26. (4.) Issue and demurrer. Issue, is where the par ties in a course of a pleading come to a point affirmed on one side and denied on the other, which, if it be matter of law, is called demurrer, and confesses the fact to be true, but denies that the plaintiff has any legal remedy ; a de murrer may also arise from informality in the course of pleadings. The party thus demurring, if it be special, must set forth where such deficiency lies, and the opposite party must aver it to be sufficient, which is called a joinder in demurrer ; and then the parties are at issue in point of law, which issue in law is determined by the judges of the court wherein such action is brought. An issue of fact is where the fact only, and not the law, is disputed. And where he that denies or traverses the fact pleaded by his antago nist has tendered the issue thus, " and this he prays may be inquired of by the country ;" it may be immediately sub joined by the other party," and the said A. B. doth the like." Which being done, the issue is said to be joined ; the ac tion is then to be tried by the country (per patriam,) that is by jury.
27. (5.) Trial and the several species of trial. Trial is the examination of any fact put in issue. The trial of an issue of law, or demurrer, is by the opinion of the judges of the court. The trial of an issue of fact is, 1. By record. 2. By inspection. 3. By witnesses. 4. By wager of battel. 5. By wager of law. 6. By jury.
Trial by the record is had where the matter of record is pleaded in action ; as a fine, judgment, or where such a manor is held of ancient demesne, Etc. and the opposite par ty plead " nul tiel record," that there is no such record.
Trial by inspection or examination, is had when the mat ter in question is the evident object of the senses ; wherein the judges of the record shall decide upon their own inves tigation. Trial by certificate is allowed, when the fact in question lies out of the cognizance of the court ; as whe ther such a one was absent in the king's army ; this shall be tried by certificate under seal. Whether defendant be a citizen of London, here the certificate of the sheriff of Lon don is sufficient.
The trial by witnesses without the intervention of a jury, is the only method of trial known to the civil law, and is used only upon the writ of dower, when the direct issue is whether the husband be dead ; and in a few collateral cir cumstances, as whether a juror, or tenant to a real was duly summoned, Trial by wager of battel, in civil cases, is only had on a writ of right ; but in lieu thereof the tenant may have, at his option, the trial by the grand assize.
Trial by wager of law, is only had where the matter in issue may be supposed to have been privately transacted between the parties themselves without the interven tion of witnesses, and may happen upon action of debt, de tinue, account, and the like. He that has waged, or given security to make his law, brings with him into court eleven of his neighbours as compurgators ; he is there admonish ed of the consequence and iniquity of perjury : he then swears to the fact, upon which his compurgators swear to his veracity. j Trial by in civil causes, is either extraordinary or ..rdinary. The former mode is now seldom used. We confine ourselves therefore to the latter. A jury is com posed of twelve men, being equals or peers to the parties litigant. The cause being in court, the jury is sworn in, unless challenged by the party. Challenges are of two sorts : challenges to the array, and challenges to the polls. Challenges to the array are at once an exception to the whole pannel, which may be quashed from any appearance of the impannelling. If either party be an alien, he may challenge the array, and have one half denizens, and the other foreigners, for more impartial trial. Challenges to the polls in caltita are exceptions to particular jurors, the principal of which are, for suspicion of bias or partiality, and for some crimes or misdemeanors that affect the juror's credit, as conviction of perjury, treason, felony, conspira cy, having been pilloried, or in any other manner rendered infamous.
The jury being impannelled, the pleadings are opened by the party who holds the affirmative ; the counsel briefly states what has been transacted in the court above, the par ties, and the nature of the action, and upon what point the issue is joined : he next states the nature of the case and the evidence intended to be produced. When this evi dence is gone through, the advocate on the other side opens the adverse case, and supports it by evidence ; and then the party which began is heard in reply.
Evidence to a jury in written proofs, are records or writ tings, and deeds of sufficient antiquity ; modern deeds and other writings must be attested and verified by parole evi dence; no hearsay evidence will ever be admitted. One witness, if credible, is sufficient evidence ; and in some cases the party himself takes what is called the sup pletory oath, and is then allowed to give evidence, and if that evidence does not implicate himself, it is accounted good.