Upon the country

In the April 1895 term of the Nolan County, Texas, District Court, C.A. Culberson, Governor of Texas, filed suit against J.W. Collins.

Collins, the suit alleged, was the owner of 160 acres in Nolan County originally sold to J. Asberry Jr. on 17 September 1881 for $1 an acre, with a note for $152 at eight percent interest.

As of 1893, the complaint continued, the interest owed was $85.12, and it asked the court to eject the defendant from the land for the benefit of the school fund and for the $85.12 in interest, together with costs of suit.1

In the November term, J.F. Eidson, the attorney for the defendant, filed Collins’s answer. It’s a two-paragraph pre-printed form:

Now comes defendant by attorney and excepts to plaintiff’s petition and says that the same is insufficient in law, and shows no cause of action against defendant–wherefore he prays judgment whether this court will take further cognizance of this suit.

And now comes the defendant by attorney and denies all and singular the allegations in plaintiff’s petition; and of this he puts himself upon the country–wherefore he prays judgment of the court.2

Okay. Just what the heck does all that mean?

The first paragraph actually is easy. The defendant is basically saying, in plain English, “so what if everything the plaintiff says is true? The law won’t let the court take my land away or make me pay that interest.” In today’s legal language, it’s a motion to dismiss for failure to state a claim3 — a statement that, even taking the facts as true, the law favors the defendant and leaves the plaintiff without a legal basis for the lawsuit.

But that second paragraph! Sure, the “denies all and singular the allegations in plaintiff’s petition” is clear, but what in the world does it mean that the defendant here “puts himself upon the country”?

Going to the country, in the language of the law, happened “when a party, under the common-law system of pleading, finished his pleading by the words ‘and of this he puts himself upon the country’… (T)his was called ‘going to the country.’ It was the essential termination to a pleading which took issue upon a material fact in the preceding pleading.”4

To put, in the law, in a pleading like an answer, was “to confide to; to rely upon; to submit to. As in the phrase, ‘the said defendant puts himself upon the country;’ that is, he trusts his case to the arbitrament of a jury.”5

This was also called a tender of issue: “A form of words in a pleading, by which a party offers to refer the question raised upon it to the appropriate mode of decision. The common tender of an issue of fact by a defendant is expressed by the words, ‘and of this he puts himself upon the country.’”6

In other words, in plain English, the defendant was telling the plaintiff to put up or shut up — to prove the case to the jury.7

The same term was used when a criminal defendant pleaded not guilty, though the Latin phrase ponit se super patriam or abbreviation po. se. might be used then.8

Where exactly the phrase came from isn’t clear, though it does sound as though it was an appeal to the broader community to judge the case.

But wherever it comes from, that’s what it means whenever you see it in a legal document: okay, other side, prove it to the jury.


 
SOURCES

  1. Nolan County, Texas, District Court case file 455, Culberson v. Collins, complaint, April term 1895; District Court Clerk Archives, Sweetwater; digital images, “Texas, Nolan County, Civil Court Minutes and Case Files, 1881-1938,” FamilySearch.org (https://familysearch.org/ : accessed 24 Apr 2013).
  2. Ibid., answer, November term 1895.
  3. See for example Federal Rule of Civil Procedure 12(b)(6), providing for a defense for “failure to state a claim upon which relief can be granted.”
  4. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 542, “going to the country.”
  5. Ibid., 969, “put.”
  6. Ibid., 1160, “tender of issue.”
  7. See also The Free Dictionary (http://www.thefreedictionary.com : accessed 24 Month 2013), “To put one’s self upon the country” (“to appeal to one’s constituents; to stand trial before a jury”).
  8. Black, A Dictionary of Law, 910, “ponit se super patriam.”
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6 Responses to Upon the country

  1. The preposition “upon” caught my eye, and I thought of the familiar phrase in the movies, “I throw myself upon the mercy of the court.” I could see a relationship linguistically? Thanks for such a clear explanation.

  2. Rondina says:

    So you left me hanging. Was a jury trial pursued? Did Collins win? And I wonder where the lawyer was from. I’m assuming not Texas.

    • Judy G. Russell says:

      Actually, the only thing I could find out for sure was that the lawyer WAS from Texas — a local boy, as a matter of fact, and appointed by the Court to represent a number of non-resident defendants. I read through the entirety of the volume of court minutes (through April of 1901)… and couldn’t find any disposition of this one case. Sigh…

      • John H says:

        I guess you could infer a ‘winner’ by doing some land record research.

        But who would have time for that!!

        • Judy G. Russell says:

          I wish I had time to do that research, John! Alas, I still have the issue of an employer who doesn’t understand why genealogy should come first!

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