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and the proceeds applied to the discharge of the plaintiff's claim against the defendant. Similarly, although the defendant is not personally subject to the jurisdiction of the court, yet if it has jurisdiction over a person who is indebted to the defendant, that person may be compelled to pay to the plaintiff what he owes to the defendant and the defendant owes to the plaintiff. In other words, by the process called garnishment, a credit of the defendant can be reached by a creditor of the defendant even though the defendant himself cannot be reached.

2. The pleadings. In order that the defendant may know what the plaintiff's claim against him is, the plaintiff is required to make a written statement of the facts constituting his cause of action. Similarly, in order that the plaintiff may know what the defendant's defense is, the defendant is required to make a written statement of his defense. Where the defendant does not merely deny the plaintiff's allegations but sets up additional facts as an affirmative defense, the plaintiff may be required to reply to the defense; and further statements on both sides may be necessary. These written statements made by the parties to an action are called the pleadings. In the early English practice the pleadings were oral; each party through his lawyer made an oral statement in court as to his position, no preliminary written statemeht being required. In some inferior courts where the procedure is informal the requirement of written pleadings is dispensed with. Since about the sixteenth century, however, written pleadings have been required in actions brought in the superior courts.1

There is no doubt that the requirement of written pleadings serves a useful purpose in most cases. As a result of this preliminary paperwork, it is possible for each party to ascertain in advance of the trial or hearing in court what it is that he has to meet. The purpose of the pleadings is to narrow the case down to a specific issue or to specific issues, and it is only these issues which will be decided at the trial or hearing. Thus, not only will each party be better prepared to meet his opponent's case, but the determination of the controversy can be effected without waste of time and effort. If there is no dispute as to the facts but only as to the law the issue will be determined by the court and it will be unnecessary to impanel a jury. If the issue is one of fact, the judge presiding at the trial will know what evidence is material to the issue and what the questions are which are to be left to the jury to determine.

Useful as the pleadings are, they do not always subserve the purposes of justice. The rules of law governing the subject of pleading gradually became very complex, and it frequently happened that a party who had a perfectly just claim or defense was defeated because

1 For a full account of the change from oral to written pleadings, see 3 Holdsworth, History of English Law (5th ed. 1942) 627–653.

of a mistake made by his lawyer in the drafting of a pleading. Frequently the mistakes were merely mistakes of form and not of substance, and yet they proved fatal. The fundamental purpose of pleadings, namely the giving of notice to the opposing party, was lost sight of, and the rules of pleading were treated by the courts as though they were ends in themselves and not merely means for administering justice. For this reason, in modern times it has been found necessary to simplify the law of pleading.'

A fundamental rule of pleading at common law is that all material facts alleged by one party and not denied by the other party are to be taken as admitted. This rule is contrary to that of the Roman law, which is that all such allegations, if not admitted, are taken to be denied. Under the common-law principles of pleading, the plaintiff in his statement of his cause of action, which is called a declaration, alleges the facts constituting his cause of action. The defendant, if he does not file a plea denying one or more of the plaintiff's allegations, admits them. If he does nothing at all, a judgment of nil dicit is rendered against him. If he makes a plea denying one or more of the allegations, a plea by way of traverse as it is called, an issue of fact is thereby reached, and that issue will be tried by a jury. The defendant may, however, allege new facts by way of affirmative defense, in other words he may make a plea by way of confession and avoidance. If he makes such a plea, the plaintiff cannot afford to do nothing, since if he does nothing he admits the truth of the allegations in the plea. The plaintiff must file a further pleading, which may either deny the facts alleged by the defendant or allege new facts. The further pleading of the plaintiff is called a replication. If the.replication is negative, an issue of fact is reached and this issue will be tried by a jury. If the replication sets up new facts, no issue has been reached, and it is necessary for the defendant to file a rejoinder. This rejoinder may be a negative one, in which case an issue of fact is reached; but if it is an affirmative rejoinder it is necessary for the plaintiff to file a sur-rejoinder, which may be either negative or affirmative. If the plaintiff makes an affirmative sur-rejoinder, it is necessary for the defendant to file a rebutter. If the rebutter is affirmative, it is necessary for the plaintiff to file a sur-rebutter. Conceivably it may be necessary to file further pleadings, in order to reach an issue. A case seldom goes as far as this, however, and no names have been invented for such possible further pleadings.

The names of these pleadings have been changed in many states which have adopted codes of civil procedure. Thus, the declaration is usually called a complaint or sometimes a petition; the plea is

1 On the need for still further simplification, see Simpson, "A Possible Solution of the Pleading Problem," 53 Harv. L. Rev. 169 (1939). See also Ch. XIX, §§ 1, 8, infra.

called an answer; the replication is called a reply. Moreover, the principle that allegations not denied are taken as admitted has often been modified to this extent, that new matter set up in an answer will be taken to be denied or avoided.

If the defendant believes that the plaintiff's declaration, although it states facts which are true, nevertheless fails to state facts sufficient to constitute a cause of action, he will file a demurrer. In this demurrer he does not deny the plaintiff's allegations nor does he set up new facts by way of defense. He simply alleges that the declaration is insufficient in law. By filing such a demurrer an issue is reached, an issue of law, not an issue of fact. This issue will be determined by the court and not by a jury, since it involves a question of law. Under the procedure in many states today, the functions of a demurrer are served by a statutory substitute, usually called a motion to dismiss.

Similarly, where the defendant puts in a plea to the declaration, the plaintiff may demur to the plea. So also, there may be a demurrer to a replication or to a rejoinder or to any subsequent pleading.

Thus, the pleadings will ultimately lead to an issue either of fact or of law.

