(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 plea3. 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. 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 pleading7,

breve devant eyant regard al count; Sic hic'; 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. 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 4 had enfeoffed him, he would further plead, “that the plaintiff claiming by colour of

and the demurrer to evidence1. 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.

1 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.'

2 Pleading, 27, 28.

Holdsworth, H. E. L. i. 159, 160.

3 Early Law and Custom, 357.

of counsel and their arguments upon points of law on the one side, and from the sworn evidence for the facts pleaded or stated on the other. These changes had considerable effects upon the jury, the court, the legal profession, the law report, and the law. In the first place, we shall say something of the manner in which these changes were effected, and in the second place, we shall summarize their results.

As to the date at which and the stages by which the practice of pleading by means of paper pleadings were introduced, we know very little. Gilbert thought that they began to be introduced in the reign of Richard II1; but, as Reeves points out, there is very little foundation for this conjecture 2. It is probable, however, that the growth of technicality and formalism in pleading may have introduced some changes, so gradual that they were hardly noticed, in the mode bringing the pleadings of the parties before the Court. That the rules of pleading were becoming formal and fixed is clear from the number of cases in the Year Books of Henry VI and Edward IV's reigns which turned simply upon matters of form 3. In one case it is reported that the judges were reluctant to depart from a precedent laid down in the Novae Narrationes, though apart from this precedent they would have come to another conclusion *. It appears, too, from this case, that they sometimes consulted the prothonotaries as to the proper form of plea; and no doubt a form of plea which was sanctioned after such consultation would easily harden into a fixed rule. Before a plea was entered on the roll there is sometimes a friendly discussion as to its form; and then the opposing counsel promises an answer on the following day. As to the exact mode of entering such pleadings on the roll, there was probably no very fixed practice. In a case of Henry VI's reign three prothonotaries of the Common Bench summoned to give evidence on this point all differed. The Court apparently considered that the pleadings should be entered day by day as the case proceeded". This makes it the more probable that the conclusion which Reeves arrived at, after the study of the Year Books of this period, is correct.

1 Gilbert, Origins of the King's Bench (ed. 1763), 315. H. E. L. ii. 398, 399.

H. E. L. ii. 619-53; at p. 620, he says: 'Almost everything substantial in pleading. ... was settled by judicial determination in the reigns of these kings.' 4 Y. B. 39 Hy. VI, Mich. pl. 43.

Longo Quinto, p. 22; for another case, see ibid. p. 23, and Y. B. 33 Hy. VI, Mich. pl. 40; for cases in which the clerks either ask or give advice in matters of process or pleading, cp. Y. BB. 11, 12 Ed. III (R. S.), 426, 434; 13, 14 Ed. III (R. S.), 258, 310; 14, 15 Ed. III (R. S.), 74-rule noted as contrary to the opinion of the clerks. 6 Longo Quinto, 35. 7 Y. B. 39 Hy. VI, Mich. pl. 32. H. E. L. ii. 621, 622; cp. Y. B. 16 Ed. III (R. S.), i, 64: 'And note that after the adjournment the roll was amended on the prayer of the tenant, when the

'Whether it (the declaration) was drawn out. . . on paper or parchment by the party's counsel, and delivered over to the adversary's counsel, or, what is more probable, was entered, in the first instance, upon the roll of the Court, it is not easy to determine with precision in point of effect it would be the same; for the roll might be amended by leave of the justices, during the term in which the declaration or plea was entered, and it must, at any rate, be entered on the roll, as of that term; in both of which cases the roll became afterwards, in construction of law, a record: so that the power the justices exercised over the roll during the term is, on the one hand, sufficient to show the possibility of making the amendment of pleas without resorting to the supposition of there being paper pleadings; and the different construction the judges. put upon the same roll of parchment, after and during the term, satisfies us that to constitute a record, there was not required a transcript from any less solemn paper or parchment to one that was more so. It seems, therefore, a reasonable conjecture that whenever pleadings ore tenus went out of use, it became the practice for the counsel to enter the declaration or plea upon the roll in the office of the prothonotary; that the Counsel of the other party had access to it; in order to concert his plea or to take his exceptions to it; and that when these were to be argued, the roll was brought into court, as the only evidence of the pleading to be referred to. This course was certainly attended with some difficulties, and led to the expedient of putting the pleadings into paper, and handing this paper from one party to the other, the entry on the roll being deferred till the end of the term.'

