The pleadings in a cause are the alternate allegations, by plaintiff and defendant, of those matters of fact which constitute on the one hand the ground of action, and on the other the ground of defence. The science of pleading in general consists of the principles of those rules and formulas according to which, for the sake of method and certainty, these allegations are uniformly expressed. Special pleading is the invention of the English common law; it is particularly designed to develop the precise point in controversy, and to present it in a shape fit for decision. Other systems allow the parties to make their statements independently of each other and at large, and then require the court, or sometimes the litigants themselves, to select from the undigested mass, as precisely as may be possible, the matter of dispute. But it is the distinctive feature of the English method that it compels the parties themselves so to guard and narrow their respective statements, that the particular question for decision, and nothing else, shall be developed in the first instance. The very essential effect of this pleading is to clear away the undisputed or immaterial matter which conceals the issue. The system of English pleading, as it existed before its recent overthrow, was one of great antiquity.
Like the irevia or writs, that is, the formulas which were essential to the institution of different kinds of suits, pleading originated probably among the Normans, and was introduced by them into England at the time of the conquest. To go still further back, it may perhaps be safely asserted that the hrevia and pleading of the English law had a remoter origin in the Roman jurisprudence; but it has been well suggested that the strict and subtle technicalities of the English pleading, which most resembles the earlier Roman forms, were not borrowed from them, but were rather the fruit of the school logic of the middle ages. It is to the period of the later and more liberal 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 continued until a much later period. These oral pleas were made either by the suitor himself or by his pleader, who was called narrator 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 progress 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 practice changed. At first probably the allegations, 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 purpose 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 possible, 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 controversies of suitors, had become so overgrown and embarrassed with refinements and technicalities 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 permitted 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 submitting 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, a good 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 derivation of the word imports, he waits to see whether in the opinion of the court he must answer. This demurrer may be general, suggesting 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 defendant may neither traverse nor demur, but may admit or confess, as the phrase is, the plaintiff'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 produced. 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, surrejoinder, 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 avoidance, and an issue of fact or of law will then be easily developed. These various forms of pleas, traverses, demurrers, tender and joinder 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; imparlances of several kinds, profert and oyer, counterpleas, new assignments, and numerous others incident to the various phases of suits, all of them contrived to render the procedure more exact and certain, and all of them essential in greater or.less degree to the system. Some of these rules, as well substantial as accidental, concerned mere matters of form. The violation of these rules was good ground of demurrer. For example, of the multiform rules which governed the production of the issue, of those particularly which demanded its unity, certainty, directness, and materiality, many were purely formal.
Defects in these respects were taken advantage of by special demurrers. These pleas did not regard at all the merits of the case; they did not deny that the party whose pleading was objected to had a good ground of action or of defence; but simply raised the question whether the statement or denial of facts was made in that particular technical way which the rules of pleading required. Even though the cause of action was confessedly good, yet if the statement was inartificial (and in England the question whether it were could be carried through all the courts, and even to the house of lords), the party must submit to loss of his suit or pay often heavy costs to the other side for the privilege of amending. The art of pleading possessed, then, two distinct systems of rules, the substantial and the formal. So far as only the former were looked at, the science was justly pronounced ingenious and excellent. But the formalities and technicalities devised and insisted on, though they were for the sake of securing greater nicety, had become so numerous; so many fictions had been engrafted on the system for the same purpose; so completely, by the gradual accretion of all sorts of refinements and the want of judicious legislative interposition in removing them, had the substantial rules of pleading been overbalanced and often defeated by those which were only formal; by all these means, so many technically fair but really unfair advantages were offered to dishonest and quibbling pleaders, that at last the complaints against the whole science of special pleading became so loud, that nothing but its almost entire abolition could quiet them.
Partial and important reforms were effected in the reign of William IV., especially by the'so-called new rules of Hilary term, 1834. But that which they sought to do, and partially did, was more effectually accomplished by the common law procedure act of 1852. By that act the old terms of art and technical forms of pleas were all cleared away, and the whole theory and intent of the mode of procedure under the act were directed to the framing of simple narratives of facts by plaintiffs, and plain and fair answers to them by defendants. This is carried still further by the act for the constitution of a supreme court, passed Aug. 5, 1873. Under that act forms of action are to be no longer recognized; suit is commenced by writ of summons indorsed with a statement of the nature of the claim made or of the relief or remedy required; the defendant files and serves a printed statement of his defence, setoff, or counterclaim, if any, and the plaintiff files and serves his reply where one is required. All these are to be " as brief as the nature of the case will admit." The plaintiff may join any number of clauses of action in the same suit, but to avoid confusion and embarrassment in trial, the separate claims may be ordered to be separately tried. - In our older states the science of special pleading had been received as part and parcel of the common law; but many of its more odious features either were never adopted, or have been reformed by legislative enactments.
The most remarkable reform thus made in this country was perhaps that effected in New York in 1848. In that year the separate equity jurisdiction which had hitherto existed there was suppressed. The code adopted for the regulation of legal processes expressly declared that in future there should be no distinction between legal and equitable remedies; the common law practice and pleading were put out of the way, and gave place to the present system, which in its general features very closely resembles the equity procedure. One form of action only is allowed. The pleadings are few, concise, and must be framed in language easily understood. Allegations are to be liberally, not strictly, construed. Facts are to be respected rather than pleadings; and the latter may at any time in the progress of the suit be revised and accommodated to the proofs. In all respects the code seeks, by the utmost liberality, to assure easy and efficient remedies to suitors. Changes have been made in a like spirit, and in the same direction, in the other states; and to no part of the whole province of jurisprudence has reform addressed itself in this country more earnestly and more acceptably than to the reconstruction of the forms of process, and to the restoration of its essential efficiency and simplicity to the necessary science of pleading.