in law, are the mutual alterations between the plaintiff and defendant, (see Suit, Writ, and Process). They form the third part or stage of a fact; and at present are set down and delivered into the proper office in writing, though formerly they were usually put in by their council ore tenus, or vivo voce, in court, and then minuted down by the chief clerks or prothonotaries; whence, in our old law-French, the pleadings are frequently denominated the parol.

The first of these is the declaration, narratio, or count, anciently called the tale; in which the plaintiff sets forth his cause of complaint at length: being indeed only an amplification

(a) Of this ignorance we may see daily instances, in the abuse of two legal terms of ancient French: one, the prologue to all proclamations, "Oyez, or Hear ye," which is generally pronounced, most unmeaningly, "O yes;" the other, a more pardonable mistake, viz. when a jury are all sworn, the officer bids the crier number them, for which the word in law French is, "Countez;" but we now hear it pronounced in very good English, "Count these." amplification or exposition of the original writ upon which his action is founded, with the additional circumstances of time and place, when and where, the injury was committed.

In local actions, where possession of land is to be recovered, or damages for an actual trespass, or for waste, &c. affecting land, the plaintiff must lay his declaration, or declare his injury to have happened in the very county and place that it really did happen; but in transitory actions, for injuries that might have happened anywhere, as debt, detinue, slander, and the like, the plaintiff may declare in what county he pleases, and then the trial must be in that county in which the declaration is laid. Though, if the defendant will make affidavit that the cause of action, if any, arose not in that but another county, the court will direct a change of the venue or visine (that is, the vicinia or neighbourhood in which the injury is declared to be done), and will oblige the plaintiff to declare in the proper county. For the statute 6 Ric. II. c. 2. having ordered all writs to be laid in their proper counties, this, as the judges conceived, impowered them to change the venue, if required, and not to insist rigidly on abating the writ: which practice began in the reign of James I. And this power is discretionally exercised, so as not to cause but prevent a defect of justice. Therefore the court will not change the venue to any of the four northern counties previous to the spring circuit; because there the assizes are holden only once a-year, at the time of summer circuit. And it will sometimes remove the venue from the proper jurisdiction (especially of the narrow and limited kind), upon a suggestion, duly supported, that a fair and impartial trial cannot be had therein.

It is generally usual, in actions upon the case, to set forth several cases, by different counts in the same declaration; so that if the plaintiff fails in the proof of one, he may succeed in another. As in an action on the case upon an assumptio for goods sold and delivered, the plaintiff usually counts or declares, first, upon a settled and agreed price between him and the defendant; as, that they bargained for 20l.; and left he should fail in the proof of this, he counts likewise upon a quantum valebant; that the defendant bought other goods, and agreed to pay him so much as they were reasonably worth; and then avers that they were worth other 20l., and so on in three or four different shapes; and at last concludes with declaring, that the defendant had refused to fulfil any of these agreements, whereby he is endangered to such a value. And if he proves the case laid in any one of his counts, though he fails in the rest, he shall recover proportionable damages. This declaration always concludes with these words, "and thereupon he brings suit," &c. inde pro-ducit factum, &c. By which words, fact or facta (a faciendo), were anciently understood the witnesse or followers of the plaintiff. For in former times, the law would not put the defendant to the trouble of answering the charge till the plaintiff had made out at least a probable case. But the actual production of the fact, facta, or followers, is now antiquated, and hath been totally disfused, at least ever since the reign of Edward III., though the form of it still continues.

At the end of the declaration are added also the plaintiff's common pledges of prosecution, John Doe and Richard Roe; which, as we elsewhere observe, (see Writ), are now mere names of form; though formerly they were of use to answer to the king for the amercement of the plaintiff, in case he were non-suited, barred of his action, or had a verdict and judgment against him. For if the plaintiff neglects to deliver a declaration for two terms after the defendant appears, or is guilty of other delays or defaults against the rules of law in any subsequent stage of the action, he is adjudged not to follow or pursue his remedy as he ought to do; and thereupon a nonsuit, or non prosequitur, is entered, and he is said to be non-proof'd. And for thus deserting his complaint, after making a false claim or complaint (pro falsa clamatione), he shall not only pay costs to the defendant, but is liable to be amerced to the king. A retraxit differs from a nonsuit, in that the one is negative and the other positive: the nonsuit is a default and neglect of the plaintiff, and therefore he is allowed to begin his suit again upon payment of costs; but a retraxit is an open and voluntary renunciation of his suit in court; and by this he forever loses his action. A discontinuance is somewhat similar to a nonsuit; for when a plaintiff leaves a chasm in the proceedings of his cause, as by not continuing the process regularly from day to day, and time to time, as he ought to do, the suit is discontinued, and the defendant is no longer bound to attend; but the plaintiff must begin again, by suing out a new original, usually paying costs to his antagonist.

