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(3) Common Bar, 575.
(4) New Assignment, 577. 5. Consistency, 579.
a. Repugnancy, 579.
b. Departure, 579.
a. Conformity to Precedent, 581.
(See INTERPRETATION, vol.
11, p. 507), 584. VI. Motions Based Upon the Plead
ings, 594. 1. In Arrest of Judgment (See
JUDGMENT, vol. 12, p. 58), 584. a. Aider by Verdict (See
584. 2. Fudgment Non Obstante Vere
dicto (See JUDGMENT, vol.
12, p. 58; VERDICT), 584. 3. Repleader, 584.
I PLEADING IN GENERAL 1/1. Definition. Pleading is the stating in a logical and legal form the facts which constitute the plaintiff's cause of action or the defendant's ground of defense ; it is the formal mode of alleging that on the record which constitutes the support or the defense of the party in evidence. The alternate statements of claim and of defense are called the pleadings.3 The law of pleading deals both with the matter which the pleadings must contain and with the form in which that matter must be set forth. It is, as appears from the definition, a part of the law of procedure, and, as such, is a branch of remedial law,
2. Theory of Pleading at Common Law.-The law of pleading has for its foundation this proposition, that every dispute between man and man, no matter how complicated its nature is, may, nevertheless, be resolved into its elements and be shown to spring from a single point of fact or law as to which the parties are at variance. The object of a system of pleading is to unearth this disputed point from the mass of unimportant details which usually surround it, and to present it to the court for decision.
3. Pleading at Common Law Contrasted with Continental Systems. — The method adopted by the common law for attaining this end differs in many essential particulars from the general course of all other judicatures. Under systems other than the English, the parties are allowed to make their statements at large, and with no view to the extrication of the precise question in controversy. The different statements are then examined with care, in order that undisputed and irrelevant matter may be sifted out. This examination, in the case of some judicatures, is made privately by each of the parties for himself, as a necessary preliminary to the adjustment of his evidence. In others, the point for decision is selected by the court, or its officer, in advance of the trial. By the common law, however, the parties are obliged so to plead as to evolve some disputed question by the effect of their own alternate allegations, and to agree upon this question so evolved as the point for decision in the cause.T
1. This article deals with pleading at erence to the object which the system common law only. For pleading in contemplates, as the entering upon the equity, see EQUITY PLEADINGS, vol. 6, record of alternate allegations of claim p. 724.
and defense by plaintiff and defendant, 2. Bouvier's Law Dict.
which allegations are so developed as 3. Pleading may be defined with ref. to arrive ultimately at a material point
4. The Issue.—This specific point or matter affirmed on the one side and denied on the other is called the issue the exitus, or outcome of the pleadings. The issue may be a question either of fact or of law. If the parties are agreed as to the facts, and are at variance only as to the law applicable to them, the issue is decided by the court alone. If the facts are disputed, the parties have recourse to some one of the various modes of trial which are known to the common law.
5. Modes of Trial.-—These modes of trial are seven in number: The trial by the record, by certificate, by witnesses, by inspection, by wager of battle, by wager of law, and by jury. The first is the appropriate form of trial when the existence of a record is affirmed on one side and denied on the other, upon an issue of nul tiel record.3 The trial by certificate is of rare occurrence in modern times, being almost entirely confined to the issue of ne ungues accouple en loial matrimonie.4 This form of issue can arise only in dower; it
of fact or law affirmed by one party point which is affirmed on one side and denied by the other.
and denied on the other, they are then Obviously each of the pleadings said to be at issue." Hale's Analysis, must contain the elements of a good $L; 3 Blackst, Com. 313. “An issue is, syllogism. Usually the major premise when both the parties join upon someconsists of the statement of a legal what that they refer unto a trial, to principle; the minor contains the mat- make an end of the plea" (i. e., suit). ters of fact in the particular case, and Finch's Law, bk. 4, ch. 35, p. 396, ed. “ the conclusion is the legal inference 1759. resulting from the law and fact to- 3. Co. Litt., 117, b; Br. Trials, pl. 40. gether, as they appear in the prem- This issue is the proper one when the ises." See Gould, Princ. Plead. (5th question is as to what has judicially ed.), $ 8.
