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 £10 due on a note of hand, the defendant may set off £9 due to himself for merchandise sold to the plaintiff; and, in case he pleads 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;' or 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 is meant 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 sixty years in assises, writs of entry, or other possessory actions real, of the seisin of one's ancestors in lands; and either of their sesin, or one's own, in rent, suits, and services, fifty years: and in actions real for lands grounded upon one's own seisin or possession, such possession must have been within thirty years. By stat. 1

Mar. st. 2, c. 5, this limitation does not extend to any suit for avowsons. But by stat. 21 Jac. I. c. 2, a time of limitation was extended to the case of the king; viz. sixty years precedent to 19th of February 1623: but this becoming inef fectual, by efflux of time, the same date of limi tation was fixed by stat. 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 sixty years is now a bar even against the prerogative, in derogation of the ancient maxim, Nullum tempus occurrit regi. By another stat, 21 Jac. I. c. 16, twenty years is the time of lmitation in any write of formedon; and, by a consequence, twenty years is also the limitation in every action of ejectment; for no ejectment can be brought, unless where the lessor of the plaintiff is entitled to enter on the lands, and, by stat. 21 Jac. I. c. 16, no entry can be made by any man, unless within twenty 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 and years, actions for words two years, after the injury committed; and by stat. 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, the offence committed, unless where any other time is specially limited by the statute. Lastly, by stat. 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 twenty 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 inte rest reipublicæ ut sit finis litium: and upon same principle the Athenian laws in general prohibited all actions where the injury was commit ted five years before the complaint was made. If therefore, in any suit, the injury or cause of ac tion happened earlier than the period expressly limited by law, the defendant may plead the sta tutes of limitations in bar: as upon an assump sit, 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 stops 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 ac tion to recover these lands, and his fine is plead

after

the

ed against him, he shall thereby be stopped 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 stat. 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, son assault demesue, 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.

ii. 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.

PLEA TO INDICTMENT is the defensive matter alleged by a criminal on his indictment. This is either, 1. A plea to the jurisdiction; 2. A demurrer; 3. A plea in abatement; 4. A special plea in bar; or, 5. The general issue.

I. A plea to the jurisdiction is where an indictment is taken before a court that has no cognizance of the offence; as if a man be indicted for a rape at the sheriff's tourn, or for treason at the quarter sessions; in these, or similar cases, he may except to the jurisdiction of the court, without answering at all to the crime alleged.

II. A demurrer to the indictment is incident to criminal cases, as well as civil, when the fact as alleged is allowed to be true, but the prisoner joins issue upon some point of law in the indictment by which he insists, that the fact, as stated, is no felony, treason, or whatever the crime is alleged to be. Thus, for instance, if a man be indicted for feloniously stealing a grayhound; 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 case the party indicted may demur to the indictment; denying it to be felony, though he confesses the act of taking it. Some have held, that if, on demurrer, the point of law be adjudged against the prisoner, he shall have judgment and execution, as if convicted by verdict. But this is denied by others, who hold that in such case he shall be directed and received to plead the general issue, Not guilty, after a demurrer determined against him. Which appears the more reason able, because it is clear, that if the prisoner freely discovers the fact in court, and refers it to the

court whether it be felony or not; and, upon the fact thus shown, it appears to be felony, the court will not record the confession, but admit him afterwards to plead not guilty. And this seems to be a case of the same nature, being for the most part a mistake in point of law, and in the conduct of his pleading; and, though a man by mispleading may in some cases lose his property, yet the law will not suffer him by such niceties to lose his life. However, upon this doubt, demurrers to indictments are seldom used; since the same advantages may be taken upon a plea of not guilty; or afterwards in arrest of judgment, when the verdict has established the fact.

III. A plea in abatement is principally for a misnomer, a wrong name, or a false addition to the prisoner. As, if James Allen, gentleman, is indicted by the name of John Allen, esquire, he may plead that he has the name of James, and not of John; and that he is a gentleman, and not an esquire. And, if either fact is found by a jury, then the indictment shall be abated, as writs and declarations may be in civil actions. But, in the end, there is little advantage accruing to the prisoner by means of these dilatory pleas : because, if the exception be allowed, a new bill of indictment may be framed, according to what the prisoner in his plea avers to be his true name and addition. For it is a rule, upon all pleas of abatement, that he who takes advantage of a flaw, must at the same time show how it may be amended. Let us therefore next consider a more substantial kind of plea, viz.

