Page:Harvard Law Review Volume 4.djvu/73

THE BURDEN OF PROOF. S7 denial are very common answers, whatever may be the real na- ture of the defence. It may be remembered that within a few years it was formally recommended by a committee of the lead- ing judicial and legal personages in England, appointed by the Lord Chancellor, that litigation should thereafter be conducted in the High Court of Justice without any pleadings. " The com- mittee is of opinion that, as a general rule, the questions in con- troversy between litigants may be ascertained without pleadings. " The recommendation followed of a rule that " No pleadings shall be allowed unless by order of a judge."^ The substitute for pleadings which these propositions contemplated was a brief endorsement upon a writ of summons, indicating the nature of the plaintiff's claim, and a brief notice from the defendant of any special defence, such as the Statute of Limitations or payment. Although these suggestions were not in form adopted, yet English common-law pleading has come down to a very simple basis indeed ; and so generally in this country. But whether there be pleadings or not, and whether they be simple or not, you come down, at some stage of the controversy, just as they did at Rome, upon a proposition, or more than one, on which the parties are at issue, one party asserting -and the other denying- It may be that this issue is not stated in the pleadings and that it is left to come out at the trial, in the giving of evidence. An admission may, of course, end the controversy; but such an admission may be, and yet not end it ; and if that bo so it is because the party making the admission sets up something that avoids the apparent effect of his adversary's facts ; as subsequent payment avoids the effect of facts which show a claim in contract. When this happens the party defending becomes, in so far, the ac^or or plaintiff. In general, he who seeks to move a court to take action in his favor, whether as an original plaintiff whose facts are merely denied, or as a defendant, who, in setting up an affirmative defence, has the r6le of actor {reus excipiendo jit actor), — must satisfy the court of the truth and adequacy of the grounds of his claim, both in point of fact and law.^ But he, in every case, who is the true reus or defendant holds a very different place in -"• This interesting report may be f «und in tlie London Times for Oct. 8, i8Si. It is signed by Lord Coleridge, Lord Justice James, Justices Hannen and Bowen, the Attorney- General (James), the Solicitor General Herschell, and others. 2 Bonnier, Preuves, i. 30 (4 ed.) : " Celui qui doit innover doit d6montrer que sa pr6ten- tion est fondle."