(6) Misdescription of the defendant; (7) Misjoinder of parties; (8) Nonjoinder of parties; (9) Pendency of another action between the same parties, in which the same remedy is sought for the same wrong; (10) Variance between the cause of action as stated in the process, and as stated in the declaration. This plea must state the objection, and the grounds thereof, with the greatest possible precision; and in cases of misdescription, nonjoinder, and the like, must give the plaintiff such information as will enable him to correct his error. To this plea the plaintiff may reply, either by a traverse, or a confession and avoidance, or a demurrer; and, upon the issue thus attained, the court will either sustain the action in its present form, or will dismiss the action, or will permit the plaintiff to amend in such a manner as to cure the defect. Read 3 Bl. Comm., pp. 302, 303. Bac. Abr., Abatement, Misnomer. § 287. Of the Declaration, Pleas in Bar, and Subsequent Pleadings. The first in order of those pleadings, which raise the question, whether on the merits of the controversy the plaintiff or defendant should have judgment, is the declaration. This is the plaintiff's statement of his cause of action. It must contain, in legal form and with all the necessary technical averments, a clear and concise description of the facts of which he complains, of the damage which he has sustained, and of the remedy for which he seeks. To this declaration the defendant may demur, de nying that the facts alleged constitute a cause of action; or he may plead in bar, either by traverse, or by confession and avoidance. Upon a traverse or demurrer, issue is immediately joined; but to a confession and avoidance the plaintiff may reply by traverse, or demurrer, or a new confession and avoidance, until, by final traverse or demurrer, issue is at last attained. Each stage of pleading, which is characterized by the affirmation or denial of any of the facts in controversy, has its own distinctive name; to wit, the plaintiff's declaration; the defendant's plea; the plaintiff's replication; the defendant's rejoinder; the plaintiff's surrejoinder; the defendant's rebutter; the plaintiff's surrebutter. Few pleadings ever reach this latest stage. Read 3 Bl. Comm., pp. 293–295, 303-310. Bac. Abr., Pleas and Pleadings. Com. Dig., Pleader C, E, F, H, I, K, L. 1 Chitty Pl., pp. 239-240, 244-261, 409-414, 469472, 521-548, 566-568, 577-580, 601 652. Stephen Pl., pp. 30-44, 51-66. Gould Pl., Ch. iv, §§ 1–51, 79–103; Ch. vi. 288. Of Code-Pleading. In many of the States, the system of Code-Pleading (so called to distinguish it from Common-Law Pleading) has been introduced, by which the ancient forms of pleadings have been simplified, and the issues, which involve the merits of the controversy, are more speedily and clearly ascertained. The object of the pleadings, however, remains the same, and the rules, by which that object is attained, are substantially unchanged. Read Pomeroy Rem., §§ 28-111. Bliss Code Pl., §§ 1-10, 135-142. $289. Of Issues and Trial. When the parties are once at issue upon any point, the next step in the proceedings is to hear and determine the questions, which are presented by such issue. An issue of law is heard and decided by the judge alone. An issue of fact may, and sometimes must, be heard and decided by a jury. Read 3 Bl. Comm., pp. 324, 349–351. Stephen Pl., p. 76. 290. Of the Jury. Challenges. A jury is a body of twelve men, summoned from the county where the court is held, and duly sworn to try the issues between the plaintiff and defendant, and to decide them according to the law and the evidence. The process, by which the sheriff is directed to summon into court the men who are to constitute the jury, is known as a venire, and must be served and returned in the manner provided by law. When the jurors appear in court, and before they are sworn to try the issue in any particular action, the parties to the action have a right to make objection, either to the whole body of jurors, or to any individual among them. Such an objection is called a challenge. Challenges are of two kinds: Challenges to the Array, and Challenges to the Polls. A challenge to the array is an objection to the whole body of jurors, on account of some defect in the venire or in its mode of service, or of some partiality in the sheriff by whom it was served. A challenge to the polls is an objection to one or more individual jurors, on account of legal disqualification, or of known or probable bias in favor of one of the parties. In some States also, either party may peremptorily challenge a certain number of jurors, without giving any reason therefor. If a challenge to the polls is sustained by the court, the juror is dis charged from service in that particular action, and another juror is substituted in his place. When a challenge to the array is sustained, a new venire is issued and served. Read 3 Bl. Comm., pp. 352-366. Bac. Abr., Juries. Com. Dig., Challenge, Enquest. 2 Tidd Prac., pp. 904-908. § 291. Of Direct and Circumstantial Evidence. The jury being sworn, the pleadings are read, and sometimes an explanatory statement of the issues is made by the counsel, in order that the applicability of the evidence, now to be introduced, may be more clearly understood. Evidence is the means by which the existence or non-existence of an alleged fact is legally ascertained. The existence or non-existence of an alleged fact may be ascertained in three ways: (1) By actual observation; (2) By the testimony of persons, who have a knowledge thereof derived from actual observation; (3) By inferring it from other facts, which have been actually observed or are established by proper testimony. Evidence of the first and second classes is known as direct evidence. Evidence of the third class is known as indirect, inferential, or circumstantial evidence. Read 3 Bl. Comm., pp. 366–371. 2 Tidd Prac., pp. 908-910. 3 Chitty Gen. Prac., pp. 872-888. 1 Starkie Ev., pp. 15-17, 80-96, 820-866. 1 Greenleaf Ev., §§ 1, 2, 7-13 a. Burrill Circ. Ev., pp. 1-8, 76-247. § 292. Of Material and Relevant Facts. The sole questions, to be considered and decided by the jury, are those which are embodied in the issue. A fact which, when proved, determines some question embodied in the issue, is a material fact. A fact from which, when proved, some material fact may legally be inferred, is called a relevant fact. Facts neither material nor relevant are, therefore, excluded from the consideration of the jury, and evidence concerning them is inadmissible. Read Stephen Pl., p. 83. 1 Starkie Ev., pp. 10-12, 15-17. 1 Greenleaf Ev., §§ 50-73. § 293. Of Facts Judicially Noticed. In the trial of every issue, certain facts are presumed by law to be personally known, both to the judge and jury. Of these there are six classes: (1) Political facts, such as the existence of other nations, their flags and seals, the law of nations, the territorial divisions and political constitution of the state, the public matters which affect the state, its elections and general legislative meetings, its weights and measures, coins, and other circulating medium, and its public and special fasts and festivals; (2) Legal facts, including the public laws of the state, its various courts with their jurisdiction and rules of practice, their officers and seals, the names and persons of their judges, the general customs of trade, and such other matters relating to law and usage as are equally well known to all citizens; (3) Official facts, embracing the names and functions of the President, senators, representatives, ambassadors, marshals, sheriffs, and all who hold office in the state by virtue of public election or appointment, the signatures of the President, marshals and sheriffs, and the signatures and seals of notaries; (4) Public history, including the facts which constitute the political, social, and topographical |