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 no such award was made; therefore he has now no other *choice, but to traverse the fact of the replication, or else [*311] to demur upon the law of it. New assignment. 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 defendant, 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. ()

Duplicity. 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 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.

Protestation. 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 (7) a protestation (in the pithy dialect of that age) to be "an exclusion of a conclusion." *For the [*312] 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. 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 waived

his seigniory; 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 villeinage of the plaintiff, by way of protestation, and then have denied the demand. By this means the future vassalage of the plaintiff was saved to the defendant, in case the issue was found in his (the defendant's) favor: (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-payment 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 nonperformance, by alleging that by protestation; and plead only the non-payment of the money. (0) 1

Conclusion of pleas-First verification.-*In any stage [*313] of the pleadings, when either side advances or affirms any new matter, he usually (as was said) avers it to be true; "and this he is ready to verify."

Second concluding to the country.-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, 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."

Tendering issue. 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 perform an award, and the defendant pleads, negatively, that no award was made, he tenders no issue upon this plea; because it does not yet appear whether the fact will be disputed, the plaintiff not having yet asserted the existence of any award; but when the plaintiff re

(m) Co. Litt. 126.

(0) Appendix, No. III, § 6.

(n) See book II, ch. 6, p. 94.
(p) Ibid. No. II, § 4.

1 By the Common Law Procedure Act, 1852, and the Supreme Court of Judicature Act, 1873, and the rules of practice

adopted under them, the English practice is now very greatly changed and simplified.

plies, 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.'

[*314]

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.

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 these 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 plea, the replication or rejoinder, to be insufficient *in law to [*315] maintain the action or the defence; and therefore praying judgment for want of sufficient matter alleged. (a) Sometimes demurrers are merely for want of a sufficient form in the writ or declaration. But in case of exceptions to the form or manner of pleading, the party demurring must, by statutes 27 Eliz. c. 5, and 4 and 5 Ann. 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, (b) and then the

(a) Appendix, No. III, § 6.

(b) Ibid.

1A general demurrer is used where the objection is to the substance of the adversary's pleading; a special demurrer where it is to the form merely. The former is couched in general terms; the latter points out the special points of objection. Stephen Pl. 140.

The Common Law Procedure Act, 1852, put an end to special demurrers

in England, substituting for them a controlling power, vested in the court or a judge, to amend or strike out pleadings on the application of the opposite party, if they were so framed as to prejudice, embarrass, or delay the fair trial of the action; and as to needless and fictitious averments, the act swept them away altogether.

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 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." 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 patriam), 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 (ordinary judges) determined only questions of fact, but questions of law were referred to the decisions of the centumviri. (d)

Continuance. 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

[*316] 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 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 day certain, he is no longer bound to attend upon that summons; but he must be warned afresh and the whole must begin de novo.1

Pleading new matter arising after continuance.- 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, or since the last adjournment. For it would be unjust to exclude him *from [*317] 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 such a plea, without due consideration; for it confesses the matter which was before in dispute between the parties. (e) 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.

Audita querela.- Also 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 (the complaint has been heard), of which hereafter. And these pleas puis darrein continu ance, when brought to a demurrer in law or issue of fact, shall be determined in like manner as other pleas.

Demurrer and record. We have said, that 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 demurrerbook 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. The record (f) is a history of the most material proceedings in the cause entered on a parchment roll, and continued down to the present time; in which must be stated the original writ and summons, 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 also the issue or demurrer, and joinder therein.

The language of pleading.-These were formerly all written, as indeed all public proceedings were, in Norman or law-French,2 and even the arguments of the counsel and decisions of the court were in the same barbarous dialect. An evident and shameful badge, it must be owned, of tyranny and foreign servitude; being *introduced under the auspices of William the Norman, and his sons: whereby the ironical observation of the Roman [*318]

(e) Cro. Eliz. 49.

(ƒ) Appendix, No. II, § 4; No. III, § 2.

1 Such a plea must be verified by affidavit: Prince v. Nicholson, 5 Taunt. 333; Bartlett v. Leighton, 3 C. & P. 408. By 15 and 16 Vict., c. 76, s. 69, the plea must be accompanied by an affidavit that the matter arose within eight days before plea, unless the court shall otherwise direct. Such pleas may be in abatement or in bar, and, after a plea in bar, a plea puis darrein continuance

in abatement may be pleaded; but if judgment is against the defendant, on such plea, it is final. Such a plea in bar waives all former pleas. Chitty Pl. I, 659; and see Stephen Pl. 63–66; Gould Pl., ch. vi.

2 Mr. Stephen contends that the record was from the earliest times in Latin. Stephen Pl., Appendix, xxii.