6o 



PLEADING. 



PLEADING. 



668 





If the defendant has demurred to the declaration, the plaintiff either 

 abandons the action or he applies to the court for leave to amend his 

 declaration ; or he joins in-demurrer, asserting that the declaration is 

 sufficient to support the action. This demurrer and joinder form " an 

 issue in law," or a question between the parties to be decided by the 

 court after hearing the matter of law argued on both sides. 



The plaintiff's answer to the defendant's plea, whether in abatement 

 or in bar, in called a replication. If the defendant has taken issue, by 

 pleading in denial of part or of the whole of the declaration, the 

 plaintiff joins issue. If the defendant has pleaded specially, the 

 plaintiff may either take issue upon the new matter alleged, or he may 

 plead new matter, thus in his turn confessing and avoiding the de- 

 fendant's plea, doing this by equitable replitatiun if the case admits of 

 it. Whenever in the course of the pleading in a cause one party takes 

 a proper issue upon an allegation of his adversary, that adversary is 

 bound to join issue and go to trial before a jury ; but when, instead of 

 taking issue, new matter is pleaded, the adversary has the option of 

 taking issue upon that new matter, of confessing and avoiding it, or of 

 demurring to it. As the pleadings may thus go on through several 

 more stages, names have been devised for those which most frequently 

 arise. The defendant's answer to the plaintiff's replication is called a 

 rejoinder ; the plaintiff's answer to the rejoinder is called a surrejoinder; 

 the defendant's answer to the surrejoinder is a rebutter ; and the 

 plaintiff's answer to the rebutter is a turrebutler. The proceedings 

 might go on ad innnitum, but for a very salutary rule which forbids a 

 party from alleging anything inconsistent with, or even not corrobora- 

 tive of, his previous pleading. A violation of this rule is called " a 

 departure in pleading," and if not amended is attended with fatal con- 

 sequences to the party guilty of it. 



The above is a short and necessarily incomplete sketch of the course 

 of pleading at common law, without denning the strict rules by which 

 the altercations between the parties are carried on, the object of which 

 is to develope the precise points in controversy between parties, and to 

 present them in the most convenient shape for decision. Of these 

 rules Lord Mansfield observes : " The substantial rules of pleading are 

 founded in strong sense and in the soundest and closest logic, and so 

 appear when well understood and explained ; but by being misunder- 

 stood and misapplied, are often made use of as instruments of chicane." 

 The object of most of the new rules of pleading has been to prevent 

 this misapplication as well as to lessen expense, though, as might be 

 expected, in order to avoid an evil practically felt, restrictions have been 

 introduced which are found to be productive of as much incon- 

 ue as that sought to be remedied. 



Where a point is raised which is found to consist wholly or prin- 

 cipally of matter of fact, the parties, provided there has been a correct 

 application of the rules of special pleading, are distinctly apprised by 

 the pleadings of the exact nature of the question to be decided by a 

 jury, and are thus enabled to direct their attention to that question, 

 and prepare their proofs with reference to that question only. If the 

 point in controversy is found to resolve itself into a question of law, a 

 decision may be obtained by submitting the matter to the opinion of 

 the court after argument upon demurrer, without the trouble, expense, 

 and hazard of a trial before a jury. 



We possess very little information as to the mode of pleading 

 previous to the Conquest. At or soon after that period an important 

 revolution took place. The pleadings in the Aula Itegia, and afterwards 

 in the courts which branched out of it, appear to have been con- 

 ducted viv.i voce in the French language, by Norman advocates called 

 " countours." After a discussion before the court as to the proper 

 form of pleading [SEBJ KASTS], the pleadings were minuted down by 

 the officers of the court in the form in which they had been finally 

 agreed upon. Thus, little or no inconvenience arose from the pro- 

 hibition which existed against the making of any alteration in the 

 pleadings after they were entered. In the reign of Edward III. the 

 pleadings were directed to be carried on in English, and the entries of 

 these pleadings to be in Latin. Afterwards a custom was introduced 

 of preparing the pleadings out of court and delivering them to the 

 otiicers to be entered. In consequence of this arrangement defects in 

 pleadings weru not discovered until a period at which the parties were 

 bound by them as being entered, and it became necessary for the 

 legislature to interfere in order to allow amendments to be made in 

 some cases, and in others to direct the judges to pronounce judgment 

 without regard to formal objections. By the late rules all pleadings 

 must be delivered by the one party to the other. (' Blackstone s Com.' 

 Mr. Kerr's ed., vol. iii., pauim.) 



PLKAlHNi; IN EQUITY. The following remarks may serve to 

 show how far Pleadings in Equity differ from Pleadings at Law, from 

 which they are derived ; and they may be taken as supplemental to 

 the article EQUITY, in which a reference is mode to this article. 



