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The New Rules of Pleading of the Hilary Term, 1834
Published online by Cambridge University Press: 16 January 2009
Extract
The old system of pleading has passed so completely into the limbo of things forgotten that the title of this paper is not intelligible without an explanation. I must, therefore, remind the reader that, in pursuance of the Second Report of the Common Law Procedure Commissioners, which was issued in 1830, the Judges made some new general rules as to pleading in the Hilary Term of 1834 which, on the whole, tended to aggravate the existing evils of the common law system of special pleading, by making special pleading compulsory where it had before been only optional. Something was done to alleviate these evils by the Common Law Procedure Acts of 1852, 1854, and 1860; but they were not wholly eliminated till the new system of procedure and pleading introduced by the Judicature Acts. The result was that right down to the Judicature Acts the system of pleading was the old system; and, subject to the modifications introduced by the Common Law Procedure Acts, the old system aggravated by the new pleading rules of the Hilary Term, 1834. Now it seems to me that there are certain developments in common law doctrine in the nineteenth century which may in part, at least, be traced to the indirect influence of these new pleading rules. But it is obvious that before I can even state my thesis I must explain some of the characteristics of the old system of special pleading, and the effect of these new pleading rules. I shall therefore divide this paper into these three parts, and deal firstly with certain characteristics of the old system of special pleading; secondly, with the new pleading rules of the Hilary Term, 1834; and thirdly, with the question of their effect on the development of the substantive law.
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References
page 262 note 1 P. & M. ii. 609.
page 262 note 2 See Littleton's words in § 534 of his Tenures.
page 262 note 3 Thus, in Bryant v. Herbert (1878) 3 C. P. D., at p. 390, Bramwell, L.J., said that the Common Law Commissioners did not abolish the forms of action in words. They “recommended that; but it was supposed that, if adopted, the law would be shaken to its foundations; so that all that could be done was to provide as far as possible that, though forms of action remained, there never should be a question what was the form”.
page 262 note 4 Thus the Commissioners on the Courts of Common Law said in their Third Eeport (Parlt. Papers, 1831, vol. x. 6) that much confusion and uncertainty as to the right of action would be generated if the forms of action were abolished, “and so much of our course of pleading would also be unsettled by it that in this point of view alone more advantage would be lost than gained”.
page 262 note 5 Thus Coke says, First Instit. 303, “when I diligently consider the course of our Books of years and terms from the beginning of the reign of Edw. 3, I observe that more jangling and questions grow upon the manner of pleading, and exceptions to form, than upon the matter itself, and infinite causes lost or delayed for want of good pleading”. There is no idolatry here of the art of pleading.
page 263 note 6 Pleading, preface to the 1st ed.
page 263 note 7 Robinson v. Rayley, 1 Burr., at p. 319.
page 263 note 8 Comm. iii. 305.
page 263 note 9 Hale, H. C. L. 212.
page 263 note 1 Below, 270.
page 264 note 2 Essays in Jurisprudence and Ethics, 246–9.
page 264 note 3 “The technical terms of every language are convenient symbols, but their very convenience is dangerous, and the facility given by them is always in danger of abuse. When one is operating with symbols it is often a good thing to forget what the symbols mean during the process, but one must always be prepared to remember it at the end. Now a fixed habit of operating with a certain number of symbols is apt to induce one to forget this very thing, the result of which is that the operator becomes the slave of his symbols instead of their master, and thinks he is thinking when he is only playing with counters.… In our case law there has been a good deal of this kind of diseased technicality”: Pollock, Essays in Jurisprudence and Ethics, 258–9.
page 264 note 4 Essays in Jurisprudence and Ethics, 259.
page 265 note 5 Above, 262.
page 266 note 6 For this phrase and its origin, see Holdsworth, H. E. L. (3rd ed.), i. 223, n. 5.
page 266 note 7 4 Anne, c. 16, s. 4. For some of the defects of this statute, see First Report of the Common Law Procedure Commissioners, Parlt. Papers, 1851, vol. xxii. 19.
page 266 note 8 Bl. Comm. iii. 406.
page 266 note 9 Parlt. Papers, 1851, vol. xxii. 16.
page 266 note 1 Pleading (1st ed.), 172.
page 266 note 2 Ibid. 176.
page 266 note 3 See, e.g., Y.B. 10 Hen. VI. Mich. pl. 53.
page 266 note 4 See, e.g., Lynner v. Wood (1630) Cro. Car. 157; Gifford v. Perkins (1676) 1 Sid. 450; Saunders' Case (1702) 12 Mod. 513–4.
page 266 note 5 Gifford v. Perkins (1676) 1 Sid. 450; Stephen, op. cit. 414.
page 267 note 6 Op. cit. 414.
page 267 note 7 Warner v. Wainsford, Hob. 127.
page 267 note 8 Thus, in Paramour v. Johnson (1701) 12 Mod., at p. 377, Holt, C.J.: said: “it is indulgence to give accord with satisfaction in evidence upon non assumpsit pleaded; but that has crept in, and now is settled”.
page 267 note 9 Thus, by 21 Jac. I. c. 12, s. 5, the general issue was allowed to be pleaded in actions against certain officials; by 11 Geo. I. c. 30, s. 43, the Royal Exchange and London Assurance Companies were allowed to plead the general issue in actions against them on their policies; and it is stated in the Act that “by reason of the necessity of pleading specially in such cases the whole merit of the case in question cannot oftentimes come into consideration”; see also Stephen, op. cit. (5th ed.), 189, n. (c).
page 267 note 1 Comm. iii. 305–6.
page 268 note 2 Hale, H. C. L. 212 n.
page 268 note 3 Stephen, op. cit. (1st ed.), 179–81.
