for the summary procedure it is extended into the sphere of allegation.

The Spanish procedure has preserved, in substance, the system of written pleadings which it inherited from Romano-canonical sources. The action295 is begun by a petition ('demanda,' ‘libelo,' 'pedimento') stating the plaintiff's claim, a copy of which is served upon the defendant ('emplazamiento de la demanda'). If the defendant does not interpose a dilatory exception, or if such exception has proved unavailing, he is required to put in an answer ('contestacion de la demanda') setting forth his peremptory defenses and (without being able thereby to "suspend the course of the action") any dilatory exceptions not previously advanced. The answer may be followed by a replication ('réplica') and a rejoinder (‘dúplica').296 These pleadings are not supplemented by any others, save in the obvious case of new facts coming to notice. They, themselves, fix the points of law and fact upon which the case will turn.297 While, like the oral allegations of the French system and the 'comparse' of the Italian Code, they offend our notions of propriety by alleging legal conclusions as well as facts, they are nevertheless pleadings in the fullest sense of the term and pleadings, manifestly, which conform to the principle of documentation. With respect to the proof, we find that testimonial evidence is here, also, subject to pecuniary restriction; by the general rule, a contract, either commercial or non-commercial, to be capable of proof by witnesses, alone, must not involve more than fifteen hundred pesetas." Witnesses are examined by the court itself-the court of first instance being composed of a single judge at a public session, upon the basis of interrogatories submitted by the parties, and the answers are taken down in deposition form. The Code also provides for an examination of one party at the instance of another upon interrogatories submitted by the latter.299 This, also, is conducted by the court itself and the answers are minuted by the court-clerk ('actuario'). When all the proofs have been attached to the record, the parties may present arguments in writing ('escritos de conclusion')

298

295. The procedure here referred to is the ordinary form ('juicio ordinaria de mayor cuantía').

296. Ley de enjuiciamiento civil §§ 524-542; Manresa "Comentarios á la ley de enjuiciamiento civil" (2d ed.) III 6 et seq., 84, 95 et seq., 105. 297. Manresa op. cit. III 107, 140, 141, note 1 to p. 140.

298. Código civil § 1280; Código de comercio § 51 (the latter translated in "Commercial Laws of the World" XXXII 89); Paso y Delgado "Derecho civil español" 432.

299. Ley de enjuiciamiento § 579 et seq.; Manresa op. cit. III 201 et seq. 401-403.

as to the effect of such proofs or, at their option, may be heard orally in that regard.300 In the Spanish system, therefore, we may say that the principle of orality is the dominant one in all stages of the proceedings except that of allegation.

306

In the Continental systems generally, the principle of recordation, as distinguished from that of documentation, plays an important part. It goes without saying that, as with us, record is everywhere made of the acts of the court itself. Under the German law, the session-protocol ('Sitzungsprotokoll') contains an outline of the steps taken at the hearing or hearings and is specifically required to include the testimonial evidence and the results of judicial inspection ('Augenschein').301 Separate protocols preserve a record of steps taken before a delegated judge.302 In the French procedure there is nothing corresponding to the German session-protocol,303 but single transactions outside the hearing proper are authenticated by 'procès verbal,' e. g., the 'procès verbal' of the 'enquête, '304 of the 'interrogatoire sur faits et articles, '305 of the administration of the oath to the expert witnesses charged with making a written report. The "hearing-sheet" ('foglio d'udienza') of the Italian system serves to record proceedings at the hearing,307 while other matters, including the depositions, form the subject of separate 'processi verbali.' In Spain the official record is also a comprehensive308 one, embracing the oral testimony, which, as noted above, is always reduced to writing. But in all these procedures, a conspicuous agency in preserving a record of the cause is what we would call the "recitals" of the written judgment. The 'factum' ('Thatbestand') of the German judgment is required to contain in effect a summary of the allegation and proof.309 In the French system a similar office is performed by the 'qualités' of the judgment which, by a practice bearing some analogy to our own in relation to bills of exceptions,are prepared by the 'avoués' of the respective parties and settled and

300. Ley de enjuiciamiento § 667 et seq. 301. Civilprozessordnung § 160.

302. Bunsen "Lehrbuch des deutschen Civilprozessrechts" 341; Fitting "Der Reichscivilprozess" (12th and 13th ed.) 186.

608.

