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To the replication the defendant may rejoin, or put in an answer called a rejoinder. The plaintiff may answer the rejoinder by a fur-rejoinder ; upon which the defendant may rebut; and the plaintiff answer him by a sur-rebutter. Which pleas, replications, rejoinders, sur-rejoinders, rebutters, and sur-rebutters answer to the exceptio, replicatio, duplicatia, triplicatio, and quadruplicatio of the Roman la's ".
The whole of this process is denominated 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 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 hath 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 [ 31 ] choice, but to traverse the fact of the replication, or else to
demur upon the law of it.
Yet in many actions the plaintiff, who has alleged in his declaration a general wrong, may in his replication, after an evasive plea by the defendant, reduce that general wrong to a more particular certainty, by alligning the injury afresh with all it's specific circumstances in such manner as clearly to ascertain and identify it, confiftently with his general complaint; which is called a new or novel alignment. 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 frechold ; the plaintiff may reply and assign another close in D, specifying the abuttals and boundaries, as the real place of the injury,
Inf. 4. 14. Bract. I. 5.17. 5. 6. 1. i Bro. Abr. 8. trespass. 205. 284.
It hath previously been observed k that 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. For this would often embarrass the jury, and sometimes 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 admission of a fact, which cannot with propriety or safety be positively affirmed or denied. And this may be done by what is called a protestation ; whereby the party interposes an oblique allegation or denial of some fact, protesting (by the gerund, protestando ) that such a matter does or does not exist; and at the same time avoiding a direct affirmation or denial. Sir Edward Coke hath defined' a protestation (in the pithy dialect of that age) to be “an exclusion of a conclusion.” For the use of it is, to save the party from being concluded [ 312 ] with respect to some fact or circumstance, 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
mi Co. Litt. 126.
fion, which would otherwise have resulted from the rest of his defence, that he had enfranchised the plaintiff"; since no villein could maintain a civil action against his lord. So also if a defendant, by way of inducement to the point of his defence, alleges (among other matters) a particular mode of seisin or tenure, which the plaintiff is unwilling to admit, and yet desires to take issue on the principal point of the defence, he must deny the seisin or tenure by way of protestation, and then traverse the defensive matter. So lastly, if an award be set forth by the plaintiff, and he can aflign 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 something should appear to liave been performed; he may fave to himself any advantage he might hereafter make of the general non-performance, by alleging that by protestation ; and plead only the non-payment of the
money.o.' [ 313 1 In any stage of the pleadings, when either side advances or
affirms any new matter, he usually (as was said) avers it to be true; “ and this he is 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 the iflue 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 P: 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 any thing that was before alleged, but disclosing some new negative n See book II. ch. 6. pag. 94.
P Append. No. II. $46 . Append. N? III. $ 6.
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 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.
ISSUE, exitus, being the end of all the pleadings, is the
I fourth part or stage of an action, and is either upon matter of law, or matter of fair,
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 ariống 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, dimoratur, 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 aligning 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 reft his case.
The form of such demurrer is by averring the declaration or plea, the replication or rejoinder, to be insuficient in