Pleading (law)

“ There is no common law of the United States regulating principles of pleading and practice at law, or upon any other subject, (Wheaton v. Peters, 8 Pet., 658;) nor do the laws of a State have any such effect, proprio vigore. ”

“ The term “pleadings” is used for the collected whole of the statements of both parties; the term “pleading” for each separate part of the pleadings. The term “plea” (placitum, plaid) [1] is now applied in England oftenest to the defence made by an accused person. To “plead” is to make a pleading or plea. [2]
All systems of law agree in making it necessary to bring the grounds of a claim or defence before the court in a more or less definite and technical form.
Roman System.-In Roman law the action passed through three stages (see Action) , and the manner of pleading changed with the action. ”

“ It is unquestionably true, that in courts whose proceedings are regulated by the rules of pleading at the common law, matter in abatement is not allowed to be pleaded after pleading in bar, unless, indeed, the matter tendered in abatement shall have arisen, or shall have come to the knowledge of the pleader, puis darrein continuance ”

“ Are we keeping back anything, O Hortensius, a trick which we have often seen practiced in pleading? Who ever attends much to the advocate in this sort of action, in which anything is said to have been carried off and stolen by any one? Is not all the expectation of the judges fixed on the documents or on the witnesses? I said in the first pleading that I would make it plain that Caius Verres had carried off four hundred thousand sesterces contrary to the law. ”

“ Certainly, for otherwise a defendant cannot be condemned, however guilty he may be. Were you, then, indignant that anything should be done by me to make it less easy for him to be condemned? For if the cause be understood, many men may be acquitted; if it be not understood, no one can be condemned. 26I injure him, it seems, for I take away the right of adjournment. The most vexatious thing that the law has in it, the allowing a cause to be twice pleaded, has either been instituted for my sake rather than for yours, or, at all events, not more for your sake than for mine. ”

“ These safeguards of criminal pleading, inherited from the common law, were regarded of sufficient importance for the proper protection of the citizen to justify an incorporation of the rule into our fundamental law. ”

“ The alleged reason was that it was inconsistent with the first plea. But the law of pleading does not require that one separate and independent plea shall be consistent with another separate and independent plea. ”

“ The seventy-eighth section of the Practice Act of Montana which provides that 'in the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties'-is a modification of the common-law rule which construes all pleadings most strongly against the pleader, but even with the statute as our guide, we think the judgment below was correct. An answer to be good must overcome the case made by the complaint. ”

“ Whether a suit arises under a law of the United States must appear from the plaintiff's pleading, not the defenses which may be interposed to, or be anticipated by it. Petitioner's pleading, which we have summarized, satisfies this requirement since it adequately discloses a present controversy dependent for its outcome upon the construction of a federal statute. ”

“ To give the Supreme Court of the United States authority to prescribe rules of pleading, practice, and procedure with respect to proceedings in criminal cases prior to and including verdict, or finding or plea of guilty. ”

“ Where a State law, in force when the act was passed, has abolished the different forms of action, and the forms of pleading appropriate to them, and has substituted a simple petition or complaint setting forth the facts, and prescribed the subsequent proceedings of pleading or practice to raise the issues of law or fact in the case, such law is undoubtedly obligatory upon the courts of the United States in that locality. ”

“ We are especially impressed with the view that in code pleading, which was designed preëminently to be a system of fact pleading, a plaintiff, in suing in tort, may properly set out his contract, as constituting the underlying fact, instead of charging the defendant’s undertaking in general terms, and that the plaintiff does not thereby necessarily commit himself to the theory that his action is for breach of contract. ”

“ If in our examination of the decision of the Circuit Court, it were deemed necessary to pass upon the legal effect of the pleas tendered by the defendants below, and overruled by the court, we could have no hesitation in pronouncing each of those pleas bad upon demurrer. It is a settled rule in pleading, that wherever a plea in its commencement professes to respond to the entire declaration or count, and is in substance and reality in answer to part only of such declaration or count, the plea is bad, and the defect may be availed of, upon demurrer. ”

“ That the accuser should be permitted to plead three times to the once with which the accused is but imperfectly indulged, though it may be law, is most flagrant injustice. But, perhaps, you may not be quite satisfied with my arithmetic, and may ask me, how I make out my three pleadings to one. ”

“ Why do you compel the son of your comrade to utter his first words in the forum with the voice of indignation and complaint? Why do you compel the wife of your comrade, the mother-in-law of your comrade, in short, the whole family of your dead comrade, to hear evidence against you? Why do you compel most modest and admirable women to come against their wont and against their will into so great an assembly of men? ”

“ As a general rule a plea must be “issuable,” i.e. must put the merits of the cause in issue on the facts or the law, so that the decision of judge and jury thereon would put an end to the action upon the merits. ”

“ We have rarely in our experience examined a case, which in its principles is common and readily understood, so complicated and confused by the mode of pleading which has been pursued, and which it is understood is in conformity with the system adopted in this Territory. ”

“ Accident, surprise, and mistake, are grounds of relief in all the transactions of life. Can it be possible that rules of pleading, fashioned by the courts for their own convenience in the administration of justice, are the only exception to the power of courts to grant relief from unconscionable advantages obtained by either of these means? ”

“ So that there can be no doubt, that the present plea is a good bar to the suit, notwithstanding there has been no surrender; if by law the principal could not, upon such surrender, have been imprisoned at all. ”

