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 defendant in an action of trespass, be desirous to refer the validity of his title to the court rather than the jury, he may state his title specially, 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 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 of itself, as it amounts to no more than the general issue. 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 judg Dr. & Stud. 2, ment of the court which of these two titles is the best in point of law.

c. 53.

Of the replication.

Rejoinder and surrejoinder.

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 traversing 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 traverse 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; 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 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.

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 Rebutter and pleas, replications, rejoinders, sur-rejoinders, rebutters, and sur-rebutters, answer to the exceptio, replicatio, duplicatio, Inst. 4. 14. triplicatio, and quadruplicatio of the Roman law.

sur-rebutter.

5. c. 1.

The whole of this process is called 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 Of departure. 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 has 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 to demur upon the law of it.

ment.

Yet in many actions the plaintiff, who has alleged in his of new assigndeclaration 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 Bro. Abr. tit. the injury.

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.

In any stage of the pleadings, when either side advances or any new matter, he avers it to be true; " and this he is

affirms

Trespass, 205.

284.

Duplicity.

Form of averment, denial, issue, &c.

F F

Until fact pleaded be denied no issue.

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 it 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.

CHAPTER XXI.

Of issue and demurrer.

Issue upon

OF ISSUE AND DEMURRER.

ISSUE, exitus, being the end of all the pleadings, is the fourth part or stage of action, and is either upon matter of law, or matter of fact.

An issue upon matter of law is called a demurrer: and it matter of law. confesses the facts, to be true, as stated by the opposite party; but denies that, by the law arising from 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 (a). The form Form of deof such demurrer is by averring the declaration, or plea, the murrer. 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. 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 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 (b). 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, and then the parties are at issue in point of law (c), which

(a) It is either to the whole or a part of the declaration, or to the whole of the plea, replication, &c., or to the whole or part of a divisible plea or replication, &c.—Archbold's Prac. Q. B. by Chitty, 7th ed. 658.

it

(b) By Reg. Gen. H. T. 4 Wm. 4, “In the margin of every demurrer, before it is signed by counsel, some matter of law intended to be argued, must be stated; and if any demurrer shall be delivered without such statement, or with a frivolous statement, may be set aside as irregular by the court or a judge, and leave may be given to sign judgment as for want of a plea; provided, that the party demurring may at the time of the argument, insist upon any further matters of law, of which notice shall have been given to the court in the usual way." By Reg. Gen. H. T. K. B. 8 & 9 Geo. 4, in cases of demurrer to part only of declarations, or other subsequent pleadings, those parts only to which such demurrer relates, shall be copied into the demurrer-books. And by Reg. Gen. H. T. 4 Wm. 4, four clear days before argument, the plaintiff must deliver copies of the demurrer-book, special case, or special verdict to the chief justice of the K.B., or C.P., or lord chief baron, and the senior judge of the court in which the action is brought; and the defendant must deliver copies to the other two judges of the court next in seniority; and in default thereof by either party, the other party may on the day following, deliver such copies, to be paid for by the party making default, who is not to be heard until he has paid for them.

(c) By Reg. Gen. H. T. 4 Wm. 4, no rule for joinder in demurrer shall be required, but the party demurring may demand a joinder in demurrer, and the opposite party shall be bound, within four days after such demand, to deliver the same, otherwise judgment. No signature of a serjeant or other counsel is necessary to a joinder in demurrer, nor is any fee allowed for it.

Of an issue of fact.

Of continu

ance.

Of pleas puis darrein continuance.

issue in law or demurrer the judges of the court before which the action is brought must determine (d).

An issue in 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 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 is that by the country, per pais (in Latin per patriam), that is, by jury.

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 parties be kept or continued in court, from day to day, till the final determination of the suit; 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 exigency of the case may require. The giving of this day is called the continuance (e).

It may happen that after the defendant has pleaded, or even after issue or demurrer joined, there may arise some new matter which 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. 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

(d) It is a rule that there can be no demurrer upon a demurrer, (Bac. Ab. Pleas, &c., n. 2,) and demurrer upon demurrer is a discontinuance, (Campbell v. St. John, 1 Salk. 219) because the first is sufficient, notwithstanding any inaccuracy in its form, to bring the record before the court for their adjudication; and as for traverse, or pleading in confession and avoidance, there is of course no ground for them, while the last pleading still remains unanswered, and there is nothing to oppose but an exception in point of law. Stephen on Pleading, 4th ed. 267, and note.

(e) It is not now necessary to enter continuances on the issue. By Reg. Gen. 4 Wm. 4, no entry of continuances by way of imparlance curia ad visari vult, vicecomes non misit breve, or otherwise, shall be made upon any record or roll whatever, or in the pleadings, except the jurata ponitur in respectu, which is to be retained; provided that such regulation shall not alter or affect any existing rules of practice as to the times of proceeding in the cause. And see 2 Wm. 4, c. 39, s. 10, as to the entry of writs upon the

record to save the Statute of Limitations.