PLEA

In common-law pleading, the defendant's answer or defense, consisting either of a denial of the facts alleged in the declaration, or a confession that they are true and a statement of new facts by which their legal effect is avoided, or of facts tending to defeat the action itself. A PLEA is distinguished from a demurrer in that the latter admits the facts alleged in the declaration, but denies their sufficiency in law to constitute a cause of action; whereas a plea raises only a question of fact in the manner indicated in the above definition.

Pleas are usually classed as 'peremptory' and 'dilatory,' according to their purposes and
nature. A peremptory plea is one which brings in issue the merits of the controversy, either by denying absolutely the facts alleged in the declaration, when it is known as a 'plea in bar,' or by confessing that the facts alleged by the plaintiff are true, and setting forth new facts, which, if true, will defeat the alleged cause of action. The latter is known as a plea in confession and avoidance. A dilatory plea is one which attacks the action itself because of some defect in pleading or practice, and therefore does not involve the merits.

In criminal cases only pleas of 'guilty' or 'not guilty' are allowed. In equity pleading a special answer of the defendant attacking the particular action is also called a plea. It differs from a demurrer in equity in that it attacks something not apparent on the face of the
bill, and it does not put in issue the merits of the action.

In England, where common-law pleading has been abolished, the Judicature Acts provide that the defendant's answer shall be known as the 'statement of defense,' and this is analogous to a plea. The term 'Pleas of the Crown' was formerly used to designate criminal prosecutions in the name of the sovereign. In the United States wherever code pleading prevails the term plea is no
longer employed, a defense of fact being presented by an answer. However, the divisions of pleas are often referred to by courts and attorneys as descriptive of the nature of a defense set, forth by an answer. See PLEADING.

PLAINTIFF

Under the common law system of pleading and modern codes, a person who institutes or maintains a civil action or proceeding against another, who is called the defendant. Where a proceeding is commenced by petition, as in a surrogate's court, the moving party is usually called the 'petitioner.' In many jurisdictions a party commencing an action in equity is called the complainant, but under most systems of reformed procedure no distinction of this sort is made. A plaintiff may be one who prosecutes an action on his own behalf, or who does so as a representative for the benefit of another, in which case he adds to his name a description of
his official or representative capacity, as "A, guardian ad litem of B, an infant, etc."

A person who brings an action in a representative capacity is sometimes called a plaintiff ad litem. A person who maintains a proceeding or action in an admiralty court is called a libellant. Consult the authorities referred to under Pleading.

PRACTICE

In its strict legal sense, the manner or order of conducting civil or criminal actions, with reference to the successive steps necessary to be taken in order to bring the proper parties before the court, and to bring the action or proceeding to a final determination. It is less comprehensive than the term 'procedure,' which includes the greater part of the adjective law, that is, the law relating to remedies, as opposed to substantive law, which defines rights. For a more general treatment of the subject, consult: Aldrich, Equity Pleading and Practice (2d ed., Boston, 1902); Daniell, Pleading and Practice of the High Court of Chancery (6th Am. ed., Boston, 1894); Stringer, A.B.C. Guide to the Practice of the Supreme Court (London, 1903); Tidd, Practice of the Court of King's Bench (4th American ed., Philadelphia, 1856). See PROCEDURE; PLEADING.

PRECEDENT

In a general sense, any act or determination which is taken as a guide to action under similar circumstances thereafter, as personal habits are precedents automatically followed, and social and legal customs are precedents which have, by long observance, acquired the sanction of moral or civil law.

In its technical legal sense the term precedent has come to be employed to designate (a) the settled practice of the bar and (b) the judicial determination of questions of law by the courts. The popular expression 'forms and precedents' points to the former use of the word, as in the forms of pleading and the forms employed in conveyancing, which have acquired commanding authority in the legal profession, and are implicitly followed by successive generations of lawyers, until changed by statutory authority, only because of a long continued exact observance.

Of a different character is the judicial precedent. This has intrinsic authority and exerts a more or less binding force form the hour of its promulgation. It is not, as is generally believed peculiar to the common-law system of England and the United States, but is essential to the administration of every legal system. Indeed, it is involved in the very conception of law as a rule of conduct that the same acts shall produce the same legal consequences, that the same combination of circumstances, however often it may arise, shall invariably be dealt with in the same way.

