replication was insufficient. And in this case divers points were resolved. 1. That absque tali causa, doth refer to the whole plea, and not only to the commandment, for all maketh but one cause, and any of them, without the other, is no plea by itself. And, therefore, in false imprisonment, if the defendant justifies by a capias to the sheriff, and a warrant to him, there, de injuria sua propria generally is no good replication, for then the matter of record will be parcel of the cause (for all makes but one cause) and matter of record ought not to be put in issue to the common people, but in such case he may reply, de injuria sua propria, and traverse the warrant, which is matter in fact. But upon such a justification by force of any proceeding in the Admiral Court, hundred, or county, etc., or any other which is not a court of record, there de injuria sua propria generally is good for all is matter of fact, and all makes but one cause. And by these differences you will agree your books in 2 H. 7. 3. b. 5 H. 7. 6. a. b. 16 H. 7. 3. a. 21 H. 7. 22. a. (33). 19 H. 6. 7. a. b. 41 E. 3. 29. b. 17 E. 3. 44. 18 E. 3. 10. b. 2 E. 4. 6. b. 12 E. 4. 10. b. 4 H. 6. 16. 21 H. 6. 5. a. b. 13 R. 2. Issue 163. "2. It was resolved, that when the defendant in his own right, or as a servant to another, claims any interest in the land, or any common, or rent going out of the land; or any way or passage upon the land, etc., there de injuria sua propria generally is no plea. But if the defendant justifies as servant, there de injuria sua propria in some of the said cases, with a traverse of the commandment, that being made material, is good; and so you will agree all your books, scil. 14 H. 4. 32. 33 H. 6. 5. 44 E. 3. 18. 2 H. 5. 1. 10 H. 6. 3. 9. 39 H. 6. 32. 9 E. 4. 22. 16 E. 4. 4. 21 E. 4. 6. 28 E. 3. 98. 28 H. 6. 9. 21 E. 3. 41. 22 Ass. 42. 44 E. 3. 13. 45 E. 3. 7. 24 E. 3. 72. 22 Ass. 85. 33 H. 6. 29. 42 E. 3.2. For the general plea de injuria sua propria etc., is properly when the defendant's plea doth consist mere upon matter of excuse, and of no matter of interest whatsoever; et dicitur de injuria sua propria, etc., because the injury properly in this sense is to the person, or to the putation, as battery or imprisonment to the person; or scandal to the reputation; there, if the defendant excuse himself upon his own assault, or upon hue or cry levied, there, properly de injuria sua propria generally is a good plea, for there the defendant's plea consists only upon matter of excuse. 3. It was resolved, that when by the defendant's plea any authority or power is mediately or immediately derived from the plaintiff, there, although no interest be claimed, the plaintiff ought to answer it, and shall not reply generally de injuria sua propria. The same law of an authority given by the law: as to view waste, etc. Vide 12 E. 4. 10. 9 Ed. 4. 31. 21 Ed. 4. 4. 42 Edw. 3. 2. 16 H. 7. 3. "Lastly, it was resolved, that in the case at bar, the issue would be full of multiplicity of matter, where an issue ought to be full and single: for parcel of the manor, demisable by copy, grant by copy, prescription of common, etc., and commandment, would be all parcel of the issue. And so, by the rule of the whole court, judgment was given against the plaintiff." SECTION 38. PLEADINGS BY WAY OF CONFESSION AND AVOIDANCE. "The plea by way of confession and avoidance is what its name implies, i. e., a plea which confesses the truth of the facts alleged in the declaration and seeks to avoid the consequences of them by alleging other facts which show that the defendant should not he held liable. These new facts constituted what was known as affirmative matter, and hence the pleas of this sort are frequently called affirmative pleas." 22 A plea in confession and avoidance concludes with the words: "And this the said A is ready to verify." A plea in confession and avoidance can never bring a case to an issue. SECTION 39. DEMURRERS. "A demurrer is an objection that the pleading against which it is directed is insufficient in law to support the action or defense, and that the demurrant should not, therefore, be required to further plead." "It is not the office of a demurrer to set out facts; it involves only such facts as are alleged in the pleading demurred to, and raises only questions of law as to the sufficiency of the pleadings which arise upon the face thereof." 23 It is a fundamental rule of pleading that a demurrer can only lie for defects which appear upon the fact of the pleading against which it is directed."4 A demurrer, which is founded on matter collateral to the pleading, is called a speaking demurrer, and is bad.25 Demurrers can only raise questions of law which must be decided by the court. Demurrers may be directed against the declaration or against any subsequent pleading.20 Demurrers are divided "McKelvey on Common Law "Ency, of Pleading and Practice, into general demurrers 25 Williams vs. Davis, 46 Ill. App. 228; Dennehey vs. Woodsum, 100 Mass., 198. 20 Note the difference between Common Law Pleading and Equity Pleading in this respect. and special demurrers. General demurrers lie for defects in substance and special demurrers for defects in form. "Upon a demurrer the court will consider the whole record, and give judgment for the party who upon the whole appears to be entitled to it. This rule does not apply (a) On demurrer by the plaintiff to a plea in abatement. (b) Where, though the right, on the whole record, appears to be with the plaintiff, he has not put his action on that ground. (c) Where there has been a discontinuance. (d) The right will be considered in regard to substance, and not form.” 27 The general subject of demurrers was discussed by the Supreme Court of the United States in the case of Tyler vs. Hand, 28 as follows: "A demurrer is an objection made by one party to his opponent's pleading, alleging that he ought not to answer it, for some defect in law in the pleading. It admits the facts, and refers the law arising thereon to the court. (Co. Lit., 71 b; 5 Mod., 132.) The opposite part made demurrer when his opponent's pleading is defective in substance or form, but there can be no demurrer for a defect not apparent in the pleadings. This being so, the question now is, whether or not, notwithstanding the objections in substance and form which the defendants have made to the plaintiff's declaration, sufficient matter appears in the pleadings, upon which the court may give judgment according to the very right in the case. Five special causes of "Shipman on Common Law Plead- * 7 Howard, 573 ing, Sec. 176. demurrer are assigned; they were of course meant to be objections for defects in form, as none other can be assigned in a special demurrer. A general demurrer lies only for defects in substance, and excepts to the sufficiency of the pleading in general terms, without showing specially the nature of the objection. A special demurrer is only for defects in form, and adds to the terms of a general demurrer a specification of the particular ground of exception. "Our first remark, then, is that neither of the special causes of demurrer alleged in this case is for a matter of form. They are as follows: "1st. That there is no sufficient averment in the proceedings or record showing the citizenship or place of abode of the plaintiff, or that he is by reason of the nature of his place of abode and citizenship, entitled by law to maintain said suit. "2nd. That the plaintiff shows no title to the bonds or obligations sued on, nor such an interest in the suit as will authorize him to maintain the same. "3d. That the parties for whose use the suit is brought (who, by the laws of Mississippi, are the real plaintiffs, and responsible for costs) are not named in the record. "4th. That said bonds sued on were taken without authority of law, the said Martin Van Buren, President of the United States, having no such delegated power, and having no right to make the same payable to himself and his successors in office, or assume to himself or his successors in office a legal perpetuity and succession unknown to the said office, and not given by law. "5th. That the said bonds in the declaration mentioned appear, from the face of the pleadings, |