2 ing." The requisites of a good issue were investigated and determined upon, and rules were enforced tending to attain materiality and singleness in the issue, and certainty and consistency in statement. During the reign of Edward III, the process of development continued, and, especially during the latter years of that king the pleadings were much more polished; without running, however, into uncertainty, prolixity or obscurity. This seems to confirm the view that during this reign it became the practice to draw up the declaration and pleas out of court. The putting of the pleadings into writing prepared the way for the refinement and subtlety which characterized this branch of the law in later times, though at first it operated only to bring the matter provisions as are contained in the Delaware Rev. Stat. See infra, p. 481. 1. Steph. Plead. (9th Am. ed.) 128. 2. In the Year Book, 3 Edw. II 59, is found the distinction between issues in law and issues in fact, and the very terms themselves; and in Year Book 21 Edw. IV 35, is found a definition of issue-i. e., "Exitus idem est quod finis sive determinatio placiti." Growth of Technicality.-"In the reign of Edward II," says Mr. Reeves (vol. 3, p. 62, note), "pleading was already beginning to be perverted by niceties and formalities which had no practical utility. Thus, for instance, the objection as to negative pregnant, as when a man pleaded that a house was not burnt by his negligence, he was met by the stupid quibble that this might mean that the house was not burnt at all; and so, in the senseless jargon of the age, it was "a negative pregnant with an affirmative," and "ambiguous" and so-forth (Year Book, 7 Edw. II 213, 226; 28 Hen. VI 7), an objection which, in after ages, delighted the souls of pedantic lawyers of the Coke school (Slade Drake Hob. 231), but was as far removed from plain sense as it is possible to conceive." But it would seem that the doctrine of negatives pregnant is not necessarily a quibble. In the case suggested by Mr. Reeves, it is well to remember that such a plea would have been sustained at the trial by proof, either that the defendant did not in fact burn or that he had used reasonable care. Granted that duplicity in the issue was objectionable, the doctrine of negatives pregnant was a necessity. It was a single averment pregnant with duplicity. 3. Sir Matthew Hale, Hist. Com. Law 173. 4. See Gilbert's Origin of the King's Bench, passim. Mr. Reeves is loth to admit that such a change was introduced at this time, and he cites in confirmation the reports for the reign which state the cases in the same manner as when the allegations were confessedly oral. His valuable note on the characteristics of oral pleading is here given in full: "It is most important to bear in mind that during this age, as the pleading was only oral, upon any objection taken at the bar by reason of demurrer, the other party could at once discuss it, and, if he saw any ground for it, demand his pleading; and it was only if both parties insisted on the point-one on his pleading and the other on his objection-that they remained in judgment, as it was called, and even then, before judgment, either party could withdraw his pleading (Bellewe's Cases, temp. Rich. II, fol. 131). It was only when the parties remained in judgment that the demurrer was entered (Keilway 81). It is evident, therefore, that the rules of pleading might well, under such a system, be safely enforced, for the judgment could never be given upon the pleading unless it was really material. The author, following Gilbert, supposes that the ancient practice was changed in this reign, but it appears by the case from Bellewe's Reports that it was not so; and all through the Year Books of this and ensuing reigns there is no trace of any alteration in the practice, but pleading went on orally at the bar, either party amending upon any objection made, if he elected so to do at the time, and if ever pleadings were put into writing it could only have been when the parties either 'remained in judgment' on demurrer, or, on the other hand, when they had 'pleaded to issue,' and, of course, the record was made up for nisi prius. "It would indeed have been idle to re before the court with precision. In this reign the French, which had been theretofore used in the pleadings, was displaced by English, and they have ever since been conducted in the mother tongue. At this time, too, the first of the several statutes of jeofails was enacted.3 C. FROM HENRY VI TO 4 & 5 ANNE. It was, however, during the latter part of the reign of Henry VI and the reign of Edward IV that the science of pleading attained its full proportions. It became, in the words of Littleton, "one of the most honorable, laudable and profitable things in the law to have the science of well-pleading in actions, real and personal."4 A large part of the time of the judges was devoted to the scrutinizing of the form of pleadings, and the result of this was that the reigns of these kings saw the science of pleading established upon the basis which endured until our own times. The forms then determined upon became the precedents for future ages, "and the rules and maxims of pleading now settled have governed ever since in our courts."5 Change and development marked the years that followed, and important statutes, such as 27 Eliz. modified the law, but no radical change occurred until the reign of Queen Anne, when the permission to plead several pleas revolutionized the entire system. d. FROM 4 & 5 ANNE TO THE HILARY RULES. From what has already been said it is clear that the essence of the system of pleading is the extrication of a single and material issue. Any measure which tended to negative the theory that every transaction can, for the purposes of judicial investigation, be reduced to a single disputed point was a measure calculated to overturn the system of pleading and not to develop it. Such a measure was the statute of 4 Anne, ch. 16 which permitted the defendant to plead as many several matters as he saw fit, the leave of the court duce the pleadings to writing until they were finally settled, either on a demurrer or on issue of fact, the pleading being undoubtedly oral, in the first instance, all through the Year Books, up to the reign of Henry VIII. But no doubt when the parties had agreed as to their pleadings, the prothonotaries entered then [them] of record, and to that end required each party to present his pleading in writing." 