: departure or duplicity, and in the courfe of the pleadings come to a fingle point, which is exprefsly affirmed on one fide, and denied on the other, they are then faid to be at iffue all their evideuce and debates are confined to a fingle point, which must be determined by fome tribunal prefcribed by law.. 8. Of Demurrer. a A demurrer is denominated an iffue upon matter of law. It confeffes the facts to be true, as pleaded by the oppofite party; but denies that any injury is done upon the conftruction and operation of law, ariling out of the facts, or where a deinurrer is taken to a plea in bar, it denies that the facts stated in the avoidance, are fufficient to make out an excufe. A demyrrer may be taken in any stage of the pleadings, where the matter pleaded is defective in point of form, or infufficient in fubftance. If the declaration contain not fuch allegations of facts, as constitute an injury, a demurrer may be taken for infufficiency. If the defendant plead fuch plea as will not juftify him, or if he pleads it in fuch manner as the rules of the law will not admit, the plaintiff may demur to it, and the fame may be done by either party in any part of the pleadings. For the generel rule is, that whenever you deny the fact, you must traverse: but when they are infufficient in the law to fubftantiate the point for which they are pleaded, you must demur. Pleas that amount to the general iffue, that are informal, or immaterial, and departure, and duplicity in pleading are to be taken advantage of under a demurrer. A demurrer cannot be taken to the fame fact that is traversed, but in fome cafes the parties may demur to part of the facts stated in the declaration, or plea, and traverse the reft. So that there may be two independent iffues: a demurrer, which is an iffue in law determinable by the court: and an issue in fact, determinable by the jury but this must be understood as relative to distinct parts of the fame declaration, or plea. In which cafes, it is the ordinary practice of the court to try the demurrer first, but they have a dif cretionary power to try the iffue in fact first. But the party may not demur to the fame fact that he traverses, nor demur and plead : 4 Bac. Abr. 129. G g 6 Co. Lit. 71, 72- 4 Bac. Aqr. 129. plead to iffue to the fame declaration, yet when there are feveral counts, he may demur to one and plead to another. . It is a general and uncontested rule that a demurrer admits all facts that are fufficiently pleaded. Where a judgment is rendered upon demurrer it is as conclufive and as binding as where judgment is rendered on a verdict. Where the pleadings terminate in a demurrer the court will go back to the first defect, to render judgment, for they have a right to look through the whole pleadings, and he who first pleads infufficient matter muft fail in his action. Thus if an infufficient, or defective plea in bar is given, and a demurrer taken; yet if the declaration be infufficient, the court may judge fuch plea to be fuflicient, for tho defective in itself, yet is a fufficient anfwer to an infufficient declaration and fo in every other stage of the pleadings. . A demurrer is faid to be general or special: general where no particular caufe is alledged, fpecial where the particular thing objected to, is pointed out and infifted upon as the cause of the demurrer. A general demurrer confeffes all facts well pleaded, and under a special demurrer the party can take no advantage of any other matter of form than what is expreffèd in the demurrer : but he may of any other matter of substance. The established diftinction is that matters of fubftance, that is, the omiffion of fuch material things as are neceffary to fhew a right in the plaintiff, or material for the defendant in his plea, may be taken advantage of on a gencral demurrer but matters of form must be specially alledged and affigned as caufes of denurrer; for two things are required in pleading, that the matter be fufficient, and that it be deduced and expreffed according to the forms of law. : The courts in this ftate have adjudged, that duplicity in pleading can be taken advantage of only under a fpecial demurrer : but in other refpects, I believe they have not rigidly adhered to the. principles of common law, It is declared by ftatute, that no defendant fhall be admitted to demur to a declaration, after he has pleaded to iffue, and a judg ment has been rendered thereon by any court. It is a rule that what is apparent to the court and appears from neceffary implica tion a Co. Lit. 72. b4 Bac. Abr. 132. c Co. Lit, 72. 4 Bac, Abr. d 10 Co. 8%. 223. tion in the record need not be averred. That every man's plea fhall be taken moft strongly against himself; for every body is fuppofed to make the best of his own cafe. That what the parties have agreed in pleading fhall be admitted, tho the jury find otherwise. That when a man would recover a thing from another, it is not enough for him to destroy fuch perfon's title, but he must prove his own to be good and legal: for in equal right, the best is the condition of the poffeffor. 