Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/673

 19. ZANE: THE FIVE AGES 659 information. The advocates show acuteness and ingenuity. The pleading is technically correct. All pleas must follow in their regular order, — pleas in abatement before pleas to the merits ; there was, however, no such rule as (for example) that the judgment upon a plea in abatement was quod recuperet. At this sensible stage of the law there was no need for statutes to allow pleading over. Sometimes counsel get stubborn and refuse to plead further, and then say that they will do so merely to oblige the court. Touthby, a very good lawyer, in one case tries to plead without binding his client, Isolde. Whenever the pleadings come to a point where the party whose turn it is to plead cannot deny or avoid, judgment is given at once. The clerks enter up the technical forms of pleadings. The glorious absque hoc is present in large num- bers. In an action of assault the counsel says orally, in an- swer to a justification: " He took him of malice and not as he has said, ready, etc." The clerk enters this up as the reg- ular replication de injuria sua propria absque tali causa, etc. In almost every case there are two counsel on each side. In some cases there is a great array. Thus Heyham, Hert- ford, Howard, and Inge are for the defendant and Lisle and Lowther for the plaintiff. No one seems to lead, but all speak. Sometimes different counsel appear at different terms. In a great case of replevin, Estrange, Scrope, and Westcote are for the defendant and Herle and Hertepol for the plain- tiff at one time. At the next term Westcote and Huntingdon are for the defendant and Herle and Hertepol for the plaintiff. At the next term Westcote and Huntingdon are for the defendant, while the plaintiff has Kyngesham, War- rick, and Passeley. The lawyers who are practicing at Westminster are also found on the circuit at the assizes. These men must have kept in mind an enormous amount of procedural rules. There were four hundred and seventy-one different original writs, each showing a different form of action and requiring its own special procedure. The useful law book was Britton, a sort of epitome of Bracton. Chief Justice Prisot in Henry VI.'s time said that Britton was written under the orders of Edward I., and fixes
 * ' I say for Gilbert de Touthby but not for Isolde," he begins.