taken place in a superior court of 1. Abridged from Stephen on Plead- record. When the court is one not of ing (Heard, 9th Am. ed.), 125, et seq; q. record the issue should be upon the v., for a discussion of this peculiarity fact of whether or not the proceeding of English law.
took place. Dyson v. Wood, 3 B. & 2. Stephen on Plead. 24. Coke de- C. 449; Steph. Pl., 102 (note). By the fines the issue as follows: “Issue- Rules of Court of Hilary Term, 4 Wm. exitus-a single, certain and material IV, a party pleading the judgment of point issuing out of the allegations another court must state in the margin or pleas of the plaintiff and defend- of the plea, its date, and the number of ant, consisting regularly upon an the roll, or the plaintiff will be at libaffirmative and negative, to be tried erty to sign judgment; and on by twelve men.” Bract. 268 a. This certificate of its being falsely stated, definition applies only to issues of fact, judgment may also be signed. A and, among issues of fact, to such similar regulation had already been only as were triable by a jury. It is made in regard to judgments of the therefore defective. A similar objec- same court. Tidá 363; Steph. Pl., tion applies to the definition by HEATH, 102 (note). C. J.: "That point of matter depend- 4. BLACKSTONE (bk. 3, 333) mentions ing in suit, whereon the parties join, six cases in which this form of trial and put their cause to the trial of the was proper: (1). When the question is, jury." Heath's Maxims, ch. 4. SiR whether A was with the king and his M. HALE, followed by MR. JUSTICE army out of the realm, the trial by the BLACKSTONE, says: “When in the certificate of the mareschall of the host course of pleading they come to a is appropriate. (2). If, to avoid out
is not allowed in personal actions. The trial by witnesses is, at the common law, applicable only to a very few issues; but it is the only form of trial which is known to the civil law. It is the proper form of trial when, to a widow's writ of dower, the tenant pleads that the husband is alive.3
The trial by inspection or examination occurred when the judges, upon the testimony of their own sense, were able to decide the point in dispute.4 This mode of trial seems to have been incidentally swept away in England in the demolition of real actions. The wager of battle was an appeal to arms, and proceeded upon the theory that Heaven would give the victory to him who had the right. It was confined, as far as civil actions are concerned, to issue joined in a writ of right, “ the last and most solemn decision of real property.”! It was abolished by stat. ute.S Wager of law was a method of deciding the issue by 'permitting the defendant to swear to the truth of his defense. He
lawry, the allegation is that the de- be proved in all cases by two witnesses fendant was beyond the seas impris- at least. oned in a foreign town under English 4. As, for example, in a suit to reverse dominion (e. g., Calais, Bordeaux), the a fine because the cognizor was a minor, fact may be proved by the certificate where a writ issued to the sheriff comof the captain or mayor. (3). Customs manding him to constrain the party to of London are proved by the certificate appear that the justices might determine of mayor and aldermen. (4). To de- by the view of his body whether he termine whether or not A is a citizen was of full age or not. If they were in of London, recourse is had to the sher- doubt, proofs were taken; the infant iff's certificate. (5). Matters of ecclesi. was examined on his voire dire, or his astical jurisdiction are tried by the mother or god-father was sworn. bishop's certificate, as marriage, ex- Blackst., bk. 3, 332. See also 9 Rep. communication, general (but not spe- 31 and 2 Roll. Abr. 573. The words of cial) bastardy. General bastardy is the writ, whence the trial derived its where the child is a bastard by both name were: “Ut per aspectum corporis the canon and the common law (as sui constare poterit justiciariis nostris, where there is no subsequent inter- si praedictus A, sit plene aetatis necne." marriage of parents); special bastardy 5. Steph. Pl. 77 (note). is where the child is a bastard by the 6. Blackst. bk. 3, 337. For a learned common law and not by the canon-as and exhaustive account of the wager of where the parents subsequently inter- law and wager of battle,' see the essays marry. It was deemed improper in on these subjects in “Superstition and the latter case that the bishop's certi. Force," by Henry C. Lea, Philadelphia. ficate should be admitted to prove a See also The Older Modes of Trial" fact which was regarded differently in by Prof. J. B. Thayer, Harvard Law the two jurisdictions. (6). Matters of Rev., vol. 5, p. 45. This article concustom and practice of courts are tains an account of the obsolete trial proved, in general, by the certificate of by Ordeal. the proper officer.
