"Duely & Constantly Kept"
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Supreme Court Jurisdiction and Procedure [cont.]
Pleading The opposing parties in a civil action stated their respective legal claims and defenses in pleadings. The initial pleading was the plaintiff's declaration (in Latin narratio, abbreviated to narr.). The plaintiff could file a declaration after the sheriff returned the writ to the court clerk and either before or after the defendant's appearance. If before, the declaration was made provisionally (the technical term was de bene esse). If the defendant failed to appear, the plaintiff had to withdraw his declaration de bene esse but could still bring an action against either the sheriff or the persons named in the special bail piece for the debt or damages. |
The opposing parties in a civil action stated their respective legal claims and defenses in pleadings. |
| The declaration was the formal statement of the plaintiff's cause of action and demand for recovery of debt or damages or of a thing itself, i.e., real or personal property. The declaration consisted of several parts. Particularly important were the venue and the statement of the cause of action. The venue was the county from which the jury was to be summoned if the case went to trial. The venue had to be laid with care, because civil actions were classed as either local or transitory. In local actions the venue had to be laid in the county where the cause of action arose; in transitory actions the venue might be laid anywhere in the state. All real actions affecting title to or possession of real property were local and had to be tried in the county where the property was located. Actions of trespass on the case for nuisance, or for slander or libel (except in statewide publications), and certain other personal actions were also local. Generally speaking, however, personal actions, including the common ones of debt, assumpsit, and covenant, were transitory and could be tried in any county chosen by the plaintiff. The venue could be changed by court rule on motion of a defendant who argued that a fair and impartial trial was impossible in the county where the venue was laid, or that a local action arose in a county other than that stated by the plaintiffs declaration. | The declaration was the formal statement of the plaintiff's cause of action and demand for recovery of debt or damages or of a thing itself. |
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The statement of the cause of action was the recital, in one or more "counts,"
of the grounds for the plaintiff's demand for money or property to be recovered. The declaration did not describe in detail the circumstances in which a contract was breached or injuries incurred but simply stated the plaintiff's legal right to payment, damages, or restitution of property. Each common law action had a standard form of declaration which the plaintiffs attorney copied verbatim from works such as Clerk's Assistant or from English pleading books. Form books in manuscript were also commonly used.[1] The declaration never cited statutes or common law doctrines because these were assumed to be known to the court. The declaration might include several "counts," each reciting distinct claims to separate (but similar) things demanded by the plaintiff (such as payment of several promissory notes given by the defendant). The declaration further alleged the exact time and place the defendant became indebted to the plaintiff or inflicted injury to the plaintiff or his property. Finally, the declaration stated the plaintiff's demand for judgment.
The Revised Statutes of 1829 permitted a plaintiff to initiate an action merely by filing a declaration, bypassing the writ of capias ad respondendum. A plaintiff who wished to have the defendant arrested and held to bail could still employ the writ of capias. The Revised Statutes also abolished the seldom-used original writ as a mode of commencing an action against a real person (though it continued to be used against fictitious persons, i.e., corporations).[2] |
The Revised Statutes of 1829 permitted a plaintiff to initiate an action merely by filing a declaration. |
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After a plaintiff filed the initial plea (the declaration), a common rule entered initiate an action by the clerk ordered the defendant to plead (respond) within twenty days after receiving a copy of the declaration. (After 1837 the rule to plead was not required except when a suit was commenced by declaration.) If the defendant did not plead within twenty days, judgment was awarded to the plaintiff on default. If the defendant chose to plead, the way was now open to displays of the intricate and arcane science of pleading. In rare cases the defendant pleaded in abatement. In such a plea the defendant objected that the court lacked jurisdiction; or that one of the parties was not legally competent to sue or be sued (being, for instance, a minor or a married woman); or that the writ or the declaration was materially defective. In most cases the pleas were in bar. The defendant's plea, in bar, and subsequent pleadings by either party were not narrative arguments but rather denials of the validity of the opposing plea.
The defendant's attorney usually filed a plea either confessing or denying the allegation made in the plaintiffs declaration. A plea of confession was rare because the easier, cheaper means of admitting liability for debt or damages was simply default. The defendant might also give to the plaintiff, either before or after filing and service of the declaration, a cognovit, which, although not a plea, "confessed the action" and the amount due to the plaintiff. On the other hand, the defendant could enter a plea denying all or part of the declaration. The defendant's denial took one of two forms either pleading the general issue or special pleading. In either form of pleading the ultimate object was joinder of issue, where one party affirmed and the other denied a material point of fact that could be decided by a jury. Each form of action had its own formula for a general plea by which the issue was joined so that the case could proceed to trial. In special pleading, a party admitted the facts stated in the previous pleading but alleged, in defense, new facts countering those set forth by the other party. A special pleading by the defendant usually elicited another pleading by the plaintiff, which might be the first of several additional pleadings made alternately by the two parties. The plaintiffs first reply was called a replication; the defendant's reply to that was a rejoinder. A reply to the rejoinder was called the surrejoinder, followed in turn by the rebutter, and the surrebutter. In theory there could be further pleadings, but the law had no special names for them.[3] All of the filed pleadings were enrolled on the record of proceedings sent to circuit court for trial of an issue of fact, and they also appeared In the final judgment record filed in the Supreme Court clerk's office. |
In special pleading, a party admitted the facts stated in the previous pleading but alleged, in defense, new facts countering those set forth by the other party. |
| A party to an action might choose not to plead to the issue of fact but to demur. A demurrer was a plea, usually by the defendant but occasionally by the plaintiff, which admitted that the facts alleged in the previous plea were true but denied they were sufficient in law to maintain the action. The demurrer might be made to only part of the previous plea, for instance to one count in a declaration. The opposing party was required to respond (join in demurrer) within twenty days after service of notice of demurral. The demurrer was an enumerated motion placed on the calendar for argument in general term of the Supreme Court. The opposing party might move the court for judgment on the grounds that the demurrer was frivolous. If this motion was denied, the attorneys delivered arguments in general term, and the court gave judgment against the party who entered the first legally insufficient plea, notwithstanding any subsequent errors in pleading by either side. | A demurrer was a plea which admitted that the facts alleged in the previous plea were true but denied they were sufficient in law to maintain the action. |
| When the defendant failed to plead to the declaration, the plaintiff obtained judgment by default. In such cases, and also in cases of judgment on demurrer or on the defendant's confession (cognovit), judgment for the plaintiff was interlocutory, not final, because the amount of debt or damages still had to be determined. If the action were brought upon a written contract for payment of money or delivery of specific articles, the court ordered the Supreme Court clerk or (after 1829) the county clerk where the venue was laid to assess the damages to be awarded to the winning party. The clerk usually calculated the damages readily from the facts stated in the declaration, but he did have the right to take testimony from witnesses, The clerk's report stated the amount to be awarded to the plaintiff in the final judgment. If the exact amount could not be determined at the time of interlocutory judgment, a writ of inquiry was issued on motion of the plaintiff. This writ directed the sheriff of the county where venue was laid to summon a jury to "inquire into" the amount of damages due. The plaintiff had the right to subpoena witnesses to prove the amount of damages. After the jury's inquisition was returned to the Supreme Court for filing, the plaintiffs attorney obtained a rule for final judgment. This was entered in the clerk's common rule book. | When the defendant failed to plead to the declaration, the plaintiff obtained judgment by default. |
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Note 1: The Clerk's Assistant. Revised and Greatly Improved, by a Gentleman of the Bar (Poughkeepsie: 1814). Similar works, all essentially American editions of English manuals, were Thomas Spencer, The New Vade Mecum; or, Young Clerk's Magazine ... (Lansingburgh: 1794); and Charles R. Webster, The Clerk's Magazine ... (Albany: 1800). See Bibliography for full citations to these and other similar works. Note 2: Revised Statutes (1829). Note 3: On pleading in New York courts see David Graham, Jr., Treatise on the Practice of the Supreme Court, 2d ed., pp. 190-261; Alexander M. Burrill, A Treatise on the Practice of the Supreme Court of the State of New-York in Personal Actions (New York: 1840), vol. 1, pp. 114-200; and John Van Ness Yates, A Collection of Pleading and Practical Precedents ... (Albany: 1837). A general work on the subject is James Gould, A Treatise on the Principles of Pleading in Civil Actions, 2d ed. (New York: 1836). | |
 The Historical Society of the Courts of the State of New York | |
