Page:The New International Encyclopædia 1st ed. v. 16.djvu/139

* PLEADING. Ill PLEADING. even at the trial of the action, if the rights of his opponent will not be prejudiced by the amendment. There are also many minor changes, the general object being to make the system more simple and just in its application, and to avoid the determination of rights upon purely formal grounds. Pleadi.xg at Chimixal Law. At common law- pleading in criminal actions was in its essentials substantially like pleading in civil actions, al- though nuieh less elaborate. The first pleading was called the indictment (q.v. ). To this the accused might interpose a demurrer, as in civil actions, and with like effect. excc|)t that if the demurrer were over- ruled he was allowed to plead to the indictment. All matters tending to show that the accused was not guilty of the offense eliarged might be shown under the oral plea not f/uilti/ or the plea nolo contendere, which was equivalent to guilty, except that it was not an admission liv the defendant which could be used against him in evidence in a civil suit for the same act. After the plea no further pleading was necessary. The plea of abatement or previous conviction or acquittal of the same offense were required to be specitically pleaded as a plea by way of confession and avoidance : and to these the prosecution might demur with the same effect as a demurrer to a plea in abatement in a civil action. Pleading at criminal law has been subjected to fewer statutory changes than pleading in civil actions. In some States less formality is re- quired than at common law. and final judgment cannot he entered upon purely formal grounds. ■Formal defects may be cured by amendment, but there can be no amendment to matter of sub- stance in an indictment, otherwise an amended indictment would not satisfy the requirement that the indictment must be found by the grand jury. Equity Pleading. The system of pleading adopted in equity by the English Court of Chan- cery was derived partly from the common-law system and partly from the civil-law system as administered by the English ecclesiastical courts. The important features of the civil-law system which characterize equity pleading were: (a) the absence of the denial or traverse, the rule being that all the allegations in a pleading were deemed to be denied unless expressly admitted by a sub.sequent pleading, which was exactly the converse of the common-law rule by which all the allegations in a pleading were deemed to be admitted unless expressly denied; and (b) the practice by which a party to the litigation could compel his opponent to testify, or give discovery, as it was called, in advance of argument or trial as to the matters alleged in the first party's pleading. The plaintiff's pleading in an equity action is called the bill. In effect it is a petition ad- dressed to the court asking that subpoena issue compelling the defendant to answer the bill. Formerly bills in equity were prepared with great formality and were usually composed of nine distinct parts. Of these, however, only four are important in modern practice, and two of these may be dispensed with. The essential parts are the statement of facts and the prayer for relief. For the purpose of obtaining discovery the plaintiff might state in his bill at great length the evidence upon w-hich he relied in support of his claim. This was known as the charging part of tile bill. He might also ask specific questions founded upon the stating and charging parts of the bill, which he required the defendant to answer. This was known as the interrogatory part of the bill. After the appearance of the defendant, failing which a decree would be taken against him by default, he was required to answer the bill. The answer, which was required to be luider oath, might set out at length any matters of defense, however numerous, relied upon by t!ie defendant, but he was required to make dis- covery or give testimony by answering fully and' specifically the charging and interrogatory parts of the bill. In early times other pleadings might follow the answer as at common law, but ultimately the answer came to be the last substantial pleading, and was followed only by a formal plea always of the same tenor and used only to indicate that the parties were at issue. In case it became necessary for the plaintiff to meet any of the allegations in the answer, this was accomplished by amendment. Upon the testimony taken before a master in chancery, and upon the answer, which was deemed to be not only a pleading, but in effect evidence introduced by the plaintiff, the decision and final decree of the Court of Chancery were based. Equity pleading borrowed from the common law the use of the demurrer and the plea, with practically the same effect. In the courts of equity of the United States, which, in accordance with the Constitution and statutes of the United States, are distinct from the courts of common law, the same system of pleading is used as in the English Court of Chancery as it has here been outlined. The pleading in the United States courts is, however, subject to modification by rules of court. The same system of equity pleading also obtains in those States in which the distinction between courts of equity and of law has been maintained, notably New Jersey. Code Pleading. The supposed difficulty in satisfactorily modifying or reforming the com- mon-law system by mere statutory revision or amendment led in many of the United States to legislation abolishing the common-law system of pleading and creating or attempting to create a purely statutory form of pleading to be used in both law and equity actions. This step was first taken by the Legislature of New York, which adopted in 1848 the New York Code of Civil Procedure, which has served as a model for similar legislation in most of the other States adopting code procedure. A substantially statu- tory form of pleading and practice was also adopted in England by the Judicature Acts of 1873 and 1875. Under the codes discovery in equity actions is abolished. The pleader is allowed to plead the facts upon which he relies without formality. The pleadings are limited to two unless the defendant pleads a counter- claim, i.e. an independent action against the plaintiff, in which case the plaintiff may reply to it. The plaintiff's pleading is called a com- plaint, or in some States a petition, and in Eng- land a statement of claim. The defendant's pleading is called an answer, or in England a statement of defense. The defendant may demur to the plaintiff's complaint or to his reply to