Monday, December 7, 2009

In Law: Pleading (2)

The first step toward accomplishing the object of pleading after service of summons or mandate of the court upon the defendant was the filing of the declaration (known in modern practice as the complaint) in court. In the declaration the facts were required to be stated according to their legal effect only, and it was not permissible to set out the evidence on which the plaintiff relied. Owing to the tendency of the early lawyers to adopt fixed forms of statement and to their adherence to precedent, the declaration was required to conform to one of a limited number of rigid forms, and if a plaintiff could not adapt the state of facts upon which he based his right to recover to one of these forms, he was without remedy.

After the plaintiff had filed his declaration it was then incumbent upon the defendant to make some statement of his defense; otherwise, after a certain period, judgment would be taken against him by default. If the defendant conceived that the declaration, if taken as true, did not show sufficient grounds to justify the plaintiff's recovery (or, as it was said, did not state a cause of action), he could submit the question of its sufficiency to the court as a matter of law by filing a demurrer to the declaration.

If however, the defendant wished to deny any of the allegations contained in the declaration, he might do so by filing a formal denial, his pleading in that case being known as a plea by way of traverse. An issue of fact was thus raised for decision by the jury.

It might happen, however, that the defendant, while admitting the truth of all the allegations in the declaration, and admitting that it was legally sufficient, relied upon the existence of new or other facts sufficient to excuse him from the liability charged in the declaration, in which case his plea took the form of a confession and avoidance. The plaintiff might then plead, setting up either a demurrer to the plea or a denial with the effect already described; or he in turn might plead by way of confession and avoidance and thus cast upon the defendant the burden of pleading again. In every case the pleadings were thus continued until a single issue of law or fact was raised, and the determination of that issue determined the rights of the parties to the litigation. Any plea of a defendant, such as has been described, setting up some matter of defense to the plaintiff's claim was known as a plea in bar or as a plea to the merits. It might happen, however, that the defendant wished to insist upon some matter which, though not a complete defense to the plaintiff's claim, was sufficient to show that the action was brought in an improper manner, as that the plaintiff was a married woman and had not joined her husband as plaintiff, or that the court had no jurisdiction, or that the defendant was not properly named. Such a plea was known as a plea in abeyance. The effect of a plea in abeyance, if successful, was to cause a dismissal of the plaintiff's action without prejudice to a second action if properly brought. If unsuccessful the defendant was allowed to plead again to the merits.


To be continued: In Law: Pleading (3)

To Contact:

No comments: