Pleading

Where any fact is necessary to be proved in order to sustain the plaintiff's right of recovery, the declaration must contain an averment substantially of such fact in order to let in the proof. Every issue must be founded upon some certain point, so that the parties may come prepared with their evidence, and not be taken by surprise, and the jury may not be misled by the introduction of various matters.

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The written allegation of what is affirmed on the one side, or denied on the other, disclosing to the court or jury having to try the cause, the real matter in dispute between the parties. Desnoyer v. Hereux, 1 Minn. 17 (Gil. 1). In Chancery Practice. It consists in making the formal' written allegations or statewhich, when contested in matters of fact, they propose to offer proofs, and in- matters of law to offer arguments to the court. Story, Eq. PI. § 4. The substantial object of pleading is the same, but the forms and rules of pleading are very different, at law and in equity. The system of pleading in equity was derived partly from the common law system, but chiefly from that of the civil law as administered in the English ecclesiastical courts. The latter is called the civil-law system, not because it ever prevailed among the ancient Romans, but because it has grown out of tne latest Roman procedure and prevails generally in those countries which derive their procedure from the Romans. Langdell, Equity Pleading. See Pleadings. In Common Law Practice. The stating in a logical and legal form 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 constitutes the support or the defence of the party in evidence. 3 Dougl. 278; Com. Dig. Pleader (A); Bac. Abr. Pleas and Pleading. Pleading is used to denote the act of making the pleadings. The object of pleading is to secure a clear and distinct statement of the claims of each party, so that the controverted points may be exactly known, examined, and decided, and the appropriate remedy or punishment administered. See Cowp. 682; Dougl. 159. The object is to develop the real issue; Thomas v. Mann, 28 Pa. 522. A pleading must proceed upon some single definite theory, and it must be good upon the theory on which it proceeds; Baker v. Ludlarn, 118 Ind. 87, 20 N. E. 048. Good pleading consists in good matter pleaded in good form, in apt time, and due order. Co. Litt. 303. Good matter includes all facts and circumstances necessary to constitute the cause of complaint or ground of defence and no more. It does not include arguments or matters of law. But some matters of fact need not be stated, though it be necessary to establish them as facts. Such are, among others, facts of which the courts take judicial notice; see Judicial Notice; facts which the law presumes; as, the innocence of a party, illegality of an act, etc.; 4 Maule & S. 105; Dubois’ Ex’rs v. Van Orden, 6 Johns. (N. Y.) 105; Weaver v. Nugent, 72 Tex. 272, 10 S. W. 458, 13 Am. St. Rep. 792; Case v. Humphrey, 6 Conn. 130; matters which the other party should plead, as being more within his knowledge; 1 Sharsw. Bla. Com. 293, n.; 2 H. Bla. 530; Postmaster General v. Cochran, 2 Johns. (N. Y.) 415; People v. Edwards, 9 Cal. 28G; mere matters of evidence of facts; 9 Co. 90; Hyatt v. Mc Mahon, 25 Barb. (N. ond breach of condition, where one is sufficient; 1 Saund. 58, n. 1; State v. Bank, 33 Miss. 474; Hand v. Taylor, 4 Ind. 409; Morse v. Eaton, 23 N. H. 415; see Duplicity; or Intent to defraud, when the facts alleged constitute fraud; Mc Mahan v. Rice, 16 Tex. 335; irrelevant matter; 1 Chltty, PI. 209. Such matter may be rejected without damage to the plea, if wholly foreign to the case, or repugnant; Thomas v. Roosa, 7 Johns. (N. Y.) 462; Wilmarth v. Mountford, 8 S. & R. (Pa.) 124; Raymond v. Sturges, 23 Conn. 134; Magee v. Fisher, 8 Ala. 320; but in many coses the matter must be proved as stated, if stated; Jerome v. Whitney, 7 Johns. (N. Y.) 321; U. S. v. Porter, 3 Day (Conn.) 283, Fed. Cas. No. 16,074. The matter must be true and susceptible of proof; but legal fictions may be stated as facts; 2 Burr. 667; 4 B. & P. 140. Facts necessarily implied from direct averments will be treated as having been pleaded; Weaver v. Harlan, 48 Mo. App. 319; Wineman v. Ilughson, 44 111. App. 22; and facts and not conclusions should be pleaded; Gerrity v. Brady, 44 111. App. 203. The form of statement should be according to the established forms; Co. Litt. 303; 6 East 351; 8 Co. 48 b. This is to be considered as, in general, merely a rule of caution, though it is said the courts disapprove a departure from the well-established forms of pleading; 1 Chitty, PI. 212. In most of the states, and in England since 1852, many radical changes have been Introduced into the law of pleading: still, it is apprehended that a reasonable regard to the old forms will be profitable, although the names of things may be changed. See 3 Sharsw. Bla. Com. 301, n.; Sampson v. Slmeffer, 3 Cal. 196; Cooper v. Benson, 28 Miss. 760; Hill v. Barrett, 14 B. Monr. (Ky.) 83. In general, it may be said that the facts should be stated logically, in their natural order, with certainty, that is, clearly and distinctly, so that the party who is to answer, the court, and the jury may readily understand what is meant; 2 B. & P. 267; Co. Litt. 303; Hunt v. Crane, 33 Miss. 669, 69 Am. Dec. 381; with precision; People v. Dunlap, 13 Johns. (N.“ Y.) 437 r and with brevity; Smith v. R. Co., 36 N. H. 458; 1 Chitty, PI. 212. The facts stated must not be insensible or repugnant; 7 Co. 25; Sherwood v. Stevenson, 25 Com. 431; nor ambiguous or doubtful in meaning; 5 Maule & S. 38; nor argumentative; Co. Litt. 303; Hurst v. Purvis, 5 Blackf. (Ind.) 557; nor by way of recital; Ld. Rayrn. 1413; and should be stated according to their legal effect and operation; Steph. PI. And. ed. 366; Johnson v. Carter, 16 Mass. 443. The time within which pleas must be filed is a matter of local regulation, depending importance as affecting the defendant, who may oppose the plaintiff’s suit In various ways. The order is as follows: First, to the jurisdiction of the court. Second, to the disability, etc., of the pern: first, of the plaintiff; second, of the defendant. Third, to the count or declaration. Fourth, to the writ: first, to the form of the writ, — first, matter apparent on the face of it, secondly, matters dehors; second, to the action of the writ. Fifth, to the action itself in bar. This is said to be the natural order of pleading, because each subsequent plea admits that there is no foundation for the former; Shaw v. Usher, 41 Me. 102; Cole v. Ackerman, 7 Gray (Mass.) 38; Gardner v. James, 5 R. I. 235; Symons v. Northern, 40 N. C. 241; Alliston v. Lindsey, 12 Smedes & M. (Miss.) G5G. An exception exists where matter is pleaded puis darrein continuance; see Plea; and where the subject-matter is one over which the court has no jurisdiction, a failure to plead to the puis cannot confer jurisdiction; Wright v. Guy, 10 S. & It. (Pa.) 220; Horton v. Wheeler, 17 Tex. 52. The science of pleading, as it existed at common law, has been much modified by statutory changes; but, under whatever names it is done, — whether under rules of court, or of the legislative power, by the parties, the court, or the jury, — it is evident that, in the nature of things, the end of pleading must be attained, namely, the production of one or more points of issue, where a single fact is allirmed by one party and denied by the other. By pleading at the common law, this was done by the parties; in the civil law, by the court. In England, pleadings in actions are now governed by the provisions of the Judicature Act, ord. xix., which made a number of changes in the old common-law methods. See Judicature Acts. Up to judgment pleadings are construed most strongly against the pleader, and unknown, unrecited facts are not assumed in his favor; Hughes v. Murdock, 45 La. Ann. 935, 13 South. 182. See Loehr v. Murphy, 45 Mo. App. 519; Rogenschutz v. Smith, 84 Ky. 330, 1 S. W. 578. But it is said that they must be construed reasonably, and not with such strictness as to refuse to adopt the natural construction because a particular fact might have been more distinctly alleged, although its existence is reasonably to be presumed from the averments; Lockhart v. Leeds, 195 U. S. 427, 25 Sup. Ct. 76, 49 L. Ed. 2G3. “It would be subversive of all sound practice, and tend largely to defeat the ends of justice, if the court should refuse to accept a fact as settled which is distinctly alleged in the bill and admitted in the answer;” Pleadings are not to be treated as allegations of the truth of the facts stated for all purposes, but only for that case; Parke, B. in 2 Exch. 665., “Technical forms of pleading in equity are abolished” by the new equity rules of the supreme court (rule 18) unless “otherwise provided by statute or by the rules themselves.” See 22G U. S. G49, 33 Sup. Ct. xix. In Criminal Practice the rules of pleading are the same as in civil practice. There is, however, less liberty of amendment of the indictment. The order of the defendant’s pleading is as follows: First, to the jurisdiction; second, in abatement; third, special pleas in bar: as, autrefois acquit, autrefois attaint, autrefois convict, pardon; fourth, the general issue.

