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PART FOUR. DEFENSIVE PLEADINGS

CHAPTER 18. MOTIONS OF DEFENDANT AFTER THE

DECLARATION AND BEFORE THE PLEA

See. Page

184. Demand of Oyer 368

185. Views, Aid-Prayer and Voucher to Warranty 370

186. Imparlance 371

187. Motion for a Eill of Particulars 372

188. Status Under Modern Codes, Practice Acts and Rules of Court 375
CHAPTER 19. CONSIDERATIONS PRELIMINARY TO THE

CLASSIFICATION OF DEFENSES

189, Parties Must Demur or Plead 378

190. Pleas: Dilatory or Peremptory 379

191. Other Stages of Pleading Beyond the Declaration and Plea 380

192. E]eetion to Demur or Plead—Factors to be Considered

193. Forced Issues Tinder the Codes 382
CHAPTER 20. THE DEMURRER

194. The Nature and Office of the Demurrer 384

195. The Speaking Demurrer 387

196. The Demurrer and Other Pleadings Distinguished 388

197. The Scope of a Demurrer 388

198. General and Special Demurrcrs and Defects Available Thereunder ~89

199. Effect of Demurrer—By Way of Admission 396

200. Effect of Demurrer—Tn Opening the Record 400

201. Judgment on Demurrer 405

202. Status of the Demurrer—Under Modern Codes, Practice Acts and

Rules of Court 406
CHAPTER 21. PLEAS--DILATORY

203. The Nature of Dilatory Pleas 410

204. The Order of Dilatory Pleas 411

205. Pleas to the Jurisdiction 412

206. PIcas in Abatement 416

207. Noojoinder or 1\iisjoinder of Parties Plaintiff in Contract 423

208. Nonjoinder or Misjoinder of Parties Defendant in Contract 424

209. Nonjoinder or Misjoinder of Parties in Actions Ex Delicto 426

210. Requisites of Pleas in Abatement 428

211. Pleas in Suspension 429

212. Judgment on Dilatory Pleas 430

213. Formal Commencement and Conclusion 430

214. Status Under Modern Codes, Practice Acts and Rules of Court 432


CHAPTER 22. PLEAS—PEREMPTORY OR IN BAR

215. The General Nature of Pleas in Bar 434

216. The Various Forms of Traverse or Denial 435

217. The General Requisites of Traverse 436


XXVII

TABLE OF CONTENTS

Sec. Page

218. Materiality of the Traverse 439

219. Selection of Issuable Proposition 441

220. Denial of the Essentials Only 441

221. Negatives and Affirmatives Pregnant 444

222. The Specific or Common Traverse 446

223. The Special Traverse 447

224. The General Issue—Its Nature and Use 457

225. Pleas in Confession and Avoidance—The Nature and Form 460

226. Giving Color 462

227. Pleadings in Estoppel 465

228. Admission by Failure to Deny 465

229. Protestation 466

230. Argumentative Pleas 467

231. Pleas Amounting to the General Issue 469

232. Partial Defenses 472

233. A Pleading Bad in Part is Bad Altogether 473

234. Several Defenses 475

235. Duplicity in Pleas—In General 480

236. Dup]icity—Immaterial Matter 480

237. Duplicity—Matter Ill Pleaded 481

238. Duplicity—Matters Forming a Connected Proposition 482

239. Duplicity—Protestation 484

240. What Defenses May he Shown Under the General Issue and What

May or Must be Pleaded Specially 484

241. The General Issue in Trespass 485

242. Pleas in Confession and Avoidance in Trespass 486

243. The Ililary Rules—Their Effect Upon Negative and Affirmative De­fenses in Trespass 488

244. The General Issue in Trespass on the Case 488

245. Pleas in Confession and Avoidance in Trespass on the Case 490

246. The Hilary Rules—Their Effect Upon Affirmative and Negative

Defenses in Trespass on the Case 492

247. The General Issue in Trover 493

248. Pleas in Confessioa and Avoidance in Trover 493

249. The Hilary Rules—Their Effect Upon Negative and Affirmative

Defenses in Trover 493

250. The Genera] Issue in Ejeetment 494

251. Pleas in Confession and Avoidance in Ejectment 495

252. The General Issue in Detinue 496

253. Pleas in Confession and Avoidance in Detinue 497

254. The Hilary Rules—Their Effect Upon Negative and Affirmative

Defenses in Detinue 497

