The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

CHAPTER 3

PLEADING

In the well-known words of Littleton1 in his advice to his son, “it is one of the most honourable, laudable, and profitable things in our law to have the science of well pleading in actions real and personal; and therefore I counsel thee especially to employ thy courage and care to learn this”. Care and courage were indeed necessary to master the science of pleading as it flourished in the seventeenth and eighteenth centuries, though we may perhaps think that the pleading of Littleton’s day was sufficiently accurate and commendably free from the later subtleties which finally compelled its abandonment. Littleton’s words had the fortunate result of prompting Coke to write in his most concise style a little manual of the elements of pleading which is a useful introduction to the subject.2

THE ORIGINS OF PLEADING

It is clear that the origins of pleadings were oral altercations between the parties which took place in court. They were not preliminaries, nor were they part of process, but a distinct stage—indeed, the central stage—of the litigants’ progress. It may be conjectured that in their earlier form they consisted entirely of sworn statements, and so were part of the machinery for adducing proof. Thus in debt, the plaintiff swears:1

To this the defendant replies:

These forms therefore serve a double purpose: first, they make clear the nature of the dispute between the parties, and secondly, they contribute towards the proof. Upon a consideration of these pleadings, as we may call them, the court awarded the benefit of making the final proof by compurgation or ordeal.

For the period between the Conquest and the appearance of the first plea rolls the evidence is somewhat scanty and especially difficult to interpret. Changes undoubtedly took place, and the formulae, which are often described as rigid and invariable, suffered considerable modification. The position of the courts was strengthened, and so pleadings were expressly addressed to the court; the oath, on the other hand, is either eliminated or postponed to a later stage, and so the new type of pleading concludes with an offer to prove it, instead of opening with an oath. The steps in this development are obscure, but when we reach the thirteenth century, forms are once again well settled, both in local and royal courts, and specimens of them are easily available in contemporary treatises. Considering the relative activity of the royal and the communal courts during this period, it seems reasonable to conclude that the change took place in the hundreds and counties, and that when the King’s Court needed forms, it simply adopted those in common use.

THE LANGUAGE OF PLEADINGS

Two further changes took place—the introduction of French as the language of the courts at the time of the Conquest, and then its replacement by English in 1362,2 without substantially changing the forms, however. We thus find counts (i.e. tales, contes, or declarations) in such forms as this:

The example from which the above is abbreviated is particularly long, as it was drawn for teaching purposes and contains every imaginable complication. The outline, however, is clear. The whole count is addressed to the court, and the demandant “who is here” solemnly claiming lands from the tenant “who is there” reminds one of the ancient demand of right, and of the necessity of both parties being present. The statement of the demandant’s title drawn from an ancestor who took “esplees” looks more modern, although the claim that the lands are “his right and heritage” preserves, perhaps, one of the older and vaguer forms. The “suit” is the group of friends who are prepared to assert that the demand is just;3 as late as the reign of Edward III we find examples of the suit, or secta, being demanded,4 and Magna Carta confirmed the principle that no one should be forced to answer a bare demand unsupported by suit.5

The example just given is a count or declaration on a writ of right. The plea or defence would run as follows:

The demandant then replies that “wrongfully he denies etc.”, repeats the title and descent as in his count, and offers to substantiate (technically “deraign”) his right by his own free man, and so the “mise,” or issue, is joined.

PLEADINGS AND THE PLEA ROLL

It is essential to remember that these forms are oral, and that they were oral in their origin. It is only later that they became written, and it is clear that the change was brought about by the influence of the enrolling practice of the King’s Court. This is a peculiarity of the English system of “records”, and one of its features is the absence of any serious influence of canon law, whose method of pleading was different, and only adopted as a finished system in several other countries.

If we look at the earlier plea rolls, we shall find that they are brief and informal. Their object is merely to serve as memoranda of the proceedings for official use. They were not for the use of the parties, and the parties had no control whatever over the form in which their case was enrolled. The pleadings which we have set out above will be represented on the roll merely by a word or two, and that in a simple narrative form. Thus an action on a writ of right is briefly enrolled like this:

It will be seen that the record is merely a brief narrative of the proceedings which sweeps aside the forms of the pleadings and confines itself to their substance.

The next stage is the result of the establishment of a permanent and numerous organisation of enrolling clerks. The entries become much longer, and tend to become settled in their wording; what is still more important, they bear a fixed relationship to the oral forms which were used in court. By the early years of Henry III the change is complete and the forms remain substantially the same for the next six hundred years. The distinctive features of the final form of English enrolment can be seen by contrasting it with a continental roll, such as we find in Normandy. The Norman roll seems to compare most easily with the older type of English enrolment such as we have just described it. It is narrative, and ignores the forms used by the parties in an effort to state the substance in as few words as possible.2

THE CLASSICAL PLEA ROLL

The contrast of this with what we may call the classical style of English enrolment is unmistakable. Examples are easily found in Bracton’s Note Book, in the notes from the records printed by the editors of the Selden Society’s edition of the Year Books, in many old reporters who reproduce pleadings, notably Plowden and Coke, and above all, in the Books of Entries which consist of choice specimens of enrolments, collected for the use of pleaders in the days when pleadings were settled by the parties out of court, and merely copied on to the rolls.3

The new model begins with a reference to the original writ and the state of the process: “B is summoned” (or “attached” as the case may be) “to answer A in a plea that he render him” money (or chattels). Then comes a novelty: “whereof he says” (or in trespass “complains”) that—and here follows the substance of the count. The old oral count is therefore directly represented for the first time on the roll. It soon becomes clear that this carefully recorded Latin declaration on the roll is sharing the importance of the old French conte which was orally delivered in court. As we shall see, it became even more important at the close of the middle ages.

