law to maintain the action or the defence; and therefore praying judgment for want of fufficient matter alleged. Sometimes demurrers are merely for want of fufficient form in the writ or declaration. But in cafe of exceptions to the form, or manner of pleading, the party demurring muft by ftatute 27 Eliz. c. 5. and 4 & 5 Ann. c. 16. set forth the caufes of his demurrer, or wherein he apprehends the deficiency to confift. And upon either a general, or fuch 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 ifflue 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 immediately 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 rest the fate of the caufe upon the truth of the fact in question. And this iffue, of fact, muft 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 dif ferent tribunals for determining thefe different iffues, is in fome measure agreeable to the courfe of juftice in the Roman republic, where the judices ordinarii determined only queftions of fact, but queftions of law were referred to the decifions of the centumviri.

BUT here it will be proper to obferve, that during the whole of thefe proceedings, from the time of the defendant's appearance in obedience to the king's writ, it is neceffary

a Append. N° III. § 6.

b Ibid.

Append. No II. § 4.

d Cic. de Orator. l. 1. c. 38.

that

Book III. that both the parties be kept or continued in court from day to day, till the final determination of the fuit. For the court can determine nothing, unlefs in the prefence of both the parties, in perfon 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 courfe of pleading, if either party neglects to put in his declaration, plea, replication, rejoinder, and the like, within the times allotted by the ftanding rules of the court, the plaintiff, if the omiffion be his, is faid to be nonfuit, or not to follow and purfue his complaint, and fhall lofe the benefit of his writ: or, if the negligence be on the fide of the defendant, judgment may be had against him, for fuch his default. And, after iflue or demurrer joined, as well as in fome 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 cafe 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 thefe continuances are omitted, the cause is thereby difcontinued, and the defendant is discharged fine 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 to a day certain, he is no longer bound to attend upon that fummons; but he must be warned afresh, and the whole muft begin de novo.

Now it may fometimes happen, that after the defendant has pleaded, nay, even after iffue or demurrer joined, there may have arifen fome new matter, which it is proper for the defendant to plead; as, that the plaintiff, being a feme-fole, is fince married, or that fhe has given the defendant a releafe, and the like: here, if the defendant takes advantage of this new matter, as early as he poflibly can, viz. at the day given for his next appearance, he is permitted to plead it in what is called a plea puis darrein continuance, or fince the laft adjournment. For it would be unjuft to exclude him

from

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 fuch a plea, without due confideration; for it confeffes the matter which was before in difpute between the parties. And it is not allowed to be put in, if any continuance has intervened between the arifing of this fresh matter and the pleading of it: for then the defendant is guilty of neglect, or laches, and is fuppofed to rely on the merits of his former plea. Alfo 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 thefe pleas puis darrein continuance, when brought to a demurrer in law or iffue of fact, fhall be determined in like manner as other pleas.

WE have faid, that demurrers, or questions concerning the fufficiency of the matters alleged in the pleadings, are to be determined by the judges of the court, upon folemn argument by counfel on both fides; 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 perufe. The record is a history of the most material proceedings in the caufe, entered on a parchment roll, and continued down to the prefent time; in which must be stated the original writ and fummons, 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 alfo the iffue or demurrer, and joinder therein.

THESE were formerly all written, as indeed all public proceedings were, in Norman or French law, and even the arguments of the counfel and decifions of the court were in the fame barbarous dialect. An evident and shameful badge, it must be owned, of tyranny and foreign fervitude; being introduced under the aufpices of William the Norman, and f Append. No II. § 4. No III. § 6.

• Cro. Eliz. 49.

BOOK III. his fons: whereby the ironical obfervation of the Roman fatyrist came to be literally verified, that "Gallia caufidicos docuit fa"cunda Britannos &." This continued till the reign of Edward III; who, having employed his arms fuccefsfully in fubduing the crown of France, thought it unbefeeming the dignity of the victors to ufe any longer the language of a vanquished country. By a ftatute therefore, paffed in the thirty-fixth year of his reign", it was enacted, that for the future all pleas fhould be pleaded, fhewn, defended, answered, debated, and judged in the English tongue; but be entered and enrolled in Latin. In like manner as don Alonfo X, king of Caftile (the great-grandfather of our Edward III) obliged his fubjects to use the Caftilian tongue in all legal proceedings 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 fubjects to perform certain acts or to appear at certain places, fhould have been framed in the English language, according to the rule of our antient law', it had not been very improper. But the record or enrollment of those writs and the proceedings thereon, which was calculated for the benefit of pofterity, was more ferviceable (because more durable) in a dead and immutable language than in any flux or living one. The practifers, however, being ufed to the Norman language, and therefore imagining they could exprefs their thoughts more aptly and more concifely in that than in any other, ftill continued to take their notes in law French: and of courfe when thofe notes came to be publifhed, under the denomination of reports, they were printed in that barbarous dialect; which, joined to the additional terrors of a Gothic black letter, has occafioned many a ftudent to throw away his Plowden and Littleton, without venturing to attack a page of them. And yet in reality, upon have found nothing very

a nearer acquaintance, they would formidable in the language; which differs in it's grammar

and orthography as much from the modern French, as the diction of Chaucer and Gower does from that of Addifon and Pope. Befides, as the English and Norman languages were concurrently ufed by our ancestors for feveral centuries together, the two idioms have naturally affimilated, and mutually borrowed from each other: for which reafon the grammatical conftruction of each is fo very much the fame, that I apprehend an Englishman (with a week's preparation) would understand the laws of Normandy, collected in their grand couflumier, as well if not better than a Frenchman bred within the walls of Paris.

THE Latin, which fucceeded the French for the entry and enrollment of pleas, and which continued in ufe for four centuries, answers fo nearly to the English (oftentimes word for word) that it is not at all furprizing it fhould generally be imagined to be totally fabricated at home, with little more art or trouble than by adding Roman terminations to English words. Whereas in reality it is a very univerfal dialect, fpread throughout all Europe at the irruption of the northern nations, and particularly accommodated and moulded to anfwer all the purposes of the lawyers with a peculiar exactnefs and precision. This is principally owing to the fimplicity, or (if the reader pleafes) the poverty and baldness of it's texture, calculated to exprefs the ideas of mankind juft as they arife in the human mind, without any rhetorical flourishes, or perplexed ornaments of ftyle: for it may be obferved, that thofe laws and ordinances, of public as well as private communities, are generally the moft easily underftood, where strength and perfpicuity, not harmony or elegance of expreffion, have been principally confulted in compiling them. These northern nations, or rather their legiflators, though they refolved to make ufe 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 neceffity) have frequently intermixed therein fome words of a Gothic original; which is, more or lefs, the cafe in every country

of