Monday, December 7, 2009

In Law: pleading (6)

In early times other pleadings might follow the answer as at common law, but ultimately the answer came to be the last substantial pleading, and was followed only by a formal plea always of the same tenor and used only to indicate that the parties were at issue.

In case it became necessary for the plaintiff to meet any of the allegations in the answer, this was accomplished by amendment. Upon the testimony taken before a master in chancery, and upon the answer, which was deemed to be not only a pleading, but in effect evidence introduced by the plaintiff, the decision and final decree of the Court of Chancery were based.

Equity pleading borrowed from the common law the use of the demurrer and the plea, with practically the same effect.

In the courts of equity of the United States, which, in accordance with the Constitution and statutes of the United States, are distinct from the courts of common law, the same system of pleading is used as in the English Court of Chancery as it has here been outlined. The pleading in the United States courts is, however, subject to modification by rules of court. The same system of equity pleading also obtains in those States in which the distinction between courts of equity and of law has been maintained, notably New Jersey.

Code Pleading

The supposed difficulty in satisfactorily modifying or reforming the common-law system by mere statutory revision or amendment led in many of the United States to legislation abolishing the common-law system of pleading and creating or attempting to create a purely statutory form of pleading to be used in both law and equity actions. This step was first taken by the Legislature of New York, which adopted in 1848 the New York Code of Civil Procedure, which as served as a model for similar legislation in most of the other States adopting code procedure. A substantially statutory form of pleading and practice was also adopted in England by the Judicature Acts of 1873 and 1875. Under the codes discovery in equity actions is abolished. The pleader is allowed to plead the facts upon which he relies without formality. The pleadings are limited to two unless the defendant pleads a counter-claim, i.e. an independent action against the plaintiff, in which case the plaintiff may reply to it. The plaintiff's pleading is called a complaint, or in some States a petition, and in England a statement of claim. The defendant's pleading is called an answer or in England a statement of defense. The defendant may demur to the plaintiff's complaint or to his reply to defendant's counterclaim, and the plaintiff may demur to defendant's answer or counterclaim, and if the demurrer is overruled, the litigant is generally allowed to plead to the merits. Formal defects can only be taken advantage of by motion before trial, and great freedom of amendment is allowed. Despite its apparent simplicity, the code system has given rise to many difficulties not unlike those existing under the common-law system, and the question of further reform is still being agitated.

Consult: Gould, Treatise on the Principles of Pleading in Civil Actions (6th ed; Albany, 1898); Perry, Common Law Pleading, Its History and Principles (Boston, 1897); Story, Commentaries on Equity Pleadings (10th ed., Boston, 1892); Phillips, Principles of Pleadings in Action under the Codes of Civil Procedure (1897) Beale, The Law of Criminal Pleading (Boston, 1899).

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