A slight, but significant, innovation is the fact that the rolls of the new model commence a new paragraph for the defendant’s plea, the plaintiff’s replication, and so on. The result is greater clarity from the point of view of the reader, but ultimately much more important consequences followed.

In the first place, there was undoubtedly a deliberate attempt to put on the roll all the essential details, and not merely the general substance of the parties’ allegations. Hence it will be increasingly possible to decide a case merely from the enrolment, now that the roll contains all that is necessary for that purpose.1

Secondly, lawyers will be driven to the conclusion that what really matters henceforth is not so much what they say (as under the old system), as what the clerks write on the roll.2 This led to two different results. On the one hand, lawyers could free themselves from the old bonds of the spoken forms and indulge in tentative pleadings and arguments, trusting that nothing will be recorded until the informal altercation has finished, and the parties have reached definite positions—the early Year Books are in consequence full of instances of counsel “licking their plea into shape” (as Maitland put it3 ) in open court. This was clearly an advance from the old system where the oral forms were binding. On the other hand, there are plenty of cases (and even statutes4 ) which testify to the great uneasiness felt by lawyers about the roll, for they could not get access to it, and could only guess what was on it.5 Their new freedom was thus limited by the fear of the mysterious roll, and they could not expect every judge to be as kindly as the one who warned counsel “mind what you say, for henceforth we shall record”.

Thirdly, it would seem that for a time the lead passed from the hands of the bar to those of the clerks. The future of pleading, and the settlement of its forms, became a matter for the people who drew up the rolls; in later times they were a distinct body of officials, headed by the prothonotaries, and under the control of the courts, but their early history is unknown. What is still more serious, we do not know what was their relationship to the bar on the one hand, or to the general body of royal clerks on the other. Some light is now to be had on the relationships between chancery clerks and law students,1 and a stage in the “inns of chancery” was normal for lawyers in the later middle ages, but how far there was contact, openly or secretly, between lawyers and court clerks is not yet known. For a moment, in the troubled years of Edward II, the office of chief clerk in the common pleas was a political issue,2 and at least once a chief clerk and keeper of the rolls of the common pleas was raised to the bench.3

Fourthly, as with almost every question which touches the general development of the law in this period, we must consider the matter from the point of view of Bracton’s treatise. We have already spoken of Bracton’s use of cases, and it now remains to insist that those cases were in fact enrolments. The examples he gave, and his discussion of “exceptions”—that is to say, defences—must have some bearing on the present subject. Was the plea roll in his day already such a vital document that a real understanding of the law depended upon understanding it? If so, Bracton’s book must have been a welcome revelation of the form which the old oral pleadings might take when the clerks enrolled them, and the eager study of Bracton’s book is easily explained. Or, was it the accident that Bracton had plea rolls at hand, and so used them, which first directed attention to enrolling practice, and so enhanced its importance? In short, was Bracton’s use of plea rolls the result or the cause of their importance as pleadings? To these questions there is no answer at present, but an appreciation of the Bractonian problem will be very helpful, we believe, in putting the common law system of pleading into its historical perspective.

THE PROFESSION AND THE PLEA ROLLS

Although lawyers had a glimpse, thanks to Bracton, of what the plea rolls might contain, those rolls in theory were closed to them, and in practice were not subject to their control. An awkward situation, undoubtedly, and what informal arrangements made it workable, we shall perhaps never know. The Year Books very occasionally note the clerks of the court as joining in the forensic conversation, and sometimes we read a note of what the clerk told the compiler. This sort of evidence may be just enough to suggest that the bar contrived to win the favours of the clerks by some means or other. It is certainly clear from the fourteenth-century Year Books that counsel no longer directed their attention solely to the oral words; on the contrary, it is plain that their great concern was to get some things on the record, and to keep other things off. Pleading was therefore the art of saying things in court in such a way as to produce a particular result on the roll,1 it being well understood that judgment would be on the basis of the enrolled pleadings, and not of the oral pleadings which in the course of the hearing might be advanced, withdrawn, modified—or just forgotten.

Granted that the enrolling clerks were in cordial relations with the bar, the system worked remarkably well. It demanded great learning and still greater skill from the serjeants, for they were in effect settling the pleadings in the heat of battle and in the presence of the adversary. On the other hand, there was the substantial advantage that the court joined in the discussion, which thus sometimes became a round-table conference of judges and counsel who joined in trying to find a way of pleading a case which would bring out the real points. We thus find in these cases a discussion of the legal effect of many proposed pleas which in the end were abandoned—which of course explains why the Year Books give us so much matter which is not matter of decision from the modern point of view. Later ages concur in regarding the age of Edward III as the golden age of common law pleading, and the Year Books 40-50 Edward III as being the best place to study it; hence the renown of this volume (familiarly called Quadragesms) as a text for the students of later centuries.2 The fifteenth century saw the beginning of a decline which became marked in the sixteenth; at the beginning of the seventeenth century Coke lamented the change, but his decisions actually accelerated it, and after the Restoration pleading became so subtle that a special branch of the profession grew up to guard its mysteries from the profane.

PAPER PLEADINGS

In the early days of its decline, a remarkable change took place. On the institutional side, it may be regarded as ultimately a victory of the bar over the clerks of court. We have already suggested that the root of the trouble was the gradual shift of emphasis from the spoken plea to the written enrolment, and the resulting anxiety of the bar as to what was put on the roll. We have also suggested that although there was occasional friction, yet in general the bar and the clerks contrived to work together in tolerably good relations. This relationship between the bar and the clerks took the form of the clerks acting as attorneys for litigants. This inevitably established contact between the clerks on the one hand, and the litigants (and their advisers) on the other. The situation was known to be dangerous, as affording opportunities for frauds of various sorts;1 but from the reign of Edward I it seems established as a permanent feature. The early fears that the system put too much power in the hands of the clerks had died down as the fifteenth century proceeded.

Then a change took place: instead of leaving it to the clerks to enrol a case in accordance with their own ideas of the way it was pleaded, the legal profession provided the clerks with drafts of the entries they desired to have, and so the clerks, in general, had nothing to do but to copy the drafts provided by the litigants’ advisers on to the roll. By this means the lawyers secured absolute control of what was written on the rolls, and were for ever relieved of the fear that the roll might contain unpleasant surprises—as, in the past, it sometimes did.2

On the obscure steps by which this revolution was effected, we have some valuable material collected by Reeves and Holdsworth.3 It seems that the first stage was reached when in the fourteenth century permission was gained (under certain circumstances) to amend the roll.4 This established professional contact between the bar and the clerks. The second stage is marked by the entry of the clerks of court into competition with the outside branches of the profession. There thus existed in the later fifteenth century two modes of proceeding: either counsel might be instructed to plead in a particular fashion, or the clerks of the court would be asked to draw pleadings on paper which were brought before the court by the parties (or their attorneys, perhaps) but certainly without counsel. The original motive of this departure may have been to plead simple cases, or undefended cases,5 without the expense of engaging a serjeant. Finally it became possible for the attorneys, with or without the advice of counsel, to draft the pleadings by exchanging papers, as far as an issue or a demurrer. In the case of an issue, the whole would be enrolled so as to serve as the record for the trial; in the case of a demurrer, the argument in court would take place on the basis of pleadings which had been settled out of court.

More than this it is impossible to say without indulging in speculation.1 The questions which arise, however, may be mentioned here, for they will indicate the importance of the change. For example, were pleadings drawn out of court at first for simple cases, or for difficult cases? It might seem natural that straightforward cases would be the first in which parties would dispense with counsel and allow the clerk or attorneys to make up a record concluding to a common issue for a jury. If this is so, it would no longer be necessary to see in the new system the result of the growing complexity of pleading.2 The reverse might even be possible, for it is easier to introduce subtleties in documents drawn at leisure, than in impromptu debate. It must certainly have been less costly in simple cases to have written pleadings, than to have serjeants to plead orally.

THE CONTINUITY OF PLEADING

However these questions may be answered in the light of future research, the main outlines given above can be regarded as established. Their principal significance is the continuity of common law pleading from the beginning to the end, in spite of changes of practice. From the Anglo-Saxon sworn demand and defence, through the Anglo-Norman conte and plee, to the Latin entry on the plea roll, the line is unbroken.3 The plea roll, however, came to be distinctive of English procedure, and it was inevitable that the main problem should centre round it. The roll underwent the attraction of the oral forms, and strove to represent them in its own idiom. But the more accurate and skilful the roll became, the more necessary it was for the legal profession to control the entries that were put upon it, and when they won that victory, it was a victory for the methods (based on oral tradition) of the old serjeant-conteur against the newer rationalism of ink and parchment.4 As Sir William Holdsworth has remarked, the sixteenth century was a time when the canonical system of procedure—which was very much written—seemed to some a tempting novelty. In Chancery and Star Chamber it had some influence, but the plea roll protected the courts of common law from so drastic an innovation, and the drawing of pleadings out of court perhaps seemed to most lawyers a sufficient concession to the idea of trial by paper. So the old counts, pleas, replications, rejoinders and the rest, with the accompanying issues and demurrers, continued in use, and, consequently, the substantive law which was implicit in them.

THE ORIGINAL WRIT

Pleadings begin with the original writ, and from the earliest days of the common law the writ assumed a position of great importance. Unlike the civilian and canonical procedure, the course of the common law started with a statement of the nature of the claim which was largely common form, prepared in the royal chancery and not by the plaintiff’s advisers. The fact that the writ was a royal writ made it for a time, at least, a formidable and rather cumbersome piece of machinery. On the one hand, it was regarded as the source of the jurisdiction of the court. The Court of Common Pleas was historically, and in legal theory, a court of delegates whose authority was not general, but derived from an ad hoc commission separately given for every individual case. Hence the court had no powers beyond those conferred by the original writ and could not go beyond the four corners of that document. It will not be surprising, therefore, that there should have been so rigid a boundary between the different forms of action, although we may expect the exercise of some ingenuity in the endeavour to make the system more elastic. On the other hand, this vital document remained for some years beyond the control of the parties: they had to take the writ ready-made, whether it quite fitted their case or not. Throughout the middle ages, therefore, the writ was largely a conventional document which generally throws little light on the real nature of the case. It is to the count that we must look for further information, and the very insufficiency of the writ must have compelled the continuance of the older system of the solemn declaration orally delivered in court.

The original writ, therefore, did not become anything like so informative as a libellus, for the good reason that it was drawn primarily in a public office and not by the plaintiff. Such a situation could not last if the use of the common law was to spread, and so we find traces of successful endeavours by the profession to influence the contents of the original writ. We have, in fact, in the thirteenth century, an anticipation of the problem we have already mentioned as arising late in the fifteenth century—the problem of the relationship between the legal profession and the clerical establishments of the State. Just as pleaders at the end of the middle ages succeeded in controlling what was entered upon the rolls of the courts, so in the thirteenth century they tried to influence the drafting of writs in the chancery. We find about the years 1285-1307 a little treatise which already has the suggestive title of Modus Componendi Brevia, “the way to compose writs”,1 and certain forms of action (such as writs of entry) clearly show that the parties themselves must have had considerable influence in drafting them. When this becomes possible, the attitude of the court towards these documents had to be modified. The great seal, no doubt, was there, but it was no longer possible to suppose that the document represented in all its details a direct command in considered terms by the Crown. The courts will therefore have to scrutinise the writ closely, and countless cases in the Year Books show that writs could be “abated” if their contents erred too much on the side of originality.

