Friday, November 7, 2008

Legal Talk (4)

Topic: Understanding Legal Terms Pre: 1901 #4


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.


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. (14)


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