Page:Encyclopædia Britannica, Ninth Edition, v. 19.djvu/229

Rh PLEADING 219 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 a 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 enter ing 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 DEMUR RER). In&quot; 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. 1 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, &quot; 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. &quot; The term &quot; pleading &quot; in the Judicature Acts includes a petition or summons, 36 &L 37 Viet. 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. 2 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 1 For the pleading before 1875 see Stephen on Pleading for the Common Law Courts, Story on Equity Pleading for the Court of Chancery, and the articles BILL and DECLARATION. 2 A specially indorsed writ may be used in an action for a debt or liquidated demand. The advantage of using it is that the defendant must obtain leave to defend the action by showing to the satisfaction of a judge that he has reasonable grounds of defence. 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 plead ings 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, &c. 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, j 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 I 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 coronas), 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 &quot;Guilty&quot; or &quot;Not Guilty&quot; 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
 * fraud, the Statute of Limitations, the Statute of Frauds.