In every material point. 5. That it be so pleaded as to be capable :! trial (29).

*Special pleas are usually in the affirmative, sometimes in the [*309) negative; but they always advance some new fact not mentioned

in the declaration; and then they must be averred to be true in the common form," and this he is ready to verify."-This is not necessary in pleas of the general issue; those always containing a total denial of the facts before advanced by the other party, and therefore putting him upon the proof of them.

It is a rule in pleading, that no man be allowed to plead specially such a plea as amounts only to the general issue, or a total denial of the charge; but in such case he shall be driven to plead the general issue in terms, whereby the whole question is referred to a jury. But if the de fendant, in an assise or action of trespass, be desirous to refer the validity of his title to the court rather than the jury, he may state his title special ly, and at the same time give colour to the plaintiff, or suppose him to have an appearance or colour of title, bad indeed in point of law, but of which the jury are not competent judges. As if his own true title be, that he claims by feoffment, with livery from A, by force of which he entered on the lands in question, he cannot plead this by itself, as it amounts to no more than the general issue, nul tort, nul disseisin, in assise, or not guilty in an actior of trespass. But he may allege this specially, provided he goes farther and says, that the plaintiff claiming by colour of a prior deed of feoffment without livery, entered; upon whom he entered; and may then refer himself to the judgment of the court which of these two titles is the best in point of law (f).

When the plea of the defendant is thus put in, if it does not amount to an issue or total contradiction of the declaration but only evades it, the plaintiff may plead again, and reply to the defendant's plea either tra versing it; that is, totally denying it; as, if on an action of debt upon bond the defendant pleads solvit ad diem, that he paid the money when *due, here the plaintiff in his replication may totally tra- [*310] verse this plea, by denying that the defendant paid it: or, he may allege new matter in contradiction to the defendant's plea; as when the defendant pleads no award made, the plaintiff may reply and set forth an actual award, and assign a breach (g); or the replication may confess and avoid the plea, by some new matter or distinction consistent with the plaintiff's former declaration; as, in an action for trespassing upon land whereof the plaintiff is seised, if the defendant shews a title to the land by descent, and that therefore he had a right to enter, and gives colour to the plaintiff, the plaintiff may either traverse and totally deny the fact of the

(f) Dr. & Stud. 2, c. 53.

(29) In addition to these qualities, it should be observed, that every plea in bar, must be adapted to the nature of the action, and conformable to the count, Co. Lit. 303. a. 285. b. Bac. Ab. Pleas, I per tot. 1 Rol. Rep. 216; must answer the whole declaration or count, or rather all that it assumes in the introductory part to answer, and no more; Co. Lit. 303. b. Con Dig. Pleader, E. 1. 36. 1 Saund. 28. 2 B. & P. 427. 3 B. & P. 174; must admit or confess the fact it justifies, 3 T. R. 298. 1 Salk. 394. Cart. 380. 1 Saund. 28; must be ertain, Com. Dig. tit Pleader, E. 5, &c.;

(g) Append. No. III. ◊ 6.

and must be true, and not too large. Hob. 295. Bac. Ab. tit. Pleas, G. 4. For more particular information as to these qualities, see 1 Chit. on Pl. 451 to 463; as to their forms and particular parts, see Id. 467 to 477.

The same rules which prevail in the construction and allowance of a declaration, do so in the case of pleas in bar. See ante, 289 notes 1, 2, 3. If the plea be bad in part, it is so for the whole. Com. Dig. Pleader, E. 36. 3 T. R. 376. 3 B. & P. 174. 1 Saund. 337. The rules, as to surplusage in a declaration, here also prevail, ante, 293, notes 1, 2, 3

descent; or he may confess and avoid it, by replying, that true it is that such descent happened, but that since the descent the defendant himself demised the lands to the plaintiff for term of life (30). To the replication the defendant may rejoin, or put in an answer called a rejoinder. The plaintiff may answer the rejoinder by a sur-rejoinder; upon which the defendant may rebut; and the plaintiff answer him by a sur-rebutter. Which pleas, replications, rejoinders, sur-rejoinders, rebutters, and sur-rebutters, answer to the exceptio, replicatio duplicatio, triplicatio, and quadruplicatio of the Roman laws (h).

The whole of this process is denominated the pleading; in the several stages of which it must be carefully observed, not to depart or vary from the title or defence, which the party has once insisted on. For this (which is called a departure in pleading) might occasion endless altercation. Therefore the replication must support the declaration, and the rejoinder must support the plea, without departing out of it. As in the case of pleading no award made, in consequence of a bond of arbitration, to which the plaintiff replies, setting forth an actual award; now the defendant cannot rejoin that he hath performed this award, for such rejoinder would

be an entire departure from his original plea, which alleged that [*311] no such award was made: therefore he has now no other choice, but to traverse the fact of the replication, or else to demur upon

the law of it.

Yet in many actions the plaintiff, who has alleged in his declaration a general wrong, may in his replication, after an evasive plea by the defend ant, reduce that general wrong to a more particular certainty, by assigning the injury afresh with all its specific circumstances in such manner as clearly to ascertain and identify it, consistently with his general complaint; which is called a new or novel assignment. As if the plaintiff in trespass declares on a breach of his close in D; and the defendant pleads that the place where the injury is said to have happened is a certain close of pasture in D, which descended to him from B his father, and so is his own freehold; the plaintiff may reply and assign another close in D, specifying the abuttals and boundaries, as the real place of the injury (¿).

