replies. And an issue in law, equity, or fact, is thus ultimately obtained upon the plea puis darrein continuance, according to the principles already explained with respect to that originally pleaded.

With a view to clearness of statement, we have hitherto supposed the plaintiff's statement to comprise only a single matter of complaint or claim, or to require only a single relief or remedy, and the plea only a single matter of defence; and the same character of unity to pervade the whole course of the pleading. But it is necessary here to remark, that the plaintiff may have occasion to bring forward several distinct matters of complaint, or several matters in respect of which he seeks some relief or remedy, and in such case he may join them together cumulatively in his statement (c). Hitherto, indeed, this liberty has been confined to claims in the same rights and between the same parties (d); but under "The Judicature Act, 1873," it is provided, that (subject to any rules of court) the plaintiff may unite in the same action and in the same statement several causes of action; but if the court or a judge shall think that any of them cannot be conveniently tried or disposed of together, separate trials may be ordered, or other order made for their being disposed of separately (e). So the defendant, on his side, may have

(c) Such cumulative statements have been called counts. The privilege of using them formerly led to the abuse of inserting a variety of counts, where there was in fact only one cause of action; that is, of shaping a single cause of action in various modes, so that, failing to prove one count, the plaintiff might have a chance of proving another. But of late several counts on the same cause of action have not, in general, been allowed.

(d) By 15 & 16 Vict. c. 76, s. 41, it was provided, that causes of action, of whatever kind (with the excep

occasion to bring forward several distinct matters of defence, in regard to the same matter of complaint, or as to the relief or remedy required; and he has been permitted in that case, (upon first obtaining the leave of the court or a judge for the purpose,) to resort to as many different pleas (ƒ). And it has been competent to him also, by the like leave, to plead and demur concurrently to the same matter. So the plaintiff has been allowed afterwards to exercise similar rights on his part;-for by the like leave he has been permitted to make several replies to the same matter of defence, or to demur and reply, concurrently, to the same matter of defence; and the same principle has been followed with respect to every subsequent step in the series of allegations (g). It is obvious, therefore, that the pleading will not always lead to the production of a single issue only, but often, (and indeed in practice most commonly,) to the production of several. And we may here notice that "The Judicature Act, 1873," contains a provision that where the pleadings do not, in the opinion of a judge, sufficiently disclose the issues of fact

(f) 15 & 16 Vict. c. 76, s. 81. A rule of court was formerly required for this purpose; but by sect. 82, a judge's order was made sufficient, and by sect. 84, certain defences of ordinary occurrence were allowed to be pleaded together, as of course, without either rule or order for the purpose. The pleas which might be so pleaded are the following, or any two or more of them: a plea denying any contract or debt alleged; a plea of tender as to part; a plea of the Statute of Limitations; of set-off; of the bankruptcy of the defendant; of his discharge under an insolvent Act; of plene administravit; of plene administravit præter; of infancy, or coverture; of payment; of ac

cord and satisfaction; of release; of not guilty; of a denial that the property, an injury to which is complained of, is the plaintiff's; of leave and licence; and of son assault demesne. In other cases, the court or judge might require from the defendant or his solicitor, as a condition for the leave, an affidavit that the pleas were respectively true in substance and in fact. practice analogous to the above has been prescribed in the rules of pleading in the schedule annexed to the Judicature Act, 1873, but it is apprehended that the same will be still, in substance, pursued.

No

(g) See 15 & 16 Vict. c. 76, ss. 80, 81.

in dispute between the parties, he may direct them to prepare issues to be settled by himself (h). To return now to the progress of the action.

We have said that issues in law or in equity are to be referred to the decision of the judges of the court. This is done upon solemn argument by counsel on both sides: and to that end a demurrer book is made up, containing all the proceedings at length, and the demurrer is then set down for argument; and, on the appointed day, called on for argument (i). After hearing counsel on either side, the court deliver their judgment. For example, in an action of trespass, if the defendant in his plea confesses the fact, but justifies it causâ venationis,-for that he was hunting, and to this the plaintiff demurs, that is, admits the truth of the 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. Or, again, in an action claiming a relief in equity, if the defendant shall by demurrer appeal to the judgment of court, whether on the face of the plaintiff's claim the defendant shall be bound to answer; as for want of sufficient equity therein contained, or by reason of the claim seeking a discovery of a thing which may cause a forfeiture of any kind, or may convict a man of any criminal misbehaviour and the like;-now if such demurrer is allowed, then judgment will be given for the defendant; if overruled, then for the plaintiff (j). And thus is an

(h) 36 & 37 Vict. c. 66, sched.

r. 19.

(i) It may be here noticed, that it forms one of the rules of procedure annexed to the Judicature Act, 1873, that if it should appear to the

court or a judge from the pleadings

or otherwise that there is in the action some question of law which it would be convenient to have de

cided before any issue of fact is
tried, such question may be directed
to be raised for the opinion of the
court, either by special case or
otherwise as expedient. And all
such further proceedings as the
decision of the question may ren-
der unnecessary, shall be thereupon
stayed. (Sched. r. 24.)
(j) See 3 Bl. Com. p. 446.

issue of law or of equity, on demurrer, disposed of. As to which, however, we may further remark, that the judges, in delivering their judgment, usually also make known the reasons for their opinion.

III. The trial and evidence.

If the result of the pleading be not an issue at law or in equity, but an issue or issues in fact, it then becomes necessary to determine on which side of every such issue or question the truth lies; a point that is not (as the general rule) left, like matter of law, to the court or judges, but to such other methods of decision as are appropriate by the laws of England to the particular kind of question: and this decision of fact is what is usually understood by the term trial,-as to which it may be remarked that in one form or other it constitutes, in every civilized country, the chief business of the courts of justice; for experience will abundantly show that above a hundred of our actions arise from disputed facts, for one whereof the law is doubted (k).

Under the Judicature Act, 1873, actions in the High Court of Justice established by that Act shall (at the option of the plaintiff, but if the defendant object, subject to the order of the court or judge) be tried and heard either before a judge and jury, or before a judge or judges, or before an official or special referee (1). And of each

(k) 3 Bl. Com. 330. This remark of Blackstone is still applicable. He proceeds to give the following account of the state of business in his time. "About "twenty days in the year are suffi"cient in Westminster Hall to set"tle, upon solemn argument, every "demurrer or point of law that " arises throughout the nation; but "two months are annually spent in "deciding the truth of facts before "six distinct tribunals,-exclusive

"of Middlesex and London, which "last afford a supply of causes "much more than equivalent to any "two of the largest circuits."

(1) 36 & 37 Vict. c. 66, sched. r. 30. It may be noticed here, in reference to all these modes of trial, that the judge or referees may be assisted by assessors, that is to say, by specially qualified persons called in to aid the court by their opinion, (See 36 & 37 Vict. c. 66, s. 56, and sched. ubi sup.)

of these methods we will give some account, commencing with the first, the others being of recent introduction, and exceptional only in their application (m).

1. The first subject, then, of our inquiry will be the nature and method of the trial by jury; called also, in technical language, the trial per pais, or by the country; a trial that hath been used time out of mind in this nation, and the origin of which is so remote that it has not hitherto been satisfactorily traced (n).