3 Lev. 120. Bro. Continu. pl. 5. & pl. 41. Jenk. 160. Freem. 252. day of laft day of in Mic. lord the king, affigned "C. D. because he fays that after the day of In trefpafs against four, after feveral continuances three of them plead the death of the fourth after the last continuance, et petunt judicium de brevi et quod breve illud caffetur. And on demurrer the conclufion of the plea was holden to be bad; for it should have been, petunt judicium fi curia ulterius procedere vult, because in fact the writ was abated before by the death of the party.- -Had it been a matter which only made the writ abateable, fuch conclufion feems right. Note; It seems agreed that the defendant can have but one plea after the laft continuance. Where a plea is certified on the back of the poftea, and the plaintiff demurs, if the defendant on the expiration of a rule given for him to join in demurrer, refufes to do so, the plaintiff may fign judgment. СНАР TH CHAPTER III. Of Abatement by the Death of Parties. HIS was a curious learning as it flood at common law in such cases where there were more plaintiffs and defendants than one; for the rule laid down by Lord Chief Baron Gilbert in his history of C. B. 195. though founded in reason, does not seem to be warranted intirely by the cases; the rule laid down by him is, that wherever the death of any party happens pending the writ, and yet the plea is in the fame condition as if fuch party were living, there fuch death makes no alteration. However, now by 8 & 9 W. 3. c. 11. if there be two or more plaintiffs or defendants, and one or more of them should die, if the cause of action furvive, the action fhall not be thereby abated, but fuch death being fuggefted on the record, fhall proceed, &c. By the fame act, if any plaintiff happen to die after an interlocutory judgment, the action fhall not abate, if it might originally be maintained by the executors of fuch plaintiff, and if the defendant die after fuch interlocutory judgment, the action fhall not abate, if it might originally be maintained against the executors of such defendant; and the plaintiff or his executors may have a fci. fa. against the defendant or his executors, to thew cause why damages should not be affeffed, &c. By the 17 Car. 2. c. 8. it is enacted, That in all actions. perfonal, real or mixed, the death of either party between the verdict and judgment fhall not be alledged for error, so as fuch judgment be entred within two terms after fuch verdict. The death of either party before the affizes is not remedied Salk. 8. by this ftatute, but if the party die after the aflizes begin, though the trial be after his death that is within the remedy of the ftatute, for the affizes is but one day in law. Yet the Court faid it was in their difcretion, whether they would arreft the judgment; but in Lord Raymond 1415. it was holden not affignable for error, it appearing by the record that the defendant appeared per attornatum fuum. CHAP. CHAPTER IV. Of Demurrer to Evidence. F the plaintiff or defendant give in evidence matter of record, or writings, or parol evidence on which a doubt in law arifes, the other fide may demur to the evidence; otherwife if there be a doubt whether the fact be well proved, for the jury may find it on their own knowledge. He that demurs to evidence admits it to be true, and if the matter of fact be uncertainly alledged, or it be doubtful whether it be true or not, because offered to be proved only by prefumptions and probabilities, and the other party will demur thereupon, fo that the truth of the fact as well as the validity of evidence. be referred to the court, he that alledges this matter cannot join in demurrer, but ought to pray judgment of the court that his adversary may not be admitted to his demurrer, unlefs he will confefs the matter of fact to be true; and if he do not fo do, but join in demurrer, he has likewife mifbehaved, and the court cannot proceed to judgment, but a venire de novo fhall go. Where there is a demurrer to evidence, the judge orders the affociate to take a note of the teftimony, and that is figned by the counfel on both fides, and the demurrer is affixed to the poftea. If one demur properly, the other ought to join, except it be in an information at the fuit of the king; a fortiori the king himself need not, as in a quare impedit, but the judge muft direct the jury to find the matter fpecially. In affumpfit to prove a confideration, an arreft was to be proved by the plaintiff, and for that he did not produce the writ, the defendant demurred; and it was agreed by the court that the writ ought to have been produced, but by the demurrer it is confeffed; the arrest being matter of fact, though to be proved by matter of record; and the jury might of their own knowledge know there was a writ; and