of two forts; dilatory pleas, and pleas to the adion. Dilatory pleas are fuch as tend merely to delay or put off the fuit, by questioning the propriety of the remedy, rather than by denying the injury: pleas to the action are fuch as difpute the very cause of fuit.

Play-house, out their confent. The customary price of the copy of •Plea. a play in the time of Shakespeare appears to have been twenty nobles, or fix pounds thirteen fhillings and four pence. The play when printed was fold for fixpence; and the ufual prefent from a patron in return for a dedication was forty fhillings. On the first day of exhibiting a new play, the prices of admiffion appear to have been raised; and this feems to have been occafionally practifed on the benefit-nights of authors to the end of the laft century. The custom of paffing a final cenfure on plays at their first exhibition is as ancient as the time of our author; for no less than three plays of his rival Ben Jonfon appear to have been damned; and Fletcher's Faithful Shepherdefs, and The Knight of the Burning Peftle, written by him and Beaumont, underwent the fame fate.

Blackf

Comment,

"It is not eafy to afcertain what were the emoluments of a fuccefsful actor in the time of Shakespeare. They had not then annual benefits as at prefent. The performers at each theatre seem to have shared the profits arifing either from each day's exhibition or from the whole season among them. From Ben Jonfon's Poetafter we learn, that one of either the performers or proprietors had feven fhares and a half; but of what integral fum is not mentioned. From the prices of admiffion into our ancient theatres, which have been already mentioned, I imagine the utmost that the sharers of the Globe play-house could have received on any one day was about L. 35. So lately as the year 1685, Shadwell received by his third day on the representation of the Squire of Alfatia, L. 130; which Downes the prompter fays was the greatest receipt that had been ever taken at Drury-Lane playhouse at fingle prices. It appears from the MSS. of Lord Stanhope, treafurer of the chambers to King James I. that the cuftomary fum paid to John Heminge and his company for the performance of a play at court was twenty nobles, or fix pounds thirteen fhillings and four pence. And And Edward Alleyn mentions in his Diary, that he once had so slender an audience in his theatre called the Fortune, that the whole receipts of the house amounted to no more than three pounds and fome odd fhillings.

"Thus fcanty and meagre were the apparatus and accommodations of our ancient theatres, on which those dramas were firft exhibited, that have fince engaged the attention of fo many learned men, and delighted fo many thousand spectators. Yet even then, we are told by a writer of that age, that dramatic poefy was fo lively expreffed and reprefented on the public ftages and theatres of this city, as Rome in the age of her pomp and glory never faw it better performed; in refpect of the action and art, not of the coft and fumptuoufnefs."

PLEA, in law, is what either party alleges for himfelf in court, in a cause there depending; and in a more restrained sense, it is the defendant's anfwer to the plain tiff's declaration.

Pleas are ufually divided into those of the crown and common pleas. Pleas of the crown are all fuits 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 againft his peace; as treafon, murder, felony, &c. See ARRAIGNMENT.

Common pleas are fuch fuits as are carried on be tween common perfons in civil. cafes. Thefe pleas are VOL. XV. Part I.

2. To

I. Dilatory pleas are, 1. To the jurisdiction of the court: alleging, that it ought not to hold plea of this injury, it arifing in Wales or beyond fea; or because the land in queftion is of ancient demefne, and ought only to be demanded in the lord's court, &c. the difability of the plaintiff, by reafon whereof he is incapable to commence or continue the fuit; as, that he is an alien enemy, outlawed, excommunicated, attainted of treafon or felony, under a præmunire, not in rerum natura (being only a fictitious perfon), an infant, a feme-covert, or a monk profeffed. 3. In abatement: which abatement is either of the writ, or the count, for fome defect in one of them; as by mifnaming the defendant, which is called a mifnomer; giving him a wrong addition, as efquire instead of knight; or other want of form in any material refpect. Or, it may be that the plaintiff is dead; for the death of either party is at once an abatement of the fuit.