The peculiar science or system of rules and principles, established in the common law, according to which the pleadings or responsive allegations of litigating parties are framed, with a view to preserve technical propriety and to produce a proper issue. The process performed by the parties to a suit or action, in alternately presenting written statements of their contention, each responsive to that which precedes, and cach serving to narrow the field of controversy, until there evolves a single point, affirmed on one side and denied on the other, called the "issue," upon which they then go to trial. The act or step of interposing any one of the pleadings in a cause, but particularly one on the part of the defendant; and, in the strictest sense, one which sets up allegations of fact in defense to the action. The name "a pleading" ls also given to any one of the formal written statements of accusation or defense presented by the parties alternately in an action at law; the aggregate of such statements filed in any one cause are termed "the pleadings." The oral advocacy of a client's cause In court, by hls barrister or counsel, ls sometimes called "pleading;" but this ls a popular, rather than technical, use.

In chancery practice. Consists in making the formal written allegations or statements of the respective parties on the record to maintain the suit, or to defeat it, of which, when contested in matters of fact, they propose to offer proofs, and in matters of law to offer argumenis to the court. Story, Eq. PI. § 4, note.

— Donble pleading. This is not allowed either in the declaration or subsequent pleadings. Its meaning with respect to the former is that the declaration must not, in support of a single demand, allege several distinct matters, by any one of which that demand is sufficiently supported. With respect to the subsequent pleadings, the meaning is that none of them is to contain several distinct answers to that which preceded it; and the reason of the rule in each case is that such pleading tends to several issues in respect of a single claim. Wharton.

— Special pleading. When the allegations (or "pleadings," as they are called) of the contending parties in an action are not of the general or ordinary form, but are of a more complex or special character, they are denominated "special pleadings;" and, when a defendant pleads a plea of this description, (i. e., a special pleat) he is said to plead specially, in opposition to pleading the genera] issue. These terms have given rise to the popular denomination of that science which, though properly called "pleading," Is generally known by the name of "special pleading." Brown. The allegation of special or new matter in, opposition or explanation of the last previous averments on the other side, as distinguished from a direct denial of matter previously alleged by the opposite party. Gould, FL c. 1, § 18. In popular language, the adroit and plausible advocacy of a client's case in court. Stimson, Law Gloss.

The process of making allegation in a cause by a series of ■written statements proceeding from the parties in alternate order, so as to develop the essential point in controversy, termed the issue; at law, that system or science of statement in the common law by which the allegations of the respective parties are so regulated as to produce a single, certain and material issue; in equity, the formal method of placing the statements of the parties before the court, — a less technical procedure than pleading at law, the substance of the statements being regarded, rather than their precise verbal form.

The process of cause which terminated merly made orally in court, sisting of the declaration, surrejoinder, rebutter, pleading: v. Pleader. without noticing a defect whereby such defect may

n. and part. 1. The art, business, or science of draughting the usual formal written statements of the case of either party to a judicial proceeding, particularly a suit or action; also, the act or step of interposing either, and particularly of interposing a defence. 2. Any of the usual formal written statements of a party's case is called a pleading; and the whole bodj' of these statements in any cause is termed the pleadings. According to Termes de la Ley and Cowel, the declaration is not included in the expression the pleadings. 8, The oral advocacy of a client's cause in court, by his barrister or counsel, is sometimes called pleading; but this is a popular rather than technical use. An affidavit made to procure an order of attachment is not a pleading, witliin a statute requiring a pleading to be verified. Johnson v. Laughlin, 7 Kan. 359. The mutual allegations or statements which are made by the plaintiff and defendant in a suit or action are termed the pleadings. These are now written or printed, and delivered between the contending parties, or to the proper officers appointed to receive them; but formerly tliey were actual viva voce pleadings in open court. The pleadings in an action are designated, according to their nature, by the following terms: declaration, plea, replication, rejoinder, surrejoinder, rebutter, and surrebutter. The principles on which these pleadings or contending statements are framed, and the manner in which they govern or affect the subsequent course of the cause, form the principal feature in the art or science of pleading, or, as it is popularly called, special pleading. Brown. The term pleadmgs has a technical and well-defined meaning. Pleadings are written allegations of what is affirmed on the one side, or denied on the other, disclosing to the court or jury having to try the cause the real matter in dispute between the parties. Desnoyer v. Hereux, 1 Minn. 17. •^ or upon the proposition of a plebeian magistrate, as a tribune.