EXCEPTIONS

At the same time, there were certain old rules which disabled persons from being litigants; an outlaw is not entitled to be heard, neither is an outlaw from the Church, in other words, an excommunicate. Persons under age were often under a temporary disability. Here, then, was a fairly large assortment of “dilatory exceptions”, and Bracton’s treatise completed the tendency, already apparent, to fix the order in which they should be used. If they were unsuccessful, the court would order the defendant to “plead over” or to “say something else”, whereupon the proceedings get nearer the merits of the case.

The pleading not only explores the law of the case; it also serves to introduce new facts. As we have seen, the original writ contains the barest statement of the nature of the claim; the count amplifies this statement to some extent, but it is still mainly concerned with supporting the writ, for any variance between the writ and the count will be a serious matter.

The defendant may take an exception to the writ, and urge that under the circumstances some different writ ought to be used (and if he does so, the plaintiff will call upon him to “give us a better writ”). It sometimes happened, however, that in doing so the defendant came near to saying that the plaintiff had no remedy by this or any other writ. The plaintiff may then point out that “that is an exception to the action”. Usually the defendant became cautious at this point, and took care to withdraw from the general question so as to take up a defence based upon the particular circumstances of the case. In simple cases this often took the form of traversing some essential statement in the writ or the count. Thus, if A. alleges that B. disseised him of his free tenement (novel disseisin), B. may say that A. was never seised, and so could not be disseised, or that the tenement is not “free” (because, perhaps, it is in villeinage, or a term of years); some writs, such as the writs of entry, contain so many statements of fact that most defences will involve a denial of one of them.

The defence may rest upon facts which are not even hinted at in the writ or the count. Various methods were available for bringing such new facts into the discussion. The defendant may “confess and avoid”, admitting the plaintiff’s statements, but alleging other matters which will rob them of their importance. Or he may introduce new material followed by the clause absque hoc (on the roll), sans ceo que (in the oral plea), in which he formally denies the plaintiff’s allegations. This is called a “special traverse” and the plaintiff (as a rule) must answer the special or new matter so introduced.

RULES OF PLEADING

From the middle of the fourteenth century onwards there is an increasing rigidity of the rules of pleading; within limits this was all to the good. It clearly made for convenience when pleaders were excluded from “pleading evidence” and were driven to plead the fact itself, and not other facts which might or might not establish it. Rigidity had other effects, however, when it was combined with the fact that these pleadings were inscribed upon a public record. Under this rule it was impossible to deny facts which had been admitted in a previous case. Now as all facts not denied expressly were held to have been admitted, great caution was necessary. Hence we find long clauses protestando that the defendant does not admit numerous facts which the strict rules of pleading prevented him from denying in the ordinary way.

There were masses of rules1 to produce particularity, balanced by other rules against surplusage, and rules tolerating general pleadings where the record would otherwise be too long. Pleadings should not be argumentative; thus to an action on a bond to warrant lands, the defendant cannot merely say that the plaintiff has had peaceful enjoyment, but ought to plead that he has warranted and that the plaintiff has not been damaged.2 Nor must pleadings be double. One point must be selected and will be sufficient to decide the case; the rest can be eliminated as vexatious. This was an admirable principle, but in practice the rule against duplicity was difficult to apply, and in 1706 a statute3 allowed double pleas by leave of the court. Another vice of pleading was “departure”, and was analogous to duplicity save that the several matters were not in the same plea but in successive ones; thus if the plaintiff has counted on an action at common law, he cannot turn it into an action on a statute in his replication. Among the most curious of rules are those concerning “negatives pregnant with an affirmative”; Reeves has pointed out that this is the converse case of an “argumentative” plea, which is in fact an affirmative pregnant with a negative.4 Thus where a gift by deed is alleged, the reply that “he did not give by the deed” is bad (for the negative is pregnant with the affirmative that he gave by parole).

CERTAIN PLEAS IN REAL ACTIONS

Real actions were generally more complicated than personal ones, not only because they were older, but also because many persons were often concerned with the same piece of land. There was an old rule that all joint-tenants must be made defendants (or “tenants”) in a real action. Much use was made of it (by hasty feoffments to a friend who re-enfeoffed the tenant jointly with others) to obtain delays. Statutes finally stopped this manœuvre.1 A further means of delay, sometimes necessary, but not always so, was the demand for the “view”.2 If this is granted, an elaborate inspection of the land is made in order to identify precisely the property in dispute. Such an identification was not always easy when it consisted of scattered strips in open fields.

There were other pleas which had for their effect the joinder or substitution of new parties to the action. The need for such a procedure was largely the result of the old rule that a demandant must bring his writ against the person who is seised; this may be a tenant for life, and if so, the tenant for life may defend the action. He ought to “pray aid” of the reversioner, however, and if he does so, the reversioner will be summoned by the court and undertake the defence. Many tenants for life, acting in collusion with demandants, allowed judgment to be given against themselves by default, thus alienating the land and leaving the reversioner no remedy save a writ of right. It was therefore enacted that if a particular tenant is about to lose land by default, the reversioner may come any time before judgment and pray to be received to defend his right.3 This is called “receipt” in the old books and both aid-prayer and receipt are illustrated by thousands of cases. An understanding of the main principles of these two pleas is necessary, for discussions upon them contain very illuminating material on the nature of estates.

