PRIVATE WRONGS.
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Ch. 21.

CHAPTER THE TWENTY FIRST.

OF ISSUE AND DEMURRER.

ISSUE, 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 confeffes the facts to be true, as ftated by the oppofite party; but denies that, by the law arifing upon thofe facts, any injury is done to the plaintiff, or that the defendant has made out a legitimate excufe; according to the party which firft demurs, demoratur, refts or abides upon the point in queftion. 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 trefpafs by authority from a ftranger, without fetting out the ftranger'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 to
maintain
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maintain the action or the defence; and therefore praying judgment for want of fufficient matter alleged^a. 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. fet forth the caufes of his demurrer, or wherein he apprehends the deficiency to confift. And upon either a general, or fuch a fpecial demurrer, the oppofite party avers it to be fufficient, which is called a joinder in demurrer^b, and then the parties are at iffue in point of law. Which iffue in law, or demurrer, the judges of the court before which the action is brought muft determine.

AN iffue of fact is where the fact only, and not the law, is difputed. And when he that denies or traverfes the fact pleaded by his antagonift has tendered the iffue, thus, “and this he prays may be enquired of by the country,” or “and of this he puts himfelf upon the country,” it may immediately be fubjoined by the other party, “and the faid A. B. doth the like.” Which done, the iffue is faid to be joined, both parties having agreed to reft the fate of the caufe upon the truth of the fact in queftion^c. And this iffue, of fact, muft generally fpeaking 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 eftablifhment, of different tribunals for determining thefe different iffues, is in fome meafure agreeable to the courfe of juftice in the Roman republic, where the judices or dinarii determined only queftions of fact, but queftions of law were referred to the decifions of the centumviri^d.

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 that both the

.{FS}
^a Append. N^o. III. §. 6.
^b Ibid.
^c Append. N^o. II. §. 4.
^d Cic. de Ocator. l. I. c. 38.
.{FE}
Q q 2
parties
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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 attornies, 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 againft him, for fuch his default. And, after iffue or demurrer joined, as well as in fome of the previous ftages 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, becaufe thereby the proceedings are continued without interruption from one adjournment to another. If thefe continuances are omitted the caufe is thereby difcontinued, and the defendant is difcharged 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, unlefs he be adjourned over to a day certain, he is no longer bound to attend upon that fummons; but he muft be warned afrefh, 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 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 poffibly 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 the benefit of this new defence,
which
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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^e. And it is not allowed to be put in, if any continuance has intervened between the arifing of this frefh 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; becaufe 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 queftions 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^f is a hiftory of the moft material proceedings in the caufe, entered on a parchment roll, and continued down to the prefent time; in which muft be ftated 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 law French, and even the arguments of the counfel and decifions of the court were in the fame barbarous dialect. An evident and fhameful badge, it muft be owned, of tyranny and foreign fervitude; being introduced un-

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^e Cro. Eliz. 49.
^f Append. N^o. II. §. 4. N^o. III. §. 6.
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der
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der the aufpices of William the Norman, and his fons: whereby the obfervation of the Roman fatyrift was once more verified, that “Gallia caufidicos docuit facunda Britannos^g.” 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 vanquifhed county. By a ftatute therefore, paffed in the thirty fixth year of his reign^h, it was enacted, that for the future all pleas fhould be pleaded, fhewn, defended, anfwered, debated, and judged in the Englifh 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 ufe the Caftilian tongue in all legal proceedingsⁱ; and as, in 1286, the German language was eftablifhed in the courts of the empire^k. And perhaps if our legiflature had then directed that the writs themfelves, 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 Englifh language, according to the rule of our antient law^l, it had not been very improper. But the record or enrollment of thofe writs and the proceedings thereon, which was calculated for the benefit of pofterity, was more ferviceable (becaufe 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 a nearer acquaintance, they would have found nothing very formidable in the language; which differs

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^g fuv. XV. III.
^h c. 15.
ⁱ Mof. Un. Hift. XX. 211.
^k Ibid. XXiX. 235.
^l Mirr. c. 4. §. 3.
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in
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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 Englifh and Norman languages were concurrently ufed by our anceftors 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 Englifhman (with a week's preparation) would underftand the laws of Normandy, collected in their grand couftumire, 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, anfwers of nearly to the Englifh (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 Englifh 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 purpofes of the lawyers with a peculiar exactnefs and precifion. This is principally owing to the fimplicity or (if the reader pleafes) the poverty and baldnefs of it's texture, calculated to exprefs the ideas of mankind juft as they arife in the human mind, without any rhetorical flourifhes, 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 eafily underftood, where ftrength and perfpicuity, nor harmony or elegance of expreffion, have been principally confulted in compiling them. Thefe 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 fubjects 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