303. Schwartz "Vierhundert Jahre deutscher Civilprozess-Gesetzgebung"

304. Glasson "Précis de procédure civile" (2d ed.) I 839.

305. Ibid. 905.

306. Ibid. 885.

307. Regolamento generale giudiziario § 248; Mortara "Comentario di procedura civile" 380-381.

308. See Ley de enjuiciamiento civil e. g. §§ 315, 334, 589, 634.

309. Civilprozessordnung § 313; Stölzel "Schulung für die civilistische Praxis" (3d ed.) I 116-117.

approved by the court.310 In Italy, the judgment is required to contain the substance of the parties' claims ('conclusioni') and state the reasons ('motivi') both of fact and of law for the result reached. So, in Spain, the Code provides that there shall be embraced in the judgment a concise statement of the respective claims and the facts upon which they are founded together with an evaluation of the points of law raised by the parties.312

Like other modern systems, our own civil procedure gives place to both orality and documentation, but its development in a double course exhibits two strikingly dissimilar combinations of these principles. The Anglo-Norman procedure, originally oral, both as to pleading and proof, became subject to a qualified principle of recordation313 which, by the beginning, perhaps, of the 1500s, had evolved written pleadings,314 incapable of oral modification. But, beyond this, the common law system has not yielded, otherwise than exceptionally, to the principle of documentation: any but the slightest extension of that principle to the field of proof would have been incompatible with trial by jury. Apart from its pleadings, the procedure remains essentially oral. Nor has its principle of recordation ceased to be a qualified one. The record is still the common law record which takes no notice of proceedings at the trial, other than the rendition of the verdict. And the judgment is still purely dispositive in character, performing no function in preserving the data of decision. Only at the instance of the party, and through his activity, by bill of exceptions or equivalent means, do the proceedings become fully recorded. The chancery procedure has had a different history. Its allegations, to the characteristics of which common law and canon law influences alike contributed, have been written from the outset. As to its proof, the canon law influence prevented the oral examination of witnesses save as an extraordinary measure," 315 and dictated, instead, as the practice settled, the method which we have come to know as the classic chancery one,-that of examination upon written 310. Glasson op. cit. I 600 et seq. "Les qualités comprennent les noms, professions et demeures des parties, leurs conclusions, les points de fait et de droit (art. 142 C. pr.)" Ibid. 600.

311. Codice di procedura civile § 360; Regolamento generale giudiziario § 265; Mortara "Principii di procedura civile" (4th ed.) 184. 312. Ley de enjuiciamiento § 372.

313. "Enrollment of judicial proceedings, privately made by the interested parties, was not unknown in the Norman or pre-Norman period. It was, it seems, a regular official practice from the early years of Henry the Second; but in the Rolls it was done in brief memoranda merely, seldom at length." Bigelow "History of Procedure in England" 319, note 4. 314. See Holdsworth "History of English Law" III 485.

315. Daniell "Chancery Practice" (1st ed.) II 441, 466; Kerly "History of Equity" 123.

interrogatories,316 in some instances by a master, usually by an examiner or commissioners, with the results reduced to the form of depositions.317 For motions generally and for argument always the oral principle was observed, but proof, as well as allegation, thus conformed to the principle of documentation. Toward the principle of recordation, on the other hand, chancery had basically the same attitude as the common law.318 But a practical divergence existed in the fact that, in the very nature of its method, the evidence was almost altogether preserved in writing. While, in the classic chancery practice, the depositions were not technically a part of the record, they were potentially, and in American assimilation of chancery to common law appellate procedure have become so recognized.319 It cannot be predicated of the classic system that it aimed, to any considerable extent, at embodying the data of decision in the decree itself. Certainly, it required the substance of the pleadings to be recited.320 The view, however, that it prescribed the recital of the facts proved321 rests upon two decisions,322 of questionable authenticity,323 attributed to Lord Keeper North, which do not appear to have influenced the practice.32 By the rule actually followed, "the reference to the evidence is merely general . . . except as to the documents which have been read, which ought to be specified."325 Whatever function of recordation the old decree thus performed was largely stripped from it, in the later English chancery

