152 UNIVERSITY OF COLORADO STUDIES 



no harm, and did not add much to the record. Then, too, that old 

 common-law formula of "full defense," standing there at the top of 

 the page apprised me of the fact that I was to be met by no demurrer 

 or dilatory plea, but by a plea to the merits, and, moreover, it fired 

 my imagination, hke "doubloons," or "pieces of eight," in a story 

 book. 



I once ran across a record of a mining claim called the Nisi Prius. 

 I knew that a lawyer had been there in the mountains or thereabouts. 



I should here explain perhaps that it is not the purpose of this 

 paper to advocate a return to the system of common-law procedure, 

 with aU its special pleas, its feigned matters, such as, for example, 

 that intricate and subtle fiction which the term "express color" came 

 to represent. It were well, indeed, if a certain residuum of these old 

 forms were not lost sight of. But my present object is mainly to 

 refresh the recollection and to show that some of these things are really 

 not so absurd as they seem. 



Consider for a moment the much-aspersed special traverse. I 

 may be pardoned if I remind the reader that its essential requisites 

 were (i) an inducement containing an averment of new matter con- 

 stituting an indirect denial of some material allegation in the adverse 

 pleading; (2) the absque hoc or et non clause, constituting a direct 

 denial of the same material allegation in the language in which it is 

 made; (3) the conclusion, or offer of verification. For example, if 

 in an action of debt on a bond the defendant should plead that he 

 executed the bond under duress, the plaintiff may reply alleging new 

 matter by way of inducement, to the effect that the defendant exe- 

 cuted it of his own free will, and for a valuable consideration, without 

 this {absque hoc) that he executed it by duress.' A learned author 

 justly says that "this method of controverting a point by argument 

 occurs in everyday disputation. Any person inexperienced in plead- 

 ing would naturally meet the point of duress in the example 

 mentioned by saying in behalf of the plaintiff (if the facts were at 

 his command) , ' the plaintiff paid full value to the defendant for the 

 bond, which is a fact inconsistent with and repugnant to the pre- 



■ Gould, PL ch. vii, sees. 7-3. 



