point; and the matters discussed may bear very little relation to the issue reached1. Sometimes no issue is reached 2. We are reminded of what must have taken place before the Praetor in iure when he was engaged, with the help of the parties and their counsel, in settling the formula. If we had some contemporary account of what took place before the Praetor, it would probably resemble the report in the Year Book far more closely than the report in the Year Book resembles the modern report of the arguments and the judgments upon an issue already determined by the pleadings of the parties 3. We may note, too, that in a report of this oral debate which preceded the formulation of the issue, the line between argument and decision will tend to become obliterated. Serjeants or apprentices present, but not engaged in the case, intervene with their advice; and what they say is naturally interesting to the profession. A judge even will condescend to give a little lecture for the benefit of the student 5. Naturally reports which record such proceedings will be discursive and conversational. In some of our older reports the reasons given by the judges for their formal decision are styled arguments. These Year Books are really the reports of arguments-arguments used by the Bar and the Bench. It was the argument rather than the final decision which interested. the profession, partly because there was then no such rigid theory as to the binding force of decided cases as that to which we are accustomed, partly because the discussion and the elucidation of legal principles were to be found in the argument rather than in the dry formal decision, and partly because decisions upon points of law were often not given, or, if given, were difficult of collection by the private reporter.

It is clear that this fashion of oral pleading made for great freedom in the statement of the case. A painful accuracy was no doubt required in the wording of the writ, in the correspondence between writ and count, and in the observance of the elaborate rules of process. But when all objections to the writ and process had been disposed of, when the parties were fairly before the court, the debate between the opposing counsel, carried on subject to the advice or the rulings of the judge, allowed the parties considerable latitude in pleading to the issue. Suggested pleas will appear after

1 Y. B. 3 Ed. II (S. S.), 31-6, 97, 116-8.

2 Ibid. 16.

3 For some account of this, see Greenidge, Legal Procedure in Cicero's Time, 179-81.

Y. BB. 21, 22 Ed. I (R. S.), 148, 242; 33-5 Ed. I (R. S.), 476.

Y. B. 36 Hy. VI, pl. 21, p. 26, Fortescue sums up the points of the case for the benefit of the apprentices, serjeants, and others of his company; Y. B. 3 Ed. II (S. S.), 36, Bereford C. J. says to Westcote, 'Really I am much obliged to you for your challenge, and that for the sake of the young men here, and not for the sake of us who sit upon the bench. All the same you should answer over.'

a little discussion to be untenable; a proposition to demur will, after a few remarks by the judge, be obviously the wrong move. The counsel feel their way towards an issue which each can accept and allow to be enrolled. In fact, in the earlier part of this period it was not the strictness of the rules of pleading which hindered justice, it was rather the strictness and elaboration of the rules of process. This looseness in the rules of pleading was increased, perhaps almost necessitated, by the fact that the law of evidence, as we understand it, hardly as yet existed. So far are we from the rule of later law that evidence must not be pleaded, that we might almost say that oral evidence was generally brought to the notice of the court by pleading it 2. One or two illustrations (1) of the freedom of action allowed to counsel under this system of pleading, and (2) of the manner in which evidence was brought before the Court, will illustrate these causes for the differences between the Year Books and the later reports.

(1) Illustrations of the mode in which an issue was reached by discussion at the Bar under the superintendence of the Court will be found on almost every page of the Year Books. As a simple illustration we will take a case of the year 13093. 'Alice brought her writ of entry sur disseisin against a Prior, and counted on her own seisin as of fee and of right in time of peace, saying, "Into which the Prior has no entry save after (post) the disseisin which one G. did to Alice." Passeley: "She was never seised of fee and of right in such wise that she could be disseised." Stanton J,: "That is no good answer in this writ, but it would be a good answer to say that G. did not disseise her." Friskeney argued that Passeley's answer was receivable because, if the plaintiff's count claiming as of fee and of right were accepted by them, they might be estopped in any subsequent proceedings from denying that she held as of fee and of right. Stanton J.: "What you say is wrong. What enrolment are we to have in this case? I think it should be, 'not so seised that she could be disseised,' so your averment is not receivable." Passeley: "The enrolment shall be, "not so seised in such manner as she demands so that she could be disseised." To this all agreed.' To this all agreed.' The Court will sometimes suggest a plea to meet difficulties suggested by counsel in argument; and the fact that the Court advised a particular mode of pleading was once stated as a reason why 1 Y. B. 3 Ed. II (S. S.), lxvi-lxviii. 2 Thayer, Evidence, 114, 115. 3 Y. B. 2, 3 Ed. II (S. S.), 136, 137. Y. B. 18 Ed. III (R. S.), 152, Sharshalle J.: 'For that matter I should hold him to be a foolish pleader if he pleaded to the demandant's action within the liberty, but he would say that he ought not to answer there because the tenements are outside the liberty, and upon that he ought to abide judgment, whereupon, if judgment were rendered against him, he would have the Assize.'

