the perfect tense of the verb affido), being a voluntary oath before some judge or officer of the court, to evince the truth of certain facts, upon which the motion is grounded: though no such affidavit is necessary for payment of money into court. If, after the money is paid in, the plaintiff proceeds in his suit, it is at his own peril: for if he does not prove more due than is so paid into court, he shall be nonsuited and pay the defendant's costs; but he shall still have the money so paid in, for that the defendant has acknowledged to be his due. To this head may also be referred the practice of what is called a set off; whereby the defendant acknowledges
the justice of the plaintiff's demand on the one hand; but on the other, sets up a demand of his own, to counterbalance that of the plaintiff, either in the whole or in part; as, if the plaintiff sues for ten pounds due on a note of hand, the defendant may set off nine pounds due to himself for merchandise sold to the plaintiff; and, in case he plead such set-off, must pay the remaining balance into court.
Pleas that totally deny the cause of complaint, are either the general issue, or a special plea in bar.
1. The general issue, or general plea, is what traverses, thwarts, and denies at once, the whole declaration, without offering any special matter whereby to evade it. As in trespass either vi et armis, or on the case, "non culpabilis, not guilty;" in debt upon contract, "nihil debet, he owes nothing;" in debt on bond, "non est factum, it is not his deed;" on an assumpsit, "non assumpsit, he made no such promise." Or in real actions, "nul tort, no wrong done; nul disseisin, no disseisin;" and in a writ of right, the mise or issue is, that "the tenant has more right to hold than the demandant has to demand." These pleas are called the general issue, because, by importing an absolute and general denial of what is alleged in the declaration, they amount at once to an issue; by which we mean a fact affirmed on one side and denied on the other.
2. Special pleas in bar of the plaintiff's demands are very various, according to the circumstances of the defendant's case. As, in real actions, a general release or a fine; both of which may destroy and bar the plaintiff's title. Or, in personal actions, an accord, arbitration, conditions performed, nonage of the defendant, or some other fact which precludes the plaintiff from his action. A justification is likewise a special plea in bar; as in actions of assault and battery, son assault demesne, that it was the plaintiff's own original assault; in trespass, that the defendant did the thing complained of in right of some office which warranted him so to do; or, in an action of slander, that the plaintiff is really as bad a man as the defendant said he was.
Also a man may plead the statutes of limitation in bar; or the time limited by certain acts of parliament, beyond which no plaintiff can lay his cause of action. This, by the statute of 32 Hen. VIII. c. 2. in a writ of right is 60 years: in assizes, writs of entry, or other possessory actions real, of the seisin of one's ancestors in lands; and either of their seisin, or one's own, in rents, suits, and services, 50 years: and in actions real for lands grounded upon one's own seisin or possession, such possession must have been within 30 years. By statute 1 Mar. st. 2. c. 5. this limitation does not extend to any suit for avowsons. But by the statute 21 Jac. I. c. 2. a time of limitation was extended to the case of the king; viz. 60 years precedent to 19th Feb. 1623; but, this becoming ineffectual by efflux of time, the same date of limitation was fixed by statute 9 Geo. III. c. 16. to commence and be reckoned backwards, from the time of bringing any suit or other process to recover the thing in question; so that a possession for 60 years is now a bar even against the prerogative, in derogation of the ancient maxim, Nullum tempus occurrit regi. By another statute, 21 Jac. I. c. 16, 20 years is the time of limitation in any writ of formeden: and, by a consequence, 20 years is also the limitation in every action of ejectment; for no ejectment can be brought, unless
Plea. where the lessor of the plaintiff is entitled to enter on the lands, and by the statute 21 Jac. I. c. 16. no entry can be made by any man, unless within 20 years after his right shall accrue. Also all actions of trespass (quare clausum fregit, or otherwise), detinue, trover, replevin, account, and case (except upon accounts between merchants), debt on simple contract, or for arrears of rent, are limited by the statute last mentioned to six years after the cause of action commenced: and actions of assault, menace, battery, mayhem, and imprisonment, must be brought within four years, and actions for words 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, shall be sued within two years, and where the forfeiture is to a subject, within one year, after the offence committed, unless 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 be brought to reverse any judgment, fine, or recovery, for error, unless it be prosecuted within 20 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 same principle the Athenian laws in general prohibited all actions where the injury was committed five years before the complaint was made. If, therefore, 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 promise within six years; which is an effectual bar to the complaint.
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 a tenant for years (who hath no freehold) 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), are, 1. That it be single and containing only one matter; for duplicity begets confusion. But by statute 4 and 5 Ann. c. 16. a man, with leave of the court, may plead two or more distinct matters or single pleas; as in an action of assault and battery, these three, Not guilty, non 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.
Special pleas are usually in the affirmative, sometimes in the negative, 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. See PLEADINGS.