255. The General Issue in Replevin 497

256. The Special Traverse in Replevin 499

257. Pleas in Confession and Avoidance in Replevin 500

258. The General Issue in Debt on Simple Contracts and Statutes 500

259. Pleas in Confession and Avoidance in Debt on Simple Contracts and

Statutes 502

260. The Hilary Rules—Their Effect Upon the Scope of the General Is­sue in Debt on Simple Contracts and Statutes 502

261. The General Issue in Debt on a Specialty 503

262. Pleas in Confession and Avoidance in Debt on a Specialty 503

263. The Hilary Rules—Their Effect Upon the General Issue in Debt on a

Specialty 504



fly”

TABLE OF CONTENTS

Sec. Page

264. The General Issue in Debt on Judgments 504

265. Pleas in Confession and Avoidance in Debt on Judgments 505

260. The General Issue in Covenant 505

267. Pleas in Confession and Avoidance in Covenant 507

268. The Hilary Rules—Their Effect Upon the General Issue in Cov­

enant 507

269. The General Issue in Special Assumpsit 508

270. Pleas in Confession and Avoidance in Special Assumpait 510

271. The Hilary Rules—Their Effect on the Scope of the General Issue

in Special Assumpsit 510

272. The General issue in General or Indebitatus Assumpsit ~11

273. Pleas in Confession and Avoidance in General or Indebitatus As­

sUmpsit 512

274. The Rilary Rules—Their Effect Upon the Scope of the General Is­

sue in General or Indebitatus Assumpeit 512

275. Comparison of Scope of Different General Issues 512

276. Notice of Defenses Under the General Issue 513

277. Plea Puis Darrein Continuance 513

278. Recoupment and Set-Off 515

CHAPTER 23. TilE REPLICATION


279. The Various Kinds of Replication 518

280. The Replication De Injuria—Definition, Scope and Availability 519

281. Forms of Plea and Replication De Injuria Thereto 521

282. Formal Parts of Replication 522

283. Status of the Republican De Injuria Under Modern Codes, Practice Acts and Rules of Court 522

284. Departure Defined and the Reason for the Rule Against Departure -- 525

285. The Kinds of Departures and the Stage of Pleading at Which They May Occur 526

286. The Mode of Taking Advantage of a Departure 528

287. Status of Departure Under Modern Codes, Practice Acts and Rules of Court 529

288. New Assignment—Definition, Necessity and Application 529

289. Form of New Assignment 530

290. New Assignment as in the Nature of a New Declaration 530

291. Status of New Assignment Under Modern Codes. Practice Acts and Rules of Court 531

CHAPTER 24. THE PRODUCTION, TENDER, AND

JOINDER OF ISSUE

292. Production of Issue 582

293. Tender of Issue 532

294. Joinder of Issue 535



PART FIVE. LITIGATING THE CONTROVERSY

CHAPTER 25. TRIAL BY COURT OR BY JURY

295. Trial by Court 536

296. Trial by Jury 538

KoTher & Reppy CornLaw Pldg. *1.5—2 XXIX



HANDBOOK

ON
COMMON-LAW PLEADING


PART ONE

DEVELOPMENT OF COMMON LAW PLEADING

AND ITS IMPORTANCE IN MODERN

PRACTICE


See.
1. The Place of Common-Law Pleading in the Law.

2. The Importance of Common-Law Pleading.

3. The Functions of Pleading at Common Law.

4. The Development of Substantive Law out of Procedure.

5. Relation of Common-Law Pleading to Other Systems.

6. The Status of Common-Law Pleading Under the Codes.

7. Modern Procedure Under Codes, Practice Acts and Rules of Court— Merely Another Step in the Evolutionary Development of the Common Law.
COMMON-LAW PLEADING, the ancient Reign of Edward I (1272~1307)1 and further methodology used for bringing legal issues perfected during the Reign of Edward m before the Courts of England, is as old as the

I. See comment in Stephen, A Treatise on the Prin­ciples of Pleading in Civil Actions, c. II, Of the -Principal Rules of Pleading, 147 (3d Am. Cd. by Tyler, Washington, B. C. 1892). Cf. The Statement of Sir Mathew Rain, in The ff155017 of the Common Law, c. VIII, 173 (4th Cd., Dublin, 1792).

