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he tenders the issue, or prays the judgment of the peers against in de fendant 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 any thing 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 appear whether the fact will he disputed, the plaintiff not having yel 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.
OF ISSUE AND DEMURRER.
Issue, eritus, being the end of all the pleadings, is the fourth part of stage of an action, and is either upon matter of law, or matter of fact.
Ăn 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 a legitimate excuse ; according to the party which first demurs, demoratur, rests or abides upon
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 froin 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 ["315] plea, the replication or rejoinder, to be insufficient in law to main
tain the action or the defence; and therefore praying judgment for want of sufficient matter alleged (a). Sometimes demurrers are merely for want of sufficient form in the writ or declaration. But in cases 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 demurrer, or wherein he apprehends the deficiency to consist (1). And
(a) Append. No. III. 6. !!) Either party may demur, when the pre- tire. A demurrer has been defined to be, a weding pleadings of his adversary are defec. declaration that the party demurring will i
apon either a general, or such a special demurrer, the opposite party must
Hver it to be sufficient, which is called a joinder in demurrer (b), 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 (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 patrium,) 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 (d).
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 [*316] 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 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 omitsed, 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 wa certain day, he is no longer bound to attend upon that summons; but he must be warned afresh, and the whole must 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 inatter, which it is proper for the defendant to plead; as that the plaintiff (b) Appendix. No. III. 06.
(d) Cic. de Orator, b. 1, c. 38. (c) Appendix, No. II. 64 to further, because the other has not shewn the demurrer must be special. Bac. Ab Pleas, sufficient matter against him. 5 Mod. 132. N. 5. A special demurrer must not merely Co. Lit. 71. b. When the pleading is desec. shew the kind of fault, but the specibc fauk sive in substance, a general demurrer will suf. complained of. dce; but where ine objection is to the form
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 dar
rein continuance, or since the last adjournment (2). For it would be [*317] unjust to exclude him "from 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 be ween 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 inerits of his former plea. Also it is not allowed after a demurrer is determined, or verdict given; because the relief may be had in another way, aamely, by writ of audita querela, of which hereafter. And these pleas puis darrein continuance, when brought to a demurrer in law or issue of fact, shall be determined in like manner as other pleas.
We have said, that demurrers, or questions concerning the sufficiency o 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 demurrer-book is made up, containing all the proceedings at length, which are afterwards entered on record ; and copies thereof, called paper. books, are delivered to the judges to peruse (3). The record (S) is a histo ry 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 (4).
These were formerly all written, as indeed all public proceedings were, in Norman or law French, 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 servi["318] tude; being introduced under the auspices of William the Nor
man, and his sons : whereby the ironical observation of the Roman satirist came to be literally verified, that “ Gallia causidicos docuit facunda Britannos (:).” This continued till the reign of Edward III.; who, having employed his arms successfully in subduing the crown of France, thought it unbeseeming the dignity of the victors to use any longer the language of a vanquished country. By a statute, therefore, passed in the thirty-sixth year of his reign (á), it was enacted, that for the future all pleas should be pleaded, shewn, defended, answered, debated, and judged in the English tongue; but be entered and enrolled in Latin. in liko (e) Cro. Eliz. 49.
(8) Juv. xv. 111. (5) Appendix, No. II. 6 4. No. III. 6 6.
(h) c. 15. (2' This plea, though treated in some re. N. P. 309. See further, I Chitty on Pl. 4 ed. spects as a dilatory plea the court cannot re- 569 to 573. fuse to receive, 2 Wils. 157. 3 T. R. 554. 1 (3) The plaintiff, or his attorney, must da Marsh. 280. 5 Taunt. 333. | Stark. 62 ; but liver paper-books to the chief justice and so it must be verified on oath before it is filed. nior judge; and the defendant, or his attos Freen. 252. 1 Stra. 493.2 Smith's Rep. 396. ney, io the two other judges. R. M. 17 Car. L It may be pleaded at nisi prius as well as in (4) In New-York, the record, &c. may le bark; but cannot be amended after the as. on paper or parchment, and must be in Ea sizes are over. Yelv. 181. Freem. 252. Bul. glish.' 2 R. S. 275, 1 9.
manner as don Alonso X. king of Castile, (the great-grandfather of our Edward III.) obliged his subjects to use the Castilian tongue in all lega, proceedings (i); and as, in 1286, the German language was established in the courts of the empire (k). And perhaps if our legislature had then directed that the writs themselves, which are mandates from the king to his subjects to perform certain acts, or to appear at certain places, should
have been framed in the English language, according to the rule of our • ancient law (l), it had not been very improper. But the record or enrol
ment of those writs and the proceedings thereon, which was calculated for the benefit of posterity, was more serviceable (because more durable) in a dead and immutable language than in any flux or living one. The practisers, however, being used to the Norman language, and therefore imagining they could express their thoughts more aptly and more concisely in that than in any other, still continued to take their notes in law French: and of course, when those notes came to be published, under the denomination of reports, they were printed in that barbarous dialect; which, joined to the additional terrors of Gothic black letter, has occasioned many a student to throw away his Plowden and Littleton, without venturing to attack a page of them. And yet in reality, upon a nearer acquaintance, they would have found nothing very formidable in the language; which differs in its grammar *and orthography as much from the [*319) modern French, as the diction of Chaucer and Gower does from that of Addison and Pope. Besides, as the English and Norman lan guages were concurrently used by our ancestors for several centuries together, the two idioms have naturally assimilated, and mutually borrowed from each other: for which reason the grammatical construction of each is 80 very much the same, that I apprehend an Englishman (with a week's preparation) would understand the laws of Normandy, collected in their grand coustumier, as well, if not better, than a Frenchman bred within the walls of Paris.
The Latin, which succeeded the French for the entry and enrolment of pleas, and which continued in use for four centuries, answers so nearly to the English (oftentimes word for word) that it is not at all surprising it should generally be imagined to be totally fabricated at home, with little more art or trouble, then by adding Roman terminations to English words. Whereas in reality it is a very universal dialect, spread throughout all Europe at the irruption of the northern nations, and particularly accommodated and moulded to answer all the purposes of the lawyers with a peculiar exactness and precision. This is principally owing to the simplicity, or (if the reader pleases) the poverty and baldness of its texture, calculated to express the ideas of mankind just as they arise in the human mind, without any rhetorical flourishes, or perplexed ornaments of style ; for it may be observed, that those laws and ordinances, of public as well as private communities, are generally the most easily understood, where strength and perspicuity, not harmony or elegance of expression, have been princi pally consulted in compiling them. These northern nations, or rather their legislators, though they resolved' to make use of the Latin tongue in promulging their laws, as being more durable and more generally known to their conquered subjects than their own Teutonic dialects, yet (either through choice or necessity) have frequently intermixed therein some words (0) Mou. Un. Hist. XI. 211.
(1) Mir. C 4. a. (k) Ibid. xxix. 235. Vol II.
of a Gothic original, which is, more or less, the case in every coun[*320] try of Europe, and therefore not to be imputed as any peculiar
blemish in our English legal latinity (m). The truth is, what is generally denominated law-latin is in reality a mere technical language, calculated for eternal duration, and easy to be apprehended both in present and future times ; and on those accounts best suited to preserve those me. morials which are intended for perpetual rules of action. The rude pyramids of Egypt have endured from the earliest ages, while the more modern and more elegant structures of Attica, Rome, and Palmyra, have sunk beneath the stroke of time.
As to the objection of locking up the law in a strange and unknown tongue, that is of liule weight with regard to records, which few have oce casion to read but such as do, or ought 1o, understand the rudiinents of Latin. And besides it may be observed of the law-latin, as the very ingenious sir John Davis (n) observes of the law-french, “that it is so very easy to be learned, that the meanest wit that ever came to the study of the law doth come to understand it almost perfectly in ten days without a reader."
It is true indeed that the many terms of art, with which the law abounds, are sufficiently harsh when latinized (yet not more so then those of other sciences), and may, as Mr. Selden observes (0), give offence "10 some grammarians of squeamish stomachs, who would rather choose to live in ignorance of things the most useful and important, than to have their delicate ears wounded by the use of a word unknown to Cicero, Sallust, or the other writers of the Augustan age.” Yet this is no more than must
unavoidably happen when things of modern use, of which the Ro[*321] mans had no idea, and consequently no pbrases to express them,
come to be delivered in the Latin tongue. It would puzzle the most classical scholar to find an appellation, in his pure latinity, for a constable, a record, or a deed of feoffment; it is therefore to be imputed as much to necessity, as ignorance, that they were styled in our forensic dialect constabularius, recordum, and feoffamentum. Thus again, another uncouth word of our ancient laws (for 1 defend not the ridiculous barbarisms sometimes introduced by the ignorance of modern practisers), the substantive murdrum, of the verb murdrare, however harsh and unclassical it may seem, was necessarily framed to express a particular offence ; since po other word in being, occidere, interficere, necare, or the like, was sufficient to express the intention of the criminal, or quo animo the act was perpetrated; and therefore by no means came up to the notion of murder at present entertained by our law; viz. a killing with malice aforethought.
A similar necessity to this produced a similar effect at Byzantium, when the Roman laws were turned into Greek for the use of the oriental em pire : for, without any regard to Attic elegance, the lawyers of the im perial courts made no scruple to translate fidei commissarios, pedeixoumioon ριους (Ρ); cubiculum, κουβουκλειον (q); flium-familias, παιδα-φαμιλιας (τ), repudium, penovdiov (s): compromissum, xou a popigoor (t); reverentia et obse. quium, peurportia xul oßuexovlor (u); and the like. They studied more the
(m) The following sentence, " si quis ad baitalia mrte sua erierit, if any one goes out of his own
purt to fight," do. may raise a smile in the student igi Nov. 8 edict. Constantinop. as a flarnir.g modern anglicism ; but he may meet with it among others of the same stamp, in the laws of the Burgundians on the continent, before the end of the fifth century. (Add. c. 3, ( 2.) (w) Nov. 18, c. 2
() Pref Rep.
(0) Pref. ad Eadmer.
(c) Nov. 117, c. I.