9. Of altering and amending Pleas. The ftatute law has made provifion that whenever any party fuppofes that he has miffed his plea, whether the general iffue or fpecial plea, which would have faved him in his juft caufe, he fhall have liberty to alter his plea and the oppofite party fhall have a reasonable time affigned lim for making anfwer thereunto; and if the new plea be found infufficient, for the juftifying him that made it, reasonable fatisfac tion fhall be awarded by the court before which the trial is, to the other party for the greater delay, which is made thereby; according to the intereft of money, rent of lands, or improvement of any other thing recovered by the fuit. This ftatute feems to be peremptory that the defendant when he fuppofes he has miffed his plea fhall have the liberty to alter the fame, and it leaves but little difcretionary power with the court. But courts have ufually exercifed a difcretion in denying liberty to alter pleas, where it appeared to be calculated to delay,. or evade juftice: where it appears that the party thinks that he has miffed his plea, and moves for liberty to alter with a view as he conceives, to have a fair trial of his caufe, a court may not deny him liberty. Inftances have happened where this liberty has been granted after a trial to the jury had commenced. In an action on note the defendant pleaded that he did not affume and promife, and offered to give full payment in evidence to the jury, which be ing refufed by the court, he moved for liberty to alter his plea to full payment, which was granted by the court: because it came within the flatute, which had limited no time, and because it might prevent the neceffity of an application for a new trial. Af ter a demurrer has been argued, the court have fuffered the plea to be altered. Great Statutes 192. Great inconveniences were experienced in the administration of justice, for want of a statute to authorise amendments in legal proceedings and efpecially of declarations. As we had admitted the practice of ifluing the writ and declaration at the fame time, it frequently occurred in the hurry of bufinefs, that declarations were drawn fo defective as to be ill on demurrer. The confequence was that the parties were frequently delayed in their caufes and subjected to the expense of commencing new fuits for fome trifling defect or informality in the declaration, becaufe there was no ftatute to authorise an amendment. The inconveniences refulting from this defect in our legal fyftem gave birth to a ftatute authorifing amendments in proceedings at law and in equity, which enacts, that the feveral courts of law, and equity in any action, may at any time permit the parties refpectively to amend any defects, mistakes or informality, in the writ, declaration, pleadings, or other parts of the record in civil caufes, pending before them, on the payment of lawful cofts to the other party; at the difcretion of the court in which the fame fhall be pending; and in cafe of any amendment of the declaration, the court fhall grant the defendant a reasonable time to make anfwer thereto. CHAPTER TWENTIETH. OF TRIAL. WHEN the pleadings terminate in an iffue of law, it is the province of the judges to decide it. Thus all demurrers to declarations, or any part of the pleadings, which bring up a question of law to be determined upon the facts conceded to by the parties, belong to the judges to decide without the intervention of a jury. So the court has cognizance of all motions made by the parties refpecting bonds for profecution, fpecial bail, oyer, pleadings-for the delay, or trial of caufes. For these purposes they may not only establish general regulations to facilitate and accelerate juftice, bet they may make fpecial orders refpecting particular cafes, ast circumftances may require. They must determine when the plaintiff ought to procure bonds for profecution, by reafon of his inability to pay coft; they must determine upon the fufficiency of the perfon Statutes, 478. perfon offered as bail; they may direct the time in which oyer fhall be demanded, and given; and when the parties fhall plead, and reply. They may affign the time when caufes fhall come to trial, and they have the power to delay them for fuch time, during the term, and from term to term, as occafion fhall require. In refpect to this branch of their jurifdiction, it is impoffible to lay down any general rules, for their power is bounded only by difcretion, and this must be guided by the circumftances of particular cafes. With regard to the delay of caufes, it may be obferved, that it ought only to be admitted, when it appears that fubstantial justice cannot be done, for want of due preparation within the power of the requefting party to make, and that he is not faulty becaufe fuch preparation has not been made but for frivolous excufes, or where it appears to be the defign of a party to procure unneceflary delays, courts fhould be cautious about indulging them, and hasten the trial with all the expedition confitent with fairness and juftice. Motion for the delay of caufes frequently arife from the abfence of material witnelles. In this respect, difficulties fometimes arise about afcertaining the fact. Cur courts have never adopted the practice of admitting the affidavits of the party in fuch cafes. The confequence is, that where other proof cannot be obtained, which will rarely happen, there can be no evidence, but the fuggeftion, and affertion of the party himself. In refpect of the bare fuggestion of the party, there is this inconvenience, that not being sworn to, courts cannot tell how far they may rely upon it. If the suggestion or the affertion of the party is not to be confidered as evidence, there will be many inftauces in which he may fustain great injustice, because the fact refts folely in his knowledge and if they are regarded in all cafes, then it gives a fair opportunity to impofe upou and deceive the court, by mifreprefentation, as there is no oath required to check fuch a practice. It would therefore be advisable to adopt the practice of the courts of the United States, to require the affidavit of the parties to the truth of the facts, on which motions for a delay are grounded. : When an iffe upon a matter of fact is regularly clofed, it shall be tried by a jury; unless the parties fhall confent, and agree that it |