CHAPTER 1

COMMON-LAW PLEADING AND PRACTICE—STILL

SURVIVES AS THE BASIS OF MODERN

REMEDIAL LAW

Anglo-Saxon Legal System and as new as yesterday’s cases before the Trial and Appel­late Courts o( the United States. First formed and cultivated as a science in the

1

BASIS OF MODERN REMEDIAL LAW Ch. 1

In general on the subject of Common-Law Pleading, see the following:


Treatises: Glanvill, Tractatus de Legibus et Consue­tudinibus regnit Angliae (1187—1189) INew edition edited by George B. Woodhine, 4 vols. (New Haven, 1932)]; Bracton, Do Legibus and Consuetudinibus Angliae (1250-4258) (London, 1640); Casus Placi­torum, a collection of decisions of Judges, all of whom lived before 1260, according to Holdsworth, and which in style and subject matter anticipated the Year Books; Yet Assayer (before 1267), a tract on Procedure probably by Ilengham, and reported in Woodbine, Pour Thui’teenth Century Law Tracts (New Haven, 1910); Cadit Assisa (1267 or after), a summary of that part of Bracton’s Treatise deal­ing with the Assist 0f Mort d’Ancestor fnew edition by Sir Travers Twiss, London, 1878—1883]; Heng­ham, Magna (1270—1275), based on Bracton, and containing information on the rules of Pleading and Procedure in the Real Actions; Hengharn, Pana (1285 or after), containing Instruction as to Pleading and Procedure in certain Real Actions; Britton, Ancient Pleas of the Crown (Trans. by

F. M. Nichols, 1270); Fleta, An Epitome of Brit­ton (1290); Articuli ad Novas Narrationes (1326— 1340), consisting for most part of Precedents of Pleading; Register of Writs (132G—1377); Pynson’s Book of Entries (1510); Fitzherbert, Natura Bre­vium (1534), a selection of Writs together with a commentary; Rastell’s Entries (1564); Theloau, Di­gest of Original Writs and Things Concerning Them (1579), a most orderly treatise on Procedure grounded on the Year Books and printed at the end of the 1687 edition of the Register of Writs; Coke, Book of Entries (1014); Powell, Attorney’s Academy (1623); Buer, Doctrina Placitandi, or The Art and Science of Pleading (1640); Coke, Declarations and Pleadings contained in his eleven Books of Reports (1650); Aston, Placita Latine Rediviva: A Book of Entries (1601—1878); Browne, Formulae beiie Pled­tandi: A Boolr of Entries (1671, 1675); Liber Placitandi (London, 1674), a book of Special Plead­ings containing Precedents; Vivian, The Exact

Pleader: A Book of Entries (1684); Clift, A New Book of Declarations, Pleadings, Verdicts, Judg­ments, and Judicial Writs, with the Entries There­upon (1703, 1719); Lilly, A Collection of Modern En­tries (1723, an English edition appeared in 1741); Euer, A System of Pleading, including translation of the Doctrina Placitandi, or the Art and Science of Pleading (Dublin 1701); American Precedents and Declarations (Boston, 1802); Wentworth, A Complete System of Pleadings (London 1797-49); Story, Selection of Pleadings in Civil Actions Sub­sequent to the Declaration (Salem 1805); Lawes, Elementary Treatise on Pleading (London 1806) list Am. from 1st London Cd. (Portsmouth, N. N. 1808)]; Booth, The Nature and Practice of Real Actions (1st Am. ed. New York 1808); Lawes, Practical Treatise

on Pleading (Boston 1811); Hening, The American Pleader and Lawyer’s Guide, 2 vols. (New York 1811); Chitty, Treatise on Pleading with Pre­cedents, 3 vols. (~pringfleld 1833); Harris, Mod­ern Entries, 2 vols. (Edited by Evans, Baltimore 1821); Jackson, Treatise on the Pleadings and

