Another mode of " pleading to the action," is by putting in a "special plea," which either expressly, or, according to modern practice, tacitly, admits the truth of the allegations contained in the declaration, but which not only confesses but also avoids them. The special plea (whence the whole system is often called "special pleading") intro duces some new fact or facts, the effect of which, if true, is to show that notwithstanding the facts alleged in the declaration, the plaintiff is not entitled to maintain his action. As it is yet uncertain whether the plaintiff will deny this new matter or will admit it to be true, there can be no conclusion to the country upon such a plea, but if that new matter contain an affirmative proposition, the defendant is supposed to conclude his plea with a verification, that is, an offer to prove it if its truth should be controverted on the other side. This is called " tendering an issue." This special plea may also consist of those facts, on which a court of equity would relieve the defendant against the plaintiff's claim, and is thence called an equitable defence.
The next pleading on the part of the plaintiff will be regulated by the course pursued by the defendant. If the defendant has pleaded in abatement, the plaintiff either acquiesces in the action being quashed, or ho demurs to the plea as not showing sufficient matter for quashing the proceedings, or he replica to the plea either by taking issue (denying) some material allegation in the plea, or by confessing and avoiding the plea, alleging some matter which, consistently with the truth of the plea, destroys its effect and shows that the proceedings ought not to be quashed, or amends his proceedings. If the plaintiff demure to the plea in abatement, the defendant must either abandon that plea and put in a plea to the action, or lie must join in demurrer.
If, upon the argument of the demurrer, the court are of opinion that the plea in abatement is good, they give judgment that the proceedings be quashed : if they are of opinion that the plea is bad, the judgment is, that the defendant answer over (quod respondent ouster), in other words, that ho plead to the action.
If the plaintiff take issue upon the plea in abatement, the defendant is bound to join inane, that is, to accept the mode of trial offered, and if upon a trial the issue be found for the defendant, he has judgment that the proceedings be quashed ; but if the verdict be for the plaintiff, the judgment is, not that the defendant answer 'over, but that the plaintiff recover his demand against the defendant.
If the defendant has demnrred 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, is 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 replication 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 aurrejoinder; the defendant's answer to the surrejoinder is a rebutter ; and the plaintiff's answer to the rebutter is a eurrebutter. The proceedings might go on ad infinitum, 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 defining the strict rules by which the altercations between the parties are carried on, the object of which is to dcvelope 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 he expected, in order to avoid an evil practically felt, restrictions have been introduced which are found to be productive of as much incon venience as that sought to be remedied.