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PLEADING (Fr. plaider, plaidoyer)

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Originally appearing in Volume V21, Page 834 of the 1911 Encyclopedia Britannica.
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PLEADING (Fr. plaider, plaidoyer) , the See also:term applied in See also:English See also:law to the preparation of the statement of the facts on which either party to a criminal See also:prosecution or a See also:civil See also:action founds his claim to a decision in his favour on the questions involved in the proceeding; and also to the document in which these statements are embodied. The term " pleadings " is used for the collected whole of the statements of both parties; the term " pleading" for each See also:separate See also:part of the pleadings. The term " plea " (placitum, See also:plaid)' is now applied in See also:England oftenest to the See also:defence made by an accused See also:person. To " plead " is to make a pleading or plea.2 All systems of law agree in making it necessary to bring the grounds of a claim or defence before the See also:court in a more or less definite and technical See also:form. See also:Roman See also:System.—In Roman law the action passed through three stages (see AcTIoN), and the manner of pleading changed with the action. In the earliest See also:historical See also:period, that of the legis actions, the pleadings were verbal, and made in court by the parties them-selves, the proceedings imitating as far as possible the natural 1 In Scots and ecclesiastical law the word " plea " is used as to the statements of both parties to a cause. ' In See also:French law plaider and plaidoyer are still applied to the oral arguments of counsel, and in English popular speech " to plead " has much the same sense. 832 conduct of persons who had been disputing, but who suffered their See also:quarrel to be appeased (See also:Maine, See also:Ancient Law, ch. x.). The use of technical See also:language in pleading at an See also:early date came to be regarded as so important that, as See also:Gaius tells us, the party who made even the most trifling See also:mistake would lose his suit. This excessive reverence for formality is a universal characteristic of archaic law. In the second period, that of the See also:procedure by formulae, the issue which the judex decided was made up by the See also:praetor in See also:writing from the statements of the parties before him. The See also:formula was a See also:short See also:summary of the facts in dispute in technical language, with instructions to the judex, and corresponded to what would now be called the submission or terms of reference to an arbitrator chosen by the parties.

The part of the formula which contained the See also:

plaintiff's claim was called the intentio. Any equitable defence included in the formula was set up by means of an exceptio, which was either See also:peremptory, denying the right of the plaintiff to recover at all, or See also:dilatory, denying only that the action could be brought at the See also:time or by the particular plaintiff. The plaintiff might meet the exceptio by a replicatio, the See also:defendant on his See also:side might set up a duplicatio, and the plaintiff might See also:traverse the duplicatio by a triplwatio. The parties might proceed even further, but beyond this point the pleadings had no See also:special names. Actions bonae fidei implied every exceptio that could be set up; in other actions the exceptio must be specially pleaded. From the formula the judex derived his whole authority, and he was liable to an action for exceeding it. He could not amend the formula: that could only be done by the praetor. In the third period the formula did not exist, the plaintiff's claim appeared in the See also:summons (libellus conventionis), and the defendant might take any defence that he pleased, all actions being placed on the footing of actions bonne fidei. The issue to be tried was determined by the See also:judge from the oral statements of the parties. English System.—The English system of pleading seems to have See also:drawn largely from, if it was not directly based upon, the Roman. See also:Bracton (temp. See also:Henry III.) uses many of the Roman technical terms.

Pleading was oral as See also:

late as the reign of Henry VIII., but in the reign of See also:Edward III. pleadings began to be drawn up in writing, perhaps at first more for the purpose of entry on the court records than for the instruction of the court (see 2 See also:Reeves, See also:History of English Law, p. 398). The French language was used until 1362, after which English was used for oral pleading, but Latin for enrolment, except for a short period during the See also:Commonwealth. Latin was the language of written pleadings at See also:common law until 1731. The period of the Roman formula has its analogue in the period of the See also:original See also:writ in England.' The writ was at first a formal See also:commission from the See also:Crown to a judicial officer to do See also:justice between the parties, the claim being made by a See also:count (conk, narrative). The issue of the writ was part of the See also:prerogative of the Crown, unlimited until the Provisions of See also:Oxford (1258) forbade the issue of fresh writs except " writs of course " (de cursu) without the consent of the See also:council. Gradually the writ came to absorb the count and included the plaintiff's claim and sometimes the nature of his See also:evidence. The defendant pleaded to the writ. The writ became the universal form of instituting proceedings in the See also:king's court, irrespective of the method of trial which followed, and probably See also:grew fixed in form about the reign of Henry II. (see See also:Bigelow, History of Procedure, ch. iv.). At a later date the writ again tended to approach its earlier form and to split into two parts—the writ of summons and the See also:declaration or plaintiff's claim. The writ of summons was addressed to the defendant, and not, as the original writ, to a judicial officer.