by the demurrer all matters of fact are confeffed that the jury could know of their own conusance. On a demurrer to evidence, the only queftion for the confideration of the court is whether the evidence given be such as ought to be left to the jury in fupport of the iffue joined; and no objection can be made to the declaration or other pleadings in that stage of the caufe. The judgment on fuch a demurrer is, that the evidence is, or is not fufficient to maintain the iffue joined. On On a demurrer to evidence the most usual courfe is to difcharge the jury without more inquiry, (though they may find damages conditionally) and for a writ of enquiry to be exeted after. But if the matter be clear, the court need not admit a demurrer. If the judge admit that for evidence, which is not, the party cannot demur for that cause, but must tender a bill of exceptions. The following form of a demurrer to evidence and joinder thereto, may perhaps be found ufeful at an afflizes. "Afterwards on the day, and at the place within con"tained, before Sir Richard Adams knight, one of the barons "of our lord the king, of his court of exchequer at Westminster, "Sir Richard Aften knight, one of the juftices of our faid "lord the king, affigned to hold pleas in the court of our faid "lord the king, before the king himself, and others their fel"lows, juftices of our faid lord the king, affigned to take the "affizes in and for the city of IV-in the county of the "fame city, according to the form of the ftatute, &c. come "as well the within-named Charles Withers, efq; as the with"in-named George Wingfield, efq; by their attornies within"named. And the jurors of the jury, whereof mention is "within made; that is to fay R. L. &c. being called like"wife come, and being chofen, tried and fworn to fay the "truth of the premiffes within contained; as to the first iffue between the parties within joined, fay that the faid George "Wingfield is guilty of the trespass within complained of, i n <6 manner and form as the faid Charles Withers hath above"complained; and they affefs the damages of the faid Charles Withers, by reafon thereof to fix pence. And as to the iffue "laftly within joined between the faid parties, the faid George Wingfield fhews in evidence to the jury aforefaid, to prove "and maintain the iffue laftly within joined on his part by one "witness, that" (fo ftate the evidence) "And the faid Charles "Withers fays, that the aforefaid matter to the jurors aforesaid, "in form aforefaid fhewn in evidence by the faid George Wing"field, is not fufficient in law to maintain the faid iffue laftly "within joined, on the part of the faid George Wingfield, and "that he the faid Charles Withers, to the matter aforesaid, in "form aforefaid fhewn in evidence, hath no neceffity, nor is "he obliged by the laws of the land to answer; and this he is "ready to verify: Wherefore for want of fufficient matter in "that behalf fhewn in evidence to the jury aforefaid, the faid "Charles Whithers prays judgment, and that the jury aforesaid Cr. Car. 143. L. Raym. 60. 2 Ro. 119. Salk. 284. may be discharged from giving any verdict upon the said “issue; and that his damages by reason of the trespass within ❝ complained of, may be adjudged to him, &c." "And the "faid George Wingfield, for that he hath fhewn in evidence "to the jury aforefaid, fufficient matter to maintain the iffue "lastly within joined, on the part of the faid George Wingfield, " and which he is ready to verify; and for as much as the "faid Charles Withers doth not deny, nor in any manner an"swer the faid matter, prays judgment; and that the faid "Charles Withers may be barred from having his aforefaid "action against him, and that the jury aforefaid may be dif charged from giving their verdict upon the iffue laftly join"ed, &c. Wherefore let the jury aforesaid be discharged by "the Court here, by the affent of the parties, from giving any verdict thereupon." CHAPTER V. Of Bills of Exceptions. Y Weflminfler 2. (13 E. 1.) it is enacted, That if one impleaded before any of the juftices, alledge an exception, praying that the juftices will allow it, and if they will not, if he write the exception and require the justices to put their feals to it, the juftices fhall fo do, and if one will not, another fhall. And if the king, on complaint made of the juftices, cause the record to come before him, and the exception be not in the roll, on fhewing it written with the feal of the justice, he shall be commanded at a day to confess or deny his feal, and if he cannot deny his feal, they fhall proceed to judge and allow, or difallow the exception. The bill of exceptions must be tendered at the trial. The nature and reafoning of the thing requires the exception should be reduced into writing when taken and difallowed, like a spe |