1902 Encyclopedia > Pleading


PLEADING, in law, denotes in civil procedure the statement in legal form of the grounds on which a party to an action claims the decision of the court in his favour, in criminal procedure the accusation of the prosecutor or the answer of the accused. The term " pleadings " is used for the collected whole of the statements of both parties, the term " pleading " for each separate part of the plead-ings. A pleading maybe the statement of either party; a " plea " is (except in Scots and ecclesiastical law) confined to the defence made by an accused person. To " plead " is to frame a pleading or plea.

All systems of law agree in making it necessary to bring the grounds of a claim or defence before the court in a more or less technical form. In Roman law the action passed through three stages (see ACTION), and the manner of pleading changed with the action. In the earliest historical period, that of the legis actiones, the pleadings were verbal, and made in court by the parties themselves, the proceedings imitating as far as possible the natural conduct of persons who had been disputing, but who suffered their quarrel to be appeased (ilaine, Ancient Law, ch. x.). Though pleadings were probably not couched in technical language originally, this soon became a necessity, and was regarded as so important that, as Gams tells us, the party who made even the most trifling mistake would lose his suit. This excessive reverence for formality is a universal characteristic of archaic law. Its probable explanation is to be found in the weakness of the executive. In the second period, that of the procedure by formulae, the issue which the judex decided was made up by the praetor in writing from the statements of the parties before him. The formula was a short summary of the facts in dispute in technical language, with instructions to the judex. The part of the formula which contained the plaintiff's claim was called the intentio. Any equitable defence in the formula was set up by means of an exceptio, which was either peremptory, denying the right of the plaintiff to recover at all, or dilatory, denying only that the action could be brought at the time or by the parti-cular plaintiff. The plaintiff might meet the exceptio with a replicatio, the defendant on his side might set up a duplicatio, and the plaintiff might traverse the duplicatio by a triplicatio. The parties might proceed even further, but beyond this point the pleadings had no 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 prxtor. In the third period the formula did not exist, the plaintiff's claim appeared in the summons (libellus conventionis), and the defendant might take any defence that he pleased, all actions being placed on the footing of actions bonse fidei. The issue to be tried was determined by the judge from the oral statements of the parties. In criminal procedure the indictment (inscriptio or libellus accusationis) was usually in writing, and con-tained a formal statement of the offence. In some cases oral accusations were allowed. The pleading of the accused seems to have been informal.

The development of the system of pleading in Roman and English law proceeded upon very similar lines. It is possible that the English system was directly based upon the Roman. Bracton (temp. Henry III.) uses many of the Roman technical terms. Pleading was oral as late as the reign of Henry VIII., but in the reign of Edward III. pleadings began to be drawn up in writing, perhaps at first more for the purpose of entry on the court records than of the instruction of the court (see 2 Reeves, History of English Law, 398). The French language was used up to 36 Edw. III. st. 1, c. 15, after which English was used for oral pleading, but Latin for enrolment. Latin was the language of written pleadings at common law until 4 Geo. II. c. 26. Such terms as declaration, answer, replication are survivals of the oral period. It is no doubt from the circumstance of pleading having been originally oral that the word in the popular though not in the legal sense is used for the oral conduct of the case by an advocate. The period of the Roman formula has its analogue in the period of the original writ in England. The writ was at first a formal commission from the crown to a judicial officer to do justice between the parties, the claim being made by means of a count. The issue of the writ was part of the prerogative of the crown, unlimited until the Provisions of Oxford (1258) forbade the issue of fresh writs (except writs de cursu) without the consent of the council. Gradually the writ came to absorb the count and included the plaintiff's claim and sometimes the nature of his evidence. The defendant pleaded to the writ. The writ became the universal form of instituting proceedings in the king's court, irrespective of the method of trial which followed, and probably grew fixed in form about the reign of Henry II. (see 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 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 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 claim was a sub-stantial repetition of the writ. Modern legislation, in the case of the specially indorsed writ of summons (see below), practically returns to this ancient stage of law. In the writ, as in the formula, the slightest failure in form was as a rule fatal. " The assigning of a writ of a particular frame and scope to each particular cause of action, the appropriating process of one kind to one action and of a different kind to another, these and the like distinctions rendered proceedings very nice and complex, and made the conduct of an action a matter of considerable difficulty" (1 Reeves, Hist, of English Law, 147). Fines were levied for mistakes in pleading, non-liability to which was some-times granted by charter as a special privilege to favoured towns. In both Roman and English law fictions, 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 case under the powers of the Statute of Westminster the Second (13 Edw. I. stat. 1, c. 24), and by the extension of the action of assumpsit to non-feasance. To a less extent the same difficulties were found in the period of special pleading which followed the writ period, owing to the particularity with which the claim had to be set out and the narrow powers of amendment possessed by the courts. The practical questions at issue were thrown into the shade by questions of the proper way of stating them. Substantive law could only be arrived at through the medium of adjective law. Special pleading became an art of the utmost nicety, depending on numerous rules, some of them highly technical (see Coke upon Littleton, 303). Those who made it their business to frame pleadings were called special pleaders. They were not necessarily members of the bar, but might be licensed to practise under the bar. Pleaders under the bar still exist, but recent legislation has much diminished their numbers and importance. Changes were gradually introduced by a long series of statutes of which the most important have been the Statutes of Jeofails, beginning as early as 14 Edw. III., c. 6, the Statutes of Set-off, the Common Law Procedure Acts, and the Judica-ture Acts. The advance has always been, as in Roman law, in the direction of less formality. Up to 1875 the system of pleading varied in the different courts which now compose the High Court of Justice. In the Common Law Courts the action was commenced by a declaration (containing either special or common counts, or both com-bined), to which the defendant put in a plea or pleas. The plea was either of the general issue, i.e., a bare denial (as " Never Indebted " to an action of debt), or special, setting out the facts with greater particularity. Pleas were also peremptory or dilatory, names taken from the Roman law.

