riff, believing William to be a man of good fame,
puts in J. Doe and R. Roe for his fecurity to pro-
fecute; but the sheriff had a discretionary power
respecting the security he was to take to prosecute,
for he was to take good security; but every rea-
fonable man will allow, that as the debtor was
only to be fummoned into court, the sheriff might,
without any hurt to justice, put pledges the ficti-
tious names of J. Doe and R. Roe; and it was
meant that both parties fhould be present in court;
but, in confideration that a man might not be able
to speak in court, or that his concerns were more
urgent elsewhere, he was allowed to appear by his
friend or attorney.
The fheriff then having
pledged J. Doe and R. Roe for the plaintiff
William, he proceeds to fend two fummoners to
the defendant Charles, commanding him to ap-
pear before the king's juftices at Westminster, on
a certain day, to answer to William on his com-
plaint. If the defendant appeared, then his ap-
pearance is recorded; and he puts in fureties for
his future appearance and obedience the fame ima-
ginary persons that were pledges for the plaintiff's

D 2

pro

2

IMPE

profecution, J: Doe and R. Roe, and th caufe proceeds thus:

The defendant before he pleads is allow imparlance, to fee if he can end the matt cably by talking with the plaintiff, which is fuppofed to have arifen from a principle ligion, in obedience to the precept of the

ес

Agree with thine adverfary quickly whilft t "in the way with him," and has a reference Roman law of the twelve tables, which ex directed the plaintiff and defendant to make matter while they were going to the prætor. T fendant may alfo demand oyer of the bo fpeciality upon which the action is brough to have it read to him, the defendant in tim being supposed not capable of reading it hi

after which the whole is entered verbatim record, and the defendant may make object any part of it not stated in the plaintiff's de tion. When thefe proceedings are over, th fendant muft put in his plea or excufe.

Pleas are of two forts, dilatory pleas and to the action. Dilatory pleas are to the diction of the court, alledging it ought not to

plea of this injury, it arifing beyond fea, &c. or to the disability of the plaintiff, by reafon whereof he is incapable to commence or continue his fuit, as that he is an alien, enemy, outlawed, excommunicated, attainted of treason, or under præmunire, not in rerum natura (being only a fictitious perfon), an infant, a femme couvert, or a monk profeffed, or in abatement, according to the circumstances of the cafe: but it seems very juft, that by statute 4 and 5 Ann. c. 16. "No dilatory plea is to be admitted without affidavit made of the "truth thereof."

A plea to the action, is to answer to the merits of the cafe; this is done by confeffing or denying the truth of the complaint: a plea of fet off, or cognovit actionem, is where the plaintiff is indebted in part; if the plaintiff fues for ten pounds due on a note of hand, the defendant may set off nine pounds due to himself, for merchandize fold to the plaintiff; and in cafe he pleads fuch fet off, he must pay the balance into court. Statutes 2 George II. c. 22. and 8 George II. c. 24. enacts, "That "where there are mutual debts between the plaintiff "and defendant, one debt may be fet against the other, " and

D3

"and either pleaded in bar, or given in evidence upon "the general iffue at the trial, which will operate in

payment, and extinguish fo much of the plaintiff's "demand." Pleas that totally deny the cause of complaint, are either the general iffue or a fpecial plea in bar. The general iffue, or general plea, is what denies at once the whole declaration, as nil debit, he owes nothing; non eft factum, it is not his deed; or non affumpfit, he made no fuch promise. Special pleas are various, according to the circumftances of the defendant's cafe, as in real actions, a general release, or a fine, or an accord, arbitration, or fome other fact which precludes the plaintiff from his action: also the defendant may plead the ftatutes of limitations.

Iffue, exitus, being the end of all the pleadings, is founded either upon matter of law or matter of fact. An iffue upon matter of law is called a demurrer, and it confeffes the fact to be true, as stated by the opposite party; but denies that by the law arifing upon those facts, any injury is done to the plaintiff; the oppofite party avers there is, which is called a joinder in demurrer. The judges

of the court determine this matter,

Iffu:

Iffue of fact, is where the fact only, and not the law, is difputed; and when he that denies the fact declared by his antagonist, tenders his iffue, " and this he prays may be inquired of

he fays, by the country;" and his antagonist does the like; which done, the iffue is faid to be joined, both parties having agreed to reft the fate of the cause upon the truth of the fact in queftion: then the court awards a writ of venire facias upon the roll or record, commanding the sheriff, that he cause to come here on fuch a day twelve free and lawful men, liberos et legales homines, of the body of the county, by whom the truth of the matter may be better known, and who are neither of kin to the aforefaid Charles nor the aforefaid William, to recognize the truth of the iffue between the faid parties.

We will now fuppofe all previous steps to be regularly fettled, and the cause to be called on in court; the record is then handed to the judge to peruse and observe the pleadings, and what iffue the parties are to maintain and prove, while the jury is called and fworn. To this end the fheriff returns his compulfive process, the writ of