Page:The American Cyclopædia (1879) Volume XIII.djvu/627

 PLEADING 607 not borrowed from them, but were rather the fruit of the school logic of the middle ages. Tt is to the period of the later and more lib- eral Roman law, if to any, that we owe the suggestion of any of our forms of pleading. The pleadings were once oral altercations in open court in the presence of judges. This was certainly the mode of pleading in the time of Henry III., in the earlier part of the 13th century; and it is supposed to have con- tinued until a much later period. These oral pleas were made either by the suitor him- self or by his pleader, who was called nar- rator or advocatus. It was the office of the presiding judges to direct the allegations of the parties so as to develop an issue, that is, a specific matter, which one party affirmed and the other denied. While these pleadings were going on, an officer of the court made minutes of the declarations of the parties, and added to them memoranda of the issue and of the acts of the court and the parties during the prog- ress of the cause. These official notes formed the record, and were completed by the addition of all the material incidents in the case until it was finally disposed of. That part of the record which preceded the issue comprised the pleadings alone, and these, it has been seen, were for a long time oral. Gradually the prac- tice changed. At first probably the allega- tions, though made alternately as before, were now entered on the record in the first instance, and by the pleaders themselves. This seems to have been the mode in the latter part of the 15th century. It was no doubt for the pur- pose of avoiding the inconveniences of this method that the modern plan was devised of putting the pleadings in separate papers, and either mutually exchanging them or filing them in the proper office of the court, when at a subsequent stage of the proceedings they were all together copied into the court records. It would be a long labor, if indeed it were possi- ble, to follow out the historical development of English pleading. It is enough to say that it had become a most elaborate and intricate science, and was so for a century or more. The system, which had been designed to reduce to the utmost simplicity and certainty the contro- versies of suitors, had become so overgrown and embarrassed with refinements and techni- calities as to be very often rather a hindrance than a help in the prosecution of causes. The abuses of pleading grew in great part out of the undue prominence which had been permit- tod to its incidental and purely formal parts. The single design of special pleading was, by eliminating all else, to reach the distinct point in controversy for the purpose of sub- mitting it to a court or jury. In the outset of the case, therefore, the plaintiff set forth simply the facts which gave him, as he claimed, -I cause of action. This declaration, like every other good pleading, contained, or rather implied, a complete logical proposition. Its major premise was the general principle or rule of law, within which the minor premise, that is, the particular facts, were supposed by the plaintiff to be included, and the conclusion or legal inference was that judgment which he sought from the court or jury. But as it is one of the fundamental principles of the theory of pleading that legal propositions are never to be recited, but are presumed always to be in the mind of the court, the major premise and the conclusion are suppressed, and the declaration is reduced to the statement of the mere facts. Now comes the defendant, who in his answer or plea may, in the first place, traverse or deny the plaintiff's facts. If he does so, he also proposes a trial of the point thus affirmed on the one side and denied on the other. If the plaintiff accepts the tender (and he must do so if it be well made), the parties are at issue and the pleadings are at an end. But the defendant may be willing to admit the facts, but may conceive that they are not included in the proposition of law on which the plaintiff in fact rests, or that they are stated in a form which violates some of the rules of pleading. In neither case has he any facts to adduce, and therefore instead of pleading he demurs ; that is to say, as the deri- vation of the word imports, he waits to see whether in the opinion of the court he must answer. This demurrer may be general, sug- gesting that the declaration is insufficient in point of law, or it may be special, assigning particularly that it is and how it is inartificial and so defective in form. Again, the defen- dant may neither traverse nor demur, but may admit or confess, as the phrase is, the plain- tiff's facts, and allege new facts in avoidance of them. In the first pair then, so to speak, of substantial pleadings, the defendant must either demur, or plead by way of traverse, or by way of confession and avoidance. In the first two cases an issue, in one instance of law and in the other of fact, is necessarily pro- duced. In the last, the pleadings must still go on until one of these issues is reached, the subsequent pleas being alternately by plaintiff and defendant replication, rejoinder, surre- joinder, rebutter, and surrebutter. Further than the last the pleadings rarely extend ; for as no case can involve an inexhaustible store of new and relevant facts, there must soon be an end of pleas in confession and avoid- ance, and an issue of fact or of law will then be easily developed. These various forms of pleas, traverses, demurrers, tender and join- der of issue, and the various forms of general and special issues, form the essential parts of pleading. But besides these there belonged to the science certain accidental parts, such as dilatory pleas and pleas in abatement, by which a party excepted to the jurisdiction of the court, to the competency of the plaintiff, or to the writ or declaration ; importances of several kinds, profert and oyer, cotmterpleas, new assignments, and numerous others inci- dent to the various phases of suits, all of