3. The hearing on demurrer. Where the pleadings terminate in a demurrer, the issue of law thus raised will be set down for hearing before the court sitting without a jury. At common law the hearing on demurrer was before the full bench of the court sitting at Westminster in term time. In the United States the hearing is ordinarily before a single judge. The court either sustains or overrules the demurrer. If the demurrer is sustained, judgment will be given for the demurrant, unless the other party asks for and obtains leave to amend his pleading, which leave is now ordinarily granted as á matter of course. If the demurrer is overruled, judgment will be given against the demurrant, unless he asks for and obtains leave to plead over, which leave is also now ordinarily granted as a matter of


4. The trial. Where the pleadings terminate in a denial, the issue of fact thus raised will be set down for trial. At common law, as we have stated, the trial ordinarily took place not before the full bench of the court sitting at Westminster in term time, but before the judges on circuit. In the United States after such an issue has been reached, either party may notify the clerk of the court that the issue has been reached and request him to put the case on the calendar. This notification to the clerk is frequently called a note of issue. At the beginning of the next session of the court the cases on the calendar are called, and tried one after the other. In the

meantime a jury panel has been selected and the prospective jurors summoned to attend court. When the case is reached, twelve jurors are selected from the panel, by drawing their names from a wheel or box, and the first twelve so drawn, if not challenged or excused, will constitute the jury for the trial of the case.1 After the jurors are sworn, the plaintiff's counsel usually opens the case, telling the jury what he expects to prove. The defendant's counsel in some states then makes his statement to the jury, although in other states his statement is made at the close of the plaintiff's evidence. The plaintiff calls his witnesses and examines them, and they may be crossexamined by opposing counsel. When the plaintiff has put in all his evidence, he rests. If the defendant's counsel believes that the plaintiff has not proved enough to go to the jury, he moves for a nonsuit or directed verdict. If this motion is not made, or being made is denied, the defendant's counsel then calls his witnesses, and they are examined by him and may be cross-examined by the plaintiff's counsel. The plaintiff may then put in evidence by way of rebuttal. After the evidence is all in, the defendant may make a motion for a directed verdict, or, indeed, the plaintiff may make such a motion. If the motion is denied, the defendant's counsel then addresses the jury, after which the plaintiff's counsel does the same. The trial judge then gives his charge or instructions to the jury, stating the law and usually summarizing the evidence.2 The jury then retires to consider its verdict. When a verdict has been agreed upon by the jurors it is reported by the foreman to the court. Ordinarily the verdict is a simple statement that the jury finds for the defendant or that it finds for plaintiff in a certain amount.3

5. Motions in the trial court after verdict. Before judgment is entered on a verdict, it is possible for the losing party to make certain motions and thus, if he is successful, to prevent the rendition of a judgment against him. If he believes that the opposing party's pleading is insufficient in law, he may make a motion in arrest of judgment. Under certain circumstances he may move for judgment` in his favor notwithstanding a verdict in favor of the opposite party.

So also, the party against whom a verdict has been rendered may make a motion for a new trial. The grounds for such a motion are various. It may be based upon a mistake of the judge at the trial, either in admitting or excluding evidence, or in giving an erroneous instruction to the jury. It may be based upon misconduct of the jurors or misconduct of opposing counsel at the trial. It may be based upon the insufficiency of the evidence to support the verdict.

1 By consent of the parties, an action at law may be tried by a judge without a jury, and many cases are so tried.

2 In a few states the charge of the court precedes the arguments of counsel. 3 There may, however, be a special verdict which finds the facts but leaves it to the court to decide which party should prevail on those facts.

It may be based upon the ground that the damages awarded are · excessive or inadequate.

In England at common law instead of making a motion for a new trial, the party who was unsuccessful at the trial would apply to the court for a rule nisi, that is an order that a new trial should be granted unless the opposite party should show cause why it should not be granted. At the hearing the court would listen to arguments of counsel, and if it determined that a new trial should be granted, the rule was made absolute; but if the court determined that a new trial should not be granted, the rule was discharged.

At common law all these motions were made before the full bench at Westminster at the next term after the trial. In the United States the motion is made ordinarily before a single judge, usually the judge who presided at the trial. If none of these motions is made, or if such a motion is made and is overruled, the court will enter judgment.

6. The judgment. The judgment is the final determination of the controversy by the court. It may be a judgment by default,1 a judgment upon confession, a judgment on demurrer, or a judgment on a verdict. After reciting the proceedings which have taken place it states that it is considered that, or in more modern phraseology, that it is ordered, adjudged and decreed that, the plaintiff do recover a certain sum, or, if the defendant is successful, that the plaintiff take nothing. At common law the judgment was never rendered by the judges on circuit, but was rendered by the full bench in term time at Westminster.


7. Execution of the judgment. If the plaintiff has obtained a judgment against the defendant and the defendant does not pay or otherwise satisfy the judgment, the plaintiff is entitled to execution. In the case of a judgment for money, the plaintiff obtains a writ from the court directing the sheriff to seize property of the defendant, sell it, and with the proceeds pay to the plaintiff the amount of his judgment.

The writ usually employed at common law was called a writ of fieri facias. This writ directed the sheriff to cause to be made (fieri· facias) of the goods and chattels of the defendant the amount due on the judgment. By the use of this writ the plaintiff was enabled to reach the chattels of the defendant. Under the early common law he could not reach land of the defendant, but by the Statute of Westminster II in 1285 it was provided that the plaintiff might at his

1 Where the defendant does not appear or does not defend.

2 Where the defendant consents to the entry of judgment against him.

3 Other forms of judgment will be considered later. See pp. 103, 131-133, infra. The usual judgment at law is for money.

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