counsel adopted it'. But sometimes the Court is only wise after the event, and delivers a lecture upon what, in its opinion, would have been the proper mode of pleading. Counsel once argued that what a party has pleaded and passed over without notice by the Court is wholly immaterial; and though the Court denied the proposition as thus broadly stated, there was probably a considerable element of truth in it 3. A survival of the old idea that a pleader's words were not binding till avowed by his client no doubt made it the more possible to treat pleas as capable of amendment till one was reached by which counsel would abide. Whether or not this was so it is quite clear, as Reeves says 5, that everything advanced by counsel was, in the first instance, 'treated as matter only in fieri which upon discussion and consideration might be amended, or wholly abandoned, and then other matter resorted to, till at length the counsel felt himself on such grounds as he could trust. Where he finally rested his cause, that was the plea which was entered upon the roll, and abided the judgment of an inquest or of the Court, according as it was a point of law or fact.' We may note, too, that the complications of process sometimes gave to a pleader a chance of correcting an error which might otherwise have proved fatal. If the case were put without a day by a Protection, or, perhaps, by a default, the pleading must begin anew; and mistakes made on the occasion of the first pleading could then be amended ".

.

1 Y. B. II, 12 Ed. III (R. S.), 88, Trewith, after some pleading, seeing that the Court was against the writ, demanded that it should abate. You shall not get to that,' said Parning; 'you have pleaded higher, and thereby affirmed the writ as good.' 'I vouch the record of the roll,' said Trewith, that it was not of my own accord, but by the advice of the Court.'

6

2 Y. B. 14 Ed. III (R. S.), 60, 'Scrope was on the bench and said: "What you say as to two bastards you say well, but, in God's name, you might have saved yourself against her by way of replication ... and this replication must have been entered on the roll."

3 Y. B. 11, 12 Ed. III (R. S.), 42, Trewith, 'Whatever thing a party may plead and pass over without regard of the Court and join issue on a plea, then nothing shall be recorded except the issue; for of that which was spoken and pleaded before and waived without award, nothing shall be entered on the roll'; Hillary J., You say wrong'; Y. B. 3 Ed. II (S. S.), 129, Bereford C.J., 'You did not demur there. So you cannot take advantage of that.'

Y. B. 3 Ed. II (S. S.), 129, and Introd. lxvi, lxvii.

5 H. E. L. ii. 223.

6 Y. B. 3 Hy. VI, Pasch. pl. 10, Formedon against J and A his wife; the demandant counted against them on a gift in tail made by deed to the ancestor of the demandant. Paston by mistake said by virtue of which the donor was seised, whereas he should have said donee; the husband made default then and at the petite cape; the wife prayed to be received to defend her title, and relied on the faulty count. Paston offered to plead anew, and he and Martin argued that this could be done; Babington contra; Cokain agreed with Paston and Martin, putting the case of a protection and a resummons, Mettons que apres le count le parol uste este mis sans jour per protection, et ore le demandant ust sue resummons envers le tenant, ne duist le demandant or count de novel? jeo dis que si pur ceo que parol serra my sans jour pur ceo fuit le premier count alle et determine: et en resommons il serra pris sicome nul count ust jamais, et sicome il n'est jamais eu nul auter

