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 brought an action against his lord, and the lord was inclined to try the merits of he demand, and at the same time to prevent any conclusion against himself that he had waived his seignory; he could not in this case both plead affirmatively that the plaintiff was his villein, and also take issue 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 protestation, and then have denied the demand. By this means the future vassalage of the plaintiff was saved to the defendant in case the issue was found in his (the defendant's) favor;(m) for the protestation prevented that conclusion, which would otherwise have resulted from the rest of his de fence, that he had enfranchised the plaintiff,(n) 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 assign 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 nonperformance of any part of it, lest something should appear to have been performed; he may save 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.(0) *313] *In any stage of the pleadings, when either side advances or affirms any new matter, he usually (as we 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 issue 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 matter; as, where the suit is on a bond, conditioned to perform an award, and the defendant pleads, negatively, that no award was made, he tenders no issue upon this plea; because it does not 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 specifio 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. () 1 Inst. 124. (m) Co. Litt. 126. (") See book ii. ch. 6, p, 94. () Append. No. III. § 6. "No protestation is now required-or allowed, indeed-in any pleading; but either party is entitled to the same advantage as if protestation had been made.-KERR. CHAPTER XXI. OF ISSUE AND DEMURRER. *1SSUE, exitus, being the end of all the pleadings, is the fourth part or stage of an action, and is either upon matter of law, or matter of fact. [*314 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 arising 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, demoratur, 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 assigning 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 rest his case. The form of such demurrer is by averring the declaration or plea, the repli cation or rejoinder, to be insufficient in law to maintain the action or [*315 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 cases of exceptions to the form or manner of pleading, the party demurring must, by statute 27 Eliz. c. 5, and 4 & 5 Anne, 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 demur. rer,(b) and then the parties are at issue in point of law. Which issue in law, or demurrer, the judges of the court before which the action is brought must 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.(c) 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 Roman republic, where the judices ordinarii deternined only questions of fact, but questions of law were referred to the decisions of the centumviri.(d)2 (a) Append. No. III. 3 6. Ibid. No. II. 24. Either party may demur when the preceding pleadings of his adversary are defective A demurrer has been defined to be a declaration that the party demurring will go no further, because the other has not shown sufficient matter against him. 5 Mod. 132. Co. Litt. 71, b. When the pleading is defective in substance, a general demurrer will suffice; but where the objection is to the form, the demurrer must be special. Bac. Abr. Pleas, N. 5. A special demurrer must not merely show the kind of fault, but the specific fault complained of.-CHITTY. 2 Formerly a party could not in any case demur and plead, by way of traverse or other wise, to the same pleading at the same time. A defendant could not, for instance, answer a declaration, first, by a demurrer, for that it showed no cause of action; and, secondly, by pleading in confession and avoidance that the plaintiff had released the suit; for the objection in point of law could not be raised with an issue in fact, the demurrer VOL II.-15 225 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 *316] 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 plaintiff, if the omission be his, is said to be non-suit, 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 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 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.s : 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 femesole, 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 what is called a plea of puis darrein continuance, or since the last adjournment. *For it would be unjust to exclude him from the benefit *317] 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 confesses the matter which was before in dispute between the parties.(e) Anu 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 the 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. 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 (Cro. Eliz. 49. being considered to admit the facts, although in reality this was only for the sake of argument. Now, however, a party may plead and demur to the same pleading at the same time, if he can satisfy a judge or the court that he ought to be allowed to do so. He may-as is but reasonable-be required to make an affidavit of the truth of the facts stated in the pleas, and of his belief that the objections raised by the demurrer are valid in law, before such leave will be granted. And the court or judge, in granting leave, may direct which shall be first determined, the issue in law or the issue in fact.-KERR. But these continuances are now become mere matter of form, and may be entered at any time to make the record complete.-Coleridge. This plea, though treated in some respects as a dilatory plea, the court cannot refuse to receive, (2 Wils. 157. 3 T. R. 554. 1 Marsh. 280. 5 Taunt. 333. 1 Stark. 