debt claimed by the plaintiff has been already paid, denies the cause of action. When a dilatory plea is allowed, the cause is either dismissed from that jurisdiction, or (according to the purport of the plea) the plaintiff is stayed till his disability be removed; or he is obliged to sue out a new writ, by leave obtained from the court; or to amend and new-frame his declaration. But when, on the other hand, it is overruled as frivolous, the defendant has judgment of respondent ouster, or to answer over in some better manner. It is then incumbent upon him to plead a plea to the action; that is, to answer to the merits of the complaint. This is done by confessing or denying it. And sometimes the defendant confesses one part of the complaint, and traverses or denies the rest; or pays a part of the sum demanded of him into court, and denies the complaint as to the remainder.

Pleas which totally deny the cause of complaint are either the general issue or a special plea in bar.

The general issue is a plea which, by a form of general denial, traverses or denies the principal fact on which the declaration rests, without offering any special matter to evade it. Thus the plea of not guilty, to an action of trespass, denies that the act in the declaration alleged as a trespass was done; as, for instance, that the defendant did assault or beat the plaintiff. Thus, again, the plea of never indebted, in an action of debt on simple contract, (that is to say, a contract not under seal), denies that the defendant ever contracted the supposed debt on which he is sued.'

If, however, a simple denial is not an available defence, and the defendant finds it necessary to allege something to distinguish away or palliate the charge, the particular facts must be set forth in what is called a special plea in 1 Stephen on Pleading, c. ii. p. 167, &c.

bar. Thus, for instance, if the defendant cannot deny having assaulted the plaintiff, but alleges that he did so in self-defence, or cannot deny that he contracted the debt, but alleges that he has already paid it,-these defences are special pleas. Thus, special pleas always allege some new fact not mentioned in the declaration; but pleas of the general issue are simply negative. When the defendant has pleaded in bar, the plaintiff may simply put his case upon the truth or falsehood of the new facts alleged in the plea; and the defendant may declare his consent thereto, which is called joining issue, because the plaintiff puts himself on the country, that is to say, appeals to the verdict of a jury, as to the truth or falsehood of the plea; and the defendant joins him in doing so, whereby the pleadings come to an end. The plaintiff may, however, demur to the plea, denying its sufficiency in point of law as an answer to the declaration; or he may either allege new matter again to avoid the plea, or deny its allegations generally, by what is called a replication. In the same manner is conducted the subsequent altercation to which the nature of the case may lead; and the order and denominations of the alternate allegations of fact (or pleadings), throughout the whole series, are as follows: declaration, plea, replication, rejoinder, surrejoinder, rebutter, and surrebutter. But these proceedings are subject to certain rules which usually bring the parties to issue upon the plea or rejoinder. And first, as each party successively advances a new proposition, he must declare his readiness to verify what he alleges, if it is positive; or tender an issue thereon, that is to say, offer to refer the matter to some mode of adjudication or trial, if it is simply negative. An issue being tendered, the party whose allegation is denied has an

T 2

opportunity of bringing the pleadings to a close by joining issue.

Secondly. After the declaration, the parties (if they do not plead by way of traverse or simple negative) must at each stage demur, or plead by confession and avoidance. By demurring, the party admits the matters of fact sufficiently pleaded on the other side; and by pleading by confession and avoidance, he confesses the truth of the allegation which he proposes to answer or avoid. Thus, at every stage of the pleadings, the matter in dispute is narrowed by the admission of the truth of either the whole or some part of the facts already alleged, until it is reduced to a question either of law or of fact, affirmed on one side and denied on the other, which must then be determined in favour of the plaintiff or of the defendant.

Many other rules are established for the purpose of preparing matters in litigation for adjudication or trial, by the mutual altercations or pleadings of the parties. Thus, in every stage of this process, it must be carefully observed not to depart or vary from the title or defence which the party has once insisted upon; every plea must be simple, entire, connected, and confined to a single point; and all pleadings must contain matter pertinent and material, stated with certainty of persons, place, time, quality, quantity, and value. But any further investigation of the subject would be incompatible with the limits of this Commentary. We will therefore proceed to the next stage of judicial proceedings; namely, trial.

If the parties are at issue upon a point of law, it is to be decided by the court, without the intervention of a jury; and there are also four other species of cases in which no jury is required. These are: 1. Where a matter of record is pleaded, and the existence of the record

is denied on the other side, and issue joined thereon; in which case the trial of the issue is by production of the record before the judges. 2. Where some point or issue, being either the principal question or arising collaterally out of the cause, is evidently the object of sense; and the judges of the court, upon the testimony of their own senses, decide the point in dispute. 3. Where the evidence of a person certifying is the only proper criterion of the point in dispute; and then it is decided on his certi4. Where a widow brings a writ of dower, and the tenant of the land out of which she seeks to be endowed, pleads that her husband is not dead; in which case, the law, for greater expedition and in favour of the widow, allows the issue to be tried by the examination of witnesses before the judge;3 and in a few cases of collateral issues. These are called, respectively, trial by record; by inspection or examination; by certificate; and by witnesses: but they are of a very confined nature; and we will therefore proceed at once to the most important proceeding in our law,-trial by jury, which takes place (excepting in those peculiar instances) wherever the parties are at issue on matter of fact,-when they are said to have put themselves upon the country.

16 Rep. 53. Co. Litt. 117, b. Abbot of Strata Marcella's case, 9 Rep. 31. When a question arises as to what has judicially taken place in a court not of record, the issue should be directly on the fact, whether such a proceeding took place, and not upon the existence of any judicial memorial. Dyson v. Wood, 3 Barn. and Cress. 449.

2 Litt. § 102: certificate of absence with the king and his army. Dyer, 176, 177: certificate of the queen's messenger sent to summon a peeress home. Co. Litt. 74. 4 Burr. 242: certificate of the customs of the city of London. Co. Litt. 74. 2 Lev. 250: certificate of the bishop,-of orders and excommunication. 19 Rep. 31: certificate of customs and practice of courts. And see Harrison's Digest, tit. Evi

dence, p. 1072 (edit. 1837).

3 Finch, Law, 423.

4 1 Inst. 6.

The pleadings of the parties, which are drawn up originally on paper, are subsequently entered on record, that is to say, transcribed on a parchment-roll containing the most material proceedings in the cause. When an issue of fact is joined, the court awards a writ of venire facias to the sheriff, commanding him to summon a jury for the trial thereof; and thus the cause stands ready for trial at the bar of the court of Westminster, or wherever the queen may be, in her court of queen's bench: but a proviso is inserted in the writ of venire, commanding the sheriff to cause the jurors to come to Westminster, “nisi prius," unless before the day named the justices assigned to take assizes shall come into his county, which is sure to take place. And thus (excepting in cases of great importance, which are sometimes by special leave tried at the bar of the court), the sheriff returns his jurors to the court of the justices of assize, and there the trial is had.

By these means the expense of conveying the witnesses and jurors to Westminster is avoided, and, at the same time, the cause is tried before a judge who does not reside in the county, and has therefore taken no part in any local disputes, factions, or animosities that may exist between the parties or among their friends. Besides this, the respectable station held by the sheriff (who is usually some landed proprietor of fortune and consequence) affords a security against any unfair dealing on his part. Though an officer of the crown, he receives no emolument; and, indeed, in most cases serves because the law obliges him to do so, or from motives of honour and duty. He is therefore perfectly independent of the crown; but responsible to the law for any misconduct of himself or his officers, and bound, by the obligation of an oath, faithfully to execute his duty. If, however, the