When the plaintiff hath stated his case in the declaration, it is incumbent on the defendant, within a reasonable time, to make his defence, and to put in a plea; or else the plaintiff will at once recover judgment by default, or nihil dicit, of the defendant.

Defence, in its true legal sense, signifies not a justification, protection, or guard, which is now its popular signification; but merely an opposing or denial (from the French verb defendre) of the truth or validity of the complaint. It is the contestatione litis of the civilians: a general assertion that the plaintiff hath no ground of action; which assertion is afterwards extended and maintained in his plea.

Before defence made, if at all, cognizance of the suit must be claimed or demanded; when any person or body-corporate hath the franchise, not only of holding pleas within a particular limited jurisdiction, but also of the cognizance of pleas; and that either without any words exclusive of other courts, which intitles the lord of the franchise, whenever any suit that belongs to his jurisdiction is commenced in the courts at Westminster, to demand the cognizance thereof; or with such exclusive words, which also intitle the defendant to plead to the jurisdiction of the court. Upon this claim of cognizance, if allowed, all proceedings shall cease in the superior court, and the plaintiff is left at liberty to pursue his remedy in the special jurisdiction. As, when a scholar or other privileged person of the universities of Oxford or Cambridge is impleaded in the courts at Westminster, for any cause of action whatsoever, unless upon a question of freehold. In these cases, by the charter of those learned bodies, confirmed by act of parliament, the chancellor, or vice-chancellor, may put in a claim of cognizance; which, if made in due time and form, and with due proof of the facts alleged, is regularly Pleadings. larly allowed by the courts. It must be demanded before full defence is made or impertinence prayed; for these are a submission to the jurisdiction of the superior court, and the delay is a laches in the lord of the franchise: and it will not be allowed if it occasions a failure of justice, or if an action be brought against the person himself who claims the franchise, unless he hath also a power in such case of making another judge.

After defence made, the defendant must put in his plea. But before he defends, if the suit is commenced by capias or latitut, without any special original, he is intitled to demand one impertinence, or licentia loquendi; and may, before he pleads, have more granted by consent of the court, to see if he can end the matter amicably without further suit, by talking with the plaintiff: a practice which is supposed to have arisen from a principle of religion, in obedience to that precept of the gospel, "agree with thine adversary quickly, whilst thou art in the way with him." And it may be observed, that this gospel-precept has a plain reference to the Roman law of the twelve tables, which expressly directed the plaintiff and defendant to make up the matter while they were in the way, or going to the praetor; —in via, rem uti pacient orato. There are also many other previous steps which may be taken by a defendant before he puts in his plea. He may, in real actions, demand a view of the thing in question, in order to ascertain its identity and other circumstances. He may crave oyer of the writ, or of the bond, or other specialty upon which the action is brought; that is, to hear it read to him; the generality of defendants in the times of ancient simplicity being supposed incapable to read it themselves: whereupon the whole is entered verbatim upon the record; and the defendant may take advantage of any condition, or other part of it, not stated in the plaintiff's declaration.