Practice of Real Actions (Boston 1828); Saunders, The Law of Pleading and Evidence in Civil Ac­tions (2d Am. ed., PhiladelphIa 1831); Could, Trea­tise on the Principles of pleadings In Civil Ac­tions (1832); Tyrwhltt, Pleading (London 1846); Williams, Introduction to Pleading and Practice (London 1857); Stephen, Principles of Pleading in Civil Actions, a View of the Whole Proceedings in a Suit at Law (3rd Am. ed. from 2d London cd, by Tyler, Washington, D. C. 1892); Evans, Pleading in Civil Actions (2d ed. by William Miller, Chicago 1879); Heard, Principles of Civil Pleading (Boston

1880); Maitland and Baildon, The Court Baron (London 1891); Chitty, Treatise on Pleading and Parties to Actions, with Precedents and Forms (Lon­don 1808; 16th Am. ed. by J. C. Perkins, Springfield 1879); Shlnn, Treatise on Pleading and Practice (Chicago 1892); MclCelvey, Principles of Common-Law Pleading (1st ed. New York 1894); Stephen, Principles of Pleading in Civil Actions (Am. ed. from 5th English ed., by Wihiston, Cambridge, 1895); Shinn, Treatise on Pleading and Prac­tice. 2 vols. (Chicago 1890); Poe, Pleading and Practice in Courts of Common Law (Baltimore 1897); Perry, Common-Law Pleading (Boston 1897); Martin, Civil Procedure at Common Law (St. Paul 1905); Maitland, Equity, The Forms of Action at Common Law (Cambridge 1909); Woodbine, Pour ThIrteenth Century Law Tracts [on Pleading] (New Raven 1910), containing: Judicium Essoniorum (1267—1275), a tract on Essoing probably by Hong-ham; Eceptienes ad Cassandum l3revia (7285 or after), [tract on the Writs]; Modus Componendi Brevia or Cum Sit Necessarium (1285 or after), (a tract on the Writs]; Millar, Common-Law Pleading (Chicago 1914); Puterbaugh, Common Law Pleading and Practice In IllInois (6th ed. by L. D. Puterbaugb, Chicago 1916); Scott, Fundamentals of Procedure in Actions at Law (New York 1922); Shipman, Hand­book of Common Law Pleading (3d ed. by Ballan­tine, St. Paul 1923); Winfleld, History of Conspir­acy and Abuse of Legal Procedure (Cambridge 1925); Buhlen and Leake’s Precedents of Pleadings in Ac­tions in the King’s Bench Division of the Nigh Court of Justice (8th ed. by W. Wyatt-Paine, London 1924; 9th ed., London 1935); O’Donnell, Procedure and Form~ of Common Law Pleading (Washington, B. C.

1934); Plucknett, Concise History of the Common Law (3d ed, London 1940; 4th ed., London 1948); Fifoot, History and Sources of the Common Law

(London 1949); Odgers, Principles of Pleading and Practice In Civil Actions In the nigh Court of Jus­tice (1st ed., London 1891; 3d e,L, London 1897; 4th ed., London 1900; 5th ed., London 1903; 6th ed.,

2

COMMON-LAW PLEADING

3

(1327—1377) ,~ it has served each succeeding generation as an effective instrument in the Administration of Justice, and today is still very much alive, both as an Operating. Sys­tem and as a guiding force in the recurring Waves of Reform designed to correct its abuses.


For more than Six Centuries, it was the only Method of Pleading in the Common-Law Courts of England—King’s Bench, Excheq­London 1906; 7th ed., London 1912; 14th ed., Lon­don 1952).
casebooks~ Ames, A Selection of Cases on Pleading (let ed., Cambridge 1875; 2d ed., Cambridge 1905); Shipp and Daish, Cases Illustrating Common-Law Pleading (Chicago 1903); Keen, Cases on Pleading (Boston 1905); Sunderland, Cases on Common-Law Pleading (Chicago 1013); Lloyd, Cases on Civil Pro­cedure (Indianapolis 1915); Scott, Cases and Other Authorities on Civil Procedure (Cambridge 1915); Whittier and Morgan, Cases on Common-Law Plead­ing (St Paul 1916); Cook and Hinton, Cases on Pleading at Common Law (Chicago 1923); Reppy, Cases on Pleaffing at Common Law (New York 1928); Maglfl, Cases on Clvii Procedure (St. Paul