Finally, there is voucher to warranty.4 Deeds frequently contained a clause whereby the grantor binds himself and his heirs to warrant the grantee and his heirs;5 besides this, every lord owed warranty to his freehold tenant who has done homage, and the tenant in fee who has created entailed estates owes warranty to the tenants in tail by statute.6 Many tenants in real actions therefore “vouched to warranty” and numerous pleas might ensue. The demandant might urge that the tenant could not vouch at all, and the vouchee when he came might urge that he was not bound to warrant. The subject, already complicated, was rendered still more so by the misuse of vouchers for purposes of fraud or delay, with the result that several statutes established special procedures in certain cases.1 If the voucher was allowed and the vouchee defaulted or lost by judgment, the demandant had judgment against the tenant, but the tenant had judgment against the vouchee which entitled him to recover from him lands of equal value. If a voucher to warranty failed, then there was usually nothing lost but time, and the case proceeded.

COLOUR

Of all the curiosities of pleading, colour is the strangest; its history is worth examining, however, for it illustrates several important themes. In the early days of the assize of novel disseisin there was need for a summary action which would repress resort to self-help in disputes as to land. The assize therefore gave remedy to one who had been ejected from land, irrespective of the lack of title in the disseisee or the presence of title in the disseisor. Whatever the rights or wrongs of the parties, they must not resort to force. Hence in novel disseisin the demandant need not make out any title, save the fact that he had been seised and disseised.

With the progress of time this action, with its attractive rapidity, came to be used for trying questions of title as well as questions of seisin, and so both parties took to the practice of pleading title. A frequent situation was one where A., claiming land by a particular title against B., ejected B. B. then in turn ejected A., and A. brought the assize.

This situation was so common that it left its mark on the history of pleading. Under the old system the only course for B. in answer to the assize would be to say (if he could) that A. was never seised, or that B. never disseised him. Under the newer system, however, he was allowed to set out his own title and to plead that A. had entered under a certain pretence of title which was in fact bad, and that B. ejected him. Cases in Bracton’s Note Book seem to be half-way between these two systems. The new mode of pleading may therefore be regarded as a product of the early fourteenth century. The principal advantage was this: under the old system such a plea would be treated as amounting to the general issue, and so the case would go to the jury; under the new rules, the plea was regarded as raising a matter of law which might confuse the “lay gents” who were on the jury, and so it was reserved for the court. As time goes on, it is regarded as more and more desirable to leave for the court as matters of law many things which in older days were sent to the jury under the general issue. The defective title which the defendant attributes to the plaintiff is called “colour”, and in the earlier cases it seems that it really did represent the facts.2 It soon became the practice, however, to give feigned colour of a purely fictitious character; this raised a fictitious question of law not amounting to the general issue, and served as an excuse for leaving the whole case to the court—including, of course, the real question of law which under the old system would have been treated as merely an argumentative denial of the points of the assize.

The history of trespass was very similar to that of the assize of novel disseisin; both began as actions founded on tort, with a strong criminal element, and both became in the course of time actions for the trial of right to land or chattels respectively. The same line of reasoning which led to the use of “colour” in novel disseisin (and in its equivalent, entry in the nature of an assize) led also to its use in trespass. By 1440 we find a little treatise on the subject in the Year Books1 which seems to imply that the system was in full use at that date.

THE DEMURRER

The object of pleadings is to explore the law and the facts of a case by means of the assertions and denials of the parties until an issue has been reached. If it is an issue of fact, then the parties will have ascertained a material fact which one asserts and the other denies in terms so precise that a jury will have no difficulty in hearing evidence on the matter and finding the truth of it. If it is an issue of law, the parties will have admitted the relevant facts, leaving it to the court to decide whether the law applicable to them is as the plaintiff or as the defendant maintained. This is called a “demurrer” because one of the parties has pleaded that he is entitled to succeed on the facts admitted by the other, and is willing to rest (demourer) at that point. If his opponent does the same, then the demurrer is joined, the pleadings are at an end, and the court hears the arguments on the point of law, and decides it.

This appeal by both parties to the court’s “consideration” on a point of law is very common in the thirteenth century as an answer to dilatory pleas—questions of view, age, aid, voucher, and the like. It is only later that we find the main question of a case raised in a demurrer, and so as a means of concluding the pleadings we must regard the demurrer as a fourteenth-century device. The demurrer was frequently used to draw attention to trifling defects in form in the pleadings, which could thus be amended by consent, and with all the more ease when the pleadings were oral. They might be insisted upon, however, and then the case would have to be decided upon very technical points.

Several kinds of demurrer are distinguished, one of which may be mentioned here. Juries could often be persuaded to bring in special verdicts (sometimes drafted by counsel) without, however, giving a verdict for either party; the facts so found would be generally complicated and of such a nature that points of law were raised which the court would have to decide. But a jury was always at liberty to give a general verdict if so inclined, and so pleaders took steps to secure the advantages of a special verdict without its delay by means of a demurrer to the evidence. The evidence (documentary or parole) is thereby admitted to be true, but the question of its legal implications is referred to the court.1

In post-mediaeval times the demurrer required a good deal of regulation by statute. In 1540 a statute enacted that a number of highly technical flaws in the pleadings would be “cured by verdict” (as old books put it).2 In 1585 an important act commanded judges who gave judgment upon demurrers to decide “according to the very right of the cause and matter in law” without regard to various technical defects in the pleadings, unless those defects were specifically mentioned in the demurrer.3 In consequence of this act a sharp distinction was drawn between special demurrers which alleged a particular defect in the pleadings (which the court therefore had to adjudge), and general demurrers in which case the court’s judgment was based upon a consideration of the record as a whole. A much more radical inroad upon the principles of common-law pleading was made in 1705 when a statute allowed defendants, by leave of the court to plead multiple defences4 —a provision which the bench interpreted with considerable strictness.

THE GENERAL ISSUE

When the plaintiff has counted, the defendant can choose between two courses: he can make a special plea, or he can at once conclude the pleadings by taking the general issue. The latter course was the one most frequently taken in the earlier times of the common law, and always remained a valuable alternative, for by it the endless complexities and pitfalls of special pleading were avoided. It is very significant that when great trading companies were set up by Act of Parliament, they frequently procured a clause in their act empowering them to plead the general issue at all times, putting in their special matter as evidence;5 occasionally the same privilege was accorded to natural persons as against the Crown.6 Legislation of the Commonwealth had moved in that direction, and had been confirmed at the Restoration.1 The origin of the general issue is therefore to be found in the age when special pleading was little used, and consequently when the general issue was employed for most ordinary purposes. The scope of the general issue is therefore unexpectedly wide, and in order to understand old cases it is necessary to know what matters could be proved by evidence to a jury which was trying a general issue.

The two pleadings with which this chapter opened are illustrations of the count in a writ of right, followed by a plea of the general issue (which, in writs of right, was called the “mise”)2 —that is, the issue of the better right. In formedon, the general issue was ne dona pas; in debt on a specialty, non est factum (and on this issue the plaintiff is put to the proof of the whole of his declaration, while the defendant may show that the deed is void or obtained by fraud, but matters making it only voidable must be specially pleaded);3 in debt on a simple contract, nil debet, which denies the existence of the debt and permits the defendant to prove performance, release or other matter in discharge of the action;4non assumpsit similarly denies the existence of the contract, either in fact or in law. Thus matters of capacity, duress, want of consideration, the statute of frauds, payment, may all be proved under this general issue.5 In trespass and case, the general issue is not guilty. This plea in trespass denies the plaintiff’s property in the chattels (just as it denies his title in ejectment) and also puts the alleged acts in issue.6

THE HILARY RULES, 1834

It will be seen that the general issue relieved the pleader, at least, of most of his difficulties. Those difficulties, however, were apt to reappear at the trial. The scope of the general issue was often wide, and by it the defendant not only forced the plaintiff to prove the whole of his case, but could also compel him to come prepared to answer any or all of several defences. The trial was therefore a costly and difficult matter, possibly involving large masses of evidence on a large number of points which might, or might not, turn out to be necessary. There seems to have been no way of compelling a defendant to disclose more precisely what part of the plaintiff’s case he proposed to attack, nor which of the defences possible he proposed to raise. General pleading, as well as special pleading, therefore had its defects.

Just about a hundred years ago, the whole question came up for discussion, and the Civil Procedure Act of 1833 delegated to the judges the power to draw up a new set of rules; this they did, and the new scheme, because it came into force in Hilary Term, 1834, was called “the Hilary Rules”. The policy of the scheme was to strike a balance between the extreme precision of special pleading and the extreme vagueness of the general issue. On the one hand, they limited the general issue to the actual meaning of the words used—thus the general issue of non assumpsit was to mean henceforth just what it said, “the defendant did not undertake”, and was no longer available if the defence rested on matters of contractual capacity, discharge, voidance and the like. These matters must for the future be specially pleaded.

The policy was the right one; a plaintiff ought to be told as clearly as possible what defence he will have to meet, and to be informed what facts the defence admits, and what facts it disputes. In principle, there could be little objection to requiring a defendant to plead specially, and the attempt to make such expressions as non assumpsit, non est factum, and others, mean exactly what they said and not something entirely different, surely deserves commendation. The failure of the Hilary Rules, in spite of these merits, lay in their insistence on special pleading as it was understood late in the eighteenth century. That parties should plead precisely, and clarify as far as possible the issues between them, is one thing; that their endeavours to do so should be judged by the extremely artificial standards of the old system, was quite another. Unfortunately, the result of the rules was to extend the necessity of conforming to that system to a great many cases which heretofore had not been encumbered with it. It is not surprising that substantive law felt the effects of this change.1 The vagueness of the general issue permitted a certain flexibility in the law which Lord Mansfield, for one, had taken advantage of. Now that special pleading was required in such cases, this vagueness had to yield before statements so precise that subtle changes which had taken place in substantive law were forced into light, and found to be inconsistent with older authorities which now became of great importance. Hence the doctrine of consideration hardened along seventeenth-century lines, and the distinction between different forms of action was emphasised anew, although in the preceding century it had become of less vital importance.

The Hilary Rules only aggravated the situation, and it remained for the various Common Law Procedure Acts of 1854 and onwards to prune the luxuriant growth of pleading, and finally for the Judicature Acts to substitute a new system2 which, in the view of some, leans to the other extreme of laxity.

LAW AND FACT

Gradually there is a growing recognition in English law of the distinction between law and fact.1 It is so familiar as to seem obvious to modern English lawyers, yet there was a time when it did not exist, and the distinction, even when it was recognised, was not always drawn at the same point. If we look back to the days of the ordeal we find that the ordeal or the oath decided the whole case, and the case had not yet been analysed into its components of law and fact. Even the early common law retained the same attitude. In the writ of right the question at issue is whether the demandant or the tenant has the greater right to the land, and this issue was decided one way or the other by the outcome of the battle. Even if trial were by the grand assize, the members of the assize find for the demandant or the tenant without any discussion whether this is in consequence of a particular state of facts, or of a particular rule of law.

Even the jury system, therefore, existed for a while without forcing lawyers to recognise this distinction. The growth of formalism soon gave opportunities, however, for judgment to be given without a verdict—defects in writs, inconsistencies between writs and pleadings, reliance by a party upon a previous judgment—all these are common grounds of judgment in the earliest years of the thirteenth century. It thus became apparent that there were matters (generally preliminary matters) which might put an end to a case before the question of right or wrong had been formulated. Litigants who betake themselves to matters of this sort are generally raising what we should call matters of law. The commonest examples are those where a party rests his case upon the default of his opponent; as the law of process grew more elaborate, extremely difficult points of law were involved, as every reader of the year books knows.

Jurors as well as parties felt that some things were fact and others were law, and the assize of novel disseisin constantly forced it upon their attention. As early as 1202 an assize said “we will speak the truth of the matter, and having heard it, let the justices judge”.2 Half a century later (in discussing novel disseisin) Bracton3 declared that “truth is to be had from the juror, justice and judgement from the judge”. In the next line he had to admit, however, that the verdict of an assize is often upon law as well as facts. By 1285 statute4 is clearly distinguishing law from fact by enacting that jurors shall not be compelled to say whether there has been a disseisin, so long as they tell the facts. In other words, seisin is no longer an obvious fact but an obscure legal technicality. This change was possibly the most potent single factor in forcing the distinction between law and fact, and as time went on litigants devised means of raising questions of law, which earlier times had treated as questions of fact. Hence the frequency of special verdicts and of colour. From the assizes these devices spread to writs of entry and finally to trespass.

As early as 1329 a jury found a special verdict of se defendendo to an indictment of homicide.1

When commercial cases came into the common law courts, law and fact were often left indiscriminately to the jury until the time of Lord Mansfield,2 and the same sort of thing happened in Admiralty; in both cases the development of clear principles upon which merchants could base their dealings was prevented.3

PART 2

CRIME AND TORT

[1]Littleton, Tenures, s. 534.

[2]Co. Lit. 303-304 b.

[1]Oaths, 10 (Liebermann, Gesetze, i. 398).

[2]36 Edw. III, c. 15; the rolls continued in Latin until 1731: 4 Geo. II, c. 26.

[1]Esplees (expleta) are the various profits and dealings with the land which are visible indications that the owner was in continued and peaceful possession.

[2]This and the following example are translated from Novae Narrationes, which are being re-edited for the Selden Society by Dr. Elsie Shanks. For a demandant to offer battle, is an early and rare anomaly. The example in Select Civil Pleas (Selden Society), no. 76 (1201), may be compared with the prosecutor’s offer in the criminal case mentioned above, p. 115.

[3]For a case in 1222 where the suit was examined, but knew nothing of the matter save by hearsay, see Eyre Rolls (Selden Society, vol. 59), no. 1477.

[4]Y.B. 17 & 18 Edward III (Rolls Series), 72 (1343).

[5]Magna Carta (1215), c. 38; amended (1217), c. 34, and (1225), c. 28. For the possible ecclesiastical origin of the rule see Henry II’s edict of 1159 in Haskins, Norman Institutions, 329, and Plucknett, The Medieval Bailiff, 12 ff.

[1]Select Civil Pleas (ed. Maitland, Selden Society), no. 17.

[2]For an almost unique fragment of Norman judicial enrolment, see Plaids de la Sergenterie de Mortemer (ed. Génestal), Caen, 1924.

[3]Below, pp. 405-406; Winfield, Chief Sources, 303 ff.

[1]“The aforesaid record having been read and more fully understood” is a common preamble to judgments. Contrast Bracton’s Note Book, no. 1383, where judgment is based on “count counted, and plea pleaded”.

[2]This is already apparent in Fet Asaver (ed. Woodbine), 85-86.

[3]In the introduction to Y.BB. Edward II (Selden Society), iii. lxx.

[4]Westminster II, c. 31, as to which see Plucknett, Statutes and their Interpretation, 67-68, 140; cf. below, p. 406 n. 2.

[5]An appeal to the roll might reveal a disagreeable surprise, but for a time it was possible to invoke the “record” (i.e. official memory) of the judges to supplement a defective roll: Y.BB. Edward II (Selden Society), x. p. xxviii; xi. p. 139. For this distinction between roll and record, see S. E. Thorne, Courts of Record, West Virginia Law Quarterly, xl. 347, 352.

[1]Tout, “The Household of the Chancery”, in his Collected Papers, ii. 143.

[2]Tout, Place of Edward II in English History, 369; and again under Richard II in the case of Thomas Haxey, for which see Taswell-Langmead, Constitutional History (ed. Plucknett), 195-196, 217. (It is now known that Haxey was also the abbot of Selby’s proctor in the parliament of 1397: Register of Henry Chichele, ii. 657.)

[3]John Bacon was chief clerk from 1292 until 1313 when he became a justice of the common pleas: Tout, Edward II, 372.

[1]Hengham Magna (ed. Dunham) frequently illustrates the steps in procedure by showing how they are recorded on the roll.

[2]They were “greatly bosted and noted of some students”, said Redman; his views and those of other early law printers are related in H. S. Bennett, English Books and Readers, 85.

[1]For protests under Edward II, see Sayles, King’s Bench, i. pp. lxxxvi n. 5, cxliv; under Richard II, Rot. Parl., iii. 306 no. 28; under Henry IV, Rot. Parl., iii. 642 no. 63, with the attorneys’ indignant reply, ibid., 666 no. 49. The problem was not peculiar to the benches: T. W. Simons, Chancery and Exchequer Clerks as Attorneys, University of Colorado Studies, xxii, 381-396.

[2]See the complaints in Parliament (1393), Rot. Parl., iii. 306 no. 28. For the recording of arguments, as distinct from pleadings, cf. Sayles, King’s Bench, ii. p. ci, and Margaret Hastings, Common Pleas, 189.

[3]Reeves, ii. 619; Holdsworth, iii. 639.

[4]Above, p. 397 n. 2.

[5]Actions of debt whose main object was to get one entry of judgment on the rolls seem to have been common.

[1]Interesting questions are raised by the presence of “bills” among exchequer archives which have every appearance of being written pleas; for examples, see Select Cases in the Exchequer of Pleas (ed. Jenkinson, Selden Society), cxxix. They occur as early as 1343. Many of the Select Bills in Eyre (ed. Bolland, Selden Society), at an even earlier date, closely resemble written pleadings. On bills generally, see above, pp. 386-387.

[2]But see Holdsworth, iii. 641.

[3]Cf. Guilhiermoz, La Persistance du caractère oral dans la procédure civile française, [1889] Revue historique du droit, 61.

[4]For an illuminating comparison between the two principles, see Sir Maurice Amos A Day in Court at Home and Abroad, Cambridge Law Journal, ii. 340-349.

[1]Edited by G. E. Woodbine, Four Thirteenth-Century Law Tracts, 143-162.

[1]Just before the reforms of the nineteenth century there appeared two masterly works on the old system, Stephen, On Pleading (1824), an Chitty, Treatise on Pleading (1809). A very useful introduction to these larger works is Ralph Sutton, Personal Actions at Common Law (1929).

[2]For another example, see Y.BB. Edward II (Selden Society), x. 220.

[3]4 & 5 Anne, c. 3.

[4]Reeves, History of English Law, ii. 627.

[1]Statute de conjunctim feoffatis, 34 Edw. I (1306).

[2]Much restricted by Westminster II, c. 48 (1285).

[3]Westminster II, c. 3 (1285), gives receipt for the reversioner on the default of tenant in dower, by curtesy, in tail or for life. Conversely, a termor could be received on the default of his lessor by Gloucester, c. 11 (1278). Cf. p. 555 below.

[4]The difference between aid-prayer and voucher is discussed in Y.B. 21 & 22 Edward I (Rolls Series), 468.

[5]More rarely, the grantor might bind, not himself or his heirs, but particular lands, to fulfil the warranty: Y.B. 21 & 22 Edward I (Rolls Series), 492.

[6]Statute of Bigamists, 4 Edw. I, c. 6 (1276).

[1]Westminster I, c. 40 (1275); statute de vocatis ad warrantiam, 20 Edw. I (1292); 14 Edw. III, stat. 1, c. 18 (1340).

[2]This conclusion follows from the fact that in the fourteenth century the allegations made as “colour” could be traversed, e.g. Y.B. 11 Richard II (ed. Thornley, Ames Foundation), 268-278.

[1]Y.B. 19 Henry VI, 21, pl. 42.

[1]The admissibility of evidence could not be tested in this way, but by bill of exceptions, which was analogous to a writ of error. Above, p. 29. As Thayer, Evidence, 121, points out, in many cases the “evidence” demurred to is not the testimony of witnesses but the statements of fact made by counsel. “A demurrer upon evidence goes to the law upon the matter, and not to the truth of the fact”—Newis v. Lark (1571) Plowd. 410; the pleadings of this case are a good example.

[2]32 Hen. VIII, c. 30. It is entertaining to find that such great experts as Rickhill, J., and Serjeant Brenchesley, litigating in their own court, had their writ abated, even after a jury had found a verdict in their favour: Y.B. 2 Henry IV, Michs. no. 48, p. 11 (1400).

[3]27 Eliz., c. 5.

[4]4 & 5 Anne, c. 3.

[5]For example, the act incorporating conservators of Bedford Level, 15 Car. II, c. 17, s. 15 (1663), and certain insurance companies by 11 Geo. I, c. 30, s. 43 (1724).

[6]For example, in answer to informations for intrusion, 21 James I, c. 14 (1624).

[1]Acts and Ordinances, ii. 455-456 (1650); 12 Charles II, c. 3, s. 4 (1660).

[2]Compare the “mise of Amiens” whereby Henry III and the baronial opposition submitted themselves to the arbitration of St Louis, in 1264.

[3]Chitty, On Pleading (1831), i. 519.

[4]Ibid., 517.

[5]Ibid., 511.

[6]Bacon, Abridgement, vii. 704.

[1]This matter has been discussed by Sir William Holdsworth, The New Rules of Pleading of the Hilary Term, 1834, Cambridge Law Journal, i. 261-278.

[2]The County Courts Act (9 & 10 Victoria, c. 95), s. 76, seems to have been a preliminary experiment in this direction.

[1]See generally Thayer, Evidence, 183 ff.; Pollock and Maitland, ii. 629; above, p. 129 n. 5.

[2]Select Civil Pleas (Selden Society), 179.

[3]Bracton, f. 186 b. Cf. Y.B. 30 & 31 Edward I (Rolls Series), 16.

[4]Westminster, II, c. 30; Y.B. 20 & 21 Edward I (Rolls Series), 10, shows that the statute did not remove all the difficulties felt by jurors. In 1348 the commons prayed for general permission for jurors to “tell the truth if they want to” in all cases, as well as in novel disseisin, but the petition was rejected: Rot. Parl., ii. 203 no. 22.

[1]Fitzherbert, Corone, 284.

[2]As Buller, J., observed in Lickbarrow v. Mason (1787) 2 T.R. 73.

[3]Holdsworth, Makers of English Law, 168 n. 1, 220-221.