In real actions also the tenant may pray in aid, or call for the assistance of another, to help him to plead, because of the feebleness or imbecility of his own estate. Thus a tenant for life may pray in aid of him that hath the inheritance in remainder or reversion; and an incumbent may pray in aid of the patron and ordinary; that is, that they shall be joined in the action, and help to defend the title. Voucher also is the calling in of some person to answer the action, that hath warranted the title to the tenant or defendant. This we still make use of in the form of common recoveries, which are grounded on a writ of entry; a species of action that relies chiefly on the weakness of the tenant's title, who therefore vouches another person to warrant it. If the voucher appears, he is made defendant instead of the voucher; but if he afterwards makes default, recovery shall be had against the original defendant; and he shall recover an equivalent in value against the deficient voucher. In assizes, indeed, where the principal question is, whether the defendant or his ancestors were or were not in possession till the ouster happened, and the title of the tenant is little (if at all) discussed, there no voucher is allowed; but the tenant may bring a writ of warrantia chartae against the warrantor, to compel him to assist him with a good plea or defence, or else to render damages and the value of the land, if recovered against the tenant. In many real actions also, brought by or against an infant under the age of 21 years, and also in actions of debt brought against him, as heir to any deceased ancestor, either party may suggest the nonage of the Pleadings infant, and pray that the proceedings may be deferred till his full age, or, in our legal phrase, that the infant may have his age, and that the parol may demur; that is, that the pleadings may be staid; and then they shall not proceed till his full age, unless it be apparent that he cannot be prejudiced thereby. But by the statutes of Welfm. r. 3 Edw. I. c. 46. and of Gloucester, 6 Edw. I. c. 2. in writs of entry sur dif- ficiens in some particular cases, and in actions auncet- trel brought by an infant, the parol shall not demur; otherwise he might be deforested of his whole property, and even want a maintenance, till he came of age. So likewise in a writ of dower the heir shall not have his age; for it is necessary that the widow's claim be immediately determined, else she may want a present subsistence. Nor shall an infant patron have it in a quare impedit, since the law holds it necessary and expedient that the church be immediately filled.

When these proceedings are over, the defendant must then put in his excuse or plea. See Plea.

It is a rule in pleading, that no man be allowed to plead specially such a plea as amounts only to the general issue, or a total denial of the charge; but in such case he shall be driven to plead the general issue in terms, whereby the whole question is referred to a jury. But if the defendant, in an assize or action of trepals, be desirous to refer the validity of his title to the court rather than the jury, he may state his title specially; and at the same time give colour to the plaintiff, or suppose him to have an appearance or colour of title, bad indeed in point of law, but of which the jury are not competent judges. As if his own true title is, that he claims by feoffment with livery from A., by force of which he entered on the lands in question, he cannot plead this by itself, as it amounts to no more than the general issue, nul tort, nul difficien, in alizie, or not guilty in an action of trepals. But he may allege this specially, provided he goes farther, and says, that the plaintiff claiming by colour of a prior deed of feoffment, without livery, entered; upon whom he entered; and may then refer himself to the judgment of the court which of these two titles is the best in point of law.

When the plea of the defendant is thus put in, if it does not amount to an issue or total contradiction of the declaration, but only evades it, the plaintiff may plead again, and reply to the defendant's plea: Either traversing it, that is, totally denying it; as if, on an action of debt upon bond, the defendant pleads solvitur ad diem, that he paid the money when due; here the plaintiff in his replication may totally traverse this plea, by denying that the defendant paid it: Or he may allege new matter in contradiction to the defendant's plea; as when the defendant pleads no award made, the plaintiff may reply, and set forth an actual award, and assign a breach: Or the replication may confess and avoid the plea, by some new matter or distinction, consistent with the plaintiff's former declaration; as in an action for trepalling upon land whereof the plaintiff is seized, if the defendant shows a title to the land by descent, and that therefore he had a right to enter, and gives colour to the plaintiff, the plaintiff may either traverse and totally deny the fact of the descent; or he may confess and avoid it, by replying, that true it is that such de- PLE

leading, scent happened, but that since the descent the defendant himself demised the lands to the plaintiff for term of life.

To the replication the defendant may rejoin, or put in an answer called a rejoinder. The plaintiff may answer the rejoinder by a fur rejoinder; upon which the defendant may rebut, and the plaintiff answer him by a fur rebutter. Which pleas, replications, rejoinders, fur-rejoinders, rebutters, and fur-rebutters, answer to the exception, repliatio duplicatio, triplicatio, and quadruplicatio, of the Roman laws.