IV. Special pleas in bar; which go to the merits of the indictment, and give a reason why the prisoner ought not to answer it at all, nor put himself upon his trial for the crime alleged. These 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 these 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 common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence. And hence it is allowed as a consequence, that when a man is once fairly found not guilty upon any indictment or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime. 2. Secondly, the plea of auterfois convict, or a former conviction of the same identical crime, though no judgment was ever given, or perhaps will be (being suspended by the benefit of clergy or other causes), is a good plea in bar to an indictment. And this depends upon the same principle as the former, that no man ought to be twice brought in danger of his life for one and the same crime. 3. Thirdly, the plea of auterfois attaint, or a former attainder, is a good plea in bar, whether it be for the same or any other felony. For wherever a man is attainted of felony, by judgment of death either upon a verdict or confession, by outlawry, or heretofore by adjuration, and whether upon an appeal or

an indictment; he may plead such attainder in bar to any subsequent indictment or appeal for the same or for any other felony. And this because, generally, such proceeding on a second prosecution cannot be to any purpose; for the prisoner is dead in law by the first attainder, his blood is already corrupted, and he has forfeited all that he had so that it is absurd and superfluous to endeavour to attaint him a second time. Though to this general rule, as to all others, there are some exceptions; wherein, cessante ratione, cessat et ipsa lex. 4. Lastly, a pardon may be pleaded in bar; as at once destroying the end and purpose of the indictment, by remitting that punishment which the prosecution is calculated to inflict. There is one advantage that attends pleading a pardon in bar, or in arrest of judgment, before sentence is past; which gives it by much the preference to pleading it after sentence or attainder. This is, that by stopping the judgment, it stops the attainder, and prevents the corruption of the blood: which, when once corrupted by attainder, cannot afterwards be restored otherwise than by act of parliament.

V. The general issue, or plea of not guilty, upon which plea alone the prisoner can receive his final judgment of death. In case of an indictment of felony or treason, there can be no special justification 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 must plead the general issue, Not Guilty, and give this special matter in evidence. For (besides that these pleas do in effect amount to the general issue; since, if true, the prisoner is most clearly not guilty) as the facts in treason are said to be done proditoriè et contra ligeantiæ suæ debitum; and, in felony, that the killing was done felonicè; these charges, of a traitorous or felonious intent, are the points and very gist 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 defensive 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 most advantageous plea for the prisoner. When the prisoner has thus pleaded not guilty, non culpabilis, or nient culpable, which was formerly used to be abbreviated upon the minutes, thus, Non. (or nient) cul., the clerk of the assize, or clerk of the arraigns, on account of the crown replies, that the prisoner is guilty, and that he is ready to prove him so. This is done by two monosyllables in the same spirit of abbreviation cul. prit: which signifies first that the prisoner is guilty (cul. culpable, or culpabilis), and then that the king is ready to prove him so (prit, præsto sum, or paratus, verificare). By this replication the king and the prisoner are therefore at issue; for when the parties come to a fact which is affirmed on one side and denied on the other, then they are said to be at issue in point of fact; which is evidently the case here, in the plea of non. cul. by the prisoner, and the replication of cul. by the clerk.

PLEACH, v. a. Fr. plesser. To bend; to interweave. See PLASH. A word not in use.

Steal into the pleached bower, Where honey-suckles, ripened by the sun, Forbid the sun to enter. PLEAD', v. n. & v. a. PLEAD'ABLE, PLEAD'ER,

PLEADING.

Id.

Fr. plaider; Span. pleytar; Belg. pleyStar, plucet. To argue ten, pleyderen; all of

before a court; speak in an argumentative way: reason; be offered as an excuse: as a verb ac

tive, to defend; allege; discuss; offer as a plea: pleadable is, that may be alleged in defence: a pleader is, a legal advocate; any one who speaks for or against in argument: pleading, the act or form of a public trial or discussion. We plead not guilty, we must add, with regard to the sentiment in the extract from Selden; but it probably suggested Paley's excuse for the same legal falshood.

O that one might plead for a man with God, as a man pleadeth for his neighbour! Job xvi. 21.

Don Sebastian came forth to intreat that they might part with their arms like soldiers; it was told him that they could not justly plead law of nations, for that they were not lawful enemies.

To his accusations

Spenser.