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cafe in every country of Europe, and therefore not to be imputed as any peculiar blemifh in our Englifh legal latinity^m. The truth is, what is generally denominated law-latin is in reality a mere technical language, calculated for eternal duration, and eafy to be apprehended both in prefent and future times; and on thofe accounts beft fuited to preferve thofe memorials which are intended for perpetual rules of action. The rude pyramids of Egypt have endured from the earlieft ages, while the more modern and more elegant ftructures of Attica, Rome, and Palmyra have funk beneath the ftroke of time.

AS to the objection of locking up the law in a ftrange and unknown tongue, this is of little weight with regard to records, which few have occafion to read but fuch as do, or ought to, underftand the rudiments of Latin. And befides it may be obferved of the law-latin, as the very ingenious fir John Daviesⁿ obferves of the law-french, “that it is fo very eafy to be learned, that the meaneft wit that ever came to the ftudy of the law doth come to underftand it almoft perfectly in ten days without a reader.”

IT is true indeed that the many terms of art, with which the law abounds, are fufficiently harfh when latinized (yet not more fo than thofe of other fciences ) and may, as Mr Selden obferves^o, give offence “to fome grammarians of fqueamifh ftomachs, who would rather chufe to live in ignorance of things the moft ufeful and important, than to have their delicate ears wounded by the ufe of a word, unknown to Cicero, Saluft, or the other writers of the Auguftan age.” Yet this is no more than muft unavoidably happen when things of modern ufe, of which the Romans had no idea, and confequently no phrafes to exprefs

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^m The following fentence, “fi quis ad battalia curte fua exierit, if any one goes out of his own court to fight,” &c. may raife a fmile in the ftudent as a flaming modern anglicifm: but he may meet with it, among others of the fame ftamp, in the laws of the Burgundians on the continent, before the end of the fifth century. (Add. I. c. 5. §. 2.)
ⁿ Pref. Rep.
^o Pref. ad Eadmer.
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them,

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them, come to be delivered in the Latin tongue. It would puzzle the moft claffical fcholar to find an appellation, in his pure latinity, for a conftable, a record, or a deed of feoffment: it is therefore to be imputed as much to neceffity, as ignorance, that they were ftiled in our forenfic dialect conftabularius, recordum, and feoffamentum. Thus again, another uncouth word of our antient laws (for I defend not the ridiculous barbarifms foretimes introduced by the ignorance of modern practifers) the fubftantive murdrum, or the verb murdrare, however harfh and unclaffical it may feem, was neceffarily framed to exprefs a particular offence; fince no other word in being, occidere, interficere, necare, or the like, was fufficient to exprefs 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 prefent entertained by our law; viz. a killing with malice aforethought.

ASIMILAR neceffity to this produced a fimilar effect at Byzantium, when the Roman laws were turned into Greek for the ufe of the oriental empire: for, without any regard to Attic elegance, the lawyers of the imperial courts made no fcruple to tranflate fidei-commiffarios, {symbol ^p;} cubiculum, {sympol^q;} filium-familias, {symbol^r;} repudium, {symbol^s} compromiffum, {symbol^t;}reverentia et obfequium, {symbol^u;} and the like. They ftudied more the exact and precife import of the words, than the neatnefs and delicacy of their cadence. And my academical readers will excufe me for fuggefting, that the terms of the law are not more numerous, more uncouth, or more numerous, more uncouth, or more difficult to be explained by a teacher, than thofe of logic, phyfics, and the whole circle of Ariftotle's philofophy, nay even of the politer arts of architecture and it's kindred ftudies, or the fcience of rhetoric itfelf. Sir Thomas More's famous legal queftion^w contains in it nothing more difficult, than the definition

.{FS}
^p Nov. I. c. I.
^q Nov. 8. edict. Conftantinop.
^r Nov. 117. c. I.
^s Ibid. c. 8.
^t Nov. 82. c. II.
^u Nov. 78. c. 2.
^w See pag. 149.
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VOL. III.

