not sufficient for the payment of the debts of the deceased, and had been already applied as far as it would go to that purpose; either of which amounts to an answer. In actions where only an account, or the dissolution of partnership is claimed, the defendant can rarely offer a good reason for refusing the one or objecting to the other, as the question between the parties generally resolves itself into one of account only.

It would be tedious, however, to describe, however briefly, the actions that may be brought, or the defences that may be set up; and I must, therefore, refer the reader to the books on this subject, contenting myself with alluding to one or two grounds of defence of not unfrequent occurrence; the first being the statute of limitations, or the time limited by law, beyond which no plaintiff can lay his cause of action.

Twenty years, the period within which an entry must be made or an action brought to recover the possession of land, is also that within which rights that affect the realty, or that were created by deed or matter of record, may be enforced. Thus, actions for money secured by a mortgage, or otherwise charged upon land, must be brought within twenty years; so actions for rent on a lease by deed, or on a bond or other specialty, must be brought within a like period. If there has been a payment of principal or interest, or an acknowledgment in writing, the date of the last payment or of the acknowledgment in writing, is that from which this period of limitation runs.

All actions of trespass, quare clausum fregit, or for injuries to personal property, and of debt on simple contract, must be brought within six years after the cause of action accrued. The same period of limitation applies where the claim is for arrears of rent, in cases in which the demise is not by deed, for arrears of the interest of money charged upon land, for arrears of dower; and for actions upon an award, where the submission is not by specialty.

Actions for assault, or false imprisonment, must be brought within four years, and actions for words within two years after the injury committed.

If, however, the party entitled to sue, or liable to be sued, labours under any disability, the time of limitation does not begin to run till that disability is removed. The period of limitation applicable to suits for sums of money charged upon land,

or secured by bond or other specialty and for rents secured by deed in actions, begins to run afresh from the time of any payment of principal or interest, or the date of any acknowledgment in writing. Debts on simple contract, likewise are, in legal phrase, taken out of the statute, by any payment on account of principal or interest, or by an acknowledgment in writing, any one of which is sufficient to raise a fresh assumpsit or implied promise to pay the debt itself. It was at one time held that a mere verbal promise to pay a debt, or a bare acknowledgment of its existence, if it were such that a promise might be inferred from it, was sufficient. But no acknowledgment or promise by words only is now sufficient evidence of a new or continuing contract; it must be in writing, signed by the party chargeable thereby.

All actions upon penal statutes, where the forfeiture is to the crown alone, must be sued within two years; and where the forfeiture is to a subject, or to the crown and a subject, within one year after the offence committed.

Actions against judges of the county courts, justices of the peace, constables, the local authorities of districts, and other persons holding public offices, must be brought within six, in some cases twelve, in some instances three, months after the cause of action arose.

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 holds that interest reipublicæ ut sit finis litium. If therefore the injury or cause of action happened earlier than the period expressly limited by law, the defendant may set up the statute of limitation applicable to the particular wrong complained of in defence. So that in order to prevent a defendant from availing himself of the statute of limitations, the plaintiff must within the time limited commence an action by issuing a writ, which it is not necessary to serve, provided the plaintiff be careful to renew it from time to time, so as to keep it in force till served, the date of the first writ being the commencement of the action.

Another defence in certain cases is the want of the notice of action; to which, by various statutes, justices of the peace, con

stables, officers of the local boards, officers of the revenue, surveyors of highways, and other persons having public duties to perform, are entitled, when sued for anything done by them, in virtue or in execution or supposed execution of their office. This notice of action, which is necessary in many other instances, is required that the defendant may have an opportunity of tendering amends; and it must, in general, be given one calendar month at least before the action is brought.

An estoppel may likewise be set up as a defence; where a man has done some act, or executed some deed, which estops or precludes him from averring anything to the contrary; as where a distinct statement of a particular fact is made in the recital of a bond or other instrument, and a contract is made with reference to that recital, it is not, as between the parties to the instrument, competent to the party bound to deny the recital.