These pleas to the jurifdiction, to the disability, or in abatement, were formerly very often used as mere dila. tory 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 fome probable matter fhown to the court to induce them to believe it true. And with refpect to the pleas themselves, it is a rule, that no exception fhall be admitted against a declaration or writ, unless the defendant will in the fame plea give the plaintiff a better; that is, fhow him how it might be amended, that there may not be two objections upon the fame account.

All pleas to the jurifdiction conclude to the cognizance of the court; praying "judgment whether the court will have farther cognizance of the fuit." Pleas to the difability conclude to the person; by praying "judgment, if the faid A the plaintiff ought to be anfwered:" And pleas in abatement (when the fuit is by original) conclude to the writ or declaration; by praying "judgment of the writ, or declaration, and that the fame may be quafhed," caffetur, made void, or abated+ but if the action be by bill, the plea muft pray " judgement 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 ate allowed, the cause is either difmiffed from that jurifdiction, or the plaintiff is ftayed till his disability be removed; or he is obliged to fue 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 over-ruled as frivolous, the defendant has judgment of refpondeat oufler, or to anfwer over in fome 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 confefling or denying it.

A confeffion of the whole complaint is not very ufual; for then the defendant would probably end the matter fooner, or not plead at all, but fuffer judgment to go C by

fendant's cafe. As, in real actions, a general releafe or a fine; both of which may destroy and bar the plaintiff's title. Or, in perfonal actions, an accord, arbitration, conditions performed, nonage of the defendant, or fome other fact which precludes the plaintiff from his action. A juftification is likewife a fpecial plea in bar; as in actions of affault and battery, fon affault demesno, that it was the plaintiff's own original affault; in trefpafs, that the defendant did the thing complained of in right of fome office which warranted him fo to do; or, in an action of flander, that the plaintiff is really as bad a man as the defendant faid he was.

Plea. by default. Yet fometimes, after tender and refufal of a debt, if the creditor haraffes his debtor with an action, it then becomes neceflary for the defendant to acknow. ledge the debt, and plead the tender; adding, that he has always been ready, tout temp: prift, and is ftill ready, uncore prift, to discharge it: for a tender by the debtor and refufal by the creditor will in all cafes difcharge the cofts, but not the debt itself; though in fome particular cafes the creditor will totally dofe his money. But frequently the defendant confeffes one part of the complaint (by a cognovit actionem in refpect thereof), and traverfes or denies the reft; in order to avoid the expence of carrying that part to a formal trial, which he has no ground to litigate. A fpecies of this fort of confeffion is the payment of money into court: which is for the most part neceffary 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 ac knowledges to be due, together with the cofts 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 occafional application to the court by the parties or their counsel, in order to obtain fome rule or order of court, which becomes neceffary in the progrefs of a caufe; and it is ufually grounded upon an affida (the perfect tenfe of the verb affido), being a voluntary oath before fome judge or officer of the court, to evince the truth of certain facts, upon which the motion is grounded: though no fuch affidavit is neceffary for payment of money into court. If, after the money is paid in, the plaintiff proceeds in his fuit, it is at his own peril: for if he does not prove more due than is fo paid into court, he fhall be nonfuited and pay the defendant's cofts; but he shall ftill have the money fo paid in, for that the defendant has acknowledged to be his due. To this head may alfo be referred the practice of what is called a fet off; whereby the defendant acknowledges the juftice of the plaintiff's demand on the one hand; but on the other, fets up a demand of his own, to counterbalance that of the plaintiff, either in the whole or in part; as, if the plaintiff fues for ten pounds due on a note of hand, the defendant may fet off nine pounds due to himself for merchandize fold to the plaintiff; and, in cafe he pleads fuch fet-off, must pay the remaining ba lance into court.

Pleas that totally deny the cause of complaint are either the general iffue, or a special plea in bar.

