PLEA, practice. The defendant's answer by matter of fact, to the plaintiff's declaration.
2. It is distinguished from a demurrer, which opposes matter of law to the declaration. Steph. Pl. 62.
3. Pleas are divided into plea dilatory and peremptory; and this is the most general division to which they are subject.
4. Subordinate to this is another division; they are either to the
jurisdiction of the court, in suspension of the action; in abatement of
the writ; or, in bar of the action; the first three of which belong to
the dilatory class, the last is of the peremptory kind. Steph. Pl. 63; 1
Chit. Pl. 425; Lawes, Pl. 36.
5. The law has prescribed and settled the order of pleading, which the
defendant is to pursue, to wit; 1st. To the jurisdiction of the court.
2d. To the disability, &c. of the person. 1st. Of thepla'intiff. 2d.
Of the defendant. 3d. To the count or declaration. 4th. To the writ.
1st. To the form of the writ; first, Matter apparent on the face of it,
secondly, Matter dehors. 2d. To the action of the writ. 5th. To the
action itself in bar.
6. This is said to be the natural order of pleading, because each
subsequent, plea admits that there is no foundation for the former. Such
is the English law. 1 Ch. Plead. 425. The rule is different with regard
to the plea of jurisdiction in the courts of the United States and
those of Pennsylvania. 1. Binn. 138; ld. 219; 2 Dall. 368; 3 Dall. 19;
10 S. & R. 229.
7. - 2. Plea, in its ancient sense, means suit or action, and it is
sometimes still used in that sense; for example, A B was summoned to
answer C D of a plea that he render, &c. Steph. Pl. 38, 39, u. 9;
Warr. Law Studies, 272, note n.
8. - 3. This variable word, to plead, has still another and more popular
use, importing forensic argument in a cause, but it is not so employed
by the profession. Steph. Pl. App. note 1.
9. There are various sorts of pleas, the principal of which are given below.
10. Plea in abatement, is when, for any default, the defendant prays
that the writ or plaint do abate, that is, cease against him for that
time. Com. Dig. Abatement, B.
11. Hence it may be observed, 1st. That the defendant may plead in
Abatement for faults apparent on the writ or plaint itself, or for such
as are shown dehors, or out of the writ or plaint. 2d. That a plea in,
abatement is never perpetual, but only a temporary plea, in form at
least, and if the cause revived, the plaintiff may sue again.
12. If the defendant plead a plea in abatement, in his plea, he ought
generally to give a better writ to the plaintiff, that is, show him what
other and better writ can be adopted; Com. Dig. Abatement, I 1; but if
the plea go to the matter and substance of the writ, &c., he need
not give the plaintiff another writ. Nor need he do so when the plea
avoids the whole cause of the action. Id. I 2.
13. Pleas in abatement are divided into those relating, first, to the
disability of the plaintiff or defendant; secondly, to the count or
declaration; thirdly, to the writ. 1 Chit. Pl. 435.
14. - 1. Plea in abatement to the person of the plaintiff. Pleas of this
kind are either that the plaintiff is not in existence, being only a
fictitious person, or dead; or else, that being in existence, he is
under some disability to bring or maintain the action, as by being an
alien enemy; Com. Dig. Abatement, E 4 Bac. Abr. Abatement, B 3; 1 Chit.
Pl. 436; or the plaintiff is a married woman, and she sues alone. See 3
T. R. 631; 6 T. R. 265.
15. Plea in abatement to the person of the defendant. These pleas are
coverture, and, in the English law, infancy, when the parol shall demur.
When a feme covert is sued, and the objection is merely that the
hushand ought to have been sued jointly with her; as when, since
entering into the contract, or committing the tort, she has married; she
must, when sued alone, plead her coverture in abatement, and aver that
her hushand is living. 3 T. R. 627; 1 Chit. Pl. 437 , 8.
16. - 2. Plea in abatement to the count. Pleas of this kind are for some
uncertainty, repugnancy, or want of form, not appearing on the face of
the writ itself, but apparent from the recital of it in the declaration
only; or else for some variance between the writ and declaration. But it
was always necessary to obtain oyer of the writ before the pleading of
these pleas; and since oyer cannot now be had of the original writ for
the purpose of pleading them, it seems that they can no longer be
pleaded. See Oyer.
17. Plea in abatement to the form of the writ. Such pleas are for some
apparent uncertainty, repugnancy, or want of form, variance from the
record, specialty, &c., mentioned therein, or misnomer of the
plaintiff or defendant. Lawes' Civ. Pl. 106; 1 Chit. Pl. 440.