1927); Lloyd, Cases on Pleading jn Actions at Law (Indianapolis 1927); Clark, Cases on Common-Law Pleading (Cincinnati 1931); Keigwin, Cases on Com­mon-Law Pleading (1st ed., Rochester 1926; 2d ed., Rochester 1934); Cook and Hinton, Cases on Plead­ing at Common Law (revision of Part I, Common Law Actions) (Chicago 1940); AtkInson, Introduc­tion to Pleading and Procedure (Columbia 1940); Scott and Simpson, Cases and other Materials on Judicial Remedies (Cambridge 1946); Scott and Simpson, Cases and Other Materials on Civil Pro­cedure (Boston 1950); Reppy, Introduction to Civil Procedure (Buffalo 1954).


5- In referring to the Improvement In the Science of Pleading, Sir Edward Coke declared: ‘In the Reign of Edward III (1327—i277) Pleadings grew to Per­fection, both without lameness and curiosity; for then the Judges and Professors of Law were ex­cellently learned, and then Knowledge of the Law

flourished; the Serleants of the Law, &c. drew their own pleadings, and therefore [it was] truly said by Justice Thirning, in the Reign of Henry IV (1399— 1413) that in the time of Edward III the Law was in a higher degree than it had been any time be­fore; for before that time the Manner of Pleading w~s but feeble, In comparison of that It was after­ward In the Reign of the same KIng.” 2 Coke, Lit. tieton, 304b, LIb. 3, Cap. 0, ~ 534 (1st Am. from the 16th European ed. by Francis Hargrave and Charles Butler, PhIladelphia, 1812).

uer and Common Pleas—and for two hun­dred years it was the exclusive procedural device leading to the Trial of Legal Issues in the United States­It was, however, subject to many defects,

due largely to the fact that the entire Eng­lish Procedural System had grown up in a patchwork fashion,3 while the constantly ex­panding Substantive Law was outgrowing the Forms of Action which gave it birth. In the latter part of the Eighteenth and early part of the Nineteenth Centuries, under the impetus of Bentharn’s searing criticism of the existing System of Law in England, with its Courts, its Special Pleading, and its gen­eral atmosphere of Delay and Administrative Inefficiency, these restrictive influences be-caine clear to the people, a demand for Re­form sprang up and the movement for the improvement of procedure slowly got under way,

The impact of this development, strangely enough, first bore fruit in America in the State of Louisiana, with the framing of Liv­ingston’s Code of Practice ~ and the Penal Code in 1824, which latter was never adopt­ed.~ This was followed in England by the adoption of the Rilary Rules in 1834,6 and
3. “The Remedial Part of the Law resembled a mass of patchwork, made up at intervals and by pIece­meal, withoutany preconceived plan or system, for the purpose of meeting the exigencies of the times by temporary expedientt” Walker’s Introduction to American Law, Pt, VI, Lecture xxxv, 569 (11th Cd., Boston, 1905).
4. Enacted by Louisiana in 1805.
5. Livingston’s Penal Code, which was a product of Intensive preparation, and was published in 1824, was never enacted Into Lair as such by the Legis­lature of Louisiana.

Edward LIvingston was born in 1764 and died In 1836, or about six years after Field began his Pro­fessIonal Career. A native of New York, and a brother of Chancellor Robert It. Livingston, his Penal Code of Louisiana, which was published in 1824, attracted great attention in England and on the Continent. David Dudley Field Centenary Es­says, 19 (EdIted by Reppy, New York, 1949).



t The Hilary Rules, designed to restore the ancient

strict Common-Law theory as to the Scope of the

BASIS OF MODERN REMEDIAL LAW

in the United States by the New York Code of Procedure in 1848.~ Thereafter, in relatively quick succession, the English Parliament enacted the Common-Law Pro­cedure Acts of 1852,8 1854,° and 1860,10 and the Supreme Court of Judicature Acts of 187311 and 1875,12 now for the most part replaced by the Supreme Court of Judicature (Consolidation) Act of 1925.13 And in 1938 the Supreme Court of the United States made effective the New Fed­eral Rules of Civil Procedure.14 In conse­General Issue, were promulgated pursuant to the Law Amendment Act, 3 & 4 Wm. IV, c. 42, ~ 1 (1833).