1. The general ijue, or general plea, is what traverses, thwarts, and denies at once, the whole declaration, with out offering any fpecial matter whereby to evade it. As in trefpafs 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 eft factum, it is not his deed;" on an affumpfit," non affumpfit, he made no fuch promise." Or in real actions, "nul tort, no wrong done; mul diffefir, no diffeifin ;" and in a writ of right, the mife or iffue is, that "the tenant has more right to hold than the demandant has to demand." Thefe pleas are called the general iffue, because, by importing an abfolute and general denial of what is alleged in the declaration, they amount at once to an iffue; by which we mean a fact affirmed on one fide and denied on the other.

Alfo a man may plead the ftatutes of limitation in bar; or the time limited by certain acts of parliament, beyond which no plaintiff can lay his caufe of action. This, by the ftatute of 32 Hen. VIII. c. 2. in a writ of right is 60 years: in affifes, writs of entry, or other poffeffory actions real, of the feifin of one's ancestors in lands; and either of their feifin, or one's own, in rents, fuits, and fervices, 50 years: and in actions real for lands grounded upon one's own feifin or poffeffion, fuch poffeffion must have been within 30 years. By ftatute 1 Mar. ft. 2. c. 5. this limitation does not extend to any fuit for avowfons. But by the ftatute 21 Jac. I. c. 2. a time of limitation was extended to the cafe of the king; viz. 60 years precedent to 19th Feb. 1623: but, this becoming ineffectual by efflux of time, the fame date of limitation was fixed by ftatute 9 Geo. III. c. 16. to commence and be reckoned backwards, from the time of bringing any fuit or other process to recover the thing in queftion; fo that a poffeffion for 60 years is now a bar even against the prerogative, in derogation of the ancient maxim, Nullum tempus occurrit regi. By another ftatute, 21 Jac. I. c. 16. 20 years is the time of limitation in any writ of formedon: and, by a confequence, 20 years is alfo the limitation in every action of ejectment; for no ejectment can be brought, unless where the leffor of the plaintiff is intitled to enter on the lands, and by the ftatute 21 Jac. I. c. 16. no entry can be made by any man, unless within 20 years after his right fhall accrue. Alfo all actions of trefpafs (quare claufum fregit, or otherwife), detinue, trover, re plevin, account, and cafe (except upon accounts between merchants), debt on fimple contract, or for arrears. of rent, are limited by the ftatute laft mentioned to fix years after the cause of action commenced: and actions of affault, menace, battery, mayhem, and imprifonment, must be brought within four years, and actions for words two years, after the injury committed. And by the fta tute 31 Eliz. c. 5. all fuits, indictments, and informa➡ tions, upon any penal ftatutes, where any forfeiture is. to the crown, fhall be fued within two years, and where the forfeiture is to a subject, within one year, after the offence committed, unless where any other time is fpecially limited by the ftatute. Laftly, by ftatute 10 W. III. c. 14. no writ of error, feire farias, or other fuit, fhall be brought to reverse any judgment, fine, or reco→ very, for error, unless it be profecuted within 20 years. The ufe of thefe ftatutes of limitation is to preserve the peace of the kingdom, and to prevent those innumerable perjuries which might enfue 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 reipublica ut fit finis litium: and upon the fame principle the Athenian laws in general pro

hibited

hibited all actions where the injury was committed five years before the complaint was made. If therefore, in any fuit, the injury, or caufe of action, happened earlier than the period exprefsly limited by law, the defendant may plead the ftatutes of limitations in bar: as upon an affumfit, or promise to pay money to the plaintiff, the defendant may plead, Non affumpfit infra fex annos, He made no fuch promife within fix 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 fome act, or executed some deed, which eftops 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 perfon. Tho' this is void as to ftrangers, yet it fhall work as an estoppel to the cognizor; for, if he afterwards brings an ac tion to recover these lands, and his fine is pleaded a gainst him, he shall thereby be eftopped from faying, 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 eftoppels, will also hold equally, mutatis mutandis, with regard to other parts of pleading), are, 1. That it be fingle and containing only one matter; for duplicity begets confufion. But by ftatute 4 and 5 Ann. c. 16. a man, with leave of the court, may plead two or more diftinct matters or fingle pleas; as in an action of affault and battery, thefe three, Not guilty, fon affault demefne, and the ftatute of limitations. 2. That it be direct and pofitive, and not argumentative. 3. That it have convenient certainty of time, place, and perfons. 4. That it anfwer the plaintiff's allegations in every material point. 5. That it be fo pleaded as to be capable of trial.

