PLEADING ( from plead, from OF., Fr. plaid cr, from OF. plait. plaid, play, Fr. plaid, plea ). As a generic term, the written allegation of facts upon which a party to any legal proceeding founds his claim or demand or his answer or de fense thereto. Used in a broader sense, the term signifies the system of legal rules and principles applicable to the written pleadings in a legal pro ceeding.
Pleading is only one of the successive steps in a proceeding at law by which one party asserts or enforces his rights against another, all to gether being comprehended by the term procedure (q.v.). Originally the pleadings in an action at common law were oral, as is evidenced by many peculiarities of the common-law procedure of a later date; but as early as the reign of Edward III. we find that the pleadings were in writing and usually in Latin.
Pleading at law, however, ultimately devel oped into a system of highly technical and formal rules requiring the greatest precision in their application. and often by their very formality and rigidity defeating rather than aiding justice. Although remedial statutes were passed as early as the reign of Elizabeth, no attempt at a gen eral reformation of the system was made until 4 William IV., e. 42, in 1834. At a later date in the United States various forms of statutory or code pleadings were adopted.
The principles upon which any system of plead ing are necessarily based will, perhaps, he best understood by referring briefly to the more essential elements of the common-law system. The primary object of the pleadings in an ac tion at common law was to raise a single issue or dispute upon either a point of law or of fact. In the former ease a question was raised for de cision the court, usually after argument upon the question of law involved and submission of briefs by opposing counsel. In the latter, a ques tion was raised for decision by the jury after hearing evidence tending on the one side to prove and on the other to disprove the fact in dispute. And upon the decision of the court or a verdict of the jury final judgment was entered determin ing the rights of the parties to the controversy.
The first step toward accomplishing the object of pleading after service of summons or mandate of the court upon the defendant was the filing of the declaration (known in modern practice as the complaint) in court. In the declaration the facts were required to be stated according to their legal only. and it was not permissible to set 'not the evidence on which the plaintiff re lied. ()wing to the tendency of the early lawyers to adopt fixed forms of statement and to their adherence to precedent, the declaration was required to ('(Inform to one of a limited number of rigid forms, and if a plaintiff could not adapt the state of facts upon which he based his right to recover to one of these forms, he was without remedy. See Foust s Or Al"rION.
After the plaintiff had filed his declaration it was then incumbent upon the defendant to make some statement of his defense; otherwise, after a certain period, judgment would be taken against Min by default. If the defendant conceived that the declaration, if taken as true, did not show sufficient grounds to justify the plaintiff's recov ery (or. as it wits said, did not state a cause of action), lie could submit the question of its suffi ciency to the as a matter of law by filing a demurrer to the declaration. (See DEstURRER.) If, however, the defendant wished to deny any of the allegations contained in the declaration, he might In so by filing a formal denial, his pleading in that ease being known as a plea by way of traverse. An issue of fact was thus raised for decision by the jury.
It might happen, however, that the defendant, while admitting the truth of all the allegations in the declaration, and admitting that it was legally sufficient, relied upon the existence of new or other facts sullieient to excuse hint from the liability charged in the declaration. in which case his plea took the form of a confession and avoidanee (q.v.). Thu plaintiff might then plead, setting up either a demurrer to the plea or a denial with the effect already described; or lie in turn might plead by way of eonfession and avoidance and thus east upon the defendant the burden of plead ing again. In every ease the pleadings were thus continued until a single issue of law or fact was raised, and the determination of that issue de termined the rights of the parties to the litiga tion. Any plea of a defendant. such as has been described, setting up some matter of defense to the plaintiff's claim was known as a plea in bar or as a plea to the merits. It might happen, however, that the defendant wished to insist. upon some matter which, though not a complete de fense to the plaintiff's claim, was snflivient to show that the action was brought in On improper manner, as that the plaintiff was a married woman and hail not joined her husband as plain tiff, or that the court had no jurisdietkm, or that the defendant was not properly named. Such a plea was known as a plea in abeyance. The ef fect of a plea in abeyance, if successful, was to cause a dismissal of the plaintiff's action with out prejudice to a second action if properly brought. If unsuccessful the defendant was al lowed to plead again to the merits, The suecessive pleadings in an action, beginning with the pleading, were named declaration. plea, replication. rejoinder. stir rejoinder, rebutter, and sur-rebutter. Although theoretically possible. it was not usual for the proceedings to continue beyond the rebutter or sur-relmtter.