Definition
A notice to plead is a written demand served by a plaintiff upon a defendant, requiring the defendant to file a responsive pleading (historically, a plea; in modern practice, an answer or other response) within a specified time. Its essential function is procedural: it triggers the defendant's obligation to plead and, more critically, establishes the precondition for the plaintiff to enter a default judgment if the defendant fails to respond.
In the common-law pleading system, a notice to plead was not merely courtesy — it was a prerequisite. Without it, the plaintiff could not take judgment by default for want of a plea. The notice could be indorsed directly on the declaration or delivered as a separate document; either mode was sufficient.
Common Confusion
NOTICE TO PLEAD vs. RULE TO PLEAD: These are related but distinct procedural mechanisms. A rule to plead was a formal court-issued order compelling the defendant to plead by a fixed date, enforceable through the court's own process. A notice to plead was a party-generated written demand, issued by the plaintiff without court intervention. In English practice, statute eventually made a notice to plead sufficient without the additional step of demanding a rule to plead, collapsing what had formerly been two separate procedural tools into one. Researchers conflating the two may misread older pleading records.
NOTICE TO PLEAD vs. SUMMONS: A summons notifies the defendant of the commencement of an action and compels appearance. A notice to plead is a subsequent step, directed at a defendant who has already appeared or been served, demanding that they now file a substantive response. The two operate at different stages of the proceeding.
Why It Matters in Research
This term is primarily a creature of common-law pleading practice and will appear with frequency in case records, pleading books, and procedural treatises from the eighteenth and nineteenth centuries. Researchers working in pre-code American jurisdictions — before the Field Code reforms of 1848 and the subsequent adoption of code pleading across many states — will encounter notice to plead as a routine and formally required procedural step.
The critical research trap: absence of a notice to plead in historical records does not mean the plaintiff failed to provide one. Notices indorsed on the declaration itself may be embedded in the pleading document and not separately docketed. Researchers reviewing court records who find a default judgment without a separately filed notice should check the face of the declaration before concluding the procedural requirement was skipped.
Jurisdictional variation matters significantly here. Black's Law Dictionary flags that notice to plead was a prerequisite "in the practice of some states" — not all. In jurisdictions that adopted the English statutory reform (collapsing rule to plead into notice to plead), the procedural pathway differs from jurisdictions that retained the older two-step demand process. Identifying which regime governed in the jurisdiction and time period under study is essential before drawing conclusions about procedural regularity.
After code pleading and later the Federal Rules of Civil Procedure (1938), the notice to plead as a formal distinct instrument largely disappears from American federal and most state practice. Its functions were absorbed into the summons-and-complaint regime, where the time to answer is set by rule and default is available without a separate plaintiff-generated notice. The term's modern appearance is most likely in: (1) states retaining modified common-law pleading forms, (2) historical litigation records, or (3) secondary sources explaining pre-code procedure.
Historical Dictionary Support
The four historical dictionaries converge on the essential definition with little divergence: a written notice from plaintiff to defendant requiring a plea within a fixed time, without which the plaintiff cannot take a default judgment. Burrill and Bouvier both cite Chitty's practice works (Archbold's Practice and Chitty's General Practice), confirming this was a well-settled procedural formality rather than a disputed doctrine.
Bouvier adds the most procedurally nuanced point — that English statute made the notice to plead alone sufficient without separately demanding a plea or a rule to plead. This statutory development represented a simplification of what had been a more cumbersome multi-step process, and Bouvier's reference to 1 Chitty, Archbold's Practice 221 is the most specific citation in the corpus for tracing that reform.
Rapalje & Lawrence is the most compressed of the four, but captures the functional core: the notice was "necessary in all cases before the plaintiff could sign judgment for want of a plea." This phrasing is useful for researchers because it frames the notice to plead not as a procedural nicety but as a jurisdictional prerequisite to default.
None of the historical dictionaries address the post-code abolition of this requirement, which is expected given their publication dates. Researchers should treat these sources as authoritative for common-law pleading contexts and look to code-era treatises for the transitional period.
Jurisdictional Note
Notice to plead was required in some but not all American states under common-law pleading regimes, and the specific rules — including what form the notice must take and how it must be delivered — varied by jurisdiction. English statutory reform that merged the rule to plead into the notice to plead did not automatically apply in American jurisdictions. Modern federal practice under the Federal Rules of Civil Procedure does not use this mechanism; the time to respond is governed by Rule 12.
Encyclopedia Cross-Reference
The Law Mind Contracts & Commercial Law Encyclopedia: contracts_62 — Breach: Notice of Breach Requirements (for comparative discussion of notice as a formal procedural prerequisite in civil practice contexts)