18. Plea in abatement to the action of the writ. Pleas of this kind are
pleaded when the action is misconceived, or was prematurely commenced
before the cause of action arose; or when there is another action
depending for the same cause. Tidd's Pr. 579. But as these matters are
ground for demurrer or nonsuit, it is now very unusual to plead them in
abatement. See 2 Saund. 210, a.
19. Plea in avoidance, is one which confesses the matters contained in
the declaration, and avoids the effect of them, by some new matter which
shows that the plaintiff is not entitled to maintain his action. For
example, the plea may admit the contract declared upon, and show that it
was void or voidable, because of the inability of one of the parties to
make it, on account of coverture, infancy, or the like. Lawes, Pl. 122.
20. Plea in bar, is one that denies that the plaintiff has any cause of
action. 1 Ch. Pl. 459 Co. Litt. 303 b; 6 Co. 7. Or it is one which shows
some ground for barring or defeating the action; and makes prayer to
that effect, Steph. Pl. 70; Britton, 92. See Bar.
21. A plea in bar is, therefore, distinguished from all pleas of the
dilatory class, as impugning the right of the action altogether, instead
of merely tending to divert the proceedings to another jurisdiction, or
suspend them, or abate the particular writ. It is in short a
substantial and conclusive answer to the action. It follows, from this
property, that in general, it must either deny all, or some essential
part of the averments of fact in the declaration; or, admitting them to
be true, allege new facts, which obviate and repel their legal effect.
In the first case the defendant is said, in the language of pleading, to
traverse the matter of the declaration; in the latter, to confess and
avoid it. Pleas in bar are consequently divided into pleas by way of
traverse, and pleas by way of confession and avoidance. Steph. Pl. 70,
71.
22. Pleas in bar are, also divided into general or special. General
pleas in bar deny or take issue either upon the whole or part of the
declaration, or contain some new matter which is relied upon by the
defendant in his defence. Lawes Pl. 110.
23. Special pleas in bar a re very various, according to the
circumstances of the defendant's case; as, in personal actions, the
defendant may plead any special matter in denial, avoidance, discharge,
excuse, or justification of the matter alleged in the declaration, which
destroys or bars the plaintiff's action; or he may plead any matter
which estops, or precludes him from averring or insisting on any matter
relied upon by the plaintiff in his declaration. The latter sort of
pleas are called pleas in estoppel. In real actions, the tenant may
plead any matter which destroys and bars the demandant's title; as, a
general release. Id. 115, 116.
24. The general qualities of a plea in bar are, 1. That it be adapted to
the nature and form of the action, and also conformable to the count.
Co. Litt. 303, a 285, b; Bac. Abr. Pleas, I; 1 Roll. Rep. 216.
2. That it answers all it assumes to answer, and no more. Co. Litt. 303
a; Com. Dig. Pleader, E 1, 36; 1 Saund. 28, n. 1, 2, 3; 2 Bos. &
Pull. 427; 3 Bos. & Pull. 174.
3. In the case of a special plea, that it confess and admit the fact. 3
T. R. 298; 1 Salk. 394; Carth. 380; 1 Saund. 28, n. and 14 u. 3 10
Johns. R. 289.
4. That it be single. Co. Litt. 304; Bac. Ab. Pleas, 2 Saund. K, 1, 2; Com Dig. Plead. E 2; 49, 50; Plowd. Com. 140, d.
5. That it be certain. Com. Dig. Pleader, E 5, 7, 8, 9, 10, 11; C 41; this Dict. Certainty; Pleading.
6. It must be direct, positive, and not argumentative. See 6 Cranch, 126; 9 Johns. It. 313.
7. It must be capable of trial. 8. It must be true and capable of proof. See Plea, sham.
25. The parts of a plea in bar may be considered with reference to,
1. The title of the court in which it is pleaded.
2. The title of the term.
3. The names of the parties in the margin. These, however, do not
constitute any part of the plea. The surnames only are usually inserted,
and that of the defendant precedes the plaintiff's; as, " Roeats. Doe."
4. The commencement which includes the statement of, 1. The name of the
defendant; 2. The appearance; 3. The defence; see Defence; 4. The actio
non; see dctio non.
5. The body, which may contain, 1. The inducement; 2. The protestation;
3. Ground of defence 4. Qua est eadem; 5. The traverse. 6. The
conclusion.
26. Dilatory pleas are such as delay the plaintiff's remedy, by
questioning, not the cause of action, but the propriety of the suit, or
the mode in which the remedy is sought.
