1911 Encyclopædia Britannica/Pleading
PLEADING (Fr. plaider, plaidoyer), the term applied in English law to the preparation of the statement of the facts on which either party to a criminal prosecution or a civil 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 separate part of the pleadings. The term “plea” (placitum, plaid) is now applied in England oftenest to the defence made by an accused person. To “plead” is to make 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 definite and technical form.
Roman System.-In Roman law the action passed through three stages (see Action), and the manner of pleadin 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 (Maine, Ancient Law, ch. x.). The use of technical language in pleading at an early date came to be regarded as so important that, as Gaius 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. 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, 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 plaintiff's claim was called the intentzo. Any equitable defence included 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 particular plaintiff. The plaintiff might meet the exceptio by a replication, the defendant on his side might set up a duplicatzo, and the plaintiff might traverse the duplicatio by a triplicalio. 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 praetor. In the third period the formula did not exist, the plaintiff's clalm appearediein the summons (libellus conventionis), and the defendant might take any defence that he pleased, all actions being placed on the footing of actions bonae fidei. The issue to be tri was determined by the judge from the oral statements of the parties.
English System.—The English system of pleading seems to have drawn largely from, if it was not directly based upon, the Roman. Bracton (lemp. 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 for the instruction of the court (see 2 Reeves, 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 Commonwealth. Latin was the language of written pleadings at common law until 173I. 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 a count (conte, narrative). 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 of course” (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 declaration was a substantial repetition of the writ. 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, p. 147). Fines were levied for mistakes in pleading, non-liability to which was sometimes 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 (1285), and by the extension of the action of assumpsit to non-feasance. The difficulties and technicalities of the common law system were met by elaboration of what is known as “special pleading,” which became an art of the utmost nicety, depending on numerous rules, some of them highly technical (see Coke upon Littleton, p. 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. At one time it was usual to practise for a time as a special pleader before call to the bar. Such licences are now rarely sought, and the Law List of 1906 contained only one name of a special pleader who was not a barrister. The art became necessary because of the absolute particularity with which claims must be framed, and the narrowness of the powers of amendment possessed by the courts. The result was that substantive law was smothered in procedure, and the 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 century challenged a pleading for putting the 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 Hall, administering each their own system without due regard to the other; and even in so simple a matter as the right of a defendant to set off against a claim on him a debt due to him from the plaintiff required statutory provision. Many of the defects and technicalities of the common law system were removed by the Common Law Procedure Acts and the 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 chancery the pleadings used were bill (or in certain public matters an information by the attorney-general), answer and replication. 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 oath. Beyond the replication chancery proceedings did not go, the 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 divorce court the pleadings authorized were (and still are) as follows: petition (which must be verified by oath), answer (which is so verified if it goes beyond a 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 domicile of the husband. In the court of admiralty the pleadings used were petition, answer, reply and conclusion. In the 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 counts (contes), or modes of framing the plaintiff's claim so as to 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 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 justification alleged in the plea.
4. Rejoinder by the defendant to the replication, the Roman duplicatio.
5. Surrejoinder by the plaintiff to the rejoinder, the Roman duplicatio.
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 Lord Wensleydale (the last and best versed of the old common law pleaders) was nicknamed Chief Baron Surrebutter. At any stage of the pleadings after (1), the party might instead of pleading to the receding 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. Template:EE1911 article link (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 flat contradiction on matters of fact, they concluded by joinder of issue, u n which the record was made up and the action was ripe for trial.