3 Reeves 292, n. (a). 1. See 3 Reeves 293. 2. 36 Edw. III, St. 1, ch. 15. Latin, however, continued to be used for enrolment until 4 Geo. II, ch. 26. 3. 14 Edw. III, ch. 6. The others are 9 Hen. V, ch. 4: 4 Hen. VI, ch. 3; 8 Hen. VI, ch. 12, 15; 32 Hen. VIII, ch. 30; 18 Eliz., ch. t4; 21 Jac. I, ch. I3; 16 & 7 Car. II, ch. 8; 4 & 5 Anne, ch. 16; 9 Anne, ch. 20; 5 Geo. I, ch. 13; 3 Black. Com. 407. Their cumulative effect is that neither after verdict, nor judgment by confession, nil dicit, or non sum informatus can the judgment be arrested or reversed for any defect in form. Steph. Plead. (9th Am. ed.) 149. 4. "Et sache mon fils, que est un des plus honorables laudables et profitables choses en nostre ley, de aver le science du bien pleader en actions reals et personels; et pur ceo, jeo toy counsaile especialement de metter ton courage et cure de ceo apprender." Litt. Ten., § 534. 5. 3 Reeves 578. It follows, therefore, that the student of pleading must pursue his investigations with especial reference to the cases determined during this and the subsequent periods. 6. 27 Eliz. ch. 5, § 1. Defects in form to be taken advantage of only on special demurrer. being first had and obtained, and thus to create as many issues in a given suit as there were pleas filed. From the passage of this act the history of pleading becomes the record of efforts on the part of the courts to adapt the old rules and principles to the new condition of things-efforts which, although temporarily successful, made the ultimate remodeling of the system a necessity. The multiplication of counts and pleas came, in process of time, to be an unmixed evil. Instances of records which contained from ten to fifteen counts and special pleas were by no means rare, and it frequently happened that all of these related to the same substantial defense. The cost of litigation was thus enormously increased, if regard be had only to the expense of drawing up papers. But there was a feature even worse than this, namely the fact that the intricate combination of counts and pleas often presented the case to judge and jury in a state of great complexity, and thus the system was productive of confusion and of mistake in the administration of justice. The scope of the general issues, on the other hand, had been greatly extended and it had gradually become the practice to give in evidence under the general issue, matters which operated by confession and avoidance. Nothing being admitted upon the record in such a case, it became necessary for each party to prepare himself for the proof of every fact which might conceivably bear upon his case, and as the cost of preparing proof was the most considerable of all legal costs, so the expense of a law suit was in this way increased as well as in that already referred to.2 Such a state of things called loudly for a revision, and in England this revision came in the shape of the Hilary Rules of 4 William IV. 1. "This act was really the deathblow to the doctrine of pleading as theretofore in use; and while, it is true, its subtleties and refinements lingered for a long time, and possibly continue to linger even in the present day, yet the symmetry of the system was marred, and the mode of trial, so efficient when the issues were simple and single, necessarily underwent considerable variation when the defendant in any action or suit was authorized with leave of the court to plead as many several matters thereto as he should think necessary for his defense. The practice of demanding the opinion of the judge, who superintended the trial upon the points of law which arose, the finding of the facts at large by means of a special verdict, the demurring to the evidence, some or perhaps all of which were in use before the statute of Anne, increased very much; while the habit which was permitted in many jurisdictions of giving the special matter in evidence under the general issue, or some general plea, and the enlargement of the action for money had and received almost into the proportions of a bill in equity, were indicative of a desire in escaping from the trammels of the old law to reach the real merits of the controversy which ran the risk of being lost, either from the inelastic character of the forms of the legal instrument made use of, or from the incompetency of the instrument to perform the work intrusted to it. These are all protests against the logic by which it is sought to hang the solution of a complicated controversy upon single issues of law or fact." George W. Biddle: “An Inquiry into the Proper Mode of Trial," Philadelphia, 1885, p. 12. 2. This criticism on the state of pleading is substantially a condensation of a part of the report of the common law commissioners on which the Hilary Rules were founded. See appendix to Steph. Plead. (9th Am. ed.). e. FROM HILARY RULES TO RULES OF 1883.-These rules sought to remedy the evils above referred to principally by restricting the scope of the general issue,1 and by regulating the use of counts and pleas. Their tendency was, therefore, towards a restoration and purification of the common law system. It was in 'no sense a measure hostile to the science of pleading, but rather a step in the development of it. They received interpretation at the hands of various judges of consummate ability and profound learning, and this branch of the law was by them placed upon a reasonable, logical and scientific basis. Changes were of course introduced from time to time, and one of the most notable of these was the abolition of special demurrer and the substitution of a motion to strike out or amend any pleading which was "so framed as to prejudice, embarrass or delay the fair trial of the action."4 By the Common Law Procedure act of 1854, the courts were authorized to entertain equitable pleas. f. RULES OF 1883.