By the Common Law Procedure Act, 1854, equitable pleas might be pleaded. To the defendant's plea the plaintiff pleaded a replication ; the defendant might follow with a rejoinder, the plaintiff with a surrejoinder, the defendant with a rebutter, the plaintiff with a surrebutter. Beyond that point, which was seldom reached, the pleadings had no special names. The pleadings concluded with & joinder of issue. A copy of the pleadings constituted the record. Since the Judicature Acts there has been no record, properly so called, in civil cases, though it has not been expressly abolished. Its place is supplied by copies of the pleadings delivered for the use of the judge and of the officer entering the judgment under the Rules of the Supreme Court, 1883 (Ord. xxxvi. r. 30 ; Ord. xli. r. 1). Either party might, demur at any stage of the pleadings (see DEMURRER). In certain cases the replication of the plaintiff pro-ceeded by way of new assignment; e.g., in an action of trespass to which justification was pleaded, the plaintiff might complain of acts in excess of those covered by the justification. In this case he was said to new assign, and the defendant pleaded to the new assignment. In the Court of Chancery the plaintiff's claim was contained in a bill (in certain matters of a public nature an information), to which the defendant filed an answer on oath or a demurrer or, more rarely, pleas, and the plaintiff a replica-tion. Beyond the replication equity pleadings did not extend, the place of further pleadings being supplied by amendment. Exceptions (note again a Roman law term) might be taken to the bill or answer on various grounds. Equity pleadings, unlike common law pleadings, were signed by counsel. In the High Court of Admiralty the pleadings were called petition, answer, reply, and conclusion. In the Court of Probate they were called declaration, plea, and replication, but the procedure was not the same as that in use in the Common Law Courts. In all the courts a special case without pleadings could by leave of the court be stated for the opinion of the court.

The Judicature Act, 1873, introduced a uniform system of pleading in the High Court of Justice. The practice is now regulated by the Rules of the Supreme Court, 1883. By Ord. xix. r. 4, " every pleading shall contain, and con-tain 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 shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums, and numbers shall be expressed in figures and not in words. Signature of counsel shall not be necessary; but where pleadings have been settled by counsel or a special pleader they shall be signed by him, and if not so settled they shall be signed by the solicitor or by the party if he sues or defends in person." The term "pleading" in the Judicature Acts includes a petition or summons, 36 & 37 Vict. c. 66, § 100. From 1875 to 1883 the plaintiff had in almost every case to deliver a statement of claim. But now no statement of claim is delivered where the action is commenced by a specially indorsed writ, or where the writ is not specially indorsed unless the defendant gives notice in writing that he requires a statement of claim to be delivered. The defendant presents his case in a statement of defence, and may also set off or set up by way of counter-claim any right or claim against the plaintiff whether sounding in damages or not. A counter-claim may be made against the plaintiff and a third party. To a statement of defence or counter-claim the plaintiff or third party delivers a reply. No pleading other than a joinder of issue can be pleaded after reply except by leave of the court or a judge. Both the parties and the court or a judge have large powers of amending the pleadings. 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. Forms of pleadings are given in Appendices C, D, and E to the Rules of 1883. In actions for damages by collision between ships, a document called a preliminary act (before the Judica-ture Act peculiar to the Court of Admiralty) must be filed, containing details as to the time and place of collision, the speed, tide, lights, (fee. The case may be tried on the preliminary act without pleadings. 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, fraud, the Statute of Limitations, the Statute of Frauds. The pleadings in replevin and petition of right are governed by special rules. To courts other than the High Court of Justice the Judicature Acts do not apply. In some courts, however, such as the Chancery of the County Pala-tine of Lancaster and the Court of Passage of the City of Liverpool, the rules of pleading used in the High Court have been adopted with the necessary modifications. In the Mayor's Court of London the common law pleading, as it existed before the Judicature Acts, is still in use. In the ecclesiastical courts the statements of the parties are called generally pleas. The statement of the plaintiff in civil suits is called a libel, of the promoter in criminal suits articles. Every subsequent plea is called an allega-tion. To the responsive allegation of the defendant the promoter may plead a counter-allegation. The cause is concluded when the parties renounce any further allega-tion. In the Divorce Court the pleadings are named petition, answer, replication. In that court and in the ecclesiastical courts there exists in addition a more short and summary mode of pleading called an act on petition. In the county courts proceedings are commenced by a plaint, followed by an ordinary or default summons. No further pleadings are necessary, but the defendant cannot set up certain special defences, such as set-off or infancy, without the consent of the plaintiff, unless after notice in writing of his intention to set up the special defence.

