Proper bars are,

Such as are applicable only to REAL or MIXED actions; as,

Fine;

Feoffment;

Release of right;

Warranty, &c.

Of the plaintiff';

Or his ancester.

Such as are proper to PERSONAL actions only; as,

Accord with satisfaction;

Arbitrament;

Performance,

Of the condition,

Of the bond.

Such bars as are common to both, yet diversified oftentimes with such diversifications as are applicable to the nature of the action; as,

RELEASE of action.

LIMITATION of time by act of parliament elapsed.

ESTOPPELS;

And here of the several kinds of estoppels:

By matter of record.

By matter IN PAIS; as,

Deeds indented or poll.

And here of the whole learning of estoppels:

For note, estoppels are not only the matter of bars, but of replications, rejoinders, and all other pleadings.

Concerning bars as to their qualities or manner of pleading, the same common rules of pleading for the most part concerns all kinds of pleading.

And therefore I shall here shortly insert them once for all, viz. That the plea be SINGLE, and not double.

And here of double pleas.

That it have convenient CERTAINTY of time, place, and persons. That it ANSWER the demandant's or plaintiff's count or plaint. That it be so pleaded, that it may be TRIED.

When the defendant has pleaded, what next follows is, the plaintiff or demandant's answer to the defendant's plea; and this is called a REPLICATION.

And here of the general rules, &c. of replications, viz.

That it be,

CERTAIN;

SINGLE:

ANSWERING THE BAR, &c.

And this replication either,

DENIES OF TRAVERSES the bar or plea of the defendant;
and THEN AN ISSUE IS TENDERED, which regularly must
be joined in by the other party, and then the parties are at
issue.

And here all the learning of TRAVERSE; what is traversa-
ble, or not; how it must be made, either simply without
an inducement, or with an inducement; and concluding
ABSQUE HOC to the matter alleged by the defendant.
Or CONFESSES AND AVOIDS.

And here all the learning of confessing and avoiding;
and then there is NO issue offered by the replication: but
possibly the pleadings run on to surrejoinder, rejoinder,
rebutter, or surrebutter.

For if the plaintiff replies so as no issue be offered, this gives occasion to the defendant to REJOIN.

And here of rejoinder, and how he must MAINTAIN his bar, and NOT DEPART from his plea.

And here of DEPARTURE IN PLEADING.

SECT. L.

Of ISSUES.

THUS far of pleading. Now by this time either by the plea, rereplication, rejoinder, &c. the parties are descended to AN ISSUE, viz. to something AFFIRMED by the one party AND DENIED by the other; which affirmation and denial is called AN ISSUE: for now the parties have no more to do, unless a matter happen to EMERGE AFTER issue joined, and the last continuance. [P]

This, if it be pleaded, is called a plea PUIS LE DARREIN CON

TINUANCE.

So that their business being at issue, they have no more to do but to expect the trial and determination of that issue.

Now issues are of these kinds, viz.

An issue joined upon a matter of LAW, which is to be determined by THE COURT.

And this issue is called a DEMURRER.

An issue OF FACT, which is of two kinds;

An issue joined touching a matter of RECORD, on nul tiel record pleaded, &c.

An issue joined touching a matter IN PAIS; as,

Whether such a deed were made.

Whether such a feoffment were executed, &c.

SECT. LI.

Of TRIALS.

9. fol 30.

AND now issue being joined between the parties, they Vide Co. have no more to do but to expect the trial of that issue; and for that end they have DAYS OF CONTINUANCE given. Here of continuances, &c.

Trials are of several kinds, according to the nature of issues, and the several appointments and directions of the law touching the same, viz.

Trial BY RECORD; as,

When issue is joined, whether there be any such record

or no.

Trial BY INSPECTION; as,

Upon error to reverse a fine levied by an infant; or in audita querela to avoid a recognizance acknowledged during his minority.

Trial BY PROOFS; as,

Where issue in dower is, whether the husband be living or

not.

Trial by EXAMINATION; as,

Where an action of debt upon account is brought for things not lying in account.

Trial by CERTIFICATE :

Of the constable and marshal, whether the party be in service. Of the bishop, by mandate from the secular court, as in case of general bastardy.

So of issues upon the right of marriage between the parties to the suit.

So of plenarty by institution into churches.

Trial BY BATTLE.

In appeals.

In a writ of right.

Trial BY JURY (q).

And this takes in a large field of learning.

Trials by jury are,

Extraordinary.

Ordinary.

Extraordinary: in writ of right,

In attaint. Quære Appeals.

Ordinary; by TWELVE MEN.
Wherein consider ;

The PROCESS to bring in the jury,

In C. B.-by venire facius & habeas corpus.

In B. R.-by venire fac' & distringas juratorum.
The TALES for want of a full jury appearing.
CHALLENGES of all sorts;

To the array:

To the polls.

The OATH of the jury.

The EVIDENCE to be given to the jury;

Co. Lit.

What allowable to be given;

And when.

p. 227. b. VERDICT of the jurors :

(9) To the several kinds of trial enumerated by Sir Matthew Hale may be added “trial by wager of law."

General verdict.

Special verdict.

What DEFAULTS or miscarriages impeach the verdict.

The POSTEA, or return of the verdict by the judges of nisi prius.

SECT. LII.

Of JUDGMENT.

THE fifth act in this business of prosecution or suit, is judgment.
And here the whole learning of judgment comes in, viz.
What shall be sufficient TO STAY judgment.

And herein,

Of arresting judgments.

Of reversing judgments.

Upon what it is given; which for the most part is upon these premisses or precedents.

Upon DEFAULT, after default; as in real actions after the grand distress in,

Waste;

Quare impedit.

Upon CONFESSION,

Nihil dicit;

Non sum informatus.

Upon DEMURRer.

Upon TRIAL of the issue, according to the various methods

of trial above mentioned.

The several kinds of judgments.

In suits real.

In suits personal.

INTERLOCUTORY, and not final; as,

Awards upon the writ affirmed, or other dilatory pleas, where the judgment in many cases only is,

Respondeat ouster.