Special pleas are ufually in the affirmative, fometimes in the negative, but they always advance fome new fact not mentioned in the declaration; and then they muft be averred to be true in the common form :-" And this he is ready to verify."-This is not neceffary in pleas of the general iffue, thofe 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.

PLEA to Indictment, the defenfive matter alleged by a criminal on his indictment: (fee ARRAIGNMENT.) This is either, 1. A plea to the jurifdiction; 2. A demurrer; 3. A plea in abatement; 4. A special plea in bar; or, 5. The general iffue.

I. A plea to the jurisdiction, is where an indictment is taken before a court that hath no cognizance of the offence; as if a man be indicted for a rape at the she riff's tourn, or for treafon at the quarter-feffions: in thefe or fimilar cafes, he may except to the jurifdiction of the court, without answering at all to the crime alleged. II. A demurrer to the indictment, is incident to criminal cafes, as well as civil, when the fact as alleged is allowed to be true, but the prisoner joins iffue upon fome point of law in the indictment by which he infists, that the fact, as flated, is no felony, treason, or whatever the crime is alleged to be. Thus, for inftance, if a man be indicted for feloniously stealing a greyhound; which is an animal in which no valuable property can be had, and therefore it is not felony, but only a civil trespass to steal it; in this cafe the party indicted may demur to the indi&ment; denying it to be felony, tho'

he confeffes the act of taking it. Some have held, that if, on demurrer, the point of law be adjudged against the prifoner, he fhall have judgment and execution, as if convicted by verdict. But this is denied by others, who hold, that in fuch cafe he fhall be directed and received to plead the general iffue, Not guilty, after a demurrer determined against him. Which appears the more reasonable, because it is clear, that if the prisoner freely discovers the fact in court, and refers it to the opinion of the court whether it be felony or no; and upon the fact thus fhown, it appears to be felony, the court will not record the confeffion, but admit him afterwards to plead not guilty. And this feems to be a cafe of the fame nature, being for the moft part a miltake in point of law, and in the conduct of his pleading; and, though a man by mifpleading may in fome cafes lofe his property, yet the law will not fuffer him by fuch niceties to lofe his life. However, upon this doubt, demurrers to indictments are seldom used: fince the fame advantages may be taken upon a plea of not guilty; or afterwards, in arreft of judgment, when the verdict has established the fact.

III. A plea in abatement is principally for a mifnomer, a wrong name, or a falfe addition to the prifoner. As, if James Allen, gentleman, is indicted by the name of John Allen, efquire, he may plead that he has the name of James, and not of John; and that he is a gentleman, and not an efquire. And, if either fact is found by a jury, then the indictment fhall be abated, as writs or declarations may be in civil actions. But, in the end, there is little advantage accruing to the prifoner by means of thefe dilatory pleas, becaufe, if the exception be allowed, a new bill of indictment may be framed, according to what the prifoner in his plea avers to be his true name and addition. For it is a rule, upon all pleas in abatement, that he who takes advantage of a flaw, muft at the fame time show how it may be amended. Let us therefore next confider a more fubftantial kind of plea, viz.

IV. Special pleas in bar; which go to the merits of the indictment, and give a reafon why the prifoner ought not to answer it at all, nor put himself upon his trial for the crime alleged. Thefe are of four kinds; a former acquittal, a former conviction, a former attainder, or a pardon. There are many other pleas which may be pleaded in bar of an appeal: but thefe are applicable to both appeals and indictments.

