Home >> Cyclopedia-of-law-vol-10 >> Other Examples Where The to Whom The Covenant Benefits >> Other Pleadings of Occa

Other Pleadings of Occa Sional Occurrence

Loading

OTHER PLEADINGS OF OCCA SIONAL OCCURRENCE. There are certain pleas and incidents of only occasional occurrence, that diversify the ordinary course of pleadings.

Sometimes a matter of defense arises after a con tinuance and before the time to which the cause was continued. This the defendant pleads in a plea puis darreign continuance (after the last continuance). Such plea is always pleaded by way of substitution for the former plea, on which no proceeding is afterwards had. It may be either in bar, or in abatement, and is followed with a traverse or plea as other pleas.

In most real actions the tenant is allowed to de tnand a view of the land which the demandant claims in order to see if it is the land which the tenant claims and occupies. This being done the demandant (plain tiff) sues out a writ instructing the sheriff to cause the tenant to have a view of the land. The demandant goes along and points out the land with its metes and bounds. On the sheriff's return of the writ, the de mandant is required to plead de novo (anew), and the pleadings proceed to issue.

When lands have been warranted to a tenant, and another person brings a real action against him in re spect thereof, he, by a voucher to warranty, calls the warrantor into court to defend the title for him. When the warrantor does not voluntarily appear, there issues a summons ad warranticandum. When he appears, voluntarily or otherwise, and offers to warrant the land to the tenant, it is called "entering into a warranty", after which the warrantor is considered as the tenant in the action, and the demandant then pleads de novo, declaring or counting against the warrantor, or vouch er, as he is now called.

Where either party alleges any deed, he is generally obliged to make profert (proffer) of it, after which the other party may crave oyer (ask to hear it). Upon this demand being made the profferer usually read the deed aloud. Later, his attorney merely furnished a copy. Oyer is demandable in all classes of action, but only where profert is made, and only in that term of court at which profert is made. Whatever appears in the deed when so read is considered as having been originally pleaded by the profferer, and is repugnant to anything else in his pleading, the other party's proper course is to demur, and to object by plea.

Anciently when a party found himself unprepared to respond immediately to his adversary's pleading, he prayed the court to grant him further time. Such de lay, when granted, was called an "imparlance", be cause it was supposed that in this time the parties might impar/ (talk together) and come to some ami cable settlement of their controversy.

Usually the opposite party had the right to oppose the prayer for any of the above described incidents. And this he might do by demurrer if the objection ap peared on the face of the pleading objected to; other wise, it was done by counter-plea.

OF THE PAPER-BOOK, OR The cause being at issue, the next step is to make a transcript of the whole plead ings that have been filed or delivered between the par ties. This transcript, when the issue joined is an issue in law, is called the "demurrer-book"; when an issue of fact, the transcript in some cases is called "the is sue", in others the "paper-book." Besides the plead ings, it contains entries of appearances, continuances, etc. When made up it is delivered to the defendant's attorney, who, if it contains what he admits to be a correct transcript, returns it unaltered; but if it varies from the pleadings that were filed or delivered, he ap plies to the court to have it set right.

The party finding- that he has made any mistake, or unwise move, should apply before judgment for leave to amend. This, until judgment is signed, is g,ranted of course,but upon proper and reasonable terms,including the payment of the costs of application, and sometimes the whole costs of suit up to that time. Statutes in modern times are liberal in their directions concerning amendments and are liberally administered by the courts, but always with due regard to the rights of the opposite party.

The pleadings and issue being- adjusted and tran scribed upon the demurrer-book, issue, or paper-book, the record is next drawn up on parchment roll. This proceeding is called entering the issue. And the roll on which the entry has been made is called the "issue roll." It contains an entry of the term in which the transcript book is entitled, the warrant of attorney, the pleadings, continuances, etc., as in the paper-book, and when completed is filed in the proper office of the court.

When, upon a demurrer, the issue has been arrived at and the proper entries made of record, the next step is to "move for a condi/um, that is, move to have a day appointed on which the court will have the coun sel argue the demurrer. Such day being, set, the cause is "entered for argument", which is had viva voce.

OF THE VARIOUS KINDS OF TRIAL. The proceedings by which the issue of fact arrived at in the pleadings is examined, and the decis ion arrived at, is called "the trial." Various methods of trial were anciently in use ; these were designated as follows : 1. Trial by witnesses. 2. The trial by oath of the party, with or without fellow-swearers (compurga tors). 3. The trial by battle or ordeal, either of fire or water, or combat. 4. Trial by the record, as where the issue was ind tiel record, the court could award a trial by 'inspection and examination of the record" in question, which is the only proper mode of trial of such a question. The party alleging the existence of a record is bound to produce it in court at the day set. 5. Trial by jury. The trial by jury was introduced into England by the Normans, and came to supersede all other methods of trial in course of time.

trial, issue, party, court and called