CHAPTER XXI.

Of Issue, Demurrer, and Trial.

ISSUE, 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.

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 accordingly, the party which first demurs, 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, the plaintiff may demur in law to the plea.

The form of such demurrer is by averring the declaration or plea, the replication or rejoinder, to be insufficient in law to maintain the action or the defence; and therefore praying judgment, for want of sufficient matter alleged.

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.

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 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. Therefore, in the course of pleading, if either party neglect 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 nonsuit, 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. 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 be omitted, the cause is thereby

discontinued, and the defendant is discharged sine die, 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.

Demurrers are determined by the judges, after hearing 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 øyer 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.

When the substance of the record is complete, and copies are delivered to the judges, the matter of law upon which the demurrer is grounded is, upon solemn argument, determined by the court, and not by any trial by jury; and judgment is thereupon accordingly given. As, in an action of trespass, if the defendant in his plea confess the fact, but justifies it causá venationis, for that he was hunting; and to this the plaintiff demurs, that is, he admits the truth of his plea, but denies the justification to be legal; now, on arguing this demurrer, if the court be of opinion that a man may not justify trespass 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 issue in law, or demurrer, disposed of.

An issue of fact takes up more form and preparation to settle it; for here the truth of the matters alleged must be examined and established upon proper evidence by a jury to which examination of facts the name of trial is usually confined.

THE JURY.

The trial by jury, observes Sir William Blackstone, hath been used time out of mind in this nation, and seems to have been coeval with the first civil government thereof. Some authors have

endeavoured to trace its original up as high as the Britons themselves; but certain it is, that it was in use among the earliest Saxon colonies.

Trials by juries in civil causes are of two kinds; extraordinary and ordinary. The extraordinary we shall only briefly hint at, and confine ourselves to that which is more usual and ordinary.

The first species of extraordinary trial by jury is that of the grand assize. In which a writ de magnâ assisâ eligendá is directed to the sheriff, to return four knights, who are to elect and choose twelve others to be joined with them; and these altogether

form the grand assize, or great jury, which is to try the matter of right, and must now consist of sixteen jurors.*

The next species of extraordinary juries is that of attaint; which is a process commenced against a former jury for bringing in a false verdict. This jury is to consist of twenty-four of the best men in the county, who are called the grand jury in the attaint, to distinguish them from the first or petit jury; and these are to hear and try the goodness of the former verdict.

The ordinary trial by jury is, where an issue is joined upon a matter of fact: upon which the court awards the writ of venire facias upon the roll or record, commanding the sheriff, "that he cause to come here on such a day, twelve free and lawful men, of the body of his county, by whom the truth of the matter may be better known, and who are not of kin to either of the parties, to recognize the truth of the issue between them." And such writ is accordingly issued to the sheriff.

When the general day of trial is fixed, the plaintiff or his attorney must bring down the record to the assizes, and enter it with the proper officer, in order to its being called on in course.

If it be not so entered, it cannot be tried: therefore it is in the plaintiff's breast to delay any trial by not carrying down the record; unless the defendant, being fearful of such neglect in the plaintiff, and willing to discharge himself from the action, will himself undertake to bring on the trial, giving proper notice to the plaintiff. Which proceeding is called the trial by proviso. This practice hath begun to be disused since the 14 Geo. II. c. 17. which enacts, that if, after issue joined, the cause is not carried down to be tried according to the course of the court, the plaintiff shall be esteemed to be nonsuited, and judgment shall be given for the defendant, as in case of nonsuit. In case the plaintiff intends to try the cause, he is bound to give the defendant, if he live within forty miles of London, eight days notice of trial; and if he live at a greater distance, then fourteen days notice, in order to prevent surprise: and if the plaintiff then change his mind, and do not countermand the notice six days before the trial, he shall be liable to pay costs to the defendant, for not proceeding to trial." The defendant, however, or plaintiff, may, upon good cause shewn to the court above, as upon the absence or

* It seems not to be ascertained that any specific number above twelve is absolutely necessary to constitute the grand assize; but it is the usual course to swear upon it the four knights and twelve others. Viner, Trial X. e.

See the proceedings upon a writ of right before sixteen recognitors of the grand assize, in 2 Wils. 541.

The statute only requires ten days notice; but at the sittings in London and Westminster, the former practice of fourteen days notice is still continued. But in all country causes ten days notice is sufficient; as, where the commission day is upon the fifteenth of any month, notice of trial must be given on or before the fifth. Impey's Prac. 305. If the defendant resides within forty miles of London, and the cause is to be tried at the sittings in London or Westminster, then two days notice of countermand before it is to be tried, is sufficient. Crop. Prac. 220.

sickness of a material witness, obtain leave, upon motion, to defer the trial of the cause to the next assizes.

