Definition
In common law pleading, a counterplea is a plea directed at an incidental or collateral matter that has arisen within a proceeding, rather than at the main issue in dispute. It diverges from the primary sequence of pleadings to address a subordinate question that must be resolved before the principal controversy can proceed.
The term appears most often in two historical contexts:
1. Counterplea of oyer. When a party demands oyer — that is, requests that an instrument be read aloud in court — the opposing party may allege reasons why oyer should not be granted. That allegation constitutes a counterplea to the oyer.
2. Counterplea of aid prayer. In real actions, when a tenant vouched someone to warrant title, or prayed in aid of a person holding a larger estate (such as the reversioner), the demandant could respond with allegations why that person should not be admitted to defend. That responsive allegation was the counterplea of aid prayer.
Common Language
Modern common usage (Wiktionary): A plea made in opposition to another.
Historical common usage (Webster's 1913): Not listed as a common English word; no general-language definition recorded.
The ordinary-language sense captures something directionally accurate — opposition — but misses the structural specificity. A counterplea is not simply any responsive plea. It is a plea addressed to an incidental procedural matter collateral to the main action, not to the merits of the dispute itself. The distinction matters for historical research: treating "counterplea" as a synonym for any opposing plea misidentifies its precise technical function in the pleading sequence.
Common Confusion
Counterplea is sometimes loosely equated with replication or rejoinder — the responsive pleadings that follow in the main pleading chain. The difference is structural: replications and rejoinders stay on the direct line of pleadings addressed to the primary issue, while a counterplea branches off that line to address a collateral procedural question. Burrill's characterization of it as "diverging from the main series of the allegations" is the clearest formulation. Also note that counterplea is not synonymous with counterclaim, a modern procedural device; the two concepts belong to entirely different procedural frameworks.
Why It Matters in Research
COUNTERPLEA is a term of art from classical common law pleading that fell out of practical use as the forms of action were abolished and code pleading took hold through the nineteenth century. Researchers will encounter it almost exclusively in pre-reform English and American cases, and in treatises on common law pleading such as Stephen on Pleading. Bouvier's and Burrill's both cite Stephen's Pleading as the governing authority, signaling that the term's technical definition was stable but narrow.
The principal research trap is anachronism: importing the term into post-reform procedural contexts where it has no operational meaning. If a source uses counterplea after the mid-nineteenth century in an American jurisdiction, treat it as archaic usage or loose synonymy rather than a live procedural category. Researchers working in English ecclesiastical, real property, or equity records may encounter it more persistently, since those systems retained elements of classical pleading longer than common law courts did after reforms.
The two subtypes — counterplea of oyer and counterplea of aid prayer — are closely tied to real actions and to the doctrine of oyer, both of which are themselves obsolete. Understanding counterplea therefore requires at least functional familiarity with oyer, vouching to warranty, aid prayer, and the structure of real actions in common law. These are prerequisite concepts for any corpus research touching pre-1850 property litigation.
Historical Dictionary Support
Bouvier's, Rapalje & Lawrence, and Burrill's are in agreement on the core definition: a counterplea addresses incidental matter falling outside the direct pleading line. All three identify the same two principal examples — the counterplea to oyer and the counterplea of aid prayer — and all three cite or point toward Stephen's Pleading as the foundational authority.
Burrill adds useful framing by noting the term is "now of rare occurrence" even as of his writing, which places the obsolescence of active use in the mid-nineteenth century or earlier. Rapalje & Lawrence provides the fuller procedural context for the counterplea of aid prayer, setting out the scenario in which a tenant vouches to warranty or prays in aid, and the demandant's responsive allegation against admission. Bouvier's is the most concise but the least descriptive of the underlying procedural mechanics.
None of the three historical sources address any modern or reformed procedural analog, which is appropriate — there is none. Researchers should not expect the historical dictionaries to bridge the term into contemporary civil procedure, and any attempt to do so in secondary sources should be read critically.
Jurisdictional Note
Counterplea as an operative pleading device belonged to common law jurisdictions that maintained the forms of action. English courts and early American courts both used it. Its practical disappearance tracks the abolition of the forms of action in England (Common Law Procedure Act 1852) and the adoption of code pleading in American states beginning with the Field Code in New York (1848). No modern American or English jurisdiction employs the term as a live procedural category.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia — Common Law Pleading; Oyer; Real Actions; Aid Prayer