30. What is the effect of paying money into court; and how may it be done?-404.

It is in itself a kind of tender to the plaintiff, and is for the most part necessary upon pleading a tender. This may be done upon what is called a motion.

31. What is a motion ?-304.

It is an occasional application to the court, by the parties or their counsel, in order to obtain some rule, or order of court, which becomes necessary in the progress of a cause.

32. What are the pleas that totally deny the cause of complaint?

305.

Either the general issue, or a special plea in bar.

33. What is the general issue?-305.

The general issue, or general plea, is what traverses, thwarts and denies at once the whole declaration, without offering any special matter whereby to evade it. By importing an absolute and general denial of what is alleged in the declaration, it amounts at once to an issue.

34. What is meant by an issue?-305.

A fact affirmed on one side and denied on the another.

35. What may be given in evidence on the general issue at the trial?-305, 306.

Every defense which cannot be specially pleaded: this is an invariable rule.

36. Are special pleas in bar various?-306.

Special pleas in bar of the plaintiff's demand are very various, according to the circumstances of the defendant's case.

37. What is limitation ?-306.

The time limited by statute, beyond which no plaintiff can lay his cause of action.

38. What is an estoppel?-308.

A special plea in bar, which happens where a man has done

some act, or executed some deed, which estops or precludes him from averring anything to the contrary.

39. What are the conditions and qualities of a plea ?—308. They are five: 1. That it be single, and contain only one

matter.

2. That it be direct and positive, and not argumentative. 3. That it have convenient certainty of time, place, and persons.

4. That it answer the plaintiff's allegations in every material point

5. That it be so pleaded as to be capable of trial.

40. What are qualities of special pleas ?—309.

They are usually in the affirmative, sometimes in the negative; but they always advance some new fact not mentioned in the declaration; and then they must be averred to be true in the common form, "and this he is ready to verify."

41. Are special pleas amounting to the general issue allowed ?—

309.

They are not.

42. What if the defendant, in an assise or action of trespass, be desirous to refer the validity of his title to the court rather than the jury?-309.

He may state his title specially, and at the same time give color to the plaintiff, or suppose him to have an appearance or color of title, bad, indeed, in point of law, but of which the jury are not competent judges, and then refer himself to the judgment of the court.

43. What is the replication ?-309.

When the plea is in, if it does not amount to an issue, but only evades it, the plaintiff may plead again, and reply to the defendant's plea; either traversing it, or alleging new matter consistent with the declaration.

44. What subsequent pleadings are there?—310.

The rejoinder, sur-rejoinder, rebutter, sur-rebutter.

45. What is departure in pleading?-310.

In the several stages in pleading, it must be carefully bserved not to depart or vary from the title or defense which the party has once insisted on. The replication must support the declaration, and the rejoinder the plea.

46. What is new or novel assignment ?—310.

In many actions the plaintiff, who has alleged in his declaration a general wrong, may in his replication, after an evasive plea by the defendant, reduce that general wrong to a more particular certainty, by assigning the injury afresh, with all its specific circumstances, in such manner as clearly to ascer tain and identify it, consistently with his general complaint.

47. Must duplicity in pleading be avoided?-311.

It must every plea must be simple, entire, connected, and confined to one single point; it must never be entangled with a variety of distinct, independent answers to the same matter; which must require as many different replies, and introduce a multitude of issues upon one and the same dispute.

48. How is issue tendered?—313.

When either side traverses or denies the facts pleaded by his antagonist, he usually tenders an issue, as it is called. 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; but, if the traverse lies upon the plaintiff, he prays the judgment of the peers in another form, "and this he prays may be enquired of by the country."

49. When are the parties said to be at issue?-313.

When, in the course of pleading, they come to a point which is affirmed on one side and denied on the other; all their debates being at last contracted into a single point, which must now be determined either in favor of the plaintiff or of the defendant

CHAPTER XXI.

OF ISSUE AND DEMURRER

1. On what are issues in pleading formed?-314. Either upon matter of law, or matter of fact.

2. What is an issue upon matter of law called?—314. A demurrer

3. What is the office of a demurrer ?-314, 315.

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. The party, who demurs, demoratur, rests or abides upon the point in question.

4. What is joinder in demurrer ?-315.

Upon either general or special demurrer, the opposite party must aver that the matter demurred to is sufficient; which is called a joinder in demurrer, and then the parties are at issue on a point of law. Which issue must be determined by the judges of the court before which the action is brought.

5. What is an issue of fact?—315.

It is an issue where the fact only, and not the law, is disputed.

6. When is an issue of fact joined?-315.

When he that denies or traverses the fact pleaded by his antagonist has tendered the issue, thus: "and this he prays may be enquired 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

1. How is this issue of fact determined ?—315.

Generally by the country, per pais (in Latin, per patriam), that is, by jury.

8. What is continuance ?-316.

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.

9. What is discontinuance ?-316.

If such continuances are omitted, the cause is thereby discontinued, and the defendant is discharged sine die, without a day; 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.

10. When is the plaintiff nonsuited?-316.

In the course of pleading, if the plaintiff neglects to put in his declaration, replication, &c., within the times allotted by the standing rules of the court, he is said to be nonsuit, or not to follow and pursue his complaint

11. What is a plea puis darrein continuance ?-317.

It sometimes happens that after the defendant has pleaded, uay, even after issue or demurrer joined, there may have arisen some new matter, which it is proper for the defendant to plead ; here, he is permitted to plead it in what is called a plea puis darrein continuance, or since the last adjournment.