Page:The New International Encyclopædia 1st ed. v. 16.djvu/138

* PLEADING. 110 PLEADING. of pleading after service of summons or maiulale of the eourt upon the ilcfcndant 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 elTect only, and it was not permissible to set out the evidence on which the plaintilf re- lied. Owing to the tendency of the early lawyers to adopt lixcd forms of statement and to their adiiercnee to precedent, the declaration was required to conform to one of a. limited number of rigid forms, and if a plaintilV could not adapt the -state of facts upon which lie based his right to recover to one of these forms, he was without remedy. Sec I'oinis or Action. After the iiiainliir had filed his declaration it was then incunibcnt u|>o!i the def<'nda!it 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 suliicient grounds to justify the plaintilT's recov- ery (or, as it was said, did not state a cause of action), he could submit the question of its sufli- ciency to the court as a matter of law by tiling a demurrer to the declaration. (See DlCMritm:!!.) If, however, the defendant wislieil to deny any of the allegations contained in the declaration, be might do so by tiling a formal denial, bis 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 suflicient. relicil upon the existence of new or other facts suliicient to excuse liim from the Iial>ilitv charged in the <lecIaration, in wlii<'h case his plea took the form of a confession and avoidance (q.v.). Tlu) lilaintilV might then plead, setting up either a demurrer to the plea or a denial with the eU'ect alrea<ly described; or he in turn might plead by way of confession and avoidance and thus cast upon the defendant the burden of plead- ing again. In every ease the pleadings were thus continued until a single issue of law or fa(4 was raised, and the determination of that issue de- termined the rights of the parties to the litiga- tion. Any plea of a defendant, such as has been described, .setting up some matter of defense to the plaintitf'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 com])lete de- fense to the plain! ill's clnim. was suliicient to 1 show that the action was hrouglit in an im]u-oper manner, as that the plaintilV was a married ■woman and had not joined her husband as plain- till, 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 ef- fect of a plea in abeyance, if successful, was to cause a dismissal of the plaintiff's action with- out prejudice to a second a(tion if jiropcrly brought. If unsuccessful the defendant was al- lowed to plead again to the merits. 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 ])ossihle, it was not usual for the proceedings to continue beyond the rebutter or sur-rebutter. I'pon the trial of an issue of fact, as the character of the issue was determined by the pleadings, it necessarily followed that the rel- evancy of all evidence oll'ered at the trial was also primarily determined by the ]dcadings. Upon the entry of juiigmcnt all the ]deadiiigs in the case, together with the judgment constitut- ing the ju<lgmeiit roll, were tiled with tlu' clerk of the court, thus constituting a complete i)er- manent record of the case. Owing to the highly technical and formal na- ture of the common-law system, the jnactice grew up of deciding the rights of litigants u])on purely formal grounds, and judgment was fnM|uen11y taken against a party U|)on demurrer because be had failed to state a perfectly valid claim or <lefense in the proper form. This was corrected to some e"xtent by the statute of 27 KHz., c. 5, see. 1, which provided that no advantage should be taken of defects of form, exceitt by a special demurrer which should state specifically the formal defect objected to. The statute 4 Anne, e. 10, sec. 1, was enacted fiu' more ellec- tively accomplishing this result, and IS and 10 Vict., c. 70, see. ijO-52, abolislied the special demurrer and required all defects of form to be taken a<lvantage of by motion before trial. Tliis is generally the modern ))ractice. 'the statute of Anne referred to allowed the defendant to |)!ead several pleas to the same (U'claration, thus breaking down to some extent the jjrinciple of singleness of issue. Through laxity of prac- tice also the defendant was allowed in his ))lea to make use of a general denial, known as the general issue, the eifect 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 ])rove many matters of alfirmative defense. An attempt was made by statute, 4 Wra. IV., c. 42, to avoid the confusion and the frequently illogical results of tliis com- plicated system by authorizing the judges of the common-law courts to adojjt certain ruh's uKxlify- ing the common law of pleading as it then ex- isted. These rules, known as the Hilary nib's, were promulgated in 1834 and bad for their principal object the narrowing of the general issue so as to make it confcuin more closely to a logical denial of the allegations in the com- plaint. These rules, however, did not succeed in accomijlisbing the desired result, and seem only to have adiled to the confusion into which the subject had fallen. The law was substantially revised by 1.5 and IG Vict., c. 70, and mo<lcrn egislation has been enacted in all of the United States in which the common-law system has been retained. Following are the more essential changes: Matters of form are required to be taken ad- vantage of by motion before trial, otherwise they are deemed to have been waived. Single- ness of issue is not required, the defeiniant being allowed to use the general denial and to plead several matters by way of con- fession and avoidance. In many jurisdictions the number of successive pleadings is limited. Decisions upon demurrers are not necessarily final, the defendant being usually allowed to plead to the merits in case his demurrer is over- ruled. Oreat freedom of amendment is allowed, a party being allowed to correct a defective plead- ing by amendment on application to the court.