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point: it must never be entangled with a variety of distinct, independent answers to the same matter, which must require as many different replies and introduce a multitude of issues upon one and the same dispute. For this would often embarrass the jury, and sometimes the court itself, and at all events would greatly enhance the expense of the parties.

Yet it frequently is expedient to plead in such a manner as to avoid any implied admission of a fact which cannot with propriety or safety be positively affirmed or denied. And this may be done by what is called a protestation, whereby the party interposes an oblique allegation or denial of some fact, protesting (by the gerund protestando) that such a matter does or does not exist, and at the same time avoiding a direct affirmation or denial. Sir Edward Coke hath defined a protestation (in the pithy dialect of that age) to be "an exclusion of a conclusion." For the use of it is to save the party from being concluded with respect to some fact or circumstance which cannot be directly affirmed or denied without falling into duplicity of pleading, and which yet, if he did not thus enter his protest, he might be deemed to have tacitly waived or admitted. [312]

In any stage of the pleadings, when either side advances or affirms any new matter, he usually avers it to be true, "and this he is ready to verify." [313] On the other hand, when either side traverses or denies the facts pleaded by his antagonist, he usually tenders an issue, as it is called, the language of which is different according to the party by whom the issue is tendered; for if the traverse or denial comes from the defendant, the issue is tendered in this manner, “and of this he puts himself upon the country," thereby submitting himself to the judgment of his peers. But if the traverse lies upon the plaintiff he tenders the issue, or prays the judgment of the peers against the defendant in another form, thus: " and this he prays may be inquired of by the country."

But if either side (as, for instance, the defendant) pleads a special negative plea, not traversing or denying anything that was before alleged, but disclosing some new negative matter, as where the suit is on a bond conditioned to per

4. These forms are still observed.

form an award, and the defendant pleads, negatively, that no award was made, he tenders no issue upon this plea, because it does not appear whether the fact will be disputed, the plaintiff not having yet asserted the existence of any award; but when the plaintiff replies and sets forth an actual specific award, if then the defendant traverses the replication and denies the making of any such award, he then, and not before, tenders an issue to the plaintiff. For when in the course of pleading they come to a point which is affirmed on one side and denied on the other, they are then said to be at issue, all their debates being at last contracted into a single point, which must now be determined either in favor of the plaintiff or of the defendant.

CHAPTER XXI.

OF ISSUE AND DEMURRER.

Issue (exitus), being the end of all the pleadings, is the fourth part or stage of an action, and is either upon matter of law or matter of fact. [314]

An issue upon matter of law is called a demurrer, and it confesses the facts to be true as stated by the opposite party, but denies that by the law arising upon those facts any injury is done to the plaintiff, or that the defendant has made out a legitimate excuse; according to the party which first demurs (demoratur), rests, or abides upon the point in question. As if the matter of the plaintiff's complaint or declaration be insufficient in law, as by not assigning any sufficient trespass, then the defendant demurs to the declaration; if, on the other hand, the defendant's excuse or plea be invalid, as if he pleads that he committed a trespass by authority from a stranger without making out the stranger's right, here the plaintiff may demur in law to the plea; and so on in every other part of the proceedings where either side perceives any material objection in point of law upon which he may rest his case.

The form of such demurrer is by averring the declaration or plea, the replication or rejoinder, to be insufficient in law to maintain the action or the defence, and therefore praying judgment for want of sufficient matter alleged. [315] Sometimes demurrers are merely for want of sufficient form in the writ or declaration. But in cases of exceptions to the form or manner of pleading, the party demurring must, by statute 27 Eliz. c. 5, and 4 & 5 Anne, c. 16, set forth the causes of his demurrer, or wherein he apprehends the deficiency to consist. And upon either a general or such a special demurrer the opposite party must aver it to be sufficient, which is called a joinder in demurrer,1 and then the parties are at issue in point of law; which issue in law, or

1. The practice is still the same

where not changed by statute.

demurrer, the judges of the court before which the action is brought must determine.