Pleas fell into the following classes:—
1. In 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 warrant for an arrest complained of as illegal; others were by way of discharge, e.g. of an alleged debt b 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 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 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 claim, ” “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. Dates, sums and numbers are expressed in figures and not in words. 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 solicitor or by the party if he sues or defends in person (O. 19, r. 4). 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 relief or remedy which he seeks (O. 18a), and contains a notice of his intention. In no case is a statement of claim other than that endorsed on the writ necessary unless the defendant on 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 ordinary pleadings. In cases where the demand is for a liquidated sum certain, or to recover land from a tenant on expiration of his term or its forfeiture for non-payment of 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 order of the master or judge at 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 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 leadings, there are certain rules specially 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 (O. 20). As to the defence proper, there are also special rules intended to prevent evasive, inadequate or unnecessary contradiction of the plaintiff's statements (O. 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 counter-claim any right or claim against the plaintiff or a third party, whether “sounding” as 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 leading any point of law. Where decision of a oint of law would) put an end to the action steps may be taken for obtaining such decision so as to obviate the necessity of trying the issues of fact raised on the pleadings. Forms of pleading are given in Appendices C, D and 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, 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 kings bench division. In actions for damages by collision between ships each party must as a general rule file a sealed document called a prelimmary act containing details as to the time and place of collision, the speed, tide, 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 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 palatine of Lancaster and 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 judgment (O. 36, r. 30; O. 41, r. 1).
In the county courts proceedings are commenced by a plaini, followed by an 'ordinary or default summons. No “pleadings” are County Courts. necessary, but the defendant is precluded from setting up certain special defences such as set-off or infancy, 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 to the line of defence.
In some of the local civil courts of record which have survived the creation of the county courts, the pleadings are still in the Inferior Local Courts of Record. form recognized by the Common Law Procedure Acts. This is the case in the Mayor's Court of London. In others (e.g. the Liverpool Court of Passage and the Salford Hundred Court) the system of the Judicature Acts has been adopted with or without official sanction. The policy of the lord chancellor and the treasury has been to refuse reform of procedure to all but the most use? 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 Ecclesiastical suits is called a libel; of the promoter in criminal suits articles. Every subsequent plea is called an allegation. To the responsive allegation of the defendant the promoter 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 petttion.
In Roman criminal procedure the indictment (inscriptio or libellus accusationis) was usually in writing, and contained a Criminal. formal statement of the offence. In some cases oral accucsations 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 peace there are in formations 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 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 misdemeanour tried in the High Court (Crown Office Rules, 1906). The plea, according to Blackstone, is either to the jurisdiction, a 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 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 oftence, or that there is a misnomer or some other technical ground for stay of proceedings. The powers of amendment given in 1851 (14 & 15 Vict. c. 100) and the procedure by 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 crime) and pardon (see Pardon). The plea of autrefois attaint has fallen out of use since the abolition of attainder by the Forfeitures Act 1870. 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 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.
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.
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 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 pleadings 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 condescendence and a note of the pursuer's pleas in law. The defender may upon notice lodge defences. The procedure is now governed by the Sheriff Courts Scotland Act 1876. The term “pleas of the Crown” is confined in Scotland to four offences—murder, rape, robbery and fire-raisin. The criminal procedure of Scotland was simplified and amended in 1887. The old procedure by criminal letters has been abolished, and prosecutions fer the public interest whether in the high court of judiciary or before the sheriff with a jury are by indictment in the name of His Majesty's advocate. The Scots indictment differs from the English in not being found by a grand jury, except in cases of high treason, and resembles rather the ex officio information of English law. Until 1887 it was in the form of a syllogism, the major proposition stating the nature of the crime, 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. 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 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 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. insanity or 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 Macdonald, Criminal Law of Scotland.)
British Dominions Beyond Seas.—In most of the Australian states, and in Ontario and New Zealand, civil pleadings are governed by rules adopted from the English Judicature Acts. In New South Wales a system based on the Common Law Procedure Acts is retained. Civil pleadings in India are regulated by the Civil Procedure Code. Indictments, except in India, are based on the English system as modified by the criminal codes or other legislation of the colony. Indictments in India are regulated by the Criminal Procedure Code of 1898.
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 York legislature made a radical 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 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 double jurisdiction of common law and equity still remains. Criminal pleading is on the lines of the common law system of England.
- In Scots and ecclesiastical law the word “plea” is used as to the statements of both parties to a cause.
- In 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.
- 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.
- 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. Spence, as early as the reign of Henry V. (Equitable Jurisdiction, i. 348).
- Bullen and Lreake, Precedent of Pleading (3rd ed., 1868).
- Before the Judicature Acts equity pleadings were signed by counsel, but common law pleadings were not.