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law to maintain 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 case 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. And upon either a general, or such a special demurrer, the opposite party must aver it to be sufficient, which is called a joinder in demurrer, and then the parties are at issue in point of law. Which iflue in law, or demurrer, the judges of the court before which the action is brought mult 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. 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 patriam) 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 Ro. man republic, where the judices ordinarii determined only questions of fact, but questions of law were referred to the decisions of the centumviri a.
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 a Append. N" III. $ 6.
c Append. No II. § 4. b Ibid.
d Cic. de Orator.l. 1. c. 38.
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 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 plaintiif, if the omission be his, is faid to be nonfuit, 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 de. fendant, 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 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 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 matter, which it is proper for the defendant to plead; as, that the plaintiff, being a feme-sole, is fince 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 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 ihen relief may be had in another way, namely by writ of audita quereld, 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 fufficiency of the matiers alleged in the pleadlings, are to be determined by the judges of the court, upon folemn 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 cyer 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.
These were formerly all written, as indeed all public proceedings were, in Norman or French law, 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 fervitude ; being introduced under the auspices of William the Norman, and
i Append. No ll. $ 4. No III. $ 6.
e Cro. Eliz. 49.
his sons: whereby the ironicaloblervation of the Roman fatyris came to be literally verified, that “Gallia caufidicos docuit fis“ cunda Britannos 6." This continued till the reign of Edward III; who, having employed his arms successfully in subduing the crown of France, thought it unbefeeming the dignity of the victors to use any longer the language of a vanquished country. By a statute therefore, passed in the thirty-fixth year of his reign", 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 like 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 legal proceedingsi: 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 antient law', it had not been very improper. But the record or enroll. 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 a 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 it's grammar
& Juv, xv. 111.
k Ibid. xxix. 235.
and orthography as much from the modern French, as the diction of Chaucer and Gower does from that of Addison and Pope. Besides, as the English and Norman languages 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 so very much the same, 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 succeeded the French for the entry and enrollment 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 surprizing it should 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 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 fimplicity, or (if the reader pleases) the poverty and baldness of it's 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 ele. gance of expression, have been principally 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 of a Gothic original; which is, more or less, the case in every country