page 268 note 4 Ibid. 182–3.
page 268 note 5 Ibid. 278.
page 268 note 6 Genius of the Common Law, 37.
page 269 note 7 Hale, H. C. L. 212 n.
page 269 note 8 Above, 263.
page 269 note 9 See especially his concluding chapter.
page 269 note 1 Thus, op. cit. 181, speaking of the extension given to the plea of non assumpsit, he points out that the effect is that “in an action which has become of all others the most frequent and general in its application, the science of pleading has been in a great measure superseded by an innovation of practice which enables the parties to come to issue before the plea (the second step in the series, of allegations) in a great variety of cases which would formerly have led to much remoter or more specific issues”.
page 269 note 2 This is, in effect, a short summary of the Second Report of the Commissioners on Courts of Common Law, Parlt. Papers, 1830, vol. xi. 45 seqq. This part of the Report is also printed in Stephen, Pleading (5th ed.), lix.–lxvi.
page 270 note 3 “We conceive that considerable misapprehension popularly prevails upon the subject of special pleading. That system was characterised no doubt, at former periods of our legal history, by a tendency to prolix and tautologous allegation, an excessive subtlety, and an overstrained observance of form; and notwithstanding material modern improvements, it still exhibits too much of the same qualities. These its disadvantages are prominent and well understood; its recommendations are, perhaps, less obvious, but when explained, cannot fail to be recognised as of far superior weight”: Parlt. Papers, 1830, vol. xi. 45.
page 270 note 4 3 & 4 Will. IV. c. 42, s. 1; Stephen, op. cit. pref. to the 4th ed.
page 270 note 5 Those of the rules which deal with this matter will be found in Stephen, op. cit. (5th ed.), lv.–lix.
page 271 note 6 Parlt. Papers, 1830, vol. xi. 51.
page 271 note 7 Genius of the Common Law, 27–34.
page 272 note 8 This sentiment put into the mouth of Baron Surrebutter may seem extravagant; but that it is not can be seen from the view expressed by Lord Redesdale in his tract on the Chancery Commission of 1826. “Whoever”, he said, “considers the administration of justice by courts of civil jurisdiction of any description with a view only to the personal interests of the parties engaged in litigation has taken a very imperfect view of the subject. In very few cases comparatively ought the parties litigating to be considered as the only persons interested in the result”: Parkes, Chancery, 520, citing The Times, August 31, 1826.
page 272 note 1 Compare this with the finding of the Common Law Procedure Commissioners: “So long as in the three principal kinds of actions, viz. assumpsit, debt on simple contract, and trespass on the case (which constitute a very large majority indeed of all the actions which are brought) it was competent for the defendant to raise almost all defences under the old plea of the general issue, the evil was not so much felt. … But when the new rules compelled the use of special pleas in these actions, the technical and formal defects of the system…. became extended to all (actions), and the inconvenience was increased in proportion. Special demurrers for want of form, and for objections of a technical nature, were much increased. From the necessity of specially pleading all defences to actions in most general use, new pleas were introduced; and defendants who had no real defence availed themselves of a chance of a temporary success by pleading subtle and tricky pleas to invite special demurrers for the mere purpose of delay”: Parlt. Papers, 1851, vol. xxii. 20.
page 273 note 1 (1883) 24 Ch. D. 439.
page 274 note 2 See a paper by the present writer in the Boston University Law Rev. ii. 186–195.
page 274 note 3 B. & P. 249.
page 274 note 4 Boston University Law Rev. ii. 197–198.
page 274 note 5 11 Ad. & E. 438.
page 274 note 6 At p. 452.
page 275 note 7 Bishop v. Viscountess Montague (1601) Cro. Eliz. 824; Cro. Jac. 50; Levison v. Kirk (1610) Lane, at p. 68; Kinaston v. Moor (1627) Cro. Car. 89; Hodges v. Sampson (1662) W. Jones, 443; Bruen v. Roe (1665) 1 Sid. 264; 3 Salk. 365.
page 275 note 8 1 Burr., at p. 31.
page 275 note 9 “If a man take the goods of another out of his actual or virtual possession, without having a lawful title so to do, it is an injury … for which an action of trespass vi et armis will lie; or if committed without force, the party may, at his choice, have another remedy in damages by action of trover and conversion”; Comm. iii. 150.
page 275 note 1 2 Williams Saunders, 47.
page 275 note 2 (1831) 2 B. & Ad., at p. 192.
page 275 note 3 (1860) 5 H. & N., at p. 303.
page 275 note 4 (1872) L. R. 7 Q. B., at p. 616: “But as regards the action of trover I think it is well settled that the assumption and exercise of dominion—and asportation is an exercise of dominion—over a chattel inconsistent with the title and general dominion which the true owner has in it and over it is a conversion, and that it is immaterial whether the act done be for the use of the defendant himself or of a third person”. See the criticisms of Brett, J., on this dictum in S. C. L. R. 7 H. of L., at pp. 780–783.
page 275 note 5 Th. Raym. 472.
page 276 note 6 “It is held by some that in most cases where a man hath taken my goods into his possession as a trespass, so that trespass lieth for the wrong…. that if I will I may demand the thing; and if the party refuse to deliver them, that there be a conversion in the case”, at p. 28.
page 276 note 7 Bushel v. Miller (1718) 1 Stra. 128.
page 276 note 8 8 M. & W. 540.
page 276 note 9 L. R. 7 H. of L. 757.
page 276 note 1 (1883) 24 Ch. D. 439.
page 277 note 2 Hist. Engl. Law (3rd ed.), iii. 579–582.
page 277 note 3 24 Ch. D., at pp. 455–6.