The requisites of a statement of defence are, 1. That it deny every one of the plaintiff's allegations of fact specifically, or by necessary implication: every allegation not so denied or stated to be not admitted, being taken to be admitted. 2. That each averment of fact or denial of fact be so pleaded as to be capable of trial, that is to say, that it take or tender an issue; with which object, every statement of claim and of defence is required to be divided into distinct paragraphs, numbered consecutively, and each containing a separate allegation. So that, 3. each averment or denial may be single and contain only one matter; for duplicity begets confusion. Hence, 4. every denial of an allegation must be direct and positive and not evasive or argumentative. Thus, if it be alleged that the defendant received a certain sum of money, it is not sufficient to deny that he received that particular amount, but it must be stated that he did not receive that sum or any part thereof, or else set out how much he did receive. So the bare denial of a contract is construed only as a denial of the making of it in fact; not of its legality or its sufficiency in law, for its illegality or insufficiency, if relied upon as a defence, must be directly asserted, so as to be capable of being as directly denied.

The allegations in a statement of defence, as distinguished

from the denials of the plaintiff's averments, are, therefore, in the affirmative; and always advance some new fact not mentioned in the statement of claim. To these denials or allegations, as the case may be, the plaintiff must make answer in his reply. In a simple denial he joins issue; but if the defendant's allegation does not amount to an issue or total contradiction of the plaintiff's allegation, but only evades it, the plaintiff may reply by setting up some new matter in confession and avoidance, which must, however, be consistent with his former statement. Thus in an action for trespassing upon land whereof the plaintiff is possessed, if the defendant shows a title to the land by descent, and that therefore he had a right to enter, the plaintiff may either deny the fact of the descent; or he may confess and avoid it, by replying, that true it is that such descent happened, but that since the descent the defendant himself demised the lands to the plaintiff for a term not yet expired. To this reply the defendant can obviously only answer by a joinder of issue; and as a rule, no pleading subsequent to reply other than a joinder of issue can be pleaded, unless by leave of the court or a judge, and then only upon such terms as the court or judge shall think fit.

The whole of this process is denominated the pleading; in the several stages of which the party must not depart or vary from the title or defence which he has once insisted on. For this, which is called a departure in pleading, might occasion endless altercation. Therefore the reply must support the statement of claim, and the rejoinder, if it be allowed, must support the statement in defence, without departing out of it. As in the case of setting up no award made, in an action thereon, to which the plaintiff replies, setting forth an actual award; now the defendant cannot say that he has performed this award, for this statement would be an entire departure from his original defence, which alleged that no such award was made; therefore he has now no other choice, but to traverse the fact alleged in the reply; demur upon the law of it; or amend his pleading.

In any stage of the pleadings, when either side advances or affirms any matter, he is understood to aver it to be true. So when either side traverses or denies any matter alleged by his antagonist, he is understood to tender an issue, as it is called.

Thus sooner or later the parties come to a point which is affirmed on one side and denied on the other. They are then said to be at issue, all their debates being at last contracted into a single point, which must now be determined either in favour of the plaintiff or of the defendant.

CHAPTER XIII.

OF ISSUE AND DEMURRER.

ISSUE, exitus, the end of all the pleadings, is the fourth stage of an action, and is either upon matter of law or matter of fact.

An issue upon matter of law is called a demurrer. It confesses the facts as stated by the opposite party to be true; but denies that those facts show any cause of action or ground of defence; according as the party which first demurs, demoratur, rests or abides on the point in question. As, if the matter of the plaintiff's complaint be insufficient in law, as by not assigning any sufficient trespass, then the defendant demurs to the whole claim; if, on the other hand, the defendant's excuse be invalid, as if he pleads that he committed the trespass by authority from a stranger, without making out the stranger's right; here the plaintiff may demur to the defence. When therefore either party perceives an objection in law upon which he may rest his case, he may demur by averring the statement of claim or of defence, or the alleged set-off or counter-action, as the case may be, to be bad in substance, that is, insufficient to maintain the action or the defence. The party demurring is thereupon understood to pray judgment for want of sufficient matter alleged; and the opposite party is understood to maintain that his pleading is good in substance, so that the parties are at issue in point of law. Which issue in law, or demurrer, it is for the court to determine.

An issue of fact is where the fact only, and not the law, is disputed. And when he that denies or traverses the fact pleaded by his antagonist has tendered the issue, the other party may immediately join issue; or if affirmative matter be set out in the