The pleadings became the See also:

act of the party, differing in this from Roman law, in which they were a judicial act. The writs became precedents for the forms of action, which, like the writs, were limited in number. The plaintiff's declaration was a substantial repetition of the writ. In the writ, as in the formula, the slightest failure in form was as a See also:rule fatal. " The assigning of a writ of a particular See also:frame and See also:scope to each particular cause of action, the appropriating See also:process of one See also:kind to one action and of a different kind to another, these and the like distinctions rendered proceedings very See also:nice and complex, and made the conduct of an action a See also:matter of considerable difficulty " (1 Reeves, Hisi. of English Law, p. 147). Fines were levied for mistakes in pleading, non-liability to which was sometimes granted by See also:charter as a ' The original writ was so called to distinguish it from the judicial writ, which was a part of the process of the court. The judicial writs still exist, e.g. writs of certiorari or fieri facias.special See also:privilege to favoured towns. In both Roman and English law See also:fictions, See also:equity and legislation came to mitigate the rigour of the law. In England this result was largely attained by the framing of the action of trespass on the See also:case under the See also:powers of the See also:Statute of See also:Westminster the Second (1285), and by the See also:extension of the action of See also:assumpsit to non-feasance. The difficulties and technicalities of the common law system were met by elaboration of what is known as" special pleading,"2 which became an See also:art of the utmost nicety, depending on numerous rules, some of them highly technical (see See also:Coke upon See also:Littleton, p. 303).

Those who made it their business to frame pleadings were called special pleaders. They were not necessarily members of the See also:

bar, but might be licensed to practise under the bar. At one time it was usual to practise for a time as a special pleader before See also:call to the bar. Such licences are now rarely sought, and the Law See also:List of 1906 contained only one name of a special pleader who was not a See also:barrister. The art became necessary because of the See also:absolute particularity with which claims must be framed, and the narrowness of the powers of See also:amendment possessed by the courts. The result was that substantive law was smothered in procedure, and the See also:practical questions at issue were of less moment than the phraseology in which they were to be stated. As an extreme instance, a learned judge in the 19th See also:century challenged a pleading for putting the See also:year without adding A.D., on the ground that " non constat that A.C. might not be intended." ° Some of the difficulties as to amendment were removed by the statutes of Jeofails (j'ai failli) beginning in 1340. But until the 19th century the courts of common law and equity worked side by side in Westminster See also:Hall, administering each their own system without due regard to the other; and even in so See also:simple a matter as the right of a defendant to set off against a claim on him a See also:debt due to him from the plaintiff required statutory See also:provision. Many of the defects and technicalities of the common law system were removed by the Common Law Procedure Acts and the See also:general rules of practice made thereunder. Wide powers of amendment were given, and the parties were allowed to raise and try claims which theretofore could have been dealt with only in courts of equity. In the court of See also:chancery the pleadings used were See also:bill (or in certain public matters an See also:information by the See also:attorney-general), See also:answer and replication .3 Demurrers were used, or " exceptions " could be taken to the bill or answer. They differed from the common law forms by being much more diffuse, by pleading matters of evidence, and in that the answer was on See also:oath.

Beyond the replication chancery proceedings did not go, the See also:

place of further pleadings being supplied by amendment. Exceptions might be taken to the bill or answer on various grounds. Equity pleadings were signed by counsel. On the creation of the See also:divorce court the pleadings authorized were (and still are) as follows: See also:petition (which must be verified by oath), answer (which is so verified if it goes beyond a See also:mere denial) and reply; and a special pleading called " act on petition" (derived from the ecclesiastical courts) with answer thereto, generally used for the determination of some preliminary question in the suit, e.g. the See also:domicile of the See also:husband. In the court of See also:admiralty the pleadings used were petition, answer, reply and conclusion. In the See also:probate court the common law terms were used (declaration, plea and replication), but the procedure was not the same as in the common law courts. Under the old common law system' as modified in the 19th century the pleadings in use were as follows: 1. Declaration, made up of one or more See also:counts (contes), or modes of framing the plaintiff's claim so as to See also:state his grievances in fact in a form suggesting the appropriate remedy at law, and concluding by demand for a plea. The counts were spoken of as common or special according as the facts of the case allowed the use of common 2 The ingenuity of the pleader showing itself chiefly in framing special as opposed to general pleas, the term " special pleading " grew to be used for the whole proceedings of which it was the most important part. ' In Chancery the " English Bill," so called from its being in the English language, had existed, according to G. See also:Spence, as early as the reign of Henry V. (Equitable See also:Jurisdiction, i.

348). Bullen and See also:

Leake, Precedents of Pleading (3rd ed., 1868). forms or required special statement. The declaration corresponds to the Roman formula and intentio. 2. Plea by the defendant to the counts of the declaration. The plea corresponds to the Roman exceptio. 3. Replication by the plaintiff to the plea. In this pleading the plaintiff usually took issue upon the statements in the defence; but he might do what was termed " new assign," e.g. complain of acts in excess of a See also:justification alleged in the plea. 4. Rejoinder by the defendant to the replication, answering to the Roman duplicatio.

g. Surrejoinder by the plaintiff to the rejoinder, answering to the Roman triplicatio. 6. Rebutter by the defendant to the surrejoinder. 7. Surrebutter by the plaintiff to the rebutter. Nos. 4, 5, 6 and 7 were rarely necessary, as the parties usually came to a definite issue on the facts in the replication, and the last of them is only kept in legal memory because See also:

Lord See also:Wensleydale (the last and best versed of the old common law pleaders) was nicknamed See also:Chief See also:Baron Surrebutter. At any See also:stage of the pleadings after (I), the party might instead of pleading to the preceding document demur, i.e. admit the facts as therein stated and contend that assuming the truth of those facts the document was insufficient in law to found a claim or a defence as the case might be. Demurrers (q.v.) were general or special according as they went to the substance of the claim or plea or to a mere defect in the mode of statement. When the pleadings had reached a stage at which the parties were in See also:flat See also:contradiction on matters of fact, they concluded by See also:joinder of issue, upon which the See also:record was made up and the action was ripe for trial. Pleas See also:fell into the following classes:- 1.

In See also:

abatement, also described as temporary or dilatory (terms of Roman law), directed either to the jurisdiction of the court or to the abatement or defeat of the action for defects of form. 2. In bar, also described as peremptory, which answered the alleged cause of action by denying facts stated in the declaration which were material, or by confessing their truth, but stating new matter of fact which destroyed their legal effect. Some of these were by way of justification or excuse, e.g. by setting up the truth of matter alleged to be defamatory, or legal See also:warrant for an See also:arrest complained of as illegal; others were by way of See also:discharge, e.g. of an alleged debt by See also:payment. Pleas in denial were known (a) as general traverses or general issues, when they denied in a general and appropriate form one or more of the facts alleged (e.g. " never indebted " to a claim in assumpsit or " not guilty " to a claim for See also:tort) ; (b) as specific traverses of separate and material allegations in the declaration, setting out with particularity the facts relied on. It was permissible to plead alternatively, i.e. to set up a number of different answers to the facts on which the claim was based. As a general rule a plea must be " issuable," i.e. must put the merits of the cause in issue on the facts or the law, so that the decision of judge and See also:jury thereon would put an end to the action upon the merits. All the above forms of pleading, except in matrimonial causes, were abolished by the Judicature Acts, and a new system was set up by these acts and the rules of the Supreme Court. Under this system the pleadings proper are " statement of daim," " defence," " reply," and, if need be, " rejoinder." When pleadings are allowed they must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved; and must, when necessary, be divided into paragraphs, numbered consecutively. See also:Dates, sums and See also:numbers are expressed in figures and not in words. See also:Signature of counsel is not necessary; but where pleadings have been settled by counsel or a special pleader they are to be signed by him, and if not so settled they are to be signed by the See also:solicitor or by the party if he sues or defends in person (O.

