Monday, December 7, 2009

In Law: pleading (5)

The system of pleading adopted in equity by the English Court of Chancery was derived partly from the common-law system and partly from the civil-law system as administered by the English ecclesiastical courts.

The important features of the civil-law system which characterize equity pleading were: (a) the absence of the denial or traverse, the rule being that all the allegations in a pleading were deemed to be denied unless expressly admitted by a subsequent pleading, which was exactly the converse of the common-law rule by which all the allegations in a pleading were deemed to be admitted unless expressly denied; and (b) the practice by which a party to the litigation could compel his opponent to testify, or give discovery, as it was called, in advance of argument or trial as to the matters alleged in the first party's pleading.

The plaintiff's pleading in an equity action is called the bill. In effect it is a petition addressed to the court asking that subpoena issue compelling the defendant to answer the bill. Formerly bills in equity were prepared with great formality and were usually composed of nine distinct parts. Of these, however, only four are important in modern practice, and two of these may be dispensed with. The essential parts are the statement of facts and the prayer for relief.

For the purpose of obtaining discovery the plaintiff might state in his bill at great length the evidence upon which he relied in support of his claim. This was known as the charging part of the bill. He might also ask specific questions founded upon the stating and charging parts of the bill, which he required the defendant to answer. This was known as the interrogatory part of the bill. After the appearance of the defendant, failing which a decree would be taken against him by default, he was required to answer the bill. The answer, which was required to be under oath, might set out at length any matters of defense, however numerous, relied upon by the defendant, but he was required to make discovery or give testimony by answering fully and specifically the charging and interrogatory parts of the bill.

To be continued: In Law: Pleading (6)

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