But this further change to a system of paper pleadings was not well established, Reeves thinks, till the reign of Elizabeth. During the whole of the mediaeval period the pleadings were usually pleaded by the serjeants or apprentices, and sometimes by the litigant in person at the Bar. They may have been enrolled as the case proceeded; and the copy of the roll may have been available to the pleader on the opposite side1. But subject to this modification, which was no doubt caused by the growing complexity of the rules of pleading, the issue was settled in the old way. It is probable that we must look to the development of the law of evidence for the causes of the change to the later system of paper pleadings interchanged between the parties or their attorneys.

In the Year Book of 38 Henry VI we have perhaps the first and certainly an early mention of a 'paper' pleading. The tenant

demandant had gone with his day, because the justices recorded that the roll did not accord with the plea.'

66

1 Cp. Y. B. 21 Ed. IV, Mich. pl. 4 (p. 43): 'Lendemain le pleintif en breve d'Error vient in propre person et pleda ce plee en le forme ensuant ye have here, &c."-en Englois [then follows the Latin entry on the roll giving the effect of the pleal, A auter jour Catesby monstra tout le plee que il ad plede n'est pas bon.' 2 Y. B. 38 Hy. VI, Pasch. pl. 13.

'Quand le navire est pris ou jetté à la coste par tormente en pays étranger, et qu'il y a quelque espoir de recouvrance du tout ou en partie, il est en liberté de l'assuré de faire ses delais, ou autrement s'arrester à protestation, et quelque poursuite ou adjonction qu'il donne aux assureurs, cela ne luy portera de préjudice que par aprez il ne fasse son delais.'

It will be seen that this section concedes to the assured the right if indeed it does not impose on him a duty-to be diligent, and co-operate with the underwriters for the purpose of recovering his goods; while it expressly reserves to him the further right to abandon, if need be, at a later period. And it is noticeable that Cleirac, commenting on this section, confines his remarks to the legal effect of the noting of a protest 1, the permission to assist in the recovery of the goods being-it would seem-too well established to call for attention.

Writing in 1786, and giving his reasons, Park expresses the conviction that 'abandonment dates its origin from the period at which the contract of insurance was itself introduced '2; and on this, it might well be argued, that such a permission-important to the shipowner on account of his freight, to the freighter on account of his shipment, and to the underwriter on account of the liability of his policy-must have been a rule of marine insurance coeval with the doctrine of abandonment.

But-not pressing this argument-it seems certain that the compiler of the Guidon ('un particulier' Pardessus) can only have recorded those rules and customs of commerce which by their long observance had become legalized, and that among them nothing new or original is to be found. If then the true date of this treatise be not later than 1600, moderation is not exceeded by the suggestion, that as early at least as 1500 3-by which time Insurance had been practised in Europe for 300 years—the right of the trader to protect his property was, as an incident of abandonment, as freely acknowledged as the right of abandonment itself. And more than this need not be established.

In the celebrated Ordonnance de la Marine du mois d'août 1681,' the completeness and comprehensiveness of which transcends alike all codes which it had succeeded and those by which it has. been followed,' will be found,' says Marshall, 'the best and most complete system of positive law for the regulation of insurance that has yet (1802) appeared in any country.'

1 Protestatio conservat ius ideo in actibus dubiis fieri debet, &c.

2 The law of Mar. Ins., 1786, 7th ed. (author's), 1817, vol. i, p. 229.

3 Marshall (p. 20) thinks that the Guidon itself was 100 years anterior to this date.

4 p. 19.