BOOK III. 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 fur-rebutter. Which pleas, replications, rejoinders, fur-rejoinders, rebutters, and fur-rebutters anfwer to the exceptio, replicatio, duplicatia, triplicatio, and quadruplicatio of the Roman laws.

THE whole of this procefs 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 infifted on. For this (which is called a departure in pleading) might occafion endlefs altercation. Therefore the replication muft fupport the declaration, and the rejoinder muft fupport the plea, without departing out of it. As in the cafe of pleading no award made, in confequence of a bond of arbitration, to which the plaintiff replies, fetting forth an actual award; now the defendant cannot rejoin that he hath performed this award, for fuch rejoinder would be an entire departure from his original plea, which alleged that no fuch award was made: therefore he has now no other [311] choice, but to traverfe the fact of the replication, or elfe 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 afligning the injury afresh with all it's fpecific circumstances in fuch manner as clearly to afcertain and identify it, confiftently with his general complaint; which is called a new or novel affignment. As, if the plaintiff in trefpafs declares on a breach of his clofe in D; and the defendant pleads that the place where the injury is faid to have happened is a certain clofe of pasture in D, which defcended to him from B his father, and fo is his own freehold; the plaintiff may reply and affign another close in D, fpecifying the abuttals and boundaries, as the real place of the injury.

Inft 4. 14. Bract. 1. 5. tr. 5. c. 1.

i Bro. Abr. t. trefpafs. 205. 284.

Ir 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 diftinct independent answers to the fame matter; which must require as many different replies, and introduce a multitude of iffues upon one and the fame difpute. For this would often embarrass the jury, and fometimes the court itfelf, and at all events would greatly enhance the expenfe of the parties. Yet it frequently is expedient to plead in fuch a manner, as to avoid any implied admission of a fact, which cannot with propriety or fafety 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 such a matter does or does not exist; and at the fame time avoiding a direct affirmation or denial. Sir Edward Coke hath defined a protestation (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 refpect 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 proteft, he might be deemed to have tacitly waived or admitted. Thus, while tenure in villenage fubfifted, 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 cafe 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.

24

Co. Litt. 126.

fion,

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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 againft his lord. So alfo 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 muft deny the seifin or tenure by way of protestation, and then traverse the defenfive matter. So lastly, 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 fum 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..

IN

In any stage of the pleadings, when either fide advances or affirms any new matter, he ufually (as was faid) avers it to be true;" and this he is ready to verify." On the other hand, when either fide traverfes or denies the facts pleaded by his antagonist, he usually tenders an iffue, 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 himfelf 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 instance, the defendant) pleads a fpecial negative plea, not traverfing or denying any thing that was before alleged, but difclofing fome new negative

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 difputed, the plaintiff not having yet afferted the existence 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 course 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 must now be determined either in fayour 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 ftage 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 confefles the facts to be true, as ftated by the oppofite party; but denies that, by the law arifing upon those 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 trefpais 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