DICTION.
Pleas in discharge admit the demand of the plaintiff, and show that it has been discharged by some matter of fact. Such are pleas of judgment, release, and the like.
10. Pleas in excuse achnit the demand or complaint stated in the declare+ion, but ex cuse the non-compliance with the plaintiff's claim, or the commission of the act of which he complains, on account of the defendant's having done all in his power to satisfy the former, or not having been the culpable author of the latter. A plea of tender is an example of the former, and a plea of son assault demesne an instance of the latter.
Foreign pleas go to the jurisdiction ; and their effect is to remove the action from the county in which the venue is originally laid. Carth. 402. Previous to the statute of Anne, an affidavit was required. 5 Mod. 335; earth., 402 ; 1 Saund. Plead. 98, n. 1 ; Viner, Abr. Foreign Pleas ; 1 Chitty, Plead. 382 ; Bacon, Abr. Abatement (R).
Pleas of justification, which assert that the defendant has purposely. done the act of which the plaintiff complains, and in• the exercise of his legal rights. 8 Term, 78 ; 3 Wils. 71 ; Com. 274. No person is bound to justify who is not primet facie a wrong doer. 1 Leon. 301 ; 2 id. 83 ; Cowp. 47ff; 4 Pick. Mass. 126 ; 13 Johns. N. Y. 443, 579 ; 1 Chitty, Plead. 436.
11. Pleas puis darrein continuance, which introduce new matter of defence, which has arisen or come to the plaintiff's knowledge since the last continuance. In most of the states, the actual continuance of a cause from one term to another, or from one par ticular day in term to another day in the same term, is practically done away with, and the prescribed times for pleading are fixed without any reference to terms of court. Still, this right of a defendant to change his plea so as to avail himself of facts arising during the course of the litigation remains unimpaired ; and though there be no con tinuance, the plea is still called a pleapuis dar rein continuance,—meaning, now, a plea upon facts arisi9 since the last stage of the suit. They are either in bar or in abatement.
Matter which arises after purchase or issue of the writ, and before issue joined, is .pro perly pleaded in bar of the further mainte nance of the suit, 4 East, 502 ; 3 Term, 186; 5 Pet. 224 ; 4 Me. 582 ; 12 Gill & J. Md. 358 ; see 7 Mass. 325 ; while matter sub sequent to issue joined must he pleaded puis darrein continuance. 1 Chitty, Plead. 569 ; 30 Ala. N. s. 253 ; 1 Henipst. Ark. 16; 40 Me. 582 ; 7 Gill, Md. 415 ; 10 Ohio, 300. Their object is to present matter which has arisen since issue joined, and which tho defendant cannot introduce under his plead ings as they exist, for the rights of the parties were at common law to be tried RS they existed at the time of bringing the suit, and matters subsequently arising come in as it were by exception and favor. See 7 Johns. N. Y. 194.
12. Among other matters, it may be plead ed that the plaintiff has became an alien enemy, 3 Campb. 152 ; that an award has been made after issue joined, 2 Esp. 504 ; 29 Ala. N. s. 619 ; that there has been accord and satisfaction, 5 Johns. N. Y. 392 ; that the plaintiff has become bankrupt, Tidd, Pract. 8th ed. 800 ; 1 Dougl. Mich. 267 ; that the defendant has obtained a bankrupt-cer tificate, even though obtained before issue joined, 9 East, 82 ; see 2 H. Blackst. 553 ; 3 Barnew. & C. 23 ; 3 Den. N. Y. 269 ; that a feme plaintiff has taken a husband, Buller, Nisi P. 310 ; 1 Blackf. Ind. 288 ; that judg ment has been obtained for the same cause of action, 9 Johns. N. Y. 221 ; 5 Dowl. & R. 175 ; that letters testancientary or of admi nistration have been granted, 2 Strange, 1106 ; 1 Saund. 265, n. 2, or revoked, Comyns, Dig. Abatement (I 4) ; that the plaintiff has released the defendant. 4 Cal. 331 ; 3 Sneed, Tenn. 52 ; 17 Mo. 267. See 33 N. H. 179. But the defendant in ejectment cannot plead release from the lessor of the plaintiff, 4 Maule & S. 300 ; 7 Taunt. 9 ; and the release will be avoided in case of fraud. 7 Taunt. 48 ; 4 Barnew. & Ad. 419 ; 4 J. B. Moore, Priv. Counc. 192 ; 23 N. H. 535.