When the cause is called on, the record is handed to the judge, to peruse and observe the pleadings, and what issues the parties are to maintain and prove, while the jury is called and sworn.

The jurors contained in the pannel are either special or common jurors.

A special jury were originally introduced in trials at bar, when the causes were of too great nicety for the discussion of ordinary freeholders; or where the sheriff was suspected of partiality, though not upon such apparent cause as to warrant an exception to him. He is in such cases, upon motion in court, and a rule granted thereupon, to attend the prothonotary or other proper officer with the freeholders' book, and the officer is to take indifferently fortyeight of the principal freeholders in the presence of the attorneys on both sides, who are each of them to strike off twelve, and the remaining twenty-four are returned upon the pannel. Either party is entitled, upon motion, to have a special jury struck upon the trial of any issue, as well at the assizes as at bar, he paying the extraordinary expence, unless the judge will certify that the cause required such special jury.

A common jury is one returned by the sheriff according to the directions of the 3 Geo. II. c. 25. which appoints, that the sheriff or officers shall not return a separate pannel for every separate cause, as formerly; but one and the same pannel for every cause to be tried at the same assizes, containing not less than forty eight, nor more than seventy-two jurors; and that their names, being written on tickets, shall be put into a box or glass; and when each cause is called, twelve of these persons, whose names shall be first drawn out of the box shall be sworn upon the jury, unless absent, challenged, or excused; or unless a previous view of the messuages, lands, or place in question, shall have been thought necessary by the court, in which case six or more of the jurors returned, to be agreed on by the parties, or named by a judge or other proper officer of the court, shall be appointed by special writ of habeas corpora or distringas, to have the matters in question shewn to them by two persons named in the writ; and then such of the jury as have had the view, or so many of them as appear, shall be sworn on the inquest previous to any other jurors.

By the 1 & 2 Geo. IV. c. 46. the judges may direct the sheriff to summon not more than 144 jurors to attend the assizes on their respective circuits, and to serve indiscriminately on the civil and criminal trials; which jurors are to be divided into two sets, one of which is to attend at the beginning, and the other at the end of the assizes. And by section 2, the summonses are to express for the first or second set as the case may be, and also to specify at what time the attendance of the juror will be required.

As the jurors appear, when called, they shall be sworn, unless

challenged by either party. Challenges are of two sorts; challenges to the array, and challenges to the polls.

Challenges to the array are at once an exception to the whole pannel, in which the jury are arrayed or set in order by the sheriff in his return: and they may be made upon account of partiality or some default in the sheriff or his under-officer who arrayed the pannel. And though there be no personal objection against the sheriff, yet if he array the pannel at the nomination, or under the direction of either party, this is good cause of challenge to the array. The array by the ancient law may also be challenged, if an alien be party to the suit, and, upon a rule obtained by his motion to the court for a jury de medietate linguæ, such an one be not returned by the sheriff, pursuant to the 28 Edw. III. c. 13. enforced by the 8 Hen. VIII. c. 29. which enact, that where either party is an alien-born, the jury shall be one half denizens, and the other aliens (if so many be forthcoming in the place), for the more impartial trial. But where both parties are aliens, no partiality is to be presumed to one more than another; and therefore it is enacted, that where the issue is joined between two aliens (unless the plea be had before the mayor of the staple, and thereby subject to the restrictions of the 27 Edw. III. st. 2. c. 8.) the jury shall all be denizens.

Challenges to the polls (in capita) are exceptions to particular jurors.

But challenges to the polls of the jury (who are judges of fact) are reduced to four heads by Sir Edw. Coke; propter honoris respectum, propter defectum, propter affectum, and propter delictum.

Propter honoris respectum; as, if a lord in parliament be impannelled on a jury, he may be challenged by either party, or he may challenge himself.

Propter defectum; as, if a juryman be an alien-born, this is defect of birth; if he be a slave or bondman, this is defect of liberty. But the principal deficiency is the defect of estate sufficient to qualify him to be a juror. By the 4 & 5 W. & M. c. 24. it is raised to 10l. per annum in England, and 67. in Wales, of freehold lands or copyhold. And by the 3 Geo. II. c. 25. leaseholder for the term of five hundred years absolute, or for any term determinable upon life or lives, of the clear yearly value of 201. per annum over and above the rent reserved, is qualified to serve upon juries.* When the jury is one moiety of the English tongue, and the other of any foreign one, no want of lands shall

any

* Upon account of the small number of freeholders in the county of Middlesex, and the frequent occasion for juries at Westminster in that county, it was enacted by the 4 Geo. II. c. 7. that a leaseholder for any number of years, if the improved annual value of his lease be 501. above all ground-rents and other reservations, shall be liable to serve upon jurics for that county. By the 3 Geo. II. c. 25. persons impannelled upon any jury within the city of London shall be householders, and possessed of some estate, either real or personal, of the value of 1001.