1. First, the plea of auterfoits acquit, or a former acquittal, is grounded on this universal maxim of the com mon law of England, that no man is to be brought into jeopardy of his life, more than once, for the fame offence. And hence it is allowed as a confequence, that. when a man is once fairly found not guilty upon any indictment, or other profecution, before any court having, competent jurisdiction of the offence, he may plead fuch acquittal in bar of any fubfequent accufation for the fame crime.

2. Secondly, the plea of auterfoits convid, or a former conviction for the fame identical crime, though no judgment was ever given, or perhaps will be (being fufpended by the benefit of clergy or other causes), is a good plea in bar to an indictment. And this depends upon the fame principle as the former, that no man ought to be twice brought in danger of his life for one, and the fame crime. 3. Thirdly

G2

3. Thirdly, the plea of auterfoits attaint, or a former attainder, is a good plea in bar, whether it be for the fame or any other felony. For wherever a man is attainted of felony, by judgment of death either upon a verdict or confeffion, by outlawry, or heretofore by abjuration, and whether upon an appeal or an indictment; he may plead fuch attainder in bar to any fubfequent indictment or appeal, for the fame or for any other felony. And this because, generally, fuch proceeding on a fecond profecution cannot be to any purpofe; for the prifoner is dead in law by the firft attainder, his blood is already corrupted, and he hath forfeited all that he had: fo that it is abfurd and fuperfluous to endeavour to attaint him a second time. Though to this general rule, as to all others, there are fome exceptions; wherein, ceffante ratione, ceffat et ipfa lex.

4. Laftly, a pardon may be pleaded in bar; as at once deftroying the end and purpose of the indictment, by remitting that punishment, which the profecution is calculated to inflict. There is one advantage that attends pleading a pardon in bar, or in arreft of judgment, before fentence is past; which gives it by much the preference to pleading it after fentence or attainder. This is, that by stopping the judgment it ftops the attainder, and prevents the corruption of the blood: which, when once corrupted by attainder, cannot afterwards be reftored otherwise than by act of parliament.

V. The general iffue, or plea of not guilty, upon which plea alone the prifoner can receive his final judgment of death. In cafe of an indictment of felony or treafon, there can be no special juftification put in by way of plea. As, on an indictment for murder, a man cannot plead that it was in his own defence against a robber on the highway, or a burglar; but he muft plead the general iffue, Not guilty, and give this fpecial matter in evidence. For (befides that these pleas do in effect a mount to the general iffue; fince, if true, the prifoner is moft clearly not guilty) as the facts in treafon are laid to be done proditorie et contra ligeantiæ fuæ debitum; and, in felony, that the killing was done felonice; these charges, of a traiterous or felonious intent, are the points and very gift of the indictment, and must be answered directly, by the general negative, Not guilty; and the jury upon the evidence will take notice of any defenfive matter, and give their verdict accordingly as effectually as if it were or could be specially pleaded. So that this is, upon all accounts, the moft advantageous plea for the prifoner.

When the prifoner hath thus pleaded not guilty, non culpabilis, or nient culpable: which was formerly ufed to be abbreviated upon the minutes, thus, Non (or nient) cul. the clerk of the affize, or clerk of arraigns, on behalf of the crown replies, that the prifoner is guilty, and that he is ready to prove him fo. This is done by two monofyllables in the fame fpirit of abbreviation, cul. prit.: which fignifies first that the prifoner is guilty, (cul. culpable, or culpabilis); and then that the king is ready to

prove him so, (prít, praflo fum, or paratus, verificare). Plea, By this replication the king and the prifoner are Pleadings therefore at iffue: for when the parties come to a fact which is affirmed on one fide and denied on the other, then they are faid to be at iffue in point of fact: which is evidently the cafe here, in the plea of non cul. by the prisoner; and the replication of cul. by the clerk.

