Common Law Pleadings

The situation:

The defendant has filed in this Court of Record, an answer to a non-existent complaint. But, a plea (answer) to the declaration (action) is expected.

The plaintiff will stipulate to one of two propositions chosen by the defense:
A. The answer will be accepted as a plea to the action, and plaintiff will file a replication, or
B. Defendant will be given time to amend the answer so as to present a proper plea to the court.

---------           --------------------------------
 1 Declaration       2 Plea in Confession and Avoidance
 3 Replication       4 Rejoinder
 5 Surrejoinder      6 Rebutter
 7 Surrebutter       8 Rebutter
 9 Surrebutter      10 Rebutter
11 Surrebutter            .
   .                   .
   .                   .
[ad infinitum]


The action you filed is also properly called a "declaration"
The answer they file is should be referred to as a "plea", which is short for a "plea in confession and avoidance".
The reply to the plea is called a "replication".

In court today, use the words "declaration", "plea", and "replication".

The response to the replication is called a "rejoinder".
The response to the "rejoinder" is called a "surrejoinder".
The response to the "surrejoinder" is called a "rebutter".

After that, the names of the papers do not change.

The idea is to narrow down the issues in that back-and-forth filing.

Don't get trapped into discussing the meaning of the words. If you get challenged on their meaning, simply say that "I'd be happy to go into that in the future, but I did not come here prepared to deal with that today. Perhaps you could get a more reliable definition from the law dictionary than what I am prepared to deliver today."


After the Declaration, [both] the Parties must, at each Stage of the Proceedings in the Action, either:

    (I) Demur, or
   (II) Plead:
        (A) A Dilatory Plea, or
        (B) A Peremptory Plea, or Plea in Bar

Demur: to dispute the Rule of Law relied upon by the Plaintiff raises the Issue of Law Triable by the Court;

Plea: to dispute the Combination of Facts relied upon by the plaintiff raises an Issue of Fact, Triable by the Jury.

Dilatory Plea: to prevent the Entry of a Final Judgment on the Merits.
Plea in Bar: to bring about a Final Judgment on the Merits.

The following is taken from Koffler, "COMMON LAW PLEADING," page 80:



On the Appearance of the Parties, the Pleadings Commence. The Various Pleadings and their order are as follows:


   (I) The Declaration of the plaintiff.
  (II)     The Dilatory Pleas of the defendant.
 (III)     The Demurrer or Plea of the defendant.
  (IV) The Demurrer or Replication of the plaintiff.
   (V)     The Demurrer or Rejoinder of the defendant.
  (VI) The Demurrer or Surrejoinder of the plaintiff.
 (VII)     The Demurrer or Rebutter of the defendant.
(VIII) The Demurrer or Surrebutter of the plaintiff.

     Mode of Pleading

STEPHEN thus describes how the Pleadings were once orally delivered.[53] "As the appearance was an actual one, so the Pleading was an Oral Altercation in Open Court, in presence of the Judges. . . . These Oral Pleadings were delivered either by the Party himself or his Pleader, called "narrator' and 'advocatus'; and it seems that the Rule was then already established that non but a regular advocate (or, according to the more modern term, 'barrister') could be a Pleader in a cause not his own.
NOTE [53]. Stephen, A Treatise on the Principles of Pleading In Civil Actions, c. I, Of the Proceedings in An Action, from Its Commencement To Its Termination, 59, 60 (3rd ed. by Tyler, Washington, D. C. 1893).

"It was the office of the Judges to superintend, or, according to the allusion of a learned writer, moderate the oral contention thus conducted before them. In doing this, their general aim was to compel the Pleaders so to manage their Alternate Allegations as at length to arrive at some specific point or matter affirmed on the one side and denied on the other. When this matter was attained, if it proved to be a Point of Law, it fell, of course, to the decision of the Judges themselves, to whom alone the adjudication of all legal questions belonged; but, if a Point of Fact, the parties then, by mutual agreement, referred it to one of the various Methods of Trial then practiced, or to such Trial as the Court should think proper. This result being attained, the parties were said to be at issue (ad exitum; that is, at the end of their pleading). The question, so set apart for decision was itself called 'the issue', and was designated, according to its nature, either as an 'issue in fact' or an 'issue in law'. The whole proceeding then closed, in case of an Issue in Fact, by an award or order of the Court, directing the institution, at a given time, of the Mode of Trial fixed upon; or, in case of an Issue in Law, by an adjournment of the parties to a given day, when the Judges should be prepared to pronounce their decision."

The practice of oral pleading has long since ceased. The Modern Practice is to draw up Written Pleadings in typewritten form, and file them in the office of the proper officer of the court, usually the Clerk's office. Here the opposite party may examine a pleading, or he may procure a copy from the officer; or it may be that under the statutes of the particular state, or a Rule of the Court, a copy may be required to be delivered to him. When the Pleadings are thus filed they become a part of the Record of the cause. They are not, as formerly, transcribed, but are themselves properly indorsed and kept on file as part of the Record.