(3) Common Bar, 575. 5. Consistency, 579 a. Repugnancy, 579. b. Departure, 579. 6. Technical Requisites, 581. a. Conformity to Precedent, 581. sions, 582. c. Pleading According to Legal d. Order of Pleas, 584. e. Construction of Pleadings (See INTERPRETATION, vol. 11, p. 507), 584. VI. Motions Based Upon the Pleadings, 584. 1. In Arrest of Judgment (See JUDGMENT, vol. 12, p. 58), 584. a. Aider by Verdict (See AMENDMENT, VERDICT), 584. 2. Judgment Non Obstante Veredicto (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 1. This article deals with pleading at common law only. For pleading in equity, see EQUITY PLEADINGS, vol. 6, P. 724. 2. Bouvier's Law Dict. 3. Pleading may be defined with ref erence to the object which the system contemplates, as the entering upon the record of alternate allegations of claim and defense by plaintiff and defendant, which allegations are so developed as to arrive ultimately at a material point 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.1 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.2 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 unques accouple en loial matrimonie. This form of issue can arise only in dower; it of fact or law affirmed by one party and denied by the other. Obviously each of the pleadings must contain the elements of a good syllogism. Usually the major premise consists of the statement of a legal principle; the minor contains the matters of fact in the particular case, and "the conclusion is the legal inference resulting from the law and fact together, as they appear in the premises." See Gould, Princ. Plead. (5th ed.), § 8. 1. Abridged from Stephen on Pleading (Heard, 9th Am. ed.), 125, et seq; q. v., for a discussion of this peculiarity of English law. 2. Stephen on Plead. 24. an Coke defines the issue as follows: "Issue exitus-a single, certain and material point issuing out of the allegations or pleas of the plaintiff and defendant, consisting regularly upon affirmative and negative, to be tried by twelve men." Bract. 268 a. This definition applies only to issues of fact, and, among issues of fact, to such only as were triable by a jury. It is therefore defective. A similar objection applies to the definition by HEATH, C. J.: "That point of matter depending in suit, whereon the parties join, and put their cause to the trial of the jury." Heath's Maxims, ch. 4. SIR M. HALE, followed by MR. JUSTICE BLACKSTONE, says: "When in the course of pleading they come to a point which is affirmed on one side and denied on the other, they are then said to be at issue." Hale's Analysis, (L; 3 Blackst. Com. 313. "An issue is, when both the parties join upon somewhat that they refer unto a trial, to make an end of the plea" (i. e., suit). Finch's Law, bk. 4, ch. 35, p. 396, ed. 1759. 3. Co. Litt., 117, b; Br. Trials, pl. 40. This issue is the proper one when the question is as to what has judicially taken place in a superior court of record. When the court is one not of record the issue should be upon the fact of whether or not the proceeding took place. Dyson v. Wood, 3 B. & C. 449; Steph. Pl., 102 (note). By the Rules of Court of Hilary Term, 4 Wm. IV, a party pleading the judgment of another court must state in the margin of the plea, its date, and the number of the roll, or the plaintiff will be at liberty to sign judgment; and on certificate of its being falsely stated, judgment may also be signed. A similar regulation had already been made in regard to judgments of the same court. 1 Tidd 363; Steph. Pl., 102 (note). 4. BLACKSTONE (bk. 3, 333) mentions six cases in which this form of trial was proper: (1). When the question is, whether A was with the king and his army out of the realm, the trial by the certificate of the mareschall of the host 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. 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 statute. Wager of law was a method of deciding the issue by permitting the defendant to swear to the truth of his defense. lawry, the allegation is that the defendant was beyond the seas imprisoned in a foreign town under English dominion (e. g., Calais, Bordeaux), the fact may be proved by the certificate of the captain or mayor. (3). Customs of London are proved by the certificate of mayor and aldermen. (4). To determine whether or not A is a citizen of London, recourse is had to the sheriff's certificate. (5). Matters of ecclesiastical jurisdiction are tried by the bishop's certificate, as marriage, excommunication, general (but not special) bastardy. General bastardy is where the child is a bastard by both the canon and the common law (as where there is no subsequent intermarriage of parents); special bastardy is where the child is a bastard by the common law and not by the canon-as where the parents subsequently intermarry. It was deemed improper in the latter case that the bishop's certificate should be admitted to prove a fact which was regarded differently in the two jurisdictions. (6). Matters of custom and practice of courts are proved, in general, by the certificate of the proper officer. 1. 11 Hen. IV, 78, cited in Bac. Ab. Bastardy. Jones' case, Comb. 473; Machell v. Garrett, 3 Salk. 64; 12 Mod. 276; Vin., tit. Baron and Feme (D. b) 39. 2. Blackst., bk. 3, 336. 3. Finch (Law, 423) declares that this is the only instance of its use at the common law. LORD COKE (1 Inst. 6) mentions a few other cases, and remarks that the affirmative must He be proved in all cases by two witnesses at least. 4. As, for example, in a suit to reverse a fine because the cognizor was a minor, where a writ issued to the sheriff commanding him to constrain the party to appear that the justices might determine by the view of his body whether he was of full age or not. If they were in doubt, proofs were taken; the infant was examined on his voire dire, or his mother or god-father was sworn. Blackst., bk. 3, 332. See also 9 Rep. 31 and 2 Roll. Abr. 573. The words of the writ, whence the trial derived its name were: "Ut per aspectum corporis sui constare poterit justiciariis nostris, si praedictus A, sit plene aetatis necne." 5. Steph. Pl. 77 (note). 