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Pleading and Proof at Common Law
Published online by Cambridge University Press: 16 January 2009
Extract
Few laymen know that the expression ‘the pleadings’ in an action denotes the written allegations of fact which each party is required to communicate to his opponent before trial, in order that each may know what contentions he will have to meet, if possible, by evidence, and that an issue, or issues, of fact or of law may emerge. This unexpected meaning comes down in direct descent from the Middle Ages, when opposing counsel strove in Court to extract an issue from the conflicting pleas (placita) submitted by them orally.
Thirteenth century.
During the earlier part of this country proof was formal and the function of the Court was to declare which of the parties must go to proof and how. In certain classes of cases proof by battle was appropriate, in others proof by oath—either the oath of the party, supported by oath-helpers, or the oath of witnesses.
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- Copyright © Cambridge Law Journal and Contributors 1936
References
1 This brief outline of a very complicated historical story is based on the account given by Maitland in Pollock and Maitland, History of English Law (cited as P. & M.), Vol. II, and by Sir W. S. Holdsworth in his History of English Law (cited as H.), Vols. I, III, VI and IX. Sir William's work is so comprehensive that an elementary presentations of the history of any legal topic must necessarily draw on the stores of his massive learning. Almost all the information here summarized has been given by him in greater detail.
2 P. & M. II, 602.
3 P. & M. II, 632. In the appeal of felony the combatant was the prosecutor, in the writ of right a champion offered by the demandant.
4 1602, 4 Coke 92b.
5 P. & M. II, 605.
6 The record of pleading of the defendant to a writ of right states ‘et venit X et defendit jus suum’. This is very puzzling to a classical Latinist. It seems to mean ‘and X comes and defends his title’. It does in fact mean ‘and X comes and denies his (the plaintiff's) title’. The formula of denial is the Anglo-Saxon thwert-ut-nay. Thwert is a word of Scandinavian origin meaning ‘transverse’, ‘cross’; ‘ut’ = ‘out’, cp. ‘out and out’, ‘utterly’. Miss A. J. Robertson, Lecturer in English in the University of Birmingham, informs me that one Orm, writing about 1200 a book which he calls the Ormulum, frequently uses ‘trowenn thwertut’ ‘to believe utterly’, and ‘forrwerrpenn thwertut’ ‘to reject utterly’. One who says ‘thwert-ut-nay’ therefore meets a statement with a reinforced negative, as a modern might do by saying ‘emphatically no’. The N.E.D. cites a charter of 1277 given by Edmond, brother of Edward I, to the borough of Leicester. That charter modified the procedure of the Court of Portmanmote in the borough, where the past practice had been to treat as undefended a defendant who, immediately upon the plaintiff's stating his claim, did not say ‘thwert-ut-nay’: J. C. Jeaffreson, Index to MSS. of Leicester, p. 74.
7 The exceptio could be met by a replicatio, the latter by a triplicatio, and so on ad infinitum: P. & M. II, 615.
8 H. IX, 283.
9 By the end of the thirteenth century the verdicts of jurors had practically ousted the older methods of proof. Maitland examined the records of the civil causes before the justice in eyre at Newcastle in 1256, 1269 and 1279. He found Verdicts of Grand Assizes 1. Verdicts of Petty Assizes 57, Verdicts of Juratae 22, Wagers of Battle O, Wagers of Law 1: P. & M. II, 641. In the fourteenth century archaic methods of proof, though not expressly abolished disappeared, except wager of law in debt and detinue.
10 Co. Litt. 304b; Hale, History of the Common Law, 6th ed. 198.
11 There is a grammar of this language in Maitland's introduction to Y. B. 1 & 2 Edw. II, Vol. 17 of the Selden Society.
12 H. VI, 494, 572.
13 Y. B. 11 & 12 Edw. II (R. S.) 66; H. III, 647.
14 Hale, H. C. L. 212.
15 This title (preignotary is the law-French form of it) was borne by one of the officials of the King's Bench and three of the officials of the Court of Common Pleas. The title was abolished by the Superior Courts (Officers) Act, 1837, which created the modern Masters.
16 John Reeves, Fellow of Queen's College, Oxford, a commissioner of bankruptcy, wrote a History of English Law, which he published in 1787. This passage is taken from pages 621–2 of Vol. II of the 3rd edition. Part of it is quoted by Holdsworth in H. III, 643–4.
17 Y. B. 38 Hen. VI, Pasch. pl. 13; H. III, 646. The action was upon a writ of right. The tenant (as the defendant in such actions was technically called) had made default at nisi prius. In the Common Pleas the demandant's counsel, Billing and Laicon, prayed judgment. The tenant requested his counsel, Serjeants Choke and Littleton, to plead the fact that while on their way to the trial at nisi prius he and his attorney had been held up by floods. The Serjeants, not feeling convinced of the truth of this statement, refused to plead it. Whereupon the tenant, says the Year Book, ‘ala a Cumberford protonotary et pria que il voille faire a luy papier de ceo matter; le quel fait issint; et puis il vient ove le papier et la prist a Choke a le barre, et lui pris pur gette ceo en le court, et issint il fist per son commandement sans pleder ou sans veier que fuit deins le papier, et cest papier demout over Copley un auter protonotary pur ceo que il avera l'entire de le matter a devant.’ ‘He went to Cumberford, the prothonotary, and prayed him to make him a prayer upon this matter, which he did; then he came with the paper to Choke at the bar, and prayed him to put it in to the court, and he did so by his command without pleading it or seeing what was in the paper; and the paper remained with Copley, another prothonotary, because he had the entry of the matter before.’ Billing and Laicon moved for judgment, calling attention to the suspicious character of the plea. Prisot C.J. supported their contention, saying to Choke and Littleton: ‘It is not the practise to put in such papers when the party is represented by counsel without pleading them at the bar openly; for if this be allowed we shall have several such papers in time to come which will come in under a cloak, and matter which a man's counsel will not plead can be said to be suspicious.’ Then he said to them, ‘if you wish to plead this matter, plead it, or otherwise it will be good for nothing’. And they replied that they dared not plead this matter, knowing nothing of it except what the tenant told them; and they said that they did not wish to meddle any further with it.
18 Another proof of the fact that at this time prothonotaries or their clerks put into shape the pleadings of persons not represented by counsel is an order made by Prisot C.J. and the other judges of the Common Bench in 1457 as to the fees payable to prothonotaries. A fee of 13s. 4d. was paid when the litigant appeared in person or by attorney, as compared with one of 2s. when the plea was pleaded by a serjeant: H. III, 646.
19 The series came to an end in 1535.
20 H. III, 649.
21 Bk. 2, c. 13, cited H. III, 649. Smith was Secretary of State in the reigns of Edward VI and Elizabeth: b. 1513, d. 1577.
22 Third Institute, p. 163, cited H. I, 335.
23 Bennet v. Hundred of Hartford, Style 233, cited H. I, 336. Cf. the later cases of Duke v. Ventris (1656) Duncomb, Trials per Pais, c. 12 (no further reference) and Fitz-James v. Moys (1664) 1 Siderfin 133.
24 Lives of the Norths, I, 30, cited H. III, 655. These biographies, by the Hon. Roger North, were first published in 1740 and 1742.
25 William Rastell was a son of the publisher of that name, and a nephew of Sir Thomas More. He was a Catholic and became a judge of the Court of Queen's Bench under Mary. He retained office under Elizabeth till 1563, when he resigned. He died in 1565. This passage from his preface is quoted H. V, 385, note 2.
26 Each of the three prothonotaries of the Common Pleas appointed a secondary: H. I, 260.
27 P. 611.
28 The statue 4 Geo. 2, c. 26 directed that all pleadings, rules, orders, … records, judgments, statues, … rolls, entries, fines and recoveries … and all proceedings in any Court of Justice … should be in the English tongue and language only, and not in Latin or French, or any other tongue or language whatsoever.
29 Quoted H. III, 651, note 1.
30 H. III, 652; VI, 445.
31 H. VI, 445—446.
32 H. VI, 445, note 11. H. J. Stephen, 1787—1864, St. John's College. Cambridge, author of a treatise entitled Pleading, first published 1824, and of Stephen's Commentaries. He is said to have refused a judgeship on account of unwillingness to pronounce death sentences.
33 H. VI, 446.
34 Waller v. Mace, 2 B. & Ald. 756, before Abbott C.J. (Lord Tenterden), Holroyd and Best JJ. The Court also held a count for slander bad because the words laid were: ‘this is my umbrella, and he stole it from my back door’, whereas the defendant was proved to have said: ‘it is my umbrella, and he stole it from my back door’.
35 Dyster v. Battye, 3 B. & Ald. 448: H. IX, 285. In this case the defendants were given leave to amend on payment of costs.
36 Second Report, p. 34.
37 Commentaries, III, 305.
38 It is interesting to detect in the form of pleading the general issue current in the early nineteenth century the relic of the thwert-ut-nay. E.g. in an action of trespass the plea of a defendant denying in toto the plaintiff's allegation was: ‘And the said C D comes and defends the force and injury when etc. and says that he is not guilty of the said tresspasses above laid to his charge, or any part thereof, in manner andform as the said A B hath above complained. And of this the said C D puts himself upon the country.’ In this statement the words preceding ‘and says’ (technically called‘the defence’ are the descendant of the thwert-ut-nay, and the words subsequent, technically called ‘the plea’, are the descendant of the exceptio. Note thearchaic use of the word ‘defends’, and the use of ‘when etc.’ to represent the words ‘when and where it shall behove him, and the damages, and whatsoever else heought to defend’.
39 Second Report, pp. 44–7.
40 Second Report, pp. 85—90.
41 An analysis was made by C. B. Whittier in Vol. 31. Harvard Law Review.He computed that reversals of decisions on questions of pleadings occurred in 1 case in 11 under the common law, in 1 case in 33 under the Hilary Rules, and in 1 case in 605 under the JudicatureAct.
42 These rules are printed, with commentary, in the Annual Practice, commonly called The White Book.
43 In many of the simpler cases pleadings are dispensed with: Odgers, Pleading and Practice, 11th ed. 70.
44 The history of written pleadings in modern times is treated fully by Sir W. Holdsworth in Vol. IX, 262—335. There are valuable articles on procedure in Vol. II of the Select Essays in Anglo-American Legal History, Camb. Univ. Press, 1908. Mr. Whittier, in the article previously cited, recommends two American books, Hepburn, The Development of Code Pleading, and Rosenbaum, Studies in English Civil Procedure.