Definition
A double plea is a pleading defect in which a party asserts two or more distinct grounds of defense (or grounds of claim) in a single plea, when the rules of pleading required that only one ground be advanced at a time. The objection was not that the party had multiple defenses available, but that combining them in one plea violated the formal rule of pleading unity — the requirement that a plea present a single, traversable issue for the court to resolve.
The term carries two related but distinct senses in the classical common law authorities:
1. DUPLICITY IN PLEADING: A plea that sets out two or more independent grounds of defense, either of which alone would be a complete answer to the plaintiff's declaration. Because either ground would fully dispose of the action, combining them creates ambiguity about which issue the court is to decide and which the opposing party must meet.
2. SEPARATE ANSWERS TO SEPARATE PARTS OF A DECLARATION: A plea that responds to different portions of the plaintiff's declaration with different factual matters, joining them in a single pleading where separate pleas were required. Burrill draws a distinction here: a plea may contain averments of several facts if those facts together constitute a single answer, but the plea becomes objectionably double when the joined matters are independently sufficient as separate answers.
Both senses reflect the same underlying common law concern: certainty and singularity of issue. A plea was expected to narrow the dispute to one point, not multiply it.
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Common Confusion
DOUBLE PLEA vs. DOUBLE JEOPARDY: The words overlap but the concepts do not. Double jeopardy is a constitutional and procedural protection against being tried twice for the same offense. A double plea is a technical pleading defect about the form of a written defense. Historical legal sources occasionally use "double plea" loosely when discussing a defendant who has pleaded inconsistent defenses (such as pleading both not guilty and autrefois acquit), which can create surface confusion. These are entirely separate doctrines.
DOUBLE PLEA vs. DUPLICITY: These terms are closely related and sometimes used interchangeably in older sources, but there is a distinction worth preserving. Duplicity is the general category of pleading defect encompassing the forbidden joinder of multiple grounds in one plea. A double plea is the specific instance of that defect — the actual pleading that exhibits duplicity. Bouvier explicitly cross-references DUPLICITY from this entry. Researchers should trace both headwords in historical dictionaries to capture the full doctrine.
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Why It Matters in Research
The practical significance of double plea doctrine largely collapsed with the abolition of common law pleading forms. Under modern civil procedure — the Federal Rules and their state analogues — a party may plead multiple defenses in the alternative, and the old objection of duplicity does not apply in the same way. This means the term will appear almost exclusively in pre-reform sources: English common law reporters, equity pleading treatises, and American state court decisions predating the mid-nineteenth century procedural reforms.
Researchers working in historical legal materials need to be alert to the following:
STATUTORY MODIFICATION: Both Bouvier and Burrill note that the strict common law rule against double pleas was relaxed in England by the Statute of Anne (4 Anne, c. 16) and by parallel American statutes, which allowed defendants to plead multiple defenses simultaneously with leave of court or by statute. This means a case discussing "double pleas" after those reforms may be operating under a different procedural regime than earlier cases using the same term — the defect that was fatal at common law became permissible by leave in the reformed system.
CIVIL VS. CRIMINAL CONTEXT: In criminal practice, the double plea concept surfaces when a defendant attempts to plead both not guilty and a special plea (such as autrefois convict) simultaneously. Courts treated this combination differently from the civil context, and the analysis intersects with double jeopardy doctrine. Researchers tracing criminal pleading history should not assume that civil pleading authorities on double pleas translate directly.
CORPUS CONNECTIONS: The term connects to the broader Law Mind materials on pleading, duplicity, and the structure of the arraignment. Because double plea doctrine is fundamentally about what issues are properly joined for trial, it also touches on the scope of what a jury or court is authorized to resolve — which has downstream relevance to double jeopardy attachment questions.
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Historical Dictionary Support
Bouvier and Burrill are in substantial agreement on the core definition but approach it from slightly different angles. Bouvier emphasizes the waste of judicial resources — why assert two grounds when one is sufficient? — and directs the reader to DUPLICITY for the fuller doctrinal treatment. Burrill, drawing on Stephen's Principles of Pleading, is more analytically precise, distinguishing between a plea that joins several facts (permissible if they form one composite answer) and a plea that joins several independent answers (objectionable as double). The Burrill formulation tracks Stephen's influential treatment of the singularity-of-issue requirement.
Neither source adequately addresses the post-Statute of Anne regime, which substantially changed practice in both England and the American states. Researchers relying solely on these entries may underestimate how much pleading reform had already eroded the strict double plea rule by the time these dictionaries were compiled.
Stephen's Pleading treatise (cited by Burrill) remains the most thorough classical treatment of the doctrine. Archbold's Civil Pleading (also cited by Burrill) is the secondary authority for the procedural mechanics.
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Jurisdictional Note
In U.S. federal practice, Federal Rule of Civil Procedure 8(d) expressly permits alternative and inconsistent pleadings, rendering the classical double plea objection obsolete in that forum. Most states made equivalent changes through their own procedural reforms in the nineteenth and twentieth centuries. Surviving relevance is found primarily in states that retain code pleading in modified form, and in criminal pleading contexts where the structure of special pleas still has formal requirements.
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Encyclopedia Cross-Reference
Arraignment and Entry of Plea — The Law Mind Criminal Law Encyclopedia (criminal_198): for the procedural context in which plea multiplicity issues arise in criminal practice.
Double Jeopardy — Attachment and Scope — The Law Mind Criminal Law Encyclopedia (criminal_170): for the related but distinct constitutional doctrine that double plea doctrine can be confused with in criminal cases.
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