6. Blackst. bk. 3, 337. For a learned and exhaustive account of the wager of law and wager of battle, see the essays on these subjects in "Superstition and Force," by Henry C. Lea, Philadelphia. See also "The Older Modes of Trial" by Prof. J. B. Thayer, Harvard Law Rev., vol. 5, p. 45. This article con tains an account of the obsolete trial by Ordeal. 7. Blackst., bk. 3, 338, q. v., for a detailed account of the trial. 8. 59 Geo. III, ch. 46. This statute was passed in consequence of the defendant's having waged his battle in Ashford v. Thornton, 1 B. & Ald. 405. It is said in the Mirror (ch. 3, § 23) that wager of battle is allowable on the authority of the single combat between David and Goliath. Pope Nicholas I, however, in all seriousness, decides that 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 England 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 Pleading— a. 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. 3, 338. 1. See Blackst., bk. 3, 343. 2. 3 & 4 W. IV, ch. 42, § 13. The right to wage law in debt on a simple contract was insisted on as late as the case of Rex v. Williams, 2 B. & C. 538. The defendant waged his law and applied to the court to fix the number of compurgators. This the court declined to do, not wishing to revive the obsolete trial, but left the defendant to the advice of his counsel, intimating that the plaintiff would be heard if he chose to object to the number selected. The defendant prepared to bring eleven compurgators, but the plaintiff abandoned the action. See Bary v. Robinson, 1 Bos. & Pul. New Rep. 297; Blackst., bk. 3.341 (Chitty's notes). 3. "I consider the system of special pleading which prevails in the laws of England to be founded upon and to be adapted to, the peculiar mode of trial established in this country-the trial by jury and that its object is to bring the case, before trial, to a simple, and as far as practicable, a single question of fact; whereby, not only the duties of the jury may be more easily and conveniently discharged, but the expense to be incurred by the suitors may be rendered as small as possible. And experience has abundantly proved that both these objects are better attained, where the is sues and matter of fact to be tried are narrowed and brought to a point, by the previous proceedings and pleadings on the record, than where the matter is left at large to be established by proof, either by the plaintiff in the mainte nance of his action or by the defendant in resisting the claim made upon him.” Per LORD TENTERDEN in Selby v. Bardons, 3 B. & Ad. 16. 4. See Gould Prin. of Plead. 312, n. 3, to the effect that while certain facts are provable by certificate (e. g., the fact of marriage), yet it does not appear that the issue upon such fact ever concludes to the certificate. In the State of Connecticut, any issue in fact in a civil case may, by the agreement of both parties, be tried by the court. When this is done the agreement must be suggested in the conclusion of the plea which tenders issue in the following way: "Of this the said C D by agreement puts himself upon the court;" or, "this the said A B, by agreement, prays may be inquired of by the court." See also JURY AND JURY TRIAL, Vol. 12, p. 318; TRIAL. 5. Steph. Plead. (9th Am. ed.) 23; 3 Reeves 61, n. (b). 6. Thus it appears from Muratori, as cited in note 7 of appendix to Steph. Plead. (9th Am. ed.), that the pleadings among the Lombards were not submitted to the court in writing, but were delivered 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. This system, which tended to the extrication of the point in dispute, was early known as proceeding to issue, 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 parts to deal with pleading in detail, is applicable rather to the civil than to the common law on that subject, 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. b. FROM EDWARD I TO HENRY VI.7-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. To the same effect is Stephen's citation from Heineccius (lib., tit. 4, § 156.), with regard to pleading among the German tribes in general. As to the employment of pleaders or advocates, a practice which dates from early times, see Steph. Plead. (9th Am. ed.) App., note (8). 1. Steph. Plead. (9th Am. ed.) App., note (35). 2. 3 Reeves 61, n. (a). 3. Glanville (lib. 6, ch. 43) leads us to the inference that the system was in effect in the reign of Henry II. And see 3 Reeves 61, n. (b). The term "issue" occurs in the very beginning of the Year Books (Year Book 1, Edw. II, f. 14), and it there appears to be a term in common use. 4. Steph. Plead. (9th Am. ed.) App., note (35), citing Glan., lib. 12, ch. 14. Thus in the reign of John there are examples of pleas which neither traverse nor confess and avoid, and of others which but a few years later would have been held bad for duplicity. "In the same reign," says Mr. Stephen (Steph. Plead., 9th Am. ed., App. note 34) "the fault of argumentativeness appears to have been common." 5. De Exceptionibus, Bract. 400 a. 6. See for a full discussion of this subject, note (35) of App. to Steph. Plead. (9th Am. ed.). Thus Bracton uses terms derived from the civil law which have no exact English equivalent, and he gives precedents which are themselves defective in point of form-judged by the later standard-as containing neither a denial nor a confession. Authorities.-The authorities for the state of pleading prior to the reign of Edward I are Glanville's treatise (time of Henry II), Bracton's Work (time of Henry III), and the Placitorum Abbreviatio which contains extracts from the records from the time of Richard I. 7. This reign is taken as an epoch in accordance with the view of Mr. Stephen, who considers himself justified in dating the scientific development of the system from this time on account of the imperfection which preceded and the relative perfection which immediately followed it. 8. Steph. Plead. (9th Am. ed.) 123. These rules, it is instructive to notice, were rules of court. "judge-made law," not statutory enactments; and it has been a feature of the history of pleading that jurists in all ages have considered it safer to leave the regulation of the pleadings to the judges than to impose upon them the restrictions of a statute. Compare the Hilary Rules, 4 Wm. IV, the Orders of Court of 1883, and such |