Page:Encyclopædia Britannica, Ninth Edition, v. 19.djvu/228

Rh 218 PLEADING and was regarded as so important that, as Gaius tells us, the party who made even the most trifling mistake would lose his suit. This excessive reverence for formality is a universal characteristic of archaic law. Its probable explanation is to be found in the weakness of the execu tive. In the second period, that of the procedure by formulas, the issue which the judex decided was made up by the prsetor in writing from the statements of the parties before him. The formula was a short summary of the facts in dispute in technical language, with instructions to the judex. The part of the formula which contained the plaintiff s claim was called the intentio. Any equitable defence in h& formula was set up by means of an exceptio, which was either peremptory, denying the right of the plaintiff to recover at all, or dilatory, denying only that the action could be brought at the time or by the parti cular plaintiff. The plaintiff might meet the exceptio with a replicatio, the defendant on his side might set up a duplicatio, and the plaintiff might traverse the duplicatio by a triplicatio. The parties might proceed even further, but beyond this point the pleadings had no special names. Actions bonae fidei implied every exceptio that could be set up ; in other actions the exceptio must be specially pleaded. From the formula the judex derived his whole authority, and he was liable to an action for exceeding it. He could not amend tQ formula; that could only be done by the prsetor. In the third period the formula did not exist, the plaintiff s claim appeared in the summons (libellus conventionis), and the defendant might take any defence that he pleased, all actions being placed on the footing of actions bonse. fidei. The issue to be tried was determined by the judge from the oral statements of the parties. In criminal procedure the indictment (inscriptio or libellus accusationis) was usually in writing, and con tained a formal statement of the offence. In some cases oral accusations were allowed. The pleading of the accused seems to have been informal. The development of the system of pleading in Roman and English law proceeded upon very similar lines. It is possible that the English system was directly based upon the Roman. Bracton (temp. Henry III.) uses many of the Roman technical terms. Pleading was oral as late as the reign of Henry VIII., but in the reign of Edward III. pleadings began to be drawn up in writing, perhaps at first more for the purpose of entry on the court records than of the instruction of the court (see 2 Reeves, History of English Law, 398). The French language was used up to 36 Edw. III. st. 1, c. 15, after which English was used for oral pleading, but Latin for enrolment. Latin was the language of written pleadings at common law until 4 Geo. II. c. 26. l Such terms as declaration, answer, replication are survivals of the oral period. It is no doubt from the circumstance of pleading having been originally oral that the word in the popular though not in the legal sense is used for the oral conduct of the case by an advocate. 2 The period of the Roman formula has its analogue in the period of the original writ in England. 3 The writ was at first a formal commission from the crown to a judicial officer to do justice between the parties, the claim being made by means of a count. The issue of the writ was part of the prerogative of the crown, unlimited until the Provisions of Oxford (1258) forbade the issue of fresh writs (except writs de cursu) without the consent of 1 In Chancery the &quot; English Bill,&quot; so called from its being in the English language, had existed long before this time, according to Mr Spence, as early as the reign of Henry V. (Equitable Jurisdiction, vol. i. p. 348). 2 In France plaider and plaidoy&r still bear this meaning. 3 The original writ was so called to distinguish it from the judicial writ, which was a part of the process of the court. The judicial writs still exist, e.g., writs of certiorari or fieri facias. the council. Gradually the writ came to absorb the count and included the plaintiff s claim and sometimes the nature of his evidence. The defendant pleaded to the writ. The writ became the universal form of instituting proceedings in the king s court, irrespective of the method of trial which followed, and probably grew fixed in form about the reign of Henry II. (see Bigelow, History of Procedure, ch. iv.). At a later date the writ again tended to approach its earlier form and to split into two parts, the writ of summons and the declaration or plaintiff s claim. The writ of summons was addressed to the defendant, and not, as the original writ, to a judicial officer. The pleadings became the act of the party, differing in this from Roman law, in which they were a judicial act. The writs became precedents for the forms of action, which, like the writs, were limited in number. The plaintiff s claim was a sub stantial repetition of the writ. Modern legislation, in the case of the specially indorsed writ of summons (see below), practically returns to this ancient stage of law. In the writ, as in the formula, the slightest failure in form was as a rule fatal. &quot; The assigning of a writ of a particular frame and scope to each particular cause of action, the appropriating process of one kind to one action and of a different kind to another, these and the like distinctions rendered proceedings very nice and complex, and made the conduct of an action a matter of considerable difficulty&quot; (1 Reeves, Hist, of English Lcnv, 147). Fines were levied for mistakes in pleading, non-liability to which was some times granted by charter as a special privilege to favoured towns. In both Roman and English law fictions, equity, and legislation came to mitigate the rigour of the law. In England this result was largely attained by the framing of the action of trespass on the case under the powers of the Statute of Westminster the Second (13 Edw. I. stat. 1, c. 24), and by the extension of the action of assumpsit to non-feasance. To a less extent the same difficulties were found in the period of special pleading 4 which followed the writ period, owing to the particularity with which the claim had to be set out and the narrow powers of amendment possessed by the courts. The practical questions at issue were thrown into the shade by questions of the proper way of stating them. Substantive law could only be arrived at through the medium of adjec tive law. Special pleading became an art of the utmost nicety, depending on numerous rules, some of them highly technical (see Coke upon Littleton, 303). Those who made it their business to frame pleadings were called special pleaders. They were not necessarily members of the bar, but might be licensed to practise under the bar. Pleaders under the bar still exist, but recent legislation has much diminished their numbers and importance. Changes were gradually introduced by a long series of statutes of which the most important have been the Statutes of Jeofails, beginning as early as 14 Edw. III., c. 6, the Statutes of Set-off, the Common Law Procedure Acts, and the Judica ture Acts. The advance has always been, as in Roman law, in the direction of less formality. Up to 1875 the system of pleading varied in the different courts which now compose the High Court of Justice. In the Common Law Courts the action was commenced by a declaration (containing either special or common counts, or both com bined), to which the defendant put in a plea or pleas. The plea was either of the general issue, i.e., a bare denial (as &quot; Never Indebted&quot; to an action of debt), or special, setting out the facts with greater particularity. Pleas were also peremptory or dilatory, names taken from the Roman law. 4 The ingenuity of the pleader chiefly showing itself in framing special as opposed to general pleas, the term special pleading grew to be used for the whole proceedings of which it was the most important part.