For the history and effect of the Iliiary Rules in Eng­land, see article by Holdsworth, The New Rules of Pleading of the Hilary Term, 1 Cam.L.J. 261 (1923); for the history and effect of the Hilary Rules in the Several States of the United States, see, lieppy, The Ililary Rules and Their Effect on Negative and Affirmative Pleas under Modern Codes and Practice Acts, 6 N.Y.UL.Q.Rev. 95 (1929),
7- “After careful consideration and amendment by the New York Legislature, the draft tot a proposed code] was enacted into Law on April 12, 1548, N. Y.Laws 1848, c. 379, to become effective on July 1 of the same year. Written in the form of a Code Containing 391 Sections, it became known at once as the Code of Procedure or as the Field Code. This title was far too broad in scope as the Act related only to a small portion of the Adjective Law, and expressly retained the Old Common Law or Statu­tory Rule where not expressly abolished by the Code.” Reppy, The Field Codification Concept, in the David Dudley Field Centenary Essays, 17, 33— 34 (Edited by Reppy, New York, 1949).

8. 15 & 10 Vict. c. 76 (1852).

9- 17 & 18 Vict. C. 125 (1854).
it 23 & 24 Vict. c. 120 (1860).
11. 36 & 37 Vict. c. 06 (1873).
12- 38 & 39 Viet, c- 77 (1875).
13. 15 & 10 Geo. V. e. 49 (1925).
14. The Federal Rules were drafted by an Advisory Committee appointed by the Supreme Court under the authority of a Federal Statute enacted In j034. Act of June 19, 1934, ii 651, ~ 1, 2; 48 Stat. 1064, 28 U.S.C.A, ~ 723b, fl3c. See, on the earlier phases of the struggle for Federal Procedural Reform, ar­tide by Shelton, The Reform of Judicial Procedure, 1 Va,flRev. 89 (1913).

For detailed Information concerning the adoptIon, background and drafting of the Federal Rules of CivIl Procedure, see Clark, Handbook of the Law

quence thereof, both at home and abroad, the System of Pleading as developed at Common Law, has been Modified by Judicial De­cision, Changed by Statute, or by Rule of Court, and in some Jurisdictions ostensibly swept away in its entirety—so the Reformers thought—but subsequent events have cast grave doubts on this conclusion, as the sol­emn and stubborn fact is that Common-Law Pleading still survives as the basis of our Modern Remedial Law.’~
Select any individual and you will find that he is what he is today because of what his father and mother were yesterday; he can­not escape his ancestry, but must make his way through life with the physical, mental, moral and spiritual assets with which he was naturally endowed by the union of his par­ents. It is true that within certain limits he may seem to change with his environment,
of code Pleading, e. I, Eistory, Systems and Func­tion of Pleading, 31—39 (24 Cd., St. Paul 1947).

In this connection it should be recalled that progress in the Reform of Criminal Procedure has followed up and to some extent paralleled the Reform of the Civil Procedure which has been under way since 1848. In 1930 the American Law Institute issued its Code of Criminal Procedure, which has subse­quently substantially influenced State Criminal Pro­cedural Developments In the Several States, In 1941, pursuant to the rule-making authority granted to the Supreme Court by Congress, the AdvIsory Committee on Rules of Criminal Procedure was ap­pointed by the Court, which published two Pre­llmiaary Drafts, with motes, and its Final Report to the Court in July. 1944. The rules suggested therein were adopted, with certain modifications, by the Court on December 26, 1944, to become effective on March 21, 1946. The Court also gave directions that the Rules be reported to Congress In accord­ance with the terms of the Enabling Act, 323 U.S. 821, 65 S.Ct. CLXXIV (1944).


See, also, Editorial, “To Form a More Perfect Union”,

32 A.B.A!. 90 (1940); Desslon, The New Federal

Rules of Criminal Procedure, Part I, 55 Yale L.J.

694—714 (1946); Part II, 58 Yale L.J. 197—257

(1947).

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