Blackstone on Issue and Demurrer
In the following extract from Chapter 21 of Book III of Sir William Blackstone's Commentaries on the Laws of England, the meaning of terms such as issue, demurrer and issue of fact is explained, together with the associated procedures in common law courts.
William Blackstone, Commentaries on the Laws of England
7th Edition (1775), Book III, Ch. 21.
Of Issue and Demurrer
(Extracts)
Issue, exitus, being the end of all 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; according to the party which first demurs, demoratur, 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, as if he pleads that he committed the trespass by authority from a stranger, without setting out the stranger's right; here the plaintiff may demur in law to the plea: and so on in every other part of the proceedings, where either side perceives any material objection in point of law, upon which he may rest his case.
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 allegeda. Sometimes demurrers are merely for want of sufficient form in the writ or declaration. But in the case of exceptions to the form, or manner of pleading, the party demurring must by statute 27 Eliz. c. 5. and 4 & 5 Ann. c. 16. set forth the causes of his demurrer, or wherein he apprehends the deficiency to consist. And upon either a general, or such a special demurrer, the opposite party avers it to be sufficient, which is called a joinder in demurrerb, and then the parties are at issue in point of law. Which issue in law, or demurrer, the judges of the court before which the action is brought must determine.
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, both parties having agreed to rest the state of the cause upon the truth of the fact in questionc. And this issue, of fact, must generally speaking be determined, not by the judges of the court, but by some other method; the principal of which methods is that by the country, per pais, (in Latin, per patriam) that is, by jury. Which establishment, of different tribunals for determining these different issues, is in some measure agreeable to the course of justice in the Roman republic, where the judices ordinarii determined only questions of fact, but questions of law were referred to the decisions of the centumvirid.
But here it will be proper to observe, that 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, in person or by their attorneys, or on default of one of them, after his original appearance and a time prefixed for his appearance in court again. Therefore in the course of pleading, if either party neglects to put in his declaration, plea, replication, rejoinder, and the like, within the time 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 is 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, as the exigence of the case may require. 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 are omitted the cause is thereby discontinued, and the defendant is discharged sine die, without a day, 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.
Now it may sometimes happen, that after the defendant has pleaded, nay, even after issue or demurrer joined, there may have arisen some new matter, which it is proper for the defendant to plead; as, that the plaintiff, being a feme-sole, is since married, or that she has given the defendant a release, and the like: here, if the defendant takes advantage of this new matter, as early as he possibly can, viz. at the day given for his next appearance, he is permitted ot plead it in what is called a plea puis darrein continuance, or since the last adjournment. For it would be unjust to exclude him from the benefit of this new defence, which it was not in his power to make when he pleaded the former. But it is dangerous to rely on such a plea, without due consideration; for it confesses the matter which was before in dispute between the partiese. And it is not allowed to be put in, if any continuance has intervened between the arising of this fresh matter and the pleading of it: for then the defendant is guilty of neglect, or laches, and is supposed to rely on the merits of his former plea. Also it is not allowed after a demurrer is determined, or verdict given; because then relief may be had in another way, namely by writ of audita querela, of which hereafter. And these pleas puis darrein continuance, when brought to a demurrer in law or issue of fact, shall be determined in like manner as other pleas.
We have said, that demurrers, or questions concerning the sufficiency of the matters alleged in the pleadings, are to be determined by the judges of the court, upon solemn argument by 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 recordf. 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 oyer 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.
[Sir William Blackstone continues by discussing the former use of law French and law Latin in recording cases. We pass over this extended discussion in the current transcription, resuming with the final two paragraphs of the chapter.]
When the substance of the record is completed, 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 confesses the fact, but justifies it causa venationis, for that he was hunting; and to this the plaintiff demurs, that is, he admits of 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. Thus is an issue of 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 solemnly examined in the channel prescribed by law. To which examination, of facts, the name of trial is usually confined, which will be treated of at large in the two succeeding chapters.
a Append. No. III. §. 6.
b Ibid.
c Append. No. II. §. 4.
d Cic. de Orator. l. 1. c. 38.
e Cro. Eliz. 49.
f Append. No. II. §. 4. No. III. §. 6.
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