cause of action no longer exists; that the limitation is a part of the contract itself and not of the remedy, and in general the converse of all the positions mentioned above. But in many cases the connection between the different rules has been overlooked, and much confusion caused by inconsistent decisions. The distinction between the two theories of the effect of a limitation as merely discharging the defendant from the remedy when properly pleaded, or as destroying the cause of action, was pointed out in 2 Wms. Saund. p. 62, note 6, to Hodsden v. Harridge. Upon its application to criminal cases, see United States v. Cooke, 17 Wall. 168; 2 Green's Criminal Law Reports, 88, with note, 96-102; 12 Am. Law Reg. 692, with note, 691-698, with cases cited, showing that defendant may avail himself of it under general issue in criminal cases. The rule that the limitation must be specially pleaded and cannot be proved under the general issue, or taken advantage of by demurrer, even if appearing in the face of the declaration, is peculiar to the statutes 21 Jac. c. 16, and 32 Hen. VIII. c. 2. "In all other cases where an action is required by statute to be commenced within a limited time, it is the duty of the plaintiff to prove that he has complied with the terms of it, and if he does not, he will fail in his suit." (Blanchard on Limitations, p. 191; Petrie v. White, 3 Term Rep. 11.) And this was formerly held even as to the statute of 21 Jac. (Brown v. Hancock, Cro. Car. 115. And see Blanchard on Limitations, p. 191, and 2 Wms. Saund. 63 a.) "The necessity to plead a statute of limitations applies to cases where the remedy only is taken away, and in which the defense is by way of confession and avoidance; not where the right and title to the thing is extinguished and gone, and the defense is by denial of that right. The true reason for requiring the .... 3 BLACKST.-36. statute to be pleaded is that it confesses and avoids the declaration, and therefore is not comprehended within any plea which merely denies the whole or part of the declaration. (Gale v. Capern, 1 Ad. & E. 102; Margelts v. Bags, 4 Ad. & E. 499.)" Patterson, J., in De Beauvior v. Owen, 5 Ex. 167, 1850, affirming Owen v. De Beauvoir, 16 Mees. & W. 547. That whatever forms part of the contract is governed by the lex loci contractus, no matter where it may operate or be enforced, is clear enough. As Hemphill, C. J., says in De Cordova v. City of Galveston, 4 Tex. 470, 480, 1849: "If a remedy formed a part of the contract, it should follow it into a foreign country and be prosecuted in the form of action presented by the lex loci contractus at its date; and this, although a different form may be allowed where the suit is instituted and there be no forms of action recognized or permitted by law." This was a case where the statute of limitations was held to belong to the remedy only, and not to be a part of the contract; yet what the necessary and logical result would be if it were, is here clearly set out. See precisely to the same effect the reasoning of McLean, J., dissenting, in Bronson v. Kenzie, 1 How. 311, 329. CHAPTER THE TWENTY-FIRST. 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.* [See note 58, page 434.] 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 à 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 setting 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 [315] law to maintain the action or the defence; and therefore praying judgment for want of sufficient matter alleged. Sometimes demurrers are merely for want of sufficient form in the writ or declaration. But in case of exceptions to the form, or manner of pleading, the party demurring must by statute 27 Eliz. c. 5. and 4 & 5 Ann. c. 16. set forth the causes of his de *-* Quoted, 55 Ga. 61; partly, 70 N. C. 48. Clted, 23 Ind. 283. murrer, or wherein he apprehends the deficiency to consist. And upon either a general, or such a special demurrer, the opposite party avers it to be sufficient, which is called a joinder in demurrer, 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 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. 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 determined only questions of fact, but questions of law were referred to the decisions of the centumviri.a 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 [316] that both the parties be 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 d Cic. de Orator. l. 1. c. 38. *Cited, 64 Ind. 571; 1 Wood. & M. 383. +-+ Quoted, 51 Wis. 76; partly, 55 Ga. 62. Cited, 23 Ind. 283. 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 nust begin de novo. 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 - Quoted, 7 Wis. 321. Cited, 1 Munf. 12 t-t Quoted, held not now the law in Indiana, 20 Ind. 153. Cited, 44 Ala. 86; 3 Hawks, 230; Meigs, 550; 24 Tex. 494. |