“ Secondly, that 'all the forms of pleading heretofore existing are abolished.' The act proceeds to declare that the first pleading on the part of the plaintiff is the complaint, which shall contain, amongst other things, 'a plain and concise statement of the facts constituting a cause of action without unnecessary repetition.' Rev. Stat. 721. It provides that the defendant may demur for certain causes, but that other defences must be taken by answer. ”

“ The rules which govern a special plea at law, are substantially the same as apply to a plea in Chancery. It must be single, and not double. Its office is, to bring forward a fact, which may be the result of a combination of circumstances; and which, if true, bars the relief prayed for in the bill. 15 Ves. 377. A plea, in order to be good, must be either an allegation or a denial of some leading fact, or of matters which, taken collectively, make out some general fact, which is a complete defence. ”

“ As it discloses the facts on which it is founded, and requires an answer from the defendant, it is in the nature of a declaration, and the plea is properly to the writ. In the present case the bill of particulars of the plaintiff's claim is filed of record under the statute which gives this remedy, and it is recited in the writ and thereby made part of it, so that any further pleading on his part, to set forth the nature of his demand, would be wholly superfluous. ”

“ Every pleader who acts in the business of another should have regard to four things:—First, that he be a person receivable in court, that he be no heretic, nor excommunicate, nor criminal, nor man of religion, nor woman, nor ordained clerk above the order of sub-deacon, nor beneficed clerk with the cure of souls, nor infant under twenty-one years of age, nor judge in the same cause, nor open leper, nor man attainted of falsification against the law of his office. ”

“ Art. 4 - Whether it is lawful for an advocate to take a fee for pleading? Objection 1: It would seem unlawful for an advocate to take a fee for pleading. Works of mercy should not be done with a view to human remuneration, according to Lk. ”

“ Almost all pleas, except those of the simplest kind, must be signed by a barrister; who does not usually draw the plea, but he merely draws the half guinea for the use of his name. The pleading begins with the declaration, in which the plaintiff is supposed to state the cause of action ”

“ But, on the other hand, the person claiming under the instrument, and who has always been in possession of it, may well be presumed to know by whom it has been altered, and, therefore, he, and he only, can explain it. Any other rule would be most unreasonable and contrary to any proper system of pleading. ”

“ It would be the most perfect anomaly in pleading, to draw up a plea to the jurisdiction of the court of chancery, in the English form, and apply it to a bill in equity in a circuit court of the United States, so as to meet the averment of citizenship of the plaintiff, according to the present decision of this court. ”

“ The pleadings now commence, which were originally delivered orally by the parties themselves in open Court, when success might depend on length of tongue; but the parties themselves being got rid of, in the modern practice, and the lawyers coming in to represent them, success usually depends on length of purse. The object of pleading, whether oral or written, is to bring the parties to an issue; which means, literally, a way out; but, in practice, the effect of getting plaintiff and defendant to an issue is to let them both regularly in. ”

“ But each man, with regard to his own case, or tax, or debt, must carry on his own defence; unless he be infirm or ignorant of pleading—for which sort of persons the "missi," or those who preside in that court, or a judge who knows the case for the defendant, shall plead before the court. ”

“ Or, if we next consider God as sitting in judgment, and man before the tribunal, going to plead his cause; here the question is, What kind of plea shall a man resolve to trust his salvation upon? Shall he stand upon his innocence, and rest upon strict law ”

“ In criminal pleading the Crown states the case in an indictment or information. The answer of the accused is a plea, which must be pleaded by the accused in person, except in certain cases of misdemeanour tried in the High Court (Crown Office Rules, 1906) . The plea, according to Blackstone, is either to the jurisdiction, a demurrer, in abatement, special in bar, or the general issue. The last is the only plea that often occurs in practice ”

“ The opposite party may demur when his opponent's pleading is defective in substance or form, but there can be no demurrer for a defect not apparent in the pleadings. This being so, the question now is, whether or not, notwithstanding the objections in substance and form which the defendants have made to the plaintiff's declaration, sufficient matter appear in the pleadings, upon which the court may give judgment according to the very right of the case. ”

“ The king's charter of pardon must be specially pleaded, and that at a proper time; for if a man is indicted and has a pardon in his pocket and afterwards puts himself upon his trial, by pleading the general issue, he has waived the benefit of such pardon. ”

“ Gould [5] says:
'The meaning of the rule is, that when the pleading, on one side, consists of several distinct and material points, all of which are necessary to its legal sufficiency, the adverse party is allowed to traverse only one of them. ”

“ It is undeniably true in pleading, that where a suit is instituted in a court of limited and special jurisdiction, it is indispensable to aver that the cause of action arose within such restricted jurisdiction; but it is equally true, with regard to superior courts, or courts of general jurisdiction, that every presumption is in favor of their right to hold pleas, and that if an exception to their power or jurisdiction is designed, it must be averred, and shown as matter of defence. ”

“ Recent statutes in the States also confer a liberal discretion upon courts in allowing amendments to pleadings, and those statutes, together with the change they have superinduced in the course of judicial decision, may be said to have established the general rule in the State tribunals that no variance between the allegations of a pleading and the proofs offered to sustain it, shall be deemed material, unless it be of a character to mislead the opposite party in maintaining his action or defence on the merits. ”

“ A man unjustly deprived of sanctuary could plead the right before his judges. It was a declinatory plea, and must be urged before he answered as to his guilt or innocence; it availed him nothing to do so after, for he was strung up forthwith. ”