In this respect, however the difference between our system and that which obtains under the civil-law system is that we have given a narrower range and at the same time a more conclusive authority to precedent. The common law denies the effect of precedent to legal writings, with the exception of a few texts of great antiquity (as Littleton and Coke), as well as to the unofficial expressions of legal opinion by eminent lawyers and judges, restricting it to judicial opinions officially delivered; while, on the other hand, it regards such decisions as of binding force, and not, as under the civil law, of merely persuasive authority. Consult: Wambaugh, The Study of Cases (Boston, 1894); Blackstone, Commentaries.

PRECEPT

In law, a command or mandate in writing, directed to a sheriff or other ministerial officer, and constituting his authority to do the act named therein. It is generally considered as synonymous with the word process.

In Scotch law, a 'precept of sasine' is an order of a superior to an agent or public officer, as a notary public, to give possession of lands to an under-tenant or vassal. A 'precept of clare constat' (literally, 'it is clearly established'), in Scotland, was a deed by which a superior acknowledged the right of an heir of a deceased vassal to succeed to the lands of his father. By statute this no longer necessary.

PRIVILEGED COMMUNICATION

A term applied to two distinct classes of statements. First, it denotes communications between parties to a confidential relation, which the law does not force the recipient to disclose as a witness. Examples of this class are statements made by a client to his lawyer, by a patient to his physician, those between husband and wife, those between a party and a witness in preparation of a case for trial, and State secrets. They are frequently called confidential communications. The extent to which they are privileged is generally regulated by statute in our States. Second, the term is also applied to statements which are defamatory, but which do not
give to the injured party a right of action. Statements of this sort are of two kinds: absolutely privileged and conditionally privileged. Members of Parliament, of Congress, and of our State legislatures are not to be questioned in any other place than their respective Houses for any speech or debate made therein. (See United States Constitution, Art. I. Sec. 6). Judges also enjoy an absolute privilege from civil action for anything said or written by them as judges. This rule is not made for the protection or benefit of a malicious or abusive judge, but for the benefit of the public, whose interest it is that judicial officers should be at liberty
to exercise their functions with independence and without fear of consequences. Similar considerations of public policy have led the English courts to accord the same absolute privilege to the pleadings of litigant parties, to the remarks of counsel, and the statements of witnesses, in the course of judicial proceedings. In this country, however, the courts have generally held the privilege of such persons to be conditional and not absolute. That is, they are not liable in a civil action unless their defamatory statements are not pertinent or material to the case at issue, and are made in bad faith and for a malicious purpose.

A conditionally privileged communication is a defamatory statement made by a person in the discharge of some public or private duty, whether legal or moral; or in the conduct of his own affairs in a matter where his interests are concerned. The publication of legislative and judicial proceedings by newspapers belongs to this class. So do statements made by a lawyer to a client about the solvency of a third person with whom the client is about to engage in business transactions. Communications by a parent to a daughter of full age about the reputation of a suitor are also in this category, as are the warnings by a master to his servants about the character of a fellow-servant, or the statements of a an employer about those who have been in his service. In all of these, and in similar cases, the plaintiff must show that the defendant uttered the defamation in bad faith and for a malicious purpose, or he will fail in his action.

Consult: Hageman, Privileged Communications (Somerville, N.J., 1889).

PROCESS

In law, a comprehensive term, including all mandates of a court, in either civil or criminal actions or proceedings, whether directed to an officer thereof, or to an individual. The term is also sometimes rather loosely employed to designate all the proceedings in an action or legal proceeding and it is in this sense that it is used in the familiar phrase 'due process of law.' However, the word 'procedure' is a much better term for that purpose, as it includes many steps in an action which could not strictly be termed process, as, for example, the argument of a case. Process is usually issued in the name and under the seal of a court by an officer there-of
but in some states, where code practice prevails, certain processes, such as civil summons and subpoenas, may be issued in the name of the proper court, by an attorney in his capacity as an officer of the court. Under the common-law practice, 'original process' was the original writ by which the action was commenced and 'mesne process' was that which was issued after-wards and during the progress of the action. Disobedience of process is contempt of court.

In patent law, a process is a mode or manner of accomplishing a particular result by the application or combination of elements or natural forces.

