Monday, December 7, 2009

In Law: Pleading (1)

As a generic term, the written allegation of facts upon which a party to any legal proceeding founds his claim or demand or his answer or defense thereto. Used in a broader sense, the term signifies the system of legal rules and principles applicable to the written pleadings in a legal proceeding.

Pleading is only one of the successive steps in a proceeding at law by which one party asserts or enforces his rights against another, all together being comprehended by the term procedure. Originally the pleadings in an action at common law were oral, as is evidenced by many peculiarities of the common-law procedure of a later date; but as early as the reign of Edward III. we find that the pleadings were in writing and usually in Latin.

Pleading at law, however, ultimately developed into a system of highly technical and formal rules requiring the greatest precision in their application, and often by their very formality and rigidity defeating rather than aiding justice. Although remedial statutes were passed as early as the reign of Elizabeth, no attempt at a general reformation of the system was made until 4 William IV., c. 42, in 1834. At a later date in the United States various forms of statutory or code pleadings were adopted.

The principles upon which any system of pleading are necessarily based will, perhaps, be best understood by referring briefly to the more essential elements of the common-law system. The primary object of the pleadings in an action at common law was to raise a single issue or dispute upon either a point of law or of fact. In the former case a question was raised for decision by the court, usually after argument upon the question of law involved and submission of briefs by opposing counsel. In the latter, a question was raised for decision by the jury after hearing evidence tending on the one side to prove and on the other to disprove the fact in dispute. And upon the decision of the court or a verdict of the jury final judgment was entered determining the rights of the parties to the controversy.

To be continued: In Law: Pleading (2)

Source: The History

To contact:

No comments: