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 pa triam), that is, by jury. Nonsuit. Default. Continuance. 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 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 of 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 omitted, the cause is thereby discontinued, and the defendant is discharged sine die, without a day, for this term: for by his appearance in court he has obeyed the command of the king's writ; and unless he be adjourned over to a 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. Pleas Puis Darrein Continuance. 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 given for his next appearance, he is permitted to plead it in which is called a plea of puis darrein continuance, or since the last adjournment. For it would be 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. And it is not allowed to be put in, if any continuance has intervened between 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 merits of his former plea. Also it is not allowed after a demurrer is determined, or verdict given; because then relief may be had in another way, namely, 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. Record. We have said that demurrers, or questions concerning the sufficiency of 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. The record is a history 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 further proceedings have been had; all entered verbatim on the roll, and also the issue or demurrer, and joinder therein. How Tried. When the substance of the record is completed, and copies are delivered to the judges, the matter of law upon which the demurrer is grounded is upon solemn argument determined by the court, and not by any trial by jury; and judgment is thereupon accordingly given. As, in an action of trespass, if the defendant in his plea confesses the fact, but justifies it causa venationis, for that he was hunting, and to this the plaintiff demurs, that is, he admits the truth of the plea, but denies the justification to be legal: now on arguing this demurrer, if the court be of opinion that a man may not justify trespass in hunting, they will give judgment for the plaintiff; if they think that he may, then judgment is given for the defendant. Thus is an issue in law, or demurrer, disposed of. An issue of fact takes up more form and preparation to settle it; for here the truth of the matters alleged must be solemnly examined and established by proper evidence in the channel prescribed by law. To which examination of facts, the name of trial is usually confined, which will be treated of at large in the two succeeding chapters. Chapter XXII. OF THE SEVERAL SPECIES OF TRIAL. 325-349. Trial, Definition, and Species. Trial is the examination of the matter of fact in issue; of which there are many different species, according to the difference of the subject, or thing to be tried; of all which we will take a cursory view in this and the subsequent chapter. The species of trials in civil cases are seven. By record; by inspection, or examination; by certificate; by witnesses; by wager of battle; by wager of law; and by jury. By Record. I. First, then, of the trial by record. This is only used in one particular instance; and that is where a matter of record is pleaded in any action, as a fine, a judgment, or the like, and the opposite party pleads, "nul tiel record," that there is no such matter of record existing; upon this, issue is tendered and joined in the following form, "and this he prays may be enquired of by the record, and the other doth the like;" and hereupon the party pleading the record has a day given him to bring it in, and proclamation is made in court for him to "bring forth the record by him in pleading alleged, or else he shall be condemned;" and on his failure, his antagonist shall have judgment to recover. The trial therefore of this issue is merely by the record; for, as Sir Edward Coke observes, a record or enrollment is a monument of so high a nature, and importeth in itself such absolute verity, that if it be pleaded that there is no such record, it shall not receive any trial by witness, jury, or otherwise, but only by itself. By Inspection. By Certificate. II. Trial by inspection, or examination, is when, for the greater expedition of a cause, in some point or issue, being either the principal question, or arising collaterally out of it, but being evidently the object of senses, the judges of the court, upon the testimony of their own senses, shall decide the point in dispute. III. The trial by certificate is allowed in such cases where the evidence of the person certifying is the only proper criterion of the point in dispute. By Witnesses. IV. A fourth species of trial is that by witnesses, per testes, without the intervention of a jury. It is very rarely used in our law, which prefers the trial by jury before it in almost every instance. And in every case Sir Edward Coke lays it down that the affirmative must be proved by two witnesses at the least. By Wager of Battle. V. The next species of trial is of great antiquity, but much disused; though still in force if the parties choose to abide by it; I mean the trial by wager of battle. This trial was introduced into England among other Norman customs, by William the Conqueror; but was only used in three cases, one military, one criminal, and the third civil. The first in the court-martial or court of chivalry and honour; the second in appeals of felony, of which we shall speak in the next book; and the third upon issue joined in a writ of right, the last and most solemn decision of real property. Wager of Law. VI. A sixth species of trial is by wager of law, because as in the former case, the defendant gave a pledge, gage or vadium, to try the cause by battle; so here he was put in sureties or vadios that at such a day he will make his law, that is, take the benefit which the law has allowed him. The manner of waging and making law is this: He that has waged, or given security, to make his law, brings with him into court eleven of his neighbors. The defendant then, standing at the end of the bar, is admonished by the judges of the nature and danger of a false oath. And if he still persists, he is to repeat this or the like oath: "Hear this, ye justices, that I do not owe unto Richard Jones the sum of ten pounds, nor any penny thereof, in manner and form as the said Richard hath declared against me. So help me God." And thereupon his eleven neighbors or compurgators shall avow upon their oaths that they believe in their consciences that he saith the truth; so that himself must be sworn de fidelitate, and the eleven de credulitate. It must be however observed, that so long as the custom continued of producing the witnesses to give probability to the plaintiff's demand, the defendant was not put to wage his law unless the witnesses were first produced and their testimony was found consistent. Two Kinds. Chapter XXIII. OF THE TRIAL BY JURY. Trials by jury in civil causes are of two kinds; extraordinary, and ordinary. Proceedings. When an issue is joined, by these words, "and this the said A prays may be enquired of by the country," or "and of this he puts himself upon the country, and the said B does the like," the court awards a writ of venire facias upon the roll or record, commanding the sheriff "that he cause to come here, on such a day, twelve free and lawful men, of the body of his county, by whom the truth of the matter may be better known, and who are neither of kin to the aforesaid A nor the aforesaid B, to recognize the truth of the issue between the said parties." And such writ was accordingly issued to the sheriff. If the sheriff be not an indifferent person: as if he be a party in the suit, or be related by either blood or affinity to either of the parties, he is not then trusted to return the jury, but the venire shall be directed to the coroners, who in this, as in many other instances, are the substitutes of the sheriff, to execute process when he is deemed an improper person. If any exception lies to the coroners, the venire shall be directed to two clerks of the court, or two persons of the county named by the court, and sworn. And these two, who are called elisors, or electors, shall indifferently name the jury, and their return is final; no challenge being allowed to their array. Notice. When the general day of trials is fixed, the plaintiff or his attorney must bring down the record to the assizes and enter it with the proper officer in order to its being called on in course. If it be not so entered, it cannot be tried; therefore it is in the plaintiff's breast to delay any trial by not carrying down the record; unless the defendant, being fearful of such neglect in the plaintiff, and willing to discharge himself from the action, will himself undertake to bring on the trial, giving proper notice to the plaintiff. In case the plaintiff intends to try the cause, he is bound to give the defendant (if he lives within forty miles of London) eight days' notice of trial, and if he lives at a greater distance, then fourteen days' notice, in order to prevent surprise; and if the plaintiff then changes his mind and does not countermand the notice six days before the trial, he shall be liable to pay costs to the defendant for not proceeding to trial, by the same last-mentioned statute. The defendant, however, or plaintiff, may, upon good cause shown to the court above, as upon absence or sickness of a material witness, obtain leave upon motion to defer the trial of the cause to the next assizes. Special and Common Juries. But we will now suppose all previous steps to be regularly settled, and the cause to be called on in court. The record is then handed to the judge, to peruse and observe the pleadings, and what issues the parties are to maintain and prove, while the jury is called and sworn. To this end the sheriff returns his compulsive |