316. Chancery started with the orthodox canon law practice of examination by the judge himself. "It is to be noticed," says Daniell, "that an examination by the examiner is frequently termed an 'examination in court,' because anciently, the examination was before a judge of the court. This judge was generally the Master of the Rolls, who, as the business of the court increased, left the examination of witnesses to his clerks; so that the examination before the judge gradually fell into desuetude, and the practice arose of examining all witnesses, within a certain distance from town, before the examiners who, having been originally the deputies of the judge, the examination by them still continued to be treated as an examination in court." Op. cit. II 474.

317. Kerly op. cit. 121-123; Daniell op. cit. II 474, 489, 835.

318. Langdell "Summary of Equity Pleading" (2d ed.) 47.

319. See Aiken "Appeals" in "Encyclopædia of Pleading and Practice" II 261. The appeal from the Court of Chancery to the House of Lords was conducted by petition and answer "and it is upon the documents below, as set out and admitted in these proceedings, and not upon the record itself, that the House proceeds in hearing the appeal." Daniell op. cit. II 675-676. 320. Seton "Forms of Decrees" (1st ed.) 6-7; Daniell op. cit. II 654. 321. Whiting v. Bank of U. S. 13 Pet. (38 U. S.) 6, 14; Clapp v. Thaxter, 1 Gray (Mass. 384, 387).

322. Brend v. Brend 1 Vern. 213, sub. nom. Broad v. Broad 2 Ch. Cas. 161; Bonham v. Newcomb 1 Vern. 214.

323. Trulock v. Robey 2 Ph. 396.

324. Seton op. cit. 7; Daniell op. cit. II 666-667.

325. Daniell op. cit. II 667.

practice326 and under the Federal Equity Rules, 327 by the adoption of provisions discouraging the use of recitals. With the fusion of common law and chancery procedure in most jurisdictions and the general introduction of oral examination of witnesses in open court, even where chancery is retained as a separate jurisdiction, AngloAmerican civil procedure, as a whole, now subscribes to the same principle of recordation and the same combination of orality and documentation which characterized the common law system. It should, however, be noted that the régime of oral proofs has given the recordatory office of the chancery decree new possibilities of usefulness, since, as is exemplified by the practice in Illinois, it may afford an alternative means of preserving the evidence.328 In both common law and chancery causes documentation of proof occurs to a certain extent,-e. g., depositions of non-resident or infirm witnesses, affidavits on motions,-but in chancery causes, by reason of the absence of the jury, and the continued practice of references, such documentation still holds a larger place. Nevertheless, in return for the approach of chancery to common law standards in the present regard, the modern practice of delegating the hearing of certain common law causes to referees or other authorized officials by virtue of judicial discretion in England and by consent in the United States, may be said, in so far as it involves a writing up of the evidence for later presentation to the court itself, to represent a taking on by the common law of a certain measure of the chancery principle of documentation in the field of proof.

(To be concluded)

326. Id. op. cit. (2d Am. from 2d. Eng. ed.) II 1256-1257. 327.

Rule LXXXVI of 1842 (Rule 71 of 1912).

328. In Illinois, recitals of the evidence in the decree are necessary when it is not preserved by depositions, master's report or certificate of evidence. White v. Morrison 11 Ill. 361; Bressler v. McCune 56 Ill. 475; Chicago Terminal Transfer R. R. Co. v. Barrett, 252 Ill. 86.