The pleading in English criminal law has been less affected by legislation than the pleading in actions. The pleading is more formal, and oral pleading is still retained. Cases in which the crown was a party early became known as pleas of the crown (placita coronx), 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 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 in almost all cases be pleaded by the accused in person. The plea, according to Blackstone, is either to the jurisdiction, a demurrer, in abatement, special in bar, or the general issue. The latter is the only plea that often occurs in practice; it consists in the oral answer of "Guilty" or "Not Guilty" to the 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 I some other technical ground for stay of proceedings. The power of amendment and the procedure by motion in arrest of judgment have rendered these pleas of little practical importance. The special pleas in bar are autre-fois convict or autrefois acquit (alleging a previous convic-tion or acquittal for the same crime), autrefois attaint (practically obsolete since the Felony Act, 1870, has abolished attainder for treason or felony), and pardon (see PARDON). There are also special pleas in indictments for libel under the provisions of Lord Campbell's Act, 6 <k 7 Vict. c. 96 (see LIBEL), and to indictments for non-repair of highways and bridges, where 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. Where there is a special plea in writing, the crown puts in a replication in writing. (For the history of criminal pleading see Stephen, History of the Criminal Law, vol. i. ch. ix.)

In Scotland an action in the Court of Session begins by a sum-mons on the part of the pursuer to which is annexed a condescen-dence, 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 6 Geo. IV. c. 120, § 9), are subjoined to the condescendence. The term libel is also used (as in Roman law) as a general term to express the claim of the pursuer or the 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 adjustment of the plead-ings and the closing of the record. Large powers of amendment and revisal are given by the Court of Session Act, 1868. In the Sheriff Court pleadings are very similar to those in the Court of Session. They are commenced by a petition, which includes a con-descendence and a note of the pursuer's pleas in law. The defender may upon notice lodge defences. The procedure is now governed by 39 & 40 Vict. c. 70. The term " pleas of the crown " is confined in Scotland to four offences—murder, rape, robbery, and fire-raising. A prosecution is commenced either by indictment or criminal letters, the former being the privilege of the lord advocate. In the Supreme Court the indictment or criminal letters run in the name of the lord advocate ; in the Sheriff Court the criminal letters (indictments not being used in that court) run in the name of the judge. The Scotch indictment differs from the English, and is in the form of a syllogism, the major proposition stating the nature of the crime, I the minor the actual offence committed and that it constitutes the crime named in the major, the conclusion that on conviction of the panel he ought to suffer punishment. The panel usually pleads "Guilty" or "Not Guilty" as in England, but he may plead in bar want of jurisdiction or res judicata, or make special defences (sucli as alibi or insanity), which must be lodged with the clerk of the court in writing signed by him or his counsel. The special defence is read to the jury immediately after they have been sworn. (See Macdonald, Criminal Law of Scotland.)

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 York legislature made a radical change in the system, and the example of New York has been followed by more than twenty States. The New York Civil Code of 1848 established a 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 the new procedure the complaint bears the name of petition. In the 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 double jurisdiction of common law and equity still remains. Criminal pleading differs little from that in use in England. (See Bishop, Law of Criminal Procedure. ) (J. W†.)

The above article was written by: James Williams.

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