if the question ever afterwards arises, what the facts adjudged in that case really were. It must give fair notice to third parties of the rights affected by the suit pending, etc. But for our present purpose these may be left out of account; the first two will cover them in most instances, if complied with; but those are indispensable. Trial by judge and jury would be impossible without them, unless, as in Scotland, for a time at least, the judge and lawyers are to go over the statements made by the parties, and frame a distinct set of issues as a separate step in the case; which was simply an acknowledgment that these statements had not performed the proper office of a pleading in our law.

(52) It arising in Wales or beyond sea, page 301.

It has been held from a very early date in this country that where the jurisdiction fails entirely (as distinguished from cases of special jurisdiction like that of the lord's court, which cases are very rare here) no plea to the jurisdiction is necessary. The court may take notice of the defect in its jurisdiction without it. (Lawrence v. Smith, 5 Mass. 362; Bischoff v. Wethered, 9 Wall. 612; Pennoyer v. Neff, 95 U. S. 714; Claflin v. Columbia Ins. Co. 110 U. S. 81.) In such a case the plea cannot give jurisdiction to any other court of the same state, and is therefore bad. (Lawrence v. Smith, supra.) Nor can the parties by stipulation give jurisdiction and prevent the court from taking notice of the defect. (Webster v. Buffalo Ins. Co. 110 U. S. 386.)

Abatement of the action by death of a party is held to be no longer a mere matter of procedure, to be taken advantage of by a dilatory plea, but a part of the substance of the action. A cause of action which abates by common law cannot be revived in a court of the United States unless an act of Congress allows it to survive. Although these courts follow the procedure of the state

courts, and the latter allows a revivor of the action, it cannot be revived in the federal courts. Whether an action survives depends on the substance of the cause of action, not on the forms of procedure to enforce it. (Schreiber v. Sharpless, 110 U. S. 77. See, also, Baker v. Crandall, 78 Mo. 584; 47 Am. Rep. 126.)

(53) Actio personalis moritur cum persona, page 302. No maxim has been more frequently used than this in cases where it had no meaning: often without attention to the limitation so carefully explained by the commentator. It was never true of personal actions as a class, for it had no application to the entire field of contract, and even in that of tort, the exceptions to it have for centuries been more numerous and important than the cases it governed. Lord Mansfield pronounced it not generally true, in Hambly v. Trott, Cowp. 371, 375.

It never applied to actions of contract, as Blackstone explains: the doubt formerly entertained as to assumpsit was before that action had become differentiated from case, and while it was still regarded as an action of tort. (Norwood v. Read, Plow. 180; Pinchin's Case, Cro. Jac. 294, and 9 Coke, 86; Slade v. Morley, Yel. 20, and 4 Coke, 91; Barry v. Robinson, 1 Bos. & P. 293.) The only actions of contract that lay not against executors were those where the deceased might wage his law. (See Hambly v. Trott, supra.) And by a series of statutes, beginning with 4 Edw. III. c. 7, and extending down to our own day, most torts have been made capable of surviving. It now applies only to wrongs to the personal security, and by statute in some states not even to them.

(54) Confessing or denying it, page 303.

The rule that a party could not plead in avoidance (new matter) without confessing, or in other words, that he could not at once traverse and avoid the matter of

the other party's pleading, was a necessary corollary to the singleness of the issue, which was an essential feature of the system (Text, pp. 308, 311; Stephen on Pleading, pp. 130, 251), based on the trial of issues of fact by a jury.

It has been done away with by the new procedure generally, most codes allowing the defendant to plead as many defenses as he has, provided they are not inconsistent, i. e., contradictory of each other. The result is a very important change in our system of pleading, not yet sufficiently noticed in our treatises on that subject.

(55) What is called a set-off, page 304.

The allowance of a set-off was quite inconsistent with common-law procedure, because it allowed the defendant to enforce his demand against the plaintiff without suing out an original writ. Therefore even under the statutes mentioned in the text, he could not obtain an affirinative judgment, although it might exceed plaintiff's entire demand.

This has been changed by the new procedure, which has greatly enlarged the scope of the defense by set-off, or counter-claim, so as to include recoupment of dam· ages, etc., and permits defendant to take judgment against plaintiff for any balance in his favor. It has thus approached the equity of the Roman compensatio far more nearly than the statutes of set-off did, as may be seen by comparing the entire title de compensationibus to which Blackstone refers in his note.

(56) Importing an absolute and general denial of what is alleged in the declaration, page 305.

The "general denial" of the new practice takes the place of the general issue, but differs from it in important respects. It puts in issue only the material facts actually averred in the complaint, while the general issue was a denial of all the facts which plaintiff must

show to make out his case, and was further extended to cover not a few affirmative defenses. Its office varied in different forms of action: but in those where it had the widest scope, as in case (including trover and assumpsit) it admitted evidence of almost any defense not expressly excluded from it. It was indeed a denial of plaintiff's right to recover, while the general denial only goes to the facts averred and denied, and leaves all questions of law unaffected.

One difference between them seems to have been often overlooked in the discussion of the matter proper to be proved under the newer form. Although this is narrower in its scope than the general issue, it is not easy to lay down certain rules as to what may or may not be covered by it, because there is no certain and uniform rule for the contents of the petition put in issue by it.

The declaration in each action at common law had its averments so regulated by precedent that it always (when properly drawn) presented the same case, It stated all that was necessary to make out the cause of action, and no more. It never anticipated a defense or inserted unnecessary or evidential matter. Hence the effect of a general denial was a very simple problem. But under the new procedure there is a wide range of discretion in regard to the averments of a petition: to say nothing of the wider diversity to which an indiscreet or inexperienced pleader can go without rendering his averments so absurd that the other party may safely disregard them. He may set out in full the facts showing that there has not been a release of the claim, or that such a release was fraudulently obtained, without waiting for the release to be pleaded: he may anticipate a defense of contributory negligence (in states where it is a defense) by averments of his own freedom for it: he may aver the performance of a condition subsequent or of a collateral agreement: he has hardly any restraint but his own judgment in setting out

aggravations of the damages. Or he may and probably will aver many facts that are just on the border line between ultimate and evidential matter, making a full statement of what was done and said the substitute for its legal effect, and the like. Often it will be difficult for his opponent to determine whether an explicit and lengthy statement of relevant matter is properly to be regarded as evidential or ultimate. In all these cases it becomes a question whether a general denial will put the matter in issue, and what its effect may be on the burden of proof.

The general issue, vague and loose as it was, left no doubt as to the questions capable of being tried under it, and the burden of proof in each of them. The general denial furnishes no such uniform rule because its effect varies with each peculiar statement of plaintiff's case. Therefore it is impossible to lay down fixed rules as to what is admissible under such a denial, without consideration of plaintiff's petition.

(57) An effectual bar to the complaint, page 308.

As the statute of limitations must be specially pleaded, the necessary inference was that if not so pleaded the court would take no notice of them,even if the demand was evidently barred by lapse of time on the face of the declaration. Hence it was logically held that it was a part of the remedy, and governed by the jus fori; that the statute of the lex loci contractus, if differing, had no effect; and generally that the cause of action was not destroyed by the running of the statute, nor any affirmative right or title created by it. (See on the latter point note to book 2, page .)

Some states have expressly made the statute of limitations a ground of demurrer, and others have held that where the plaintiff's petition shows it to have run the defense may be made by demurrer, e. g., Boyce v. Christy, 47 Mo. 70. This, of course, implies that the