62;) but it must be verified on oath before it is filed. Freem. 252. 1 Stra. 493. 2 Smith's Rep. 396. It may be pleaded at nisi prius as well as in banc, but cannot be amended after the assizes are over. Yelv. 181. Freem. 252. Bull. N. P. 309. See further, 1 Chitty on Pl 4th ed. 569 to 573.-CHITTY. [*318 court, upon solemn argument by counsel on both sides, and to that end a demur rer-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 (f) is a history of the most material p-oceedings 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 These were formerly all written, as indeed all public proceedings were, in Norman or law French, 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 servitude; being *introduced under the auspices of William the Norman, and his sons: whereby the ironical observation of the Roman satirist came to be literally verified, that "Gallia causidicos docuit facunda Britannos."(g) This continued till the reign of Edward III.; who, having employed his arms successfully in subduing the crown of France, thought it unbeseeming the dignity of the victors to use any longer the language of a vanquished country. By a statute, therefore, passed in the thirty-sixth year of his reign,(h) it was enacted, that for the future all pleas should be pleaded, shown, 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 proceedings;(i) 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 enrolment 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 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 its grammar *and orthography as much from the modern French, as the diction of Chaucer [*319 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 cous tumier, as well, if not better, than a Frenchman bred within the walls of Paris. The Latin, which succeeded the French for the entry and enrolment of pleas, and which continued in use for four centuries, answers so nearly to the English () Append. No. II. 24. No. III. § 6. (0) Juv. xv. 111. Mod. Un. Hist. xx. 211. Ibid. xxix. 235. The plaintiff, or his attorney, must deliver paper-books to the chief justice and senior judge, and the defendant, or his attorney, to the two other judges. R. M. 17 Car. I.--CHITTY. This is disputed, with great reason, by Mr. Serjeant Stephen, Pleading, Appendix, p. xxii., who thinks that the record was always in Latin.-STEWART. (often times word for word) that it is not at all surprising 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 simplicity, or (if the reader pleases) the poverty and baldness, of its 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 elegance 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 *320] or necessity) have frequently intermixed therein some words of a Gothic original, which is more or less the case in every country *of Europe, and therefore not to be imputed as any peculiar blemish in our English legal Latinity.(m) The truth is, what is generally denominated law-Latin is in reality a mere technical language, calculated for eternal duration, and easy to be apprehended both in present and future times; and on those accounts best suited to preserve those memorials which are intended for perpetual rules of action. The rude pyramids of Egypt have endured from the earliest ages, while the more modern and more elegant structures of Attica, Rome, and Palmyra have sunk beneath the stroke of time. As to the objection of locking up the law in a strange and unknown tongue, that is of little weight with regard to records, which few have occasion to read but such as do, or ought to, understand the rudiments of Latin. And, besides, it may be observed of the law-Latin, as the very ingenious Sir John Davis(n) observes of the law-French, "that it is so very easy to be learned, that the meanest wit that ever came to the study of the law doth come to understand it almost perfectly in ten days without a reader." It is true indeed that the many terms of art, with which the law abounds, are sufficiently harsh when Latinized, (yet not more so than those of other sciences,) and may, as Mr. Selden observes, (o) give offence "to some grammarians of squeamish stomachs, who would rather choose to live in ignorance of things the most useful and important, than to have their delicate ears wounded by the use of a word unknown to Cicero, Sallust, or the other writers of the Augustan age." Yet this is no more than must unavoidably happen when things of modern use, of which the Romans had no idea and consequently no *321] phrases to express them, come to be delivered in the Latin tongue. It would puzzle *the most classical scholar to find an appellation, in his pure Latinity, for a constable, a record, or a deed of feoffment; it is therefore to be imputed as much to necessity, as ignorance, that they were styled in our forensic dialect constabularius, recordum, and feoffamentum. Thus, again, another uncouth word of our antient laws, (for I defend not the ridiculous barbarisms sometimes introduced by the ignorance of modern practisers,) the substantive murdrum, of the verb murdrare, however harsh and unclassical it may seem, was necessarily framed to express a particular offence; since no other word in being, occidere, interficere, necare, or the like, was sufficient to express the intention of the criminal, or quo animo the act was perpetrated; and therefore by no means came up to the notion of murder at present entertained by our law; viz., a killing with malice aforethought. A similar necessity to this produced a similar effect at Byzantium, when the Roman laws were turned into Greek for the use of the Oriental empire: for, (*) The following sentence, "Si quis ad battalia curte sua ierit, if any one goes out of his own court to fight." &c., Day raise a smile in the student as a flaming modern Anglisism; but he may meet with it, among others of the same stamp, in the laws of the Burgundians on the continent () Pref. ad Eadmer. |