part of it, left fomething should appear to have been performed; he may fave to himself any advantage he might hereafter make of the general non-performance, by alleging that by proteftation; and plead only the non-payment of the money o.

In any stage of the pleadings, when either fide advances or [313] affirms any new matter, he ufually (as was faid) avers it to be true; " and this he is ready to verify." On the other hand, when either side traverses or denies the facts pleaded by his antagonist, he ufually tenders an iffue, as it is called the language of which is different according to the party by whom the iffue is tendered; for if the traverse or denial comes from the defendant, the iffue is tendered in this manner," and of "this he puts himself upon the country," thereby fubmitting himself to the judgment of his peers P: but if the traverse lies upon the plaintiff, he tenders the iffue 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 fide (as, for instance, the defendant) pleads a fpecial negative plea; not traverfing or denying any thing that was before alleged, but difclofing fome new negative matter; as, where the fuit is on a bond, conditioned to per form an award, and the defendant pleads, negatively, that no award was made, he tenders no iffue upon this plea; because it does not yet appear whether the fact will be difputed, the plaintiff not having yet afferted the existence of any award; but when the plaintiff replies, and fets forth an actual specific award, if then the defendant traverses the replication, and denies the making of any fuch 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 fide, and denied on the other, they are then said to be at iffue; all their debates being at last contracted into a fingle point, which must now be determined either in favour of the plaintiff or of the defendant.

CHAPTER THE TWENTY-FIRST.

OF ISSUE AND DEMURRER.

SSUE, 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.

AN issue upon matter of law is called a demurrer: and it confeffes the facts to be true, as ftated by the opposite party; but denies that, by the law arifing upon those facts, any injury is done to the plaintiff, or that the defendant has made out a legitimate excufe: according to the party which first demurs, demoratur, refts or abides upon the point in question. As, if the matter of the plaintiff's complaint or declaration be infufficient in law, as by not affigning any fufficient trefpafs, then the defendant demurs to the declaration; if, on the other hand, the defendant's excufe or plea be invalid, as if he pleads that he committed the trefpafs by authority from a ftranger, without making out the stranger's right; here the plaintiff may demur in law to the plea: and fo on in every other part of the proceedings, where either fide perceives any material objection in point of law, upon which he may reft his cafe.

THE form of fuch demurrer is by averring the declaration or plea, the replication or rejoinder, to be infufficient in

law

law to maintain the action or the defence; and therefore praying judgment for want of fufficient matter alleged ". Sometimes demurrers are merely for want of fufficient form in the writ or declaration. But in cafe of exceptions to the form, or manner of pleading, the party demurring must by ftatute 27 Eliz. c. 5. and 4 & 5 Ann. c. 16. fet forth the causes of his demurrer, or wherein he apprehends the deficiency to confift. And upon either a general, or fuch a Special demurrer, the oppofite party muft aver it to be sufficient, which is called a joinder in demurrer b, and then the parties are at iffue in point of law. Which iffue in law, or demurrer, the judges of the court before which the action is brought must determine.

AN iffue of fact is where the fact only, and not the law, is difputed. And when he that denies or traverses the fact pleaded by his antagonist has tendered the iffue, 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 faid "A. B. doth the like." Which done, the iffue is faid to be joined, both parties having agreed to reft the fate of the caufe upon the truth of the fact in question. And this iffue of fact muft, generally fpeaking, be determined, not by the judges of the court, but by fome other method; the principal of which methods is that by the country, per pais, (in Latin, per patriam,) that is, by jury. Which establishment of different tribunals for determining these different iffues, is in fome measure agreeable to the courfe of justice in the Roman republic, where the judices ordinarii determined only questions of fact, but questions of law were referred to the decifions of the centumviri".

BUT here it will be proper to obferve, that during the whole of thefe proceedings, from the time of the defendant's appearance in obedience to the king's writ, it is neceffary

Append. No III. § 6.

Ibid.

Append. No II. § 4.

• Cic. de Orator. l. 1. c. 33.

that

that both the parties be kept or continued in court from day to day, till the final determination of the fuit. For the court can determine nothing, unless in the presence of both the parties, in perfon or by their attorneys, or upon default of one of them, after his original appearance and a time prefixed for his appearance in court again. Therefore in the courfe of pleading, if either party neglects to put in his declaration, plea, replication, rejoinder, and the like, within the times allotted by the ftanding rules of the court, the plaintiff, if the omission be his, is said to be nonfuit, or not to follow and pursue his complaint, and shall lose the benefit of his writ: or, if the negligence be on the fide of the defendant, judgment may be had against him, for fuch his default. And, after iffue or demurrer joined, as well as in fome 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 cafe 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 caufe is thereby difcontinued, and the defendant is discharged fine 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 day certain, he is no longer bound to attend upon that fummons; but he must be warned afrefh, and the whole must begin de novo.

Now it may fometimes happen, that after the defendant has pleaded, nay, even after iffue or demurrer joined, there may have arifen fome new matter, which it is proper for the defendant to plead; as, that the plaintiff, being a feme-fole, is fince married, or that he has given the defendant a releafe, and the like: here, if the defendant takes advantage of this new matter, as early as he poffibly can, viz. at the day given for his next appearance, he is permitted to plead it in what is called a plea puis darrein continuance, or fince the laft adjournment. For it would be unjust to exclude him

from

from the benefit of this new defence, which it was not in his power to make when he pleaded the former. But it is dangerous to rely on fuch a plea, without due confideration; for it confeffes the matter which was before in difpute between the parties. And it is not allowed to be put in, if any continuance has intervened between the arifing of this fresh matter and the pleading of it: for then the defendant is guilty of neglect, or laches, and is fuppofed to rely on the merits of his former plea. Alfo it is not allowed after a demurrer is determined, or verdict given; because then relief may be. had in another way, namely, by writ of audita querela, of which hereafter. And thefe pleas puis darrein continuance, when brought to a demurrer in law or ifiue of fact, fhall be determined in like manner as other pleas.

WE have faid, that demurrers, or questions concerning the fufficiency of the matters alleged in the pleadings, are to be determined by the judges of the court, upon folemn argument by counfel on both fides; 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 paper-books, are delivered to the judges to perufe. The record is a hiftory of the moft material proceedings in the caufe, entered on a parchment roll, and continued down to the prefent time; in which must be stated the original writ and fummons, all the pleadings, the declaration, view or oyer prayed, the imparlances, plea, replication, rejoinder, continuances, and whatever farther proceedings have been had; all entered verbatim on the roll, and alfo the iffue or demurrer, and joinder therein.

THESE were formerly all written, as indeed all public proceedings were, in Norman.or French law, and even the arguments of the counfel and decifions of the court were in the fame barbarous dialect. An evident and fhameful badge, it must be owned, of tyranny and foreign fervitude; being introduced under the aufpices of William the Norman, and f Append. No II. § 4. NO III. § (.

• Cro. Eliz. 49.