7. Blackst., bk. 3, 338, 9. v., for a 1. 11 Hen. IV, 78, cited in Bac. Ab detailed account of the trial. Bastardy. Jones' 'case, Comb. 473; 8. 59 Geo. III, ch. 46. This statute Machell v. Garrett, 3 Salk. 64; 12 Mod. was passed in consequence of the de276; Vin., tit. Baron and Feme (D. b) fendant's having waged his battle in 39.
Ashford v. Thornton, 1 B. & Ald. 405. 2. Blackst., bk. 3, 336.
It is said in the Mirror (ch. 3, 923) that 3. Finch (Law, 423) declares that wager of battle is allowable on the authis is the only instance of its use at thority of the single combat between the common law. LORD COKE (1 David and Goliath. Pope Nicholas I, Inst. 6) mentions a few other cases, however, in all seriousness, decides that and remarks that the affirmative must this reasoning is fallacious. Decret., brought eleven compurgators with him into court who swore that they believed that he spoke the truth ; and the oaths of the twelve were as conclusive against the plaintiff as a verdict would have been. This method of trial also has been abolished in Eng. land by statute.2 The seventh, and by far the most important mode of trial, is the trial by jury, called also the trial per pais, or by the country. It is on account of the peculiar characteristics of the trial by jury that the system of pleading at common law is what it is; and many of the rules which have been criticised as most technical and artificial, prove to be both logical and sound , when considered in relation to the tribunal for whose guidance they were framed.3 Trial by jury is, with the exception of the trial by the record, the only form of trial in use in the United States. 4
6. Historical Sketch of the Development of Common Law Pleadinga. FROM EARLIEST TIMES TO REIGN OF EDWARD I.—Pleading in the earliest times of which there are records was an oral altercation conducted in open court by the parties or their counsel.5 This practice prevailed not only in England but in all the early European judicatures. Prior to the reign of Edward I, English pleading
pt. 2, caus. 2, qu. 5 ch. 22; Blackst., bk. sues and matter of fact to be tried are 3, 338.
narrowed and brought to a point, by the 1. See Blackst., bk. 3, 343.
previous proceedings and pleadings on
the record, than where the matter is left 2. 3 & 4 W. IV, ch. 42, 13. The at large to be established by proof, right to wage law in debt on a simple either by the plaintiff in the maintecontract was insisted on as late as the nance of his action or by the defendant case of Rex v. Williams, 2 B. & C. 538. in resisting the claim made upon him." The defendant waged his law and ap- Per LORD TENTERDEN in Selby 7. plied to the court to fix the number of Bardons, 3 B. & Ad. 16. compurgators. This the court declined 4. See Gould Prin. of Plead. 312, n. 3 to do, not wishing to revive the obsolete to the effect that while certain facts are trial, but left the defendant to the ad- provable by certificate (e. g., the fact of vice of his counsel, intimating that the marriage), yet it does not appear that plaintiff would be heard if he chose to the issue upon such fact ever concludes object to the number selected. The de- to the certificate. In the State of Confendant prepared to bring eleven com- necticut, any issue in fact in a civil case purgators, but the plaintiff abandoned may, by the agreement of both parties, the action. See Bary v. Robinson, I be tried by the court. When this is Bos. & Pul. New Rep. 297; Blackst., bk. done the agreement must be suggested 3. 341 (Chitty's notes).