PROOF

In law, the establishment of facts alleged in the pleadings in a judicial proceeding by competent legal evidence. It is, therefore, the result of evidence, as distinguished from the evidence itself. However, the words proof and evidence are frequently used as synonymous, even by the courts, and when this is done, proof means simply competent legal evidence, as distinguished from irrelevant and incompetent hearsay evidence. See EVIDENCE

PROSECUTION

In its technical legal sense, the institution and conduct of legal proceedings against one who is charged with a crime. In a more general sense it is sometimes used as applicable to civil as well as criminal proceedings. There are three methods of prosecution for crime. First, upon the unsworn complaint of an individual; second, upon the complaint of an officer appointed to institute prosecutions; and third, upon a sworn complaint. The first was the earliest method known to the common law. It was, in England, a permissible method of prosecution under the technical name of appeal as late as 1818. (See APPEAL). The second method obtains in some European countries, but not in England or the United States, where the third method of prosecution upon sworn complaint is now used exclusively.

Prosecution by sworn complaint may be instituted by the complaint of a private individual or by the complaint of the attorney-general or other prosecuting officer, when the complaint is said to be on information; or it may be instituted directly by the grand jury, which makes its complaint in the form of indictment or presentment. When made by a private citizen the practice is to file the complaint in the court of a justice of the peace or magistrate whose duty it then is to issue a warrant for the arrest of the person charged with the crime. A person having been arrested upon complaint or by a peace officer or other person having authority to arrest, the magistrate has authority, if he deems the prisoner probably guilty, to hold him for the action of the grand jury or for trial by the proper court upon information filed by the prosecuting officer. When, however, the accused is a fugitive from justice, the information may be filed without the, preliminary examination, and an indictment may be found or presentment made by the grand jury before the arrest of the accused. Whether the accusation is by information or indictment, the accused when arrested is required to plead to the information or indictment and is then placed upon trial in the court having jurisdiction. For the other proceedings in a criminal prosecution, see ARREST; GRAND JURY; INDICTMENT; PROSECUTOR; PLEADING; PROCEDURE.

PROSECUTOR

One who institutes and conducts a criminal prosecution in behalf of the government.

In most European countries the duty of conducting prosecutions for criminal offenses is imposed on public officers. In England it has been customary for all criminal prosecutions to be conducted by counsel employed by private individuals, except in rare cases of crimes directly affecting the sovereign, when the prosecution was conducted by the attorney-general. In cases of private prosecution in England the person instituting the criminal proceeding is usually required to give a bond conditioned upon his proceeding with the prosecution. He can be relieved from this obligation only by the court or on the entry of a nolle prosequi by the attorney-general. The prosecutor is required to bear all the costs of the prosecution, but the court may award him a sum with which to defray his expenses in case of all felonies and most misdemeanors. This sum, however, is in practice usually inadequate. This system of private prosecution seems to have been quite effective, although burdensome to the prosecutor and liable to grave abuses.

In 1879 an act of Parliament (47 and 48 Victoria, c. 54) "more effectually providing for the prosecution of offenses in England" was framed which enacted that the Secretary of State might from time to time appoint an officer called the Director of Public Prosecutions, whose duty it should be to institute and carry on prosecutions under the direction of the Attorney-General. The authority of this officer, however, was somewhat limited and it is still true that under the English system there is no officer whose duty it is to prosecute for all crimes.

In the United States, while prosecutions by private individuals are permissible, the English system of prosecution by private individuals exclusively is not followed. Both under the Federal Government and the several State governments provision is made for the prosecution of offenders by public prosecutors usually known by the title of district attorney.

The prosecuting officer's authority is confined to the preparation and trial of cases. He cannot stipulate for exemption from punishment or as to the amount of punishment which shall be inflicted, although his recommendations are often accepted and acted upon by the court. In most States, but not all, he may with leave of the court accept the assistance of private counsel, but he still remains the responsible instrument of the law. He may, if the evidence or facts within his knowledge justify in his judgment the step, enter a nolle prosequi, thus ending the present prosecution, but not barring the right to begin a new action on the obtaining of further proof. In some States he must obtain the consent of the court to do this.

Besides district attorneys, there are in many States special prosecutors appointed to conduct prosecutions in police and other minor courts with less power than that of district attorneys. Special prosecuting agents are also sometimes appointed to prosecute for violations of the liquor laws.