R r

which

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which in his time the philofophers currently gave of their materia prima, the groundwork of all natural knowlege; that it is “neque quid, neque quantum, neque uqale, neque aliquid eorum quibus ens determinatur;” or it's fubfequent explanation by Adrian Heereboord, who affures us^x that “materia prima non eft corpus, neque per formam corporeitatis, neque per fimplicem effentiam: eft tamen ens, et quident fubftantia, licet incompleta; habetque actum ex fe entitativum, et fimul eft potentia fubjectiva.” The law therefore, with regard to it's technical phrafes, ftands upon the fame footing with other ftudies, and requefts only the fame indulgence.

THIS technical Latin continued in ufe from the time of it's firft introduction, till the fubverfion of our antient conftitution under Cromwell; when, among many other innovations in the law, fome for the better and fome for the worfe, the language of our records was altered and turned into Englifh. But, at the reftoration of king Charles, this novelty was no longer countenanced; the practifers finding it very difficult to exprefs themfelves fo concifely or fignificantly in any other language but the Latin. And thus it continued without any fenfible inconvenience till about the year 1730, when it was again thought proper that the proceedings at law fhould be done into Englifh, and it was accordingly fo ordered by ftatute 4 Geo. II. c. 26. This was done, in order that the common people might have knowlege and underftanding of what was alleged or done for and againft them in the procefs and pleadings, the judgment and entries in a caufe. Which purpofe I know not how well it has anfwered; but am apt to fufpect that the people are now, after many years experience, altogether as ignorant in matters of law as before. On the other hand, thefe inconveniences have already arifen from the alteration; that now many clerks and attorneys are hardly able to read, much lefs to underftand, a record even of fo modern a date as the reign of George the firft. And it has much enhanced the expenfe of all legal proceedings : for fince

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^x Philofopb. natural. c. I. §. 28, &c.
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the
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the practifers are confined (for the fake of the ftamp duties, which are thereby confiderably encreafed) to write only a ftated number of words in a fheet; and as the Englifh language, through the multitude of it's particles, is much more verbofe than the Latin; it follows that the number of fheets muft be very much augmented by the change^y. The tranflation alfo of technical phrafes, and the names of writs and other procefs, were found to be fo very ridiculous (a writ of nifi prius, quare impedit, fieri facias, babeas corpus, and the reft, not being capable of an Englifh drefs with any degree of ferioufnefs ) that in two years time a new act was obliged to be made, 6 Geo. II. c. 14; which allows all technical words to continue in the ufual language, and has thereby almoft defeated every beneficial purpofe of the former ftatute.

WHAT is faid of the alteration of language by the ftatute 4 Geo. II. c. 26. will hold equally ftrong with refpect to the prohibition of ufing the antient immutable court hand in writing the records or other legal proceedings; whereby the reading of any record that is forty years old is now become the object of fcience, and calls for the help of an antiquarian. But that branch of it, which forbids the ufe of abbreviations, feems to be of more folid advantage, in delivering fuch proceedings from obfcurity: according to the precept of Juftinian^z; “ne per fcripturam aliqua fiat in pofterum dubitatio, jubemus non per figlorum captiones et compendiofa aenigmata ejufdem codicis textum confcribi, fed per literarum confequentiam explanari concedimus.” But, to return to our demurrer.

WHEN the fubftance of the record is completed, and copies are delivered to the judges, the matter of law, upon which the demurrer is grounded, is upon folemn argument determined by the court, and not by any trial by jury; and judgment is there-

.{FS}
^y For inftance, thefe words, “fecundum formam ftatuti,” are now converted into feven, “according to the form of the ftatute.”
^z de concept. digeft. §. 13.
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R r 2
upon
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upon accordingly given. As, in an action of trefpafs, if the defendant in his plea confeffes the fact, but juftifies it caufa venationis, for that he was hunting; and to this the plaintiff demurs, that is, he admits the truth of the plea, but denies the juftification to be legal: now, on arguing this demurrer, if the court be of opinion, that a man may not juftify trefpafs in hunting, they will give judgment for the plaintiff; if they think that he may then judgment is given for the defendant. Thus is an iffue in law, or demurrer, difpofed of.

AN iffue of fact takes up more form and preparation to fettle it; for here the truth of the matters alleged muft be folemnly examined in the channel prefcribed by law. To which examination, of facts, the name of trial is ufually confined, which will be treated of at large in the two fucceeding chapters.
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