An issue of fact is where the fact only, and not the law, is disputed. And when he that denies or traverses the fact pleaded by his antagonist has tendered the issue, thus: "and this he prays may be inquired of by the country; " or "and of this he puts himself upon the country," it may immediately be subjoined by the other party," and the said A B doth the like [similiter]," which done, the issue is said to be joined, both parties having agreed to rest the fate of the cause upon the truth of the fact in question. And this issue of fact must, generally speaking, be determined, not by the judges of the court, but by some other method, the principal of which methods is that by the country, per pais (in Latin per patriam), that is, by jury.2

But here it will be proper to observe that during the whole of these proceedings, from the time of the defendant's appearance in obedience to the king's writ, it is necessary that both the parties be kept or continued in court from day to day till the final determination of the suit. [316] For the court can determine nothing unless in the presence of both the parties, in person or by their attorneys, or upon default of one of them, after his original appearance and a time prefixed for his appearane in court again. Therefore in the course of pleading, if either party neglects to put in his declaration, plea, replication, rejoinder, and the like, within the times allotted by the standing rules of the court, the plaintiff, if the omission be his, is said to be nonsuit, or not to follow and pursue his complaint, and shall lose the benefit of his writ; or, if the negligence be on the side of the defendant, judgment may be had against him for such his default. And after issue or demurrer joined, as well as in some of the previous stages of proceeding, a day is continually given and entered upon the record for the parties to appear on from time to time, as the exigence of the case may require. The giving of this day is called the continuance, because thereby the proceedings are continued without interruption from one adjournment to another. If these continuances are omitted, the cause is thereby discontinued, and the defendant is discharged sine die, without a day, for this turn; for by his appearance in court he has obeyed the command of the king's writ, and unless he be adjourned over to a certain day he is no longer bound to

2. It is a maxim that the court responds to questions of law and the jury to questions of fact. By statute in some states all the issues, both fact and law, may be tried by the

court by consent of the parties. In Manitoba, Canada, this is the regular practice, trial by jury being rather unusual.

attend upon that summons, but he must be warned afresh, and the whole must begin de novo. [Not so now in courts of record.]

Now it may sometimes happen that after the defendant has pleaded, nay, even after issue or demurrer joined, there may have arisen some new matter which it is proper for the defendant to plead, as that the plaintiff, being a feme-sole, is since married, or that she has given the defendant a release, and the like; here, if the defendant takes advantage of this new matter as early as he possibly can, viz., at the day given for his next appearance, he is permitted to plead it in what is called a plea of puis darrein continuance,3 or since the last adjournment. For it would be unjust to exclude him from the benefit of this new defence, which it was not in his power to make when he pleaded the former. [317] But it is dangerous to rely on such a plea without due consideration, for it confesses the matter which was before in dispute between the parties. And it is not allowed to be put in if any continuance has intervened between the arising of this fresh matter and the pleading of it; for then the defendant is guilty of neglect, or laches, and is supposed to rely on the merits of his former plea. Also it is not allowed after a demurrer is determined, or verdict given, because the relief may be had in another way, namely, by writ of audita querela, of which hereafter. And these pleas puis darrein continuance, when brought to a demurrer in law or issue of fact, shall be determined in like manner as other pleas.

Demurrers, or questions concerning the sufficiency of the matters alleged in the pleadings, are to be determined by the judges of the court upon solemn argument by counsel on both sides, and to that end a demurrer-book is made up, containing all the proceedings at length, which are afterwards entered on record, and copies thereof, called paperbooks, are delivered to the judges to peruse. The record is a history of the most material proceedings in the cause

3. See Puterburgh's Com. Law, Plead. & Prac. (7th Ed.), 244. Great certainty is required in a plea of this

sort. Id. Ross v. Nesbit, 2 Gilm. 252.

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