136. See ABATEMENT ; JURISDICTION.
Pleas in discharge admit the demand of the plaintiff, and show that it has been dis charged by some matter of fact. Such are pleas of judgment, release, and the like.
Pleas in excuse admit the demand or com plaint stated In the declaration, but excuse the non-compliance with the plaintiffs claim, or the commission of the act of which he complains, on account of the defendant's hav ing 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; Carth. 402 ; 1 Saund. Pl. 98, n. 1; Viner, Abr. Foreign Pleas; 1 Chitty, Pl. 382 ; Bacon, Abr. Abatement (R).
Pleas of justification assert that the de fendant has purposely done the act of which the plaintiff complains, and in the exercise of his legal rights. 8 Term 78; 3 Wils. 71. No person is bound to justify who is not prima facie a wrong-doer ; Cowp. 478; Clark v. Com., 4 Pick. (Mass.) 126 ; 1 Chitty, Pl. 436. • Pleas puts darrein continuance introduce new matter of defence, which has arisen or come to the plaintiff'slknowledge since the last continuance. In most of the states, the actual continuance of a cause from one term to another, or from one particular day in term to another day in the same term, is practically done away with, and the pre• scribed 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 continuance, the plea is still called a plea puts darrein continuance, —meaning, now, a plea upon facts arising since the last stage Of suit. They are either in bar or in abatement. Matter which arises after purchase or issue of the writ, and be fore issue joined, is properly pleaded in bar of the further maintenance of the suit; 4 East 502 ; Yeaton v. Lynn, 5 Pet. (U. S.)
224, 8 L. Ed. 105; Semmes v. Naylor, 12 Gill & J. (Md.) 358; while matter subsequent to issue joined must be pleaded pules darrein continuance; Rowell v. Hayden, 40 Me. 582 ; Longworth v. Flagg, 10 Ohio 300. Their ob ject is to present matter which has arisen since issue joined, and which the defendant cannot introduce under his pleadings as they exist, for the rights of the parties were at common law to be tried as they existed at the time of bringing the suit, and matters subsequently arising come in as it were by exception and favor. See Jackson v. Rich, 7 Johns. (N. Y.) 194.
Among other matters, it may be pleaded that the plaintiff has become an alien• ene my ; 3 Camp. 152 ; that an award has been made after issue joined ; 2 Esp. 504;. Henry v. Porter, 29 Ala. 619 ; that there has been accord and satisfaction ; Watkinson v. Ingles by, 5 Johns. (N. Y.) 392 ; Yeaton v. Lynn, 5 Pet. (U. S.) 231, 8 L. Ed. 105 ; that the plaintiff has become bankrupt ; Wheelock v. Rice, 1 Dougl. (Mich.) 267; 15 East 622; that the defendant has obtained a bankrupt certificate, even though obtained before issue joined ; 9 East 82 ; see 3 B. & C. 23 ; Sand ford v. Sinclair, 3 Den. (N. Y.) 269; that a feme plaintiff has taken a husband; Bull. N. P. 310 ; Templeton v. Clary, 1 Blackf. (Ind.) 288; that judgment has been obtained for the same cause of action ; Bowne v. Joy, 9 Johns. (N. Y.) 221; 5 Dowl. & R. 175; that payment has been made; Herod v. Sny der, 61 Ind. 453; that letters testamentary or of administration have been granted ; 1 Saund. 265, n. 2; or revoked; Com. Dig. Abatement (I 4) ; that the plaintiff has re leased the defendant ; Jessup v. Sing, 4 Cal. 331; Campbell v. Reeves, 3 Sneed (Tenn.) 52; Wade v. Emerson, 17 Mo. 267. See Wis heart v. Legro, 33 N. H. 179. But the de fendant in ejectment cannot plead release from the lessor of the plaintiff ; 4 Maule & S. 300; and the release will be avoided in case of fraud ; 4 B. & Ad. 419; Hoitt v. Hol comb, 23 N. H. 535. In .ejectment a right to the land obtained by defendant since the commencement of the action, must be set up by a. plea P158 darrein continuance; Jennings v. Dockham, 99 Mich. 253, 58 N. W. 66.