It hath previously been observed (k) that duplicity in pleading must be avoided. Every plea must be simple, entire, connected, and confined to one single point: it must never be entangled with a variety of distinct independent answers to the same matter; which must require as many differ

(h) Inst. 4. 14. Bract. 1. 5, tr 5, c. 1 (i) Bro. Abr. t. trespass, 205. 248.

(30) As to the several replications in general, see I Chit. on P. 4 ed. 500 to 518; and as to their forms and parts in particular, Id. 518 to 555. The general qualities of a replication are, that it must answer the plea, and answer so much of it as it professes to answer, or it will be a discontinuance, Com. Dig. tit. Pleader, F. 4. W. 2. 1 Saund. 338; and it mist answer the plea directly, not argumenta tively, 10 East, 205; it must not depart from the declaration. 2 Saund. 84. a. n. 1. Co Lit. 304. a. 2 Wils. 98. See 1 Chit. on Pl 556 to 560. It must be certain, and it is said that more certainty is requisite in a replication

n New-Yo k the plaintiff may reply, an Torcul leave of he court. (2 R. S. 356, § 27).

(k) p 308

than a declaration, though certainty to a com mon intent is in general sufficient, Com. Dig. Pleader, F. 17. 12 East, 263; and lastly, it must not be double, or, in other words, contain two answers to the same plea, 10 East, 73. 2 Camp. 176, 177. Com. Dig. Pleader, F. 16, and the plaintiff cannot reply double under the

Ann. c. 16. Fortes. 335. unless in replevin, 2 B. & P. 368, 376; and more particularly as o these qualities, see 1 Chit. on Pl. 556 to 562. An entire replication bad in part is bad for the whole. Com. Dig. Pleader, F. 25. 3 T. R. 376. 1 Saund. 28. n. 3.

the defendant rejoin several matters or tar

ent 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 (1) 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 [*312] 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 waved or admitted. Thus, while tenure in villenage subsisted, if a villein had brought an action against his lord, and the lord was inclined to try the merits of the demand, and at the same time to prevent any conclusion against himself that he had waved his signiory; he could not in this case both plead affirmatively that the plaintiff was his villein, and also take issue upon the demand; for then his plea would have been double, as the former alone would have been a good bar to the action: but he might have alleged the villenage of the plaintiff, by way of protestation, and then have denied the demand. By this means the future vassal. age of the plaintiff was saved to the defendant, in case the issue was found in his (the defendant's) favour (m): for the protestation prevented that conclusion, which would otherwise have resulted from the rest of his defence, that he had enfranchised the plaintiff (n); since no villein could maintain a civil action against his lord. So also if a defendant, by way of inducement to the point of his defence, alleges (among other matters) a particular mode of seisin or tenure, which the plaintiff is unwilling to admit, and yet desires to take issue on the principal point of the defence, he must deny the seisin or tenure by way of protestation, and then traverse the defensive matter. So lastly, if an award be set forth by the plaintiff, and he can assign a breach in one part of it (viz. the non-pay. ment of a sum of money), and yet is afraid to admit the performance of the rest of the award, or to aver in general a non-performance of any part of it, lest something should appear to have been performed he may save to himself any advantage he might hereafter make of the general non-performance, by alleging that by protestation; and plead only the nonpayment of the money (v).

In any stage of the pleadings, when either side advances or [313] affirms any new matter, he usually (as was said) 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 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 (p): but if the traverse lies upon the plaintiff

(D) 1 Inst. 124.

(m) Co. Litt. 126.

n) See book II. chap. 6, page 94.

(0) Appendix, No. III. 6.

(p Appendix, No. II. 64

he tenders the issue, or prays the judgment of the peers against the de fendant in another form; thus: "and th.s 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 any thing that was before alleged, but disclosing some new negative matter; as, where the suit is on a bond, conditioned to perform 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 be fore, 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 favour 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 o 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 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 the 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 [315] 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 (a). 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 mus by statute 27 Eliz. c. 5. and 4 & 5 Ann. c. 16 set forth the causes of his demurrer, or wherein he apprehends the deficiency to consist (1). And

(a) Append. No. III. 6.

i) Either party may demur, when the preeding leadings of his adversary are defec

tive. A demurrer has been defined to be, a declaration that the party demurring will ga

pon either a general, or such a special demurrer, the opposite party must ver it to be sufficient, which is called a joinder in demurrer (b), and then the parties are at issue in point of law. Which issue in law, or demurrer, the judges of the court before which the action is brought must deter

mine.

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." 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 (c). 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 patrium,) that is, by jury. Which establishment of different tribunals for determining these different issues, is in some measure agreeable to the course of justice in the Roman republic, where the judices, ordinarii determined only questions of fact, but questions of law were referred to the decisions of the centumviri (d). 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 [*316] kept or continued in court from day to day, till the final determination of the suit. 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 appearance 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 envered 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 omitLed, 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 attend upon that summons; but ne must be warned afresh, and the whole must begin de novo.

Now it may sometimes happen, that after the defendant has pleaded, ay, 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

(b) Appendix, No. III. ◊ 6.

(c) Appendix, No. II. 4

no further, because the other has not shewn sufficient matter against him. 5 Mod. 132. Co. Lit. 71. b. When the pleading is defective in substance, a general demurrer will sufice; but where the objection is to the form

(d) Cic. de Orator, l. 1, c. 38.

the demurrer must be special. Bac. Ab Pleas, N. 5. A special demurrer must not merely shew the kind of fault, but the speciɓe fauk complained of.