Pleas in bar deny that the plaintiff has any cause of action. 1 Chitty, Pl. 407; Co. Lit. 303 b. They either conclude the plaintiff by matter of estoppel, show that he never had any cause of action, or, admitting that he had, insist that it is determined by some subsequent matter. Steph. Pl. And. ed. 448 ; Britt. 92 § 190. They either .deny all or some essential part of the averments in the declaration, in which case they are said to traverse it, or, admitting them to be true, allege new facts which obviate and repel their legal effect, in which case they are said to confess and avoid; Steph. Pl. And. ed. 146.
Every allegation made in the pleadings subsequent to the declaration which does not go in denial of what is before alleged on the other side is an allegation of new matter. See Gould, Pl. § 195.
The term pleas in bar is often used in a restricted sense to denote what are with propriety called special pleas in bar. These pleas are of two kinds; the general issue, and special pleas in bar. The general issue denies or takes issue upon all the material allegations of the declaration, thus compel ling the plaintiff to prove all of them that are essential to support his action. There is, however, a plea to the action which is not strictly either a general issue or a special plea in bar, and which is called a special is sue, which denies only some particular part of the declaration which goes to the gist of the action. It thus, on the one hand, denies less than does the general issue, and, on the other hand, is distinguished from a "special plea in bar" in this,—that the latter uni versally advances new matter, upon which the defendant relies for his defence, which a special issue never does; it simply denies. Lawes, Pl. 110, 145; Co. Litt. 126 a; Gould, Pl. 5th ed. ch. il. § 38, ch. vi. § 8. The matter which ought to be so pleaded is now very generally given in evidence under the gener al issue. 1 Chitty, Pl. 415. A plea which merely amounts to the general issue, though not such in form, is bad ; Spencer v. Patten, 84 Md. 414, 35 Atl. 1097.
Special pleas in bar admit the facts alleg ed 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. Ld. Raym. 88. They are very various, according to the circum stances of the defendant's case : as, in person al action the defendant may plead any spe cial matter in denial, avoidance, discharge, excuse, or justification of the matter alleged in the declaration, which destroys or bars the plaintiff's action ; or he may plead any mat ter which estops or precludes him from aver ring or insisting on any matter relied upon by the plaintiff in his declaration. The lat
ter sort of pleas are called pleas in estoppel. In real action, the tenant may plead any matter which destroys and bars the demand ant's title ; as, a general release ; Steph. Pl. 115.
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. Co. Litt. 303 a; 285 b; Bac. Abr. Pleas (I) ; Rolle 216. Second, that it an swers all it assumes to answer, and no more. Co. Litt. 303 a; Com. Dig. Pleader (E 1, 36) ; 1 Saund. 28; 2 B. & P. 427. Third, in the case of a special plea, that it confess and ad mit the fact. 3 Term 298 ; 1 Saund. 28, 14 ; Kennedy v. Strong, 10 Johns. (N. Y.) 289. Fourth, that it be single. Co. Litt. 307 ; Bac. Abr. Pleas (K 1, 2); 2 Saund. 49. Fifth, that it be certain. Com. Dig. Pleader (E 5-11, C. 41). See CERTAINTY ; PLEADING. Sixth, it must be direct, positive, and not argumenta tive. See Fletcher v. Peck, 6 Cra. (U. S.) 126, 3 L. Ed. 162 ; Spencer v. Southwick, 9 Johns. (N. Y.) 314; Seventh, it must be ca pable of trial. Eighth, it must be true and capable of proof.
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 mar gin. These, however, do not constitute any substantial part of the plea. The surnames only are usually inserted, and that of the de fendant precedes the plaintiff's : as, "Roe v. Doe." Fourth, the commencement, which in cludes the statement of the name of the de fendant, the appearance, the defence, see DE FENCE, the actio non, see ACTIO NoN. Fifth, the body, which may contain the inducement, the protestation, see PROTESTATION, ground of defence, quo est eadem, the traverse. Sixth, 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, Pl. ch. ii. § 33. This class includes pleas to the juris diction, 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 correct the de• ficiency or error pleaded to ; And. Steph. Pl.