k IT hath previously been obferved that duplicity in pleading must be avoided. Every plea must be fimple, entire, connected, and confined to one fingle point: it must never be entangled with a variety of distinct independent answers to the fame matter; which muft require as many different replies, and introduce a multitude of issues upon one and the fame difpute. For this would often embarrass the jury, and fometimes 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 admiffion of a fact, which cannot with propriety or safety be pofitively affirmed or denied. And this may be done by what is called a proteftation; whereby the party interpofes an oblique allegation or denial of fome fact, protesting (by the gerund, proteftando) that fuch a matter does or does not exift; and at the fame time avoiding a direct affirmation or denial. Sir Edward Coke hath defined' a proteftation (in the pithy dialect of that age) to be "an exclufion of a conclufion." For the use of it is, to fave the party from being concluded [312] with respect to fome fact or circumftance, 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 fame time to prevent any conclufion against himself that he had waived his figniory; he could not in this case both plead affirmatively that the plaintiff was his villein, and alfo take iffue 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 proteftation, and then have denied the demand. By this means the future vaffalage of the plaintiff was faved to the defendant, in cafe the iffue was found in his (the defendant's) favour: for the proteftation prevented that conclu * pag 308. 1 Inft. 124. Z4 m Co. Litt. 126. fion, [ 313 ] fion, which would otherwife have refulted from the rest of his defence, that he had enfranchifed the plaintiff"; fince no villein could maintain a civil action against his lord. So allo if a defendant, by way of inducement to the point of his defence, alleges (among other matters) a particular mode of feifin or tenure, which the plaintiff is unwilling to admit, and yet defires to take iffue on the principal point of the defence, he must deny the feifin or tenure by way of proteftation, and then traverse the defenfive matter. So laftly, if an award be fet forth by the plaintiff, and he can affign 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, left fomething fhould appear to have been performed; he may fave to himself any advantage he might hereafter make of the general non-performance, by alleging that by proteftation; and plead only the non-payment of the money o, In any stage of the pleadings, when either fide advances or affirms any new matter, he usually (as was faid) avers it to be true;" and this he is ready to verify." On the other hand, when either fide 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 iffue is tendered; for if the traverse or denial comes from the defendant, the iffue is tendered in this manner, "and of "this he puts himself upon the country," thereby fubmitting himself to the judgment of his peers P: but if the traverse lies upon the plaintiff, he tenders the iffue 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 fide (as, for inftance, the defendant) pleads a special negative plea, not trayerfing or denying any thing that was before alleged, but difclofing fome new negative n See book II, ch. 6. pag. 94, P Append. No. II. § 4. matter: matter: as where the suit is on a bond, conditioned to per form an award, and the defendant pleads, negatively, that no award was made, he tenders no iffue upon this plea; because it does not yet appear whether the fact will be disputed, the plaintiff not having yet afferted the exiftence of any award; but when the plaintiff replies, and fets forth an actual specific award, if then the defendant traverses the replication, and denies the making of any fuch award, he then, and not before, tenders an iffue to the plaintiff. For when in the courfe of pleading they come to a point which is affirmed on one fide, and denied on the other, they are then faid to be at iffue; all their debates being at last contracted into a fingle point, which muft now be determined either in favour of the plaintiff or of the defendant. CHAPTER THE TWENTY-FIRST. OF ISSUE AND DEMURRER. SSUE, 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 iffue upon matter of law is called a demurrer : and it confeffes the facts to be true, as ftated by the oppofite party; but denies that, by the law arifing upon thofe facts, any injury is done to the plaintiff, or that the defendant has made out a legitimate excufe; according to the party which first demurs, demoratur, refts or abides upon the point in question. As, if the matter of the plaintiff's complaint or declaration be infufficient in law, as by not affigning any fufficient trefpafs, then the defendant demurs to the declaration; if, on the other hand, the defendant's excufe or plea be invalid, as if he pleads that he committed the trefpafs by authority from a ftranger, without making out the stranger's right; here the plaintiff may demur in law to the plea: and fo on in every other part of the proceedings, where either fide perceives any material objection in point of law, upon which he may reft his cafe. THE form of fuch demurrer is by averring the declaration or plea, the replication or rejoinder, to be infufficient in law law to maintain the action or the defence; and therefore praying judgment for want of fufficient matter alleged 2. Sometimes demurrers are merely for want of fufficient form in the writ or declaration. But in case of exceptions to the form, or manner of pleading, the party demurring must by ftatute 27 Eliz. c. 5. and 4 & 5 Ann. c. 16. set forth the causes of his demurrer, or wherein he apprehends the deficiency to confift. And upon either a general, or such a Special demurrer, the oppofite party muft aver it to be fufficient, which is called a joinder in demurrer, and then the parties are at iffue in point of law. Which iffue in law, or demurrer, the judges of the court before which the action is brought must determine. AN iffue of fact is where the fact only, and not the law, is difputed. And when he that denies or traverses the fact pleaded by his antagonist has tendered the iffue, thus, "and this he prays may be inquired of by the country," or, and of this he puts himself upon the country," it may im. mediately be fubjoined by the other party," and the said "A. B. doth the like." Which done, the iffue is faid to be joined, both parties having agreed to reft the fate of the cause upon the truth of the fact in question. And this iffue, of fact, must generally speaking be determined, not by the judges of the court, but by fome 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 iffues, is in fome measure agreeable to the course of justice in the Roman republic, where the judices ordinarii determined only questions of fact, but queftions of law were referred to the decifions of the centumviri". 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 neceffary a Append. N° III. § §. Þ Ibid. c Append. No Il. § 4. that |