The whole of this process is denominated the pleading; in the several stages of which it must be carefully observed, not to depart or vary from the title or defence which the party has once insisted on. For this (which is called a departure in pleading) might occasion endless altercation. Therefore the replication must support the declaration, and the rejoinder must support the plea, without departing out of it. As in the case of pleading no award made in consequence of a bond of arbitration, to which the plaintiff replies, setting forth an actual award; now the defendant cannot rejoin that he hath performed this award, for such rejoinder would be an entire departure from his original plea, which alleged that no such award was made; therefore he has now no other choice, but to traverse the fact of the replication, or else to demur upon the law of it.

Again, all duplicity in pleading must be avoided. Every plea must be simple, entire, connected, and confined to one single point; it must never be entangled with a variety of distinct independent answers to the same matter; which must require as many different replies, and introduce a multitude of issues upon one and the same dispute. For this would often embarrass the jury, and sometimes the court itself, and at all events would greatly enhance the expense of the parties. Yet it frequently is expedient to plead in such a manner as to avoid any implied admission of a fact, which cannot with propriety or safety be positively affirmed or denied. And this may be done by what is called a protestation; whereby the party interposes an oblique allegation or denial of some fact, protesting (by the gerund, protestando) that such a matter does or does not exist; and at the same time avoiding a direct affirmation or denial. Sir Edward Coke hath defined a protestation (in the pithy dialect of that age) to be, "an exclusion of a conclusion." For the use of it is, to save the party from being concluded with respect to some fact or circumstance which cannot be directly affirmed or denied without falling into duplicity of pleading; and which yet, if he did not thus enter his protest, he might be deemed to have tacitly waived or admitted. Thus, while tenure in villainage subsisted, if a villain had brought an action against his lord, and the lord was inclined to try the merits of the demand, and at the same time to prevent any conclusion against himself that he had waived his signory; he could not in this case both plead affirmatively that the plaintiff was his villain, and also take issue upon the demand; for then his plea would have been double, as the former alone would have been a good bar to the action: but he might have alleged the villainage of the plaintiff by way of protestation, and then have denied the demand. By this means the future vassalage of the plaintiff was saved to the defendant, in case the issue was found in his (the defendant's) favour; for the protestation prevented that conclusion which would otherwise have resulted from the rest of his defence, pleadings that he had enfranchised the plaintiff, since no villain could maintain a civil action against his lord. So also if a defendant, by way of inducement to the point of his defence, alleges (among other matters) a particular mode of seisin or tenure which the plaintiff is unwilling to admit, and yet desires to take issue on the principal point of the defence, he must deny the seisin or tenure by way of protestation, and then traverse the defensive matter. So, lastly, if an award be set forth by the plaintiff, and he can assign a breach in one part of it (viz. the non-payment of a sum of money), and yet is afraid to admit the performance of the rest of the award, or to aver in general a non-performance of any part of it, lest something should appear to have been performed; he may save to himself any advantage he might hereafter make of the general non-performance, by alleging that by protestation, he can plead only the non-payment of the money.

In any stage of the pleadings, when either side advances or affirms any new matter, he usually (as was said) avers it to be true; "and this he is ready to verify." On the other hand, when either side traverses or denies the facts pleaded by his antagonist, he usually tenders an issue, as it is called; the language of which is different according to the party by whom it is tendered: for if the traverse or denial comes from the defendant, the issue is tendered in this manner, "And of this he puts himself upon the country," thereby submitting himself to the judgment of his peers; but if the traverse lies upon the plaintiff, he tenders the issue or prays the judgment of the peers against the defendant in another form; thus, "and this he prays may be inquired of by the country."

But if either side (as, for instance, the defendant) pleads a special negative plea, not traversing or denying anything that was before alleged, but disclaiming some new negative matter; as where the suit is on a bond conditioned to perform an award, and the defendant pleads, negatively, that no award was made; he tenders no issue upon this plea, because it does not yet appear whether the fact will be disputed; the plaintiff not having yet affected the existence of any award: but when the plaintiff replies, and sets forth an actual specific award, if then the defendant traverses the replication, and denies the making of any such award, he then, and not before, tenders an issue to the plaintiff. For when in the course of pleading they come to a point which is affirmed on one side and denied on the other, they are then said to be at issue; all their debates being at last contracted into a single point, which must now be determined either in favour of the plaintiff or of the defendant. See Issue.