S. Special pleas in bar admit the facts alleged in the declaration, but avoid the action by matter, which the plaintiff would not be bound to prove or dispute in the first instance on the general issue. 1 Chitty, Plead. 442 ; Ld. Raym. 88. They are very various, according to the circumstances of the defendant's case : as, in personal action the defendant may plead any special matter in denial, avoidance, discharge, excuse, or justification of the matter alleged in the declaration, which destroys or bars the plain tiff's action ; or he may plead any matter which estops or precludes him from averring or insisting on any matter relied upon by the plaintiff in his declaration. The latter sort of pleas are called pleas in estoppel. In real actions, the tenant may plead any matter which destroys and bars the demand ant's title : as, a general release. Stephen, Plead. 115, 116.
The general qualities of a plea in bar are — first, that it be adapted to the nature and form of the action, and also conformable to the count. Coke, Litt. 303 a; 285 b ; Bacon, Abr. Pleas (I); 1 Rolle, 216. Second, that it answers all it assumes to answer, and no more. Coke, Litt. 303 a; Coniyns, Dig. Pleader (E 1, 36) ; 1 Saund. 28, nn. 1, 2, 3 ; 2 Bos. & P. 427 ; 3 id. 174. Third, in the case of a special plea, that it confess and admit the fact. 3 1 erm 298 ; 1 Salk. 394 ; Carth. 380 ; 1 Saund. n., 14, n. 3 ; 10 Johns. N. Y. 289. Fourth, that it be single. Coke, Litt. 307 ; Bacon, Abr. Pleas (lc 1, 2) ; 2 Saund. 49, 50 ; Plowd. 150 d. Fifth,
that it be certain. Comyns, Dig.. Pleader (E 5-11, C 41). See CERTAINTY; PLEADING.
Sixth, it must be direct, positive, and not argumentative. See 6 Cranch, 126 ; 9 Johns. N. Y. 313. Seventh, it must be capable of trial. Eighth, it must be true and capable of proof.
9. The parts of a plea are—first, the title of the court: Second, the title of the term. Third, the names of the parties in the margin. These, however, do not consti tute any substantial part of the plea. The sir names only are usually inserted, and that of the defendant precedes the plaintiff's : as, " Roe vs. Doe. ' Fourth„ the commence ment, which includes the statement of the name of the defendant, the appearance, the defence, see DEFENCE, the actio non, see ACTIO NoN. .Fifth, the body, which may contain the inducement, the protestation, see PROTESTATION, ground of defence, guce est eadem, the traverse. Sixthi-the conclusion.
Dilatory pleas go to destroy the particular action, but do not affect the right of action in the plaintiff, and hence delay the decision of the cause upon its merits. Gould, Plead. ch. ii. 33. This class includes pleas to the jurisdiction, to the disability of the parties, and all pleas in abatement. All dilatory pleas must be pleaded with the greatest certainty, must contain a distinct, clear, and positive averment of all material facts, and must, in general, enable the plaintiff to cor rect the deficiency or error pleaded to. 1 Chitty, Plead. 365. See ABATEMENT ; JURIS.