How the courts came to express a matter of this im portance in fo odd and obfcure a manner, can hardly be pronounced with certainty. It may perhaps, however, be accounted for by fuppofing, that these were at first fhort notes, to help the memory of the clerk, and remind him what he was to reply; or elfe it was the fhort method of taking down in court, upon the minutes, the replication and averment; cul. prit: which afterwards the ignorance of fucceeding clerks adopted for the very words to be by them spoken (A).

But however it may have arifen, the joining of issue feems to be clearly the meaning of this obfcure expreffion; which has puzzled our moft ingenious etymologifts, and is commonly understood as if the clerk of the arraigns, immediately on plea pleaded, had fixed an opprobrious name on the prifoner, by asking him, “culprit, how wilt thou be tried?" for immediately upon iffue joined it is inquired of the prisoner, by what trial he will make his innocence appear. This form has at prefent reference to appeals and approvements only, wherein the appellee has his choice, either to try the accufation by BATTLE or by JURY. But upon indictments, fince the abolition of ORDEAL, there can be no other trial but by jury, per pais, or by the country: and therefore, if the prifoner refuses to put himself upon the inqueft in the ufual form, that is, to anfwer that he will be tried by. God and the country, if a commoner; and, if a peer, by God and his peers; the indictment, if in treason, is taken pro confeffo; and the prifoner, in cafes of felony, is judged to ftand mute, and, if he perfeveres in his ob ftinacy, fhall now be convicted of the felony.

When the prisoner has thus put himself upon his trial, the clerk anfwers in the humane language of the law, which always hopes that the party's innocence rather than his guilt may appear, "God fend thee a good deliverance.' And then they proceed, as foon as conveniently may be, to the trial. See the article TRIAL.

PLEADINGS, in law, are the mutual altercationsbetween the plaintiff and defendant, (fee SUIT, WRIT, and PROCESS). They form the third part or stage of a fact; and at prefent are fet down and delivered into the proper office in writing, though formerly they were ufually put in by their council ore tenus, er viva voce, in court, and then minuted down by the chief clerks or prothonotaries; whence, in our old law-French, the pleadings are frequently denominated the parol.

The firft of thefe is the declaration, narratio, or count, anciently called the tale; in which the plaintiff fets forth his caufe of complaint at length: being indeed only an amplification

Pleadings amplification or expofition of the original writ upon which his action is founded, with the additional circumBlackft. stances of time and place, when and where, the injury Comment. was committed.

In local actions, where poffeffion of land is to be recovered, or damages for an actual trefpafs, or for wafte, &c. affecting land, the plaintiff muft lay his declaration, or declare his injury to have happened in the very county and place that it really did happen; but in tranfitory actions, for injuries that might have happened anywhere, as debt, detinue, flander, and the like, the plaintiff may declare in what county he pleases, and then the trial must be in that county in which the declaration is laid. Though, if the defendant will make affidavit that the cause of action, if any, arose not in that but another county, the court will direct a change of the venue or vifne (that is, the vicinia or neighbourhood in which the injury is declared to be done), and will oblige the plaintiff to declare in the proper county. For the ftatute 6 Ric. II. c. 2. having ordered all writs to be laid in their proper counties, this, as the judges conceived, impowered them to change the venue, if required, and not to infift rigidly on abating the writ: which practice began in the reign of James I. And this power is difcretionally exercifed, fo as not to cause but prevent a defect of juftice. Therefore the court will not change the venue to any of the four northern counties previous to the fpring circuit; because there the affifes are holden only once a-year, at the time of fummer circuit. And it will fometimes remove the venue from the proper jurisdiction (especially of the narrow and limited kind), upon a fuggeftion, duly fupported, that a fair and impartial trial cannot be had

therein.