in the conclusion of the plea which tend3. “I consider the system of special ers issue in the following way: "Of pleading which prevails in the laws of this the said C D by agreement puts England to be founded upon and to be himself upon the court;" or, "this the adapted to, the peculiar mode of trial said A B, by agreement, prays may be established in this country—the trial by inquired of by the court." Sec also jury—and that its object is to bring the JURY AND JURY TRIAL, vol. 12, p. case, before trial, to a simple, and as far 318; TRIAL. as practicable, a single question of fact; 6. Steph. Plead. (9th Am. ed.) 23; 3 whereby, not only the duties of the jury Reeves 61, n. (b). may be more easily and conveniently 6. Thus it appears from Muratori, as discharged, but the expense to be incur- cited in note 7 of appendix to Steph. red by the suitors may be rendered as Plead. (9th Am. ed.), that the pleadings small as possible. And experience has among the Lombards were not submitabundantly proved that both these ob. ted to the court in writing, but were dejects are better attained, where the is. livered orally in the presence of the seems to have been in a crude and inartificial state. The fundamental object seems to have been to require each party so to state his case as to enable the adversary to judge of its nature and frame his answer thereto.2 This system, which tended to the extrication of the point in dispute, was early known as proceeding to issue, 3 but before the reign above referred to there is no record of any definite rule or regulation which controlled the allegations of the pleaders. The work of Bracton, while professing in one of its partsá to deal with pleading in detail, is applicable rather to the civil than to the common law on that subject,6 and does not necessitate a modification of the foregoing statement. It seems clear, however, that this work is a witness to the increasing attention which the courts were paying to procedure, and it makes it possible to understand the marked development which took place after the reign of Edward I.
6. FROM EDWARD I TO HENRY VI.—From this time the books contain evidence that the judges began to formulate and enforce rules of statement which embodied principles of long standing not before put into exact language, as well as those then announced for the first time. 8 To arrive at an issue became “not only the constant effect, but the professed aim and object of plead
judge. Murat. Script. Rer. Ital., vol. 1. Plead. (9th Am. ed.). Thus Bracton To the same effect is Stephen's citation uses terms derived from the civil law from Heineccius (lib., tit. 4, § 156.), which have no exact English equivalent, with regard to pleading among the Ger- and he gives precedents which are themman tribes in general.
selves defective in point of form-judged As to the employment of pleaders or by the later standard-as containing advocates, a practice which dates from neither a denial nor a confession. early times, see Steph. Plead. (9th Am. Authorities.—The authorities for the ed.) App., note (8).
state of pleading prior to the reign of 1. Steph. Plead. (9th Am. ed.) App. Edward I are Ğlanville's treatise (time note (35).
of Henry II), Bracton's Work (time 2. 3 Reeves 61, n. (a).
of Henry III), and the Placitorum 3. Glanville (lib. 6, ch. 43) leads us Abbreviatio which contains extracts to the inference that the system was in from the records from the time of Richeffect in the reign of Henry II. And ard I. see 3 Reeves 61, n.(6). The term “issue" 7. This reign is taken as an epoch in occurs in the very beginning of the accordance with the view of Mr. SteYear Books (Year Book 1, Edw. II, f. phen, who considers himself justified in 14), and it there appears to be a term in dating the scientific development of the common use.
system from this time on account of the 4. Steph. Plead. (9th Am. ed.) App., imperfection which preceded and the note (35), citing Glan., lib. 12, ch. 14. relative perfection which immediately Thus in the reign of John there are ex- followed it. amples of pleas which neither traverse 8. Steph. Plead. (9th Am. ed.) 123. nor confess and avoid, and of others These rules, it is instructive to notice, which but a few years later would have were rules of court, “judge-made law," been held bad for duplicity. “In the not statutory enactments; and it has same reign,” says Mr. Stephen (Steph. been a feature of the history of pleading Plead., 9th Am. ed., App. note 34) "the that jurists in all ages have considered fault of argumentativeness appears to it safer to leave the regulation of the have been common.”
pleadings to the judges than to impose B. De Exceptionibus, Bract. 400 a. upon them the restrictions of a statute.
6. See for a full discussion of this Compare the Hilary Rules, 4 Wm. IV, subject, note (35) of App. to Steph. the Orders of Court of 1883, and such