rejoin, or put in an answer called a rejoinder. The plaintiff may answer the rejoinder by a surrejoinder; upon which the defendant may rebut; and the plaintiff answer him by a surrebutter. Which pleas, replications, rejoinders, surrejoinders, rebutters, and surrebutters answer to the exceptio, replicatio, duplicatio, triplicatio, and quadruplicatio of the Roman laws.

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 no such award was made: therefore he has now no other [311] 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 defendant, reduce that general wrong to a more particular certainty, by assigning the injury afresh with all it's 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

h Inst. 4. 14. Bract. l. 5, tr. 5. c. 1.

freehold; the plaintiff may reply and assign another close in D, specifying the abuttals and boundaries, as the real place of the injury.i*

It hath previously been observed 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 expence 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." [312] 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. 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 signiory; he could not in this case both plead affirmatively that the plaintiff was his villein, and i Bro. Abr. t. trespass. 205. 284. k pag. 308.

1 1 Inst. 124.

*Cited, 21 N. J. L. 188.

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 vassalage 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;" 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 nonpayment 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 non-payment of the money.

[313] In any stage of the pleadings, when either side advances or affirins 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 m Co. Litt. 126. n See book II. ch. 6. pag. 94. Notice here the correct use of the term "aver" or "averment," which should never be used for an allegation of law, as it sometimes is.

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 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 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 favour of the plaintiff or of the defendant.*

NOTES OF THE AMERICAN EDITOR TO CHAPTER XX.

(51) Pleadings are the mutual altercation between plaintiff and defendant, page 293.

The system of pleading here described has been much simplified even in those states that still adhere to it as a system; but in a large proportion of the American states, and in England itself, it has been abolished,

*Cited, 70 N. C. 48.

and the "code" or "new practice" substituted. The principal features of this in this country are:

1. The abolition of forms of action, and the requirement of uniform rules of pleading in all civil actions. 2. In place of the common-law order of pleas to be filed in each action, the codes provide for three at most: a petition or complaint, answering generally to the common-law declaration; an answer, stating the defense, and where desired, embracing also the defendant's counter-claim; and a reply, serving as answer to that counter-claim, and also as replication.

To either of these the opposing party may demur in certain specified cases, but the special demurrer to defects of form is abolished.

If averments of new matter are made in the last of these pleadings they will be taken as denied, for the purpose of issue. No further pleading after the reply (or demurrer to it) is allowed in any case, except as amendment or supplement.

3. The prescribed forms of each pleading are of no further authority. The pleader is only required to set out the facts in ordinary language without repetition.

If it was really the purpose of the authors of this change to have the statements of fact on either side couched in common colloquial language, without the use of any other terms than such as would be employed in describing the same facts for any other purpose, and yet at the same time to have these statements perform the office of the former pleadings, they attempted an impossibility.

The very purpose for which a pleading is drawn requires that its statement of facts should serve two ends. (1) It must furnish a standard by which the admissibility of evidence is determined; and (2) it must furnish a basis to which the law can be applied in the trial court and in the appellate. There are other requirements. It must serve as a record of the res adjudicata