:

It is generally ufual, in actions upon the cafe, to fet forth feveral cafes, by different counts in the fame declaration; so that if the plaintiff fails in the proof of one, he may fucceed in another. As in an action on the cafe upon an ASSUMPSIT for goods fold and delivered, the plaintiff ufually counts or declares, firft, upon a fettled and agreed price between him and the defendant; as, that they bargained for 201. and left he fhould fail in the proof of this, he counts likewise upon a quantum valebant; that the defendant bought other goods, and agreed to pay him fo much as they were reasonably worth and then avers that they were worth other 20l. and fo on in three or four different fhapes; and at laft concludes with declaring, that the defendant had refused to fulfil any of thefe agreements, whereby he is endamaged to fuch a value. And if he proves the cafe laid in any one of his counts, though he fails in the reft, he fhall recover proportionable damages. This declaration always concludes with these words," and thereupon he brings fuit," &c. inde producit fedam, &c. By which words, fuit or fecta (a fequendo), were anciently understood the witneffes or followers of the plaintiff. For in former times, the law would not put the defendant to the trouble of anfwering the charge till the plaintiff had made out at least a probable cafe. But the actual production of the fuit, fecta, or followers, is now antiquated, and hath been totally difufed, at least ever fince the reign of Edward III. though the form of it still continues.

At the end of the declaration are added alfo the

plaintiff's common pledges of profecution, John Doe Pleadings. and Richard Roe; which, as we elsewhere observe, (fee WRIT), are now mere names of form; though formerly they were of use to answer to the king for the amercement of the plaintiff, in case he were nonfuited, barred of his action, or had a verdict and judgment against him. For if the plaintiff neglects to deliver a declaration for two terms after the defendant appears, or is guilty of other delays or defaults against the rules of law in any fubfequent stage of the action, he is adjudged not to follow or purfue his remedy as he ought to do; and thereupon a nonfuit, or non profequitur, is entered, and he is faid to be non-prof'd. And for thus deferting his complaint, after making a falfe claim or complaint (pro falfo clamore fuo), he fhall not only pay cofts to the defendant, but is liable to be amerced to the king. A retraxit differs from a nonfuit, in that the one is negative and the other pofitive: the nonfuit is a default and neglect of the plaintiff, and therefore he is allowed to begin his fuit again upon payment of cofts; but a retraxit is an open and voluntary renunciation of his fuit in court; and by this he for ever loses his action. A difcontinuance is fomewhat fimilar to a nonfuit; for when a plaintiff leaves a chafm in the proceedings of his cause, as by not continuing the process regularly from day to day, and time to time, as he ought to do, the fuit is difcontinued, and the defendant is no longer bound to attend; but the plaintiff muft begin again, by fuing out a new original, ufually paying cofts to his antagonist.

When the plaintiff hath stated his cafe in the decla ration, it is incumbent on the defendant, within a reafonable time, to make his defence, and to put in a plea; or elfe the plaintiff will at once recover judgment by default, or nihil dicit, of the defendant.

Defence, in its true legal fenfe, fignifies not a juftification, protection, or guard, which is now its popular fignification; but merely an oppofing or denial (from the French verb defendre) of the truth or validity of the complaint. It is the conteftatio litis of the civilians: a general affertion that the plaintiff hath no ground of action; which affertion is afterwards extended and maintained in his plea.

Before defence made, if at all, cognizance of the fuit must be claimed or demanded; when any perfon or body-corporate hath the franchise, not only of holding pleas within a particular limited jurifdiction, but alfo of the cognizance of pleas; and that either without any words exclufive of other courts, which intitles the lord of the franchife, whenever any fuit that belongs to his jurifdiction is commenced in the courts at Weftminfter, to demand the cognizance thereof; or with fuch exclufive words, which also intitle the defendant to plead to the jurifdiction of the court. Upon this claim of cognizance, if allowed, all proceedings fhall ceafe in the fuperior court, and the plaintiff is left at liberty to purfue his remedy in the special jurisdiction. As, when a scholar or other privileged person of the universities of Oxford or Cambridge is impleaded in the courts at Westminster, for any caufe of action whatfoever, unless upon a queftion of freehold. In thefe cafes, by the charter of thofe learned bodies, confirmed by act of parliament, the chancellor, or vice-chancellor, may put in a claim of cognizance; which, if made in due time and form, and with due proof of the facts alleged, is

regu

larly