Monday, December 7, 2009

In Law: Pleading (3)

The successive pleadings in an action, beginning with the plaintiff's pleading, were named the declaration, plea, replication, rejoinder, sur-rejoinder, rebutter, and sur-rebutter. Although theoretically possible, it was not usual for the proceedings to continue beyond the rebutter or sur-rebutter.

Upon the trial of an issue of fact, as the character of the issue was determined by the pleadings, it necessarily followed that the relevancy of all evidence offered at the trail was also primarily determined by the pleadings. Upon the entry of judgment all the pleadings in the case, together with the judgment constituting the judgment roll, were filed with the clerk of the court, thus constituting a complete permanent record of the case.

Owing to the highly technical and formal nature of the common-law system, the practice grew up of deciding the rights of litigants upon purely formal grounds, and judgment was frequently taken against a party upon demurrer because he had failed to state a perfectly valid claim or defense in the proper form. This was corrected to some extent by the statute of 27 Eliz., e. 5, sec. 1, which provided that no advantage should be taken of defects of form, except by a special demurrer which should state specifically the formal defect objected to. The statute 4 Anne, c. 16, sec. 1, was enacted for more effectively accomplishing this result, and 15 and 16 Vict., c. 76, sec. 50-52, abolished the special demurrer and required all defects of form to be taken advantage of by motion before trial. This is generally the modern practice. The statute of Anne referred to allowed the defendant to plead several pleas to the same declaration, thus breaking down to some extent the principle of singleness of issue. Through laxity of practice also the defendant was allowed in his plea to make use of a general denial, known as the general issue, the effect of which in most actions was ultimately not only to deny all the essential allegations of the declaration, but to allow the defendant at the trial to prove many matters of affirmative defense. An attempt was made by statute, 4 Wm. IV., C. 42, to avoid the confusion and the frequently illogical results of this complicated system by authorizing the judges of the common-law courts to adopt certain rules modifying the common law of pleading as it then existed. These rules, known as the Hilary rules, were promulgated in 1834 and had for their principal object the narrowing of the general issue so as to make it conform more closely to a logical denial of the allegations in the complaint. These rules, however, did not succeed in accomplishing the desired result, and seem only to have added to the confusion into which the subject had fallen. The law was substantially revised by 15 and 16 Vict., c. 76, and modern legislation has been enacted in all of the United States in which the common-law system has been retained.

To be continued: In Law: Pleading (4)

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