19, r. 4).1 There has been a growing disposition to dispense with formal pleadings in the simpler kinds of action. A plaintiff is allowed to proceed to trial without pleadings if the writ of summons is endorsed in a manner sufficient to indicate the nature of his claim and the See also:

relief or remedy which he seeks (0. 18a), and contains a See also:notice of his intention. In no case is a statement of claim other than that endorsed on the writ necessary unless the defendant on See also:appearance asks for one, and his right to insist has been cut down by the provisions presently to be stated. In commercial cases a statement by the parties to the points of law and fact which they propose to raise is substituted for See also:ordinary pleadings. In cases where I Before the Judicature Acts equity pleadings were signed by counsel, but common law pleadings were not. the demand is for a liquidated sum certain, or to recover See also:land from a See also:tenant on expiration of his term or its See also:forfeiture for non-payment of See also:rent, the statement of claim must be endorsed on the writ; and in all other cases no statement of claim beyond that on the writ may be delivered except under See also:order of the See also:master or judge at See also:chambers (Ords. 18a and 30). A statement of defence may not be delivered except under order made on the summons for directions (which must be taken out immediately after the appearance of the defendant in answer to the writ), nor a reply without special leave. The result of the See also:present practice is to substitute " particulars," i.e. specific statement of the details which the parties intend to prove, for the more general terms in which pleadings were formerly framed. Besides the rules applicable to all pleadings, there are certain rules specially See also:relating to statements of claim, with reference to the nature of the causes of action which may be included and the relief which may be claimed (0.

20). As to the defence proper, there are also special rules intended to prevent evasive, inadequate or unnecessary contradiction of the plaintiff's statements (0. 19, 20). The defendant is allowed to " set off " against the claim sums due to him from the plaintiff or to raise by way of See also:

counter-claim any right or claim against the plaintiff or a third party, whether " See also:sounding " as See also:damages or not. The counter-claim is in substance a conjoined action in which the defendant is plaintiff and the plaintiff or third party affected may put in a defence to it. Except in such a case the reply and subsequent pleadings are now seldom permitted. Both the parties and the court or a judge have large powers of amending the pleadings both before and at the trial. Issues are in certain cases settled by the court or a judge. Demurrers are abolished, and a party is now entitled to raise by his pleading any point of law. Where decision of a point of law would put an end to the action steps may be taken for obtaining such decision so as to obviate the See also:necessity of trying the issues of fact raised on the pleadings. Forms of pleading are given in Appendices C, D and E to the Supreme Court Rules. In all actions such ground of defence or reply as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, must be specially pleaded.

Such are compulsory pilotage, See also:

fraud, the Statute of Limitations, the Statute of Frauds and the Gaming Act. The Supreme Court Rules do not apply to proceedings in Crown suits or in the Crown side of the king's See also:bench See also:division. In actions for damages by collision between See also:ships each party must as a general rule See also:file a sealed document called a preliminary act containing details as to the time and place of collision, the See also:speed, See also:tide, See also:lights, &c. The case may be tried on the preliminary act without pleadings, but if there are pleadings the act may not be unsealed until they are completed and certain consents given. The document was See also:peculiar to the court of admiralty, but may now be used in all divisions of the High Court (O. 19, r. 28). The High Court system of pleadings has been adopted in the chancery courts of the counties See also:palatine of See also:Lancaster and See also:Durham.. The place of the " record " is supplied by copies of the pleadings delivered for the use of the judge and of the officer entering the See also:judgment (O.36, r. 30; O. 41, r. 1).

In the See also:

county courts proceedings are commenced by a plaint, followed by an ordinary or See also:default summons. No " pleadings "are necessary, but the defendant is precluded from setting county up certain special defences such as set-off or See also:infancy, courts. or statutory defences, without the consent of the plaintiff, unless he has given timely notice in writing of his intention to set up the special defence. This system is made workable by insisting on the insertion of adequate details or particulars of the nature of the claim in the plaint. But in cases where a special defence is not required considerable inconvenience is caused by uncertainty as to the See also:line of defence. In some of the See also:local civil courts of record which have surviyed the creation of the county courts, the pleadings are still in the form recognized by the Common Law Procedure Acts. inferior This is the case in the See also:Mayor's Court of See also:London. In Local others (e.g. the See also:Liverpool Court of Passage and the Courts of See also:Salford See also:Hundred Court) the system of the judicature R "ord. Acts has been adopted with or without See also:official, See also:sanction. The policy of the lord See also:chancellor and the See also:treasury has been to refuse reform of procedure to all but the most used of these local courts so as to extinguish them in favour of the county courts. In the ecclesiastical courts the statements of the parties are called generally pleas. The statement of the plaintiff in civil suits is called a See also:libel; of the See also:promoter in criminal suits Era/est.. articles. Every subsequent plea is called an allegation. sstical.

To the responsive allegation of the defendant the See also:

pro- moter may plead a counter-allegation. The cause is concluded when the parties renounce any further allegation. There exists in addition a more short and summary mode of pleading called an act on petition. In Roman criminal procedure the See also:indictment (inscriptio or II libellus accusationis) was usually in writing, and contained a formal statement of the offence. In some cases oral accu-Crtmtoa/ sations were allowed. The pleading of the accused seems to have been informal. In English criminal cases the expression " pleadings " is limited to those tried on indictment or information before a jury. In matters dealt with by justices of the See also:peace there are informations sometimes in writing, but they are never regarded as " pleadings." English criminal pleading has been less affected by legislation than civil pleading, and retains more of what is called the common law system. Cases in which the Crown was a party early became known as " pleas of the Crown " (placita coronae), as distinguished from "common pleas" (communia placita), or pleas between subject and subject—that is to say, ordinary civil actions. Pleas of the Crown originally included all matters in which the Crown was concerned, such as See also:exchequer cases, franchises and liberties, but gradually became confined to criminal matters, strictly to the greater crimes triable only in the king's courts. In criminal pleading the Crown states the case in an indictment or information. The answer of the accused is a plea, which must be pleaded by the accused in person, except in certain cases of See also:misdemeanour tried in the High Court (Crown See also:Office Rules, 1906).

The plea, according to See also:

Blackstone, is either to the jurisdiction, a See also:demurrer, in abatement, special in bar, or the general issue. The last is the only plea that often occurs in practice; it consists in the answer (usually oral) of " guilty " or " not guilty " to the See also:charge. A demurrer is strictly not a plea at all, but an objection on legal grounds. Pleas to the jurisdiction or in abatement do not go to the merits of the case, but allege that the court has no jurisdiction to try the particular offence, or that there is a misnomer or some other technical ground for stay of proceedings. The powers of amendment given in 1851 (14 & 15 Viet. c. See also:loo) and the procedure by See also:motion in arrest of judgment have rendered these pleas of no practical importance. The special pleas in bar are autrefois convict or autrefois acquit (alleging a previous conviction or aquittal for the same See also:crime) and See also:pardon (see PARDON). The plea of autrefois See also:attaint has fallen out of use since the abolition of See also:attainder by the Forfeitures Act 187o. There are also special pleas of justification to indictments; for defamatory libel under the Libel Act 1843; and to indictments for non-repair of highways and See also:bridges the accused may plead that the liability to repair falls upon another person. These special pleas are usually, and in some cases must be, in writing. When there is a special plea in writing the Crown puts in a replication in writing. See also:Ireland.—The practice as to civil and criminal pleading in Ireland is substantially the same as in England, though to some extent based on different statutes and rules of court. See also:Scotland.—In Scotland an action in the Court of Session begins by a summons on the part of the pursuer, to which is annexed a condescendence, containing the allegations in fact on'which the action is founded.