-These rules, like those which they superseded, are intended to accomplish three principal objects: to make each party acquainted with the intended case of his opponent, and thus to prevent surprise at the trial; to save the expense of collecting unnecessary evidence, and to bring legal de fenses more prominently forward on the face of the record. To accomplish this result they take ground far more radical than that of the Hilary Rules, for they have the practical effect of doing away with the general issue in the plea. It is to be noted, however, that in the reply, or in any subsequent pleading, the general form of traverse is permissible, excepting to a counter-claim alleged in the plea, in which case the reply must be as specific as . the defense. With a view to dispensing with unnecessary proofs, 1. "The views taken by different persons are surprisingly dissimilar, one set of opinions pointing to the restriction of the general issue, and another to its wider application, and to a corresponding extinguishment of special pleading. It will be found, however, on reference to the written communications addressed to us, that there is a decided preponderance of authority in favor of the former course." Report of Commissioners, App. Steph. Plead. (9th Am. ed.). 2. It follows that only an imperfect view of the science of common law pleading is obtained if the attention is confined to the state of the law before the Hilary Rules. For this reason in treating of the general issues and their scope, this article seeks to present the condition of the system as well after as before the Rules. Subsequent changes of the law in the United States in so far as they abolish instead of re vising the system, are hereinafter touched upon, but not treated at length. But see infra, this title, Pleading Under Codes. 3. Notably by BARON PARKE in a long line of decisions. 4. 15 & 16 Vict., ch. 76, §§ 50-52. 5. The rules were principally contained in Order 19 of the Rules of the Supreme Court, 1883, and went into operation on October 24th of that year. 6. Abridged from Taylor Evid. (8th Eng. ed.), § 299, citing the remarks of LORD ABINGER in Isaac V. Farrar, I M. & W. 65, in relation to the object of the Hilary Rules. 7. See Taylor Evid. (8th Eng. ed.), § 302. 8. The rules in substance provide for a statement of claim, for a statement of defense, set-off or counter-claim, for a reply (if any), and finally, for a joinder of issue on one side or the other. Con. ditions precedent are to be distinctly the rules provide that in any pleading, not being a petition or summons, all allegations of fact not denied, or stated to be not admitted, shall be taken to be admitted.1 In short, the policy of the Hilary Rules is indorsed, and reform of the system of pleading is thought to be best attained by still further restricting the operation of general traverses as distinguished from the American plan of sacrificing special pleading to them. II. PLEADING IN THE UNITED STATES.-A system of pleading has been prescribed for each of the States of the Union by the respective legislatures, and the science of pleading at common law nowhere exists in its completeness on this side of the Atlantic. When the laws of the several States are examined, they exhibit all manner of legislative experiments and devices for preparing a cause for trial. In some jurisdictions the system adopted closely resembles that which was developed at the common law. In others, the resemblance may still be traced, but it is more faint; while in others (and this class includes a majority of the jurisdictions), the legislatures have declared their independence of the common law, and have established a system that is radically different. The division of the subject of pleading in the United States thus suggested is, therefore, into Common Law Pleading Modified, and Code Pleading. 1. Classification of States.-A further classification of the States may be made by noting in each case the presence or absence of one or both of the following elements: (1) The survival of a distinction between forms of action; and (2) the existence of a right to plead pleas other than the general issue or an answer. Thus, four possible combinations are obtained, and each combination will be found represented by one State or more. (1) Where there exists more than one form of civil action, and where special pleas are (to some extent) permitted. This class most specified by either party. It is not sufficient for the statement of defense to deny the grounds of claim generally, but each party must deal specifically with each disputed allegation of fact, and either party must raise in his pleading all matter which shows that the action (or counter-claim) is not maintainable, or that the transaction is void or voidable by the common law or by statute, and all matter of defense or reply which would otherwise be apt to operate as surprise or to raise new issues-as fraud, the bar of the statute, release, payment, performance, and the Statute of Frauds. New assignment is abolished, and its object is accomplished by amendment or reply. Subject to the preceding, the plaintiff in the reply and each party subsequently, may join issue generally on the plead ing adversely alleged, and such joinder operates as a denial of all material facts. But although this course may be adopted, yet each party may at his option traverse generally or specially or confess and avoid. For the rest, brevity is enjoined, and pleaders are forbidden to insert in their pleadings, mere matters of evidence. See Taylor Evid. (8th Eng. ed.) § 299, et seq.; Harris v. Gamble, L. R., 7 Ch. D. 877; Rutter v. Tregent, L. R., 12 Ch. D. 758; Earp v. Henderson, L. R., 3 Ch. Div. 254; Hall v. Eve, L. R., 4 Ch. Div. 341; Heap v. Marris, L. R., 2 Q. B. D. 630; Philipps v. Philipps, L. R., 4 Q. B. D. 127. For plea of "Not Guilty by Statute," see Taylor Evid. (8th Eng. ed.), § 311 et seq. 1. Tildesley v. Harper, 48 L. J., Ch. 495. |