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THIRTY-FOURTH SUBJECT.

Common Law Pleading.

CHAPTER I.

INTRODUCTORY.

SECTION 1. REFERENCE TO SUBJECT OF LEGAL

HISTORY. The early history of common law pleading can be found in the seventh chapter of Legal History."

SECTION 2. DEFINITION. The subject of common law pleadings is that concerned with the pleadings in proceedings before common law courts.

A pleading is “a statement in a logical and legal form, of the facts which constitute the plaintiff's cause of action or the defendant's ground of de

fense.2

This excludes a demurrer (which raises a question of law) from the list of pleadings; some of the more modern definitions of pleadings are enlarged so as to include demurrers.?

“The alternate statements of the parties, which constitute the pleadings (placita) of an action, were originally expressed by the parties or their attorneys in open court before the judges, minutes of which were entered on the record when they were finally settled. These minutes were made by the clerk under the immediate direction of the judges. This method of proceeding continued unto the reign of Henry VIII, when it became the universal practice of the parties or their advocates to deliver the pleadings to the court i Vol. I, Subject 2.

3 See Martin on Civil Procedure, • 1 Chit. Pl., 2, 13.

Sec. 14.

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in writing. The pleadings as entered never speak in the first person, a fact which seems to corroborate their oral origin, when the clerks made minutes of what the respective parties had said before the judges.

The various pleadings will be treated in Chapter VII and the rules of pleading in chapter VIII of this subject.

The great object of the system of common law pleading is to bring the parties to an issue on some point upon which the case can be decided.

SECTION 3. COMMON LAW PLEADING IN AMERICA.

The English system of common law pleading in a more or less modified form, is still in use in about half of the states of this country. In the other states a system of code pleading has been adopted. A certain knowledge of the principles of common law pleading, however, is essential to an understanding of any system of code pleading.

Martin on Civil Procedure, Sec. 15.

CHAPTER II.

PARTIES.

SECTION 4. WHO CAN SUE OR BE SUED.

The English rule as to the parties to an actior. was that all persons could sue or be sued with the exceptions that felons, outlaws, and alien enemies could not sue, and the sovereigns, foreign states and ambassadors could not be sued.

The American rule is that all persons have legal capacity to sue or be sued. An alien enemy suing will not be heard during the continuance of the war, and a political sovereignty can be sued by a private person only with its own consent.

SECTION 5. PLAINTIFFS. Everyone whose legal right has been infringed may become the plaintiff in an action for the redress of such injury. Formerly rights of action, with a few exceptions such as negotiable instruments, could not be assigned so as to enable the assignee to sue thereon, at least in his own name. The law is now much more liberal in this respect.

Persons, not parties, for whose benefit a contract is made and who sustain a relation of privity to the subject or the consideration may sue upon it.

In matters of agency, it is now well established that an undisclosed principal may generally sue in his own name, on a contract made in the name of the agent while acting within the scope of his agency.' 1 Andrews' American Law, page

particular states. 1097, 1st Ed.

: Andrews Stephens' Pleading, Sec.

· Consult codes and statutes of

22.

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