เ

(2) The law knew the preappointed witness to deeds or charters: it knew also the written evidence of the deeds or charters themselves. It did not as yet recognize the independent witness called to testify to the facts of which he had knowledge; indeed, as Thayer has shown, the strictness with which the laws against maintenance were interpreted effectually discouraged him1. The evidence, which in modern times is given by such witnesses, was at this period supplied partly by the jury, which the law was careful to draw from the neighbourhood of the occurrence 2, partly by the custom of pleading such evidence. For this reason questions turning upon the 'venue' of the jury are of much importance in the Year Books; and for the same reason counsel deem themselves to be in a manner responsible for the statements which they make to the Court. They examine their clients before they put forward a plea 3. They even decline to plead a fact as to the truth of which they have doubts *. Sometimes, indeed, we see a distinction taken between the plea and the evidence for the plea when it is convenient to say that a statement is only evidence and not really a plea 5. But, as a general rule, it would be true to say that such distinct things as the pleadings, the statements of counsel, and the evidence for those statements are hardly distinguished in the Year Books. To this state of things must be ascribed some peculiar doctrines in the law of pleading. It was clearly difficult under these circumstances to bring to the notice of the jury, who knew something of the facts, the exact import of similar yet legally distinct states of fact, especially having regard to the rule that, if the special facts really only amounted to the general issue, the general issue only could be pleaded, and the case therefore necessarily left to the jury. It was equally difficult to separate clearly matters of fact from questions of law under a system in which the evidence for the facts stated in the pleadings, and the arguments of counsel were all involved in the pleadings themselves, and only extricated gradually in the course of the discussion which settled the issue to be tried. To these difficulties are due the doctrine of colour in pleading 7,

breve devant eyant regard al count; Sie hie'; cp. Y. B. 5 Hy. VII, Trin. pl. 4— this shows how conceivably rules of process might be used to save the consequences of an otherwise fatal error.

1 Thayer, Evidence, 125-9.

3 Y. B. 14 Ed. III (R. S.), 248.

5 Y. B. 14, 15 Ed. III (R. S.), 346.

2 Holdsworth, H. E. L. i. 155, n. 9.

Y. B. 38 Hy. VI, Pasch. pl. 13.

See Longo Quinto, 58, cited Thayer, Evidence, 133, 134.

7 For this doctrine, see Thayer, Evidence, 118, 119; Reeves, H. E. L. ii. 629-32. 'Suppose,' says Reeves, 'A enfeoffed B of land, and an assize was brought by a stranger against B, B could not plead these facts simply, as such plea would amount only to the general issue; he would be obliged to plead the general issue, and the case would be left to the jury. He, therefore, by a wholly fictitious averment, gave the plaintiff colour, i. e. a prima facie cause of action. Thus, after pleading that A had enfeoffed him, he would further plead, "that the plaintiff claiming by colour of

and the demurrer to evidence 1. Both these doctrines were due to a desire to withdraw the case from the jury and to submit it to the Court, in cases in which it was thought desirable to have a clear decision upon the legal consequences of certain states of fact. The older modes of proof necessarily gave a 'general verdict'; and it was equally possible for the jury, which had stepped into their place, to return a general verdict. Under a system which prevented the judge from clearly directing the jury as to the points of law involved in the case, the growing complexity of the law made it very dangerous to allow the jury to return such a verdict. Therefore these methods were devised for ousting the jury, and for getting a point of law decided by the Court. Both these doctrines lived on in the law long after their original raison d'être had disappeared. Neither can be understood, unless we understand the peculiar difficulties involved in the conduct of a case in court according to the procedure recognized in the fourteenth and fifteenth centuries.

Towards the close of this period this system of oral pleading began to be superseded by the system of written pleadings, which, when complete, were entered on the record. The practice in its final form is thus described by Stephen 2:- The present practice is to draw them (the pleadings) up in the first instance on paper, and the attornies of the opposite parties mutually deliver them to each other out of court. . . these paper pleadings at a subsequent period are entered on record.' This change, it may be said, is merely a mechanical change; but, as Maine has noted 3, in reference to another change of a similarly mechanical character-registration of title the effect of such a change on the fabric of the law may be considerable. Perhaps it was the more considerable because it was accompanied by another change, of even greater importance. It was just about this period that the practice of calling witnesses to testify to the jury was becoming common, and was giving birth to our modern law of evidence. The pleading which defines the issue begins to separate itself from the explanatory statements

a deed of feoffement made by the said feoffor, before the feoffement made to the said tenant (by which deed no right passed) entered, upon whom the said tenant entered," this left a point of law for the Court, i. e. the validity of the alleged first deed, and thus the case was withdrawn from the jury'; see Y. B. 3 Ed. II (S. S.), 156.

This is explained by Eyre C.J., delivering the opinion of the judges to the House of Lords, in Gibson and Johnson v. Hunter (1793) Dougl. 187, at p. 206: If the party wishes to withdraw from the jury the application of the law to the fact, and all consideration of what the law is upon the fact, he then demurs in law upon the evidence, and the precise operation of that demurrer is to take from the jury, and to refer to the judge, the application of the law to the fact.'

Early Law and Custom, 357.