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. 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 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).[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 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
- ↑ Before the Judicature Acts equity pleadings were signed by counsel, but common law pleadings were not.