27. Dilatory pleas are divided by Sir William Blackstone, into three
kinds: 1. Pleas to the jurisdiction of the court; as, that the cause of
action arose out of the limits of the jurisdiction of the court, when
the action is local. 2. Pleas to the disability of the plaintiff, or, as
they are usually termed, to' the person of the plaintiff; as, that he
is an alien enemy. 3. Pleas in abatement of the writ, or count; these
are founded upon some defect or mistake, either in the writ itself; as,
that the defendant is misnamed in it, or the like; or in the mode in
which the count pursues it; as, that there is some variance or
repugnancy between the count and writ; in which case, the fault in the
count furnishes a cause for abating the writ. 2 Bl. Com. 301 Com. Dig.
Abatement, G 1, 8; Id. Pleader, C 14, 15; Bac. Ab. Pleas, F 7.
28. All dilatory pleas are sometimes called pleas in abatement, as
contradistinguished to pleas to the action; this is perhaps not strictly
proper, because, though all pleas in abatement are dilatory pleas, yet
all dilatory pleas are not pleas in abatement. Gould on Pl. ch. 2, §35;
vide 1 Chit. PI, ch. 6; Bac. Ab. Abatement, 0; 1 Mass 358; 1 John. Cas.
101. 2. A plea in discharge, as distinguish ed from a plea in avoidance,
is one which admits the demand, and instead of avoiding the payment or
satisfaction of it, shows that it has been discharged by some matter of
fact. Such are pleas of payment, release, and the like.
30. A plea in excuse, is one which admits the demand or complaint stated
in the declaration, but excuses the non-compliance of the plaintiff's
claim, or the commission of the act of which he complains, on account of
the defendant having done all in his power to satisfy the former, or
not having teen the culpable author of the latter. A plea of tender is
an example of the former, and a plea of son assault demesne, an instance
of the latter.
31. A foreign plea is one which takes the cause out of the court where
it is pleaded, by showing a want of jurisdiction in that court. 2 Lill.
Pr. Beg. 374; Carth. 402. See the form of the plea in Lill. Ent. 475.
32. A plea of justification is one in which the defendant professes
purpo sely to have done the acts which are the subject of the
plaiutiff's suit, in order to exercise that right which he considers he
might in point of law exercise, and in the exercise of which he
conceives himself not merely excused, but justified.
33. A plea puis darrein continuance. Under the ancient law, there were
continuances, i. e. adjournments of the proceedings for certain
purposes, from one day or one term to another; and, in such cases, there
was an entry made on the record, expressing the ground of the
adjournment, and appointing the parties to reappear at a given day.
34. In the interval between such continuance and the day appointed, the
parties were of course out of court, and consequently not in a situation
to plead. But it sometimes happened, that after a plea had been
pleaded, and while the parties were out of court, in consequence of such
continuance, a new matter of defence arose, which did not exist, and
which the defendant had consequently no opportunity to plead, before the
last continuance. This new defence he was therefore entitled, at the
day given for his reappearance, to plead as a matter that had happened
after the last continuance, puis darrein continuance. In the same cases
that occasioned a continuance in the ancient common Iaw, but in no
other, a continuance shall take place. At the time indeed, when the
pleadings are filed and delivered, no record exists, and there is,
therefore, no entry at that time, made on the record, of the award of a
continuance; but the parties are, from the day when, by the ancient
practice, a continuance would have been entered, supposed to be out of
court, and the pleading is suspended, till the day arrives to which, by
the ancient, practice, the continuance would extend. At that day, the
defendant is entitled, if any new matter of defence has arisen in the
interval, to plead it according to the ancient plan, puis darrein
continuance.
35. A plea puis darrein continuance is not a departure from, but is a
waiver of the first plea, and is always headed by way of substitution
for it, on which no proceeding is afterwards had. 1 Salk. 178; 2 Stran.
1195 Hob. 81; 4 Serg. & Rawle, 239. Great certainty is requisite in
pleas of this description. Doct. Pl. 297; Yelv. 141; Cro. Jac. 261;
Freem. 112; 2 Lutw. 1143; 2 Salk. 519; 2 Wils. 139; Co. Entr. 517 b. It
is not sufficient to say generally that after the last continuance such a
thing happened, but the day of the continuance must be shown, and also
the time and place must be alleged where the matter of defence arose.
Id. ibid.; Bull. N. P. 309.
36. Pleas puis darrein continuance are either in bar or abatement; Com.
Dig. Abatement, I 24; and are followed, like other pleas, by a
replication and other pleadings, till issue is attained upon them such
pleas must be verified on oath before they are allowed. 2 Smith's R.
396; Freem. 352; 1 Strange, 493.