The Answer in Equity differs materially from the answer at Law, in 

 being upon oath, except in the case of persons who have privilege of 

 peerage, or are Quakers or Moravians, and in the case of a corporation ; 

 and the plaintiff may use the whole of the defendant's answer as evidence 

 gainst him at the hearing of the cause, or such integral part of it as he 

 may think proper. He may also, by mains of the admissions contained 

 in the answer, obtain the inspection of books, papers, and writings in 

 tendant's possession, which support his (the plaintiff's) chum, 

 and he may use them as evidence at the hearing of the cause. The 



defendant, except on the question of costs, can make no use of his own 

 answer, further than as showing what his defence is ; and he must 

 support this defence by evidence, just in the same way as the plaintiff 

 must prove those parts of his case which he cannot prove by the 

 admissions in the defendant's answer. Any number of plaintiffs may 

 join in a suit, if they have all a common interest, however unequal in 

 value, in the subject-matter of the suit ; and a common interest means 

 such a legal or equitable title to the subject-matter of the suit, or to 

 some part of it, as will entitle them to a decree which shall affect the 

 defendants. All the plaintiffs in a suit are considered one, as appears 

 from the general rule that a suit is abated by the death of a plaintiff 

 or the marriage of a female plaintiff; and also from the rule that a 

 person who has no interest -in the subject of the suit cannot join as a 

 plaintiff with one who has. But the suit is a different suit against each 

 defendant, for each defendant may answer separately to the bill ; and 

 no defendant is affected in any way by the answer of a co-defendant. 

 If a defendant dies, the suit abates as to him, but continues as to the 

 other defendants, though it is nearly always necessary to restore the 

 integrity of the suit by making the personal representative or the heir 

 at law of the deceased defendant a party to it. 



The writ of Subpoena was until recently the original process by 

 which a party was brought before the court. This writ required the 

 person to whom it was addressed to appear and answer " upon pain 

 of an attachment issuing against his person, and such other process 

 for contempt as the court should award." Those who had privilege 

 of peerage were required to appear and answer by a Letter Missive from 

 the lord chancellor. The act 15 & 16 Viet. c. 86, substitutes the 

 service of a copy of the bill upon the defendant for the old process. 



The bill is briefly and sufficiently defined to be "a declaration in 

 writing, showing the plaintifes griefe, and the wrong which he supo- 

 seth to bee done unto him by the defendant, and what damages he 

 sustaineth by occasion thereof, praying process against him for redresse 

 of the same." (West, ' Simboleography,' 194, ed, 1622.) "And first 

 the matter of every bill ought to be true. Secondarily, the same 

 matter ought to be laid down therein plainly and certainly in every 

 circumstance of the thing, person, time, place, manner of doing, and 

 other accidents. And thirdly, the same ought to be sufficient in law, 

 both for the forme thereof, and for the matter, that it be such as is 

 examinable in this court ; which being otherwise, may be dismissed 

 thence." (West.) 



A bill then is a declaration in writing of a complainant, or of 

 several complainants who have such a common interest as may form 

 the subject of one suit. Like a declaration at law, it contains the 

 claim of the plaintiff and the grounds thereof. In form it is, as 

 already observed, a petition or supplication : as it commences with 

 words of supplication, so it concludes with a prayer for relief. 



According to present practice, a bill has become a much longer decla- 

 ration than formerly, which is partly owing to the more complicated 

 nature of modern transactions, and partly to other causes. It is divided 

 into various parts by modern writers, but in effect it only contains two 

 parts, the declaration of the grievance and the prayer for relief. The 

 declaration consists of what are technically called Statements and 

 Charges ; the statements are or ought to be a clear exposition of the facts 

 on which the plaintiff founds his title to relief ; and every fact which 

 is necessary, either by itself or coupled with other facts, to support 

 the plaintiff's prayer, should be sufficiently alleged. This rule, though 

 it may appear vague, and would be useless to any person who 

 attempted to draw a bill without experience in such matters, really 

 contains all that can be said in general terms. The recent Chancery 

 Amendment Act directs that " every bill shall contain as concisely as 

 may be a narrative of the material facts, matters, and circumstances, 

 on which the plaintiff relies, such narrative being divided into 

 paragraphs numbered consecutively, and each paragraph containing, 

 as nearly as may be, a separate and distinct statement or allegation, and 

 shall pray specifically for the relief which the plaintiff may consider 

 himself entitled to, and for general relief." 



The statements of a bill may be followed by charges, which the above 

 enactment does not forbid, and which are not a mere repetition of the 

 statements, but contain certain things or facts either already stated and 

 alleged in the charges with more particularity for the purpose of 

 obtaining an admission from the defendant, or they contain new facts 

 of which in like manner the plaintiff wishes to obtain an admission as 

 evidence in support of his statement and his prayer for relief. It is 

 also usual in the charges to suggest the defendant's grounds of defence, 

 for the purpose of ascertaining what they are, and generally to make 

 all such charges as, if admitted or proved, would sustain the plaintiff's 

 claim against the defendant. Another object is to discover what 

 defence the defendant will make. But the main purpose of the charges 

 is to obtain from the defendant what is technically called discovery, 

 that is, evidence in support of the plaintiff's claim, either by the 

 admissions in the defendant's answer, or from written papers in the 

 possession or power of the defendant. This is the great distinction 

 in present practice between a declaration at law and a bill in equity. 

 Both state the plaintiff's demand and the foundation of it; but the 

 bill in equity also contains a large part of what, if proved, would be 

 the plaintiff's evidence. Now much of this matter which is charged 

 in a bill may be and often is entirely false, and is invented by the 

 plaintiff for the purpose of seeing whether he cannot extract some 