The pleas in law, or statement of the legal rule or rules relied upon (introduced by the Court of Session Act 1825), are subjoined to the condescendence. The term libel is also used (as in Roman law) as a general term to See also:

express the claim of the pursuer or the See also:accusation of the prosecutor. The statement of the.,defender, including his pleas in law, is called his defences. They are either dilatory or peremptory. There is no formal joinder of issue, as in England, but the same end is attained by See also:adjustment of the pleadings and the closing of the record. Large powers of amendment and revisal are given by the Court of Session Act 1868. In the See also:sheriff court pleadings are very similar to those in the Court of Session. They are commenced by a petition, which includes a condescendence and a See also:note of the pursuer's pleas in law. The defender may upon notice See also:lodge defences. The procedure is now Foverned by the Sheriff Courts Scotland Act 1876. The term pleas of the Crown " is confined in Scotland to four offences—See also:murder, See also:rape, See also:robbery and See also:fire-raising. The criminal procedure of Scotland was simplified and amended in 1887.

The old procedure by criminal letters has been abolished, and prosecutions for the public See also:

interest whether in the high court of See also:justiciary or before the sheriff with a jury are by indictment in the name of His See also:Majesty's See also:advocate. The Scots indictment differs from the English in not being found by a See also:grand jury, except in cases of high See also:treason, and resembles rather the ex officio information of English law. Until 1887 it was in the form of a See also:syllogism, the See also:major proposition stating the nature of the crime, the See also:minor the actual offence committed and that it constitutes the crime named in the major, theconclusion that on conviction of the See also:panel he ought to suffer See also:punishment. Under the present practice it is in the second person addressed to the accused, and follows the forms scheduled to the act of 1887, which also makes specific provisions for simplification, and if need be for amendment (s. 7o). A copy of the indictment with a list of the witnesses and the productions must be served on the accused. There are two sittings (diets) to See also:deal with the indictment. At the first, held before the sheriff, the accused (termed the panel) may plead guilty or raise preliminary objections to the relevancy of the indictment, &c., or otherwise (such as want of jurisdiction or res judicata); or without taking such objections, or after they are overruled, may plead not guilty. The second See also:diet is the diet of trial. If the trial is before the sheriff his rulings at the first diet are final, if before the court of justiciary his rulings may be reviewed. At the second diet, besides his plea of not guilty, the panel may rely on certain special defences, e.g. See also:insanity or See also:alibi, but only if his special and written plea was tendered and recorded at the first diet or the delay explained, and he cannot call evidence in support of these pleas except on written notice specifying the names of the witnesses and the documents not included in the prosecutor's lists (s. 36).

(See See also:

Macdonald, Criminal Law of Scotland.) See also:British Dominions Beyond Seas.—In most of the Australian states, and in See also:Ontario and New See also:Zealand, civil pleadings are governed by rules adopted from the English Judicature Acts. In New See also:South See also:Wales a system based on the Common Law Procedure Acts is retained. Civil pleadings in See also:India are regulated by the Civil Procedure See also:Code. Indictments, except in India, are based on the English system as modified by the criminal codes or other legislation of the See also:colony. Indictments in India are regulated by the Criminal Procedure Code of 1898. See also:United States.—In the United States two systems of pleading in civil procedure exist side by side. Up to 1848 the pleading did not materially differ from that in use in England at the same date. But in 1848 the New See also:York legislature made a See also:radical See also:change in the system, and the example of New York has been followed by many states. The New York Civil Code of 1848 established a See also:uniform procedure called the civil action, applicable indifferently to common law and equity. The pleadings are called complaint, answer (which includes counterclaim) and reply. The demurrer also is still used. In some states which follow this procedure the complaint bears the name of petition.

In inferior courts, such as courts of justices of the peace, the pleadings are more simple, and in many cases oral. In states which do not adopt the amended procedure the pleading is much the same as it was in the days of Blackstone, and the old See also:

double jurisdiction of common law and equity still remains. Criminal pleading is on the lines of the common law system of England. (W. F.

End of Article: PLEADING (Fr. plaider, plaidoyer)

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