37. A sham plea is one which is known to the pleader to be false, and is
entered for the purpose of delay. There are certain pleas of this kind,
which, in consequence of their having been long and frequently used in
practice, have obtained toleration from the courts; and, though
discouraged, are tacitly allowed; as, for example, the common plea of
judgment recovered, that is, that judgment has been already recovered by
the plaintiff, for the same cause of action. Steph. on Pleading, 444,
445; 1 Chit. Pl. 505, 506.
38. Plea in suspension of the action. Such a plea is one which shows
some ground for not proceeding in the suit at the present period, and
prays that the pleading may be stayed, until that ground be removed. The
number of these pleas is small. Among them is that which is founded on
the nonage of the parties, and termed parol demurrer. Stephen on
Pleading, 64. See, generally, Bac. Abr. Pleas, Q; Com. Dig. Abatement, I
24, 34; Doct, Pl. 297; Bull. N. P. 309; Lawes Civ. Pl. 173; 1 Chit. Pl.
634,; Steph. Pl. 81; Bouv. Inst. Index, h. t.
TO PLEAD. The formal entry of the defendant's defence on the
record. In a popular sense, it signifies the argument in a cause, but it
is not so used by the profession. Steph. Pl. Appex. note I; Story, Eq.
Pl. §5, note.
PLEADING, practice. The statement in a logical, and legal form,
of the facts which constitute the plaintiff's cause of action, or the
defendant's ground of defence; it is the formal mode of alleging that on
the record, which would be the support, or the defence of the party in
evidence. 8 T. R. 159; Dougl. 278; Com. Dig. Pleader, A; Bac. Abr. Pleas
and Pleading; Cowp. 682-3. Or in the language of Lord Coke, good
pleading consists in good matter pleaded in good form, in apt time, and
due order. Co. Lit. 303. In a general sense, it is that which either
party to a suit at law alleges for himself in a court, with respect to
the subject-matter of the cause, and the mode in which it is carried on,
including the demand which is made by the plaintiff; but in strictness,
it is no more than setting forth those facts or arguments which show
the justice or legal sufficiency of the plaintiff's demand, and the
defendant's defence, without including the statement of the demand
itself, which is contained in the declaration or count. Bac. Abr. Pleas
and Pleading.
2. The science of pleading was designed only to render the facts of each
party's case plain and intelligible, and to bring the matter in dispute
between them to judgment. Steph. Pl. 1. It is, as has been well
observed, admirably calculated for analyzing a cause, and extracting,
like the roots of an equation, the true points in dispute; and referring
them with all imaginable simplicity, to the court and jury. 1 Hale's C.
L. 301, n
3. The parts of pleading have been considered as arrangeable under two
heads; first, the regular, or those which occur, in the ordinary course
of a suit; and secondly, the irregular, or collateral, being those which
are occasioned by mistakes in the pleadings on either side.
4. The regular parts are, 1st. The declaration or count. 2d. The plea,
which is either to the jurisdiction of the court, or suspending the
action, a's in the case of a parol demurrer, or in abatement, or in bar
of the action, or in replevin, an avowry or cognizance. 3d . The
replication, and, in case of an evasive plea, a new assignment, or in
replevin the plea in bar to the avowry or cognizance. 4th. The
rejoinder, or, in replevin, the replication to the plea in bar. 5th. The
sur-rejoinder, being in replevin, the rejoinder. 6th. The rebutter.
7th. The sur-rebutter. Vin. Abr. Pleas and Pleading, C; Bac. Abr. Pleas
and Pleadings, A. 8th. Pleas puis darrein continuance, when the matter
of defence arises pending the suit.
6. The irregular or collateral parts of Pleading are stated to be, 1st.
Demurrers to Illly art of the pleadings above mentioned. 2dly. Demurrers
to evidence given at trials. 3dly. Bills of exceptions. 4thly. Pleas in
scire facias. And, 5thly. Pleas in error. Vin. Abr. Pleas and
Pleadings, C.; Bouv. Inst. Index, h. t.
PLEADING, SPECIAL. By special pleading is meant the allegation of
special or new matter, as distinguished from a direct denial of matter
previously alleged on the opposite side. Gould on Pl. c. 1, s. 18.
PLEAS OF THE CROWN, Eng. law. This phrase is now employed to
signify criminal causes in which the king is a party. Formerly it
signified royal causes for offences of a greater magnitude than mere
misdemeanors. These were left to be tried in the courts of the barons,
whereas the greater offences, or royal causes, were to be tried in the
king's courts, under the appellation of pleas of the crown. Robertson's
Hist. of Charles V., vol. 1, p. 48.
PLEAS POLL, Engl. practice. A record which contains the
declaration, plea, replication, rejoinder, and other pleadings, and the
issue. Eunom. Dial. 2, §29, p. 111.
No comments:
Write comments