Home >> Cyclopedia-of-law-vol-10 >> Other Examples Where The to Whom The Covenant Benefits >> Rule Viii to Prevent

Rule Viii to Prevent Ob Scurity and Confusion


RULE VIII TO PREVENT OB SCURITY AND CONFUSION. Pleadings should have their proper formal commencements and conclu sions.

The defendant's pleadings subsequent to the repli cation follow the same forms of commencement and conclusion as are used in the plea. The plaintiffs fol low the same form as in the replication. But to this there are exceptions, as in the case of abatement de facto, as by death of the party before verdict, default judgment, and on plea founded on matter arising after the commencement of the action. So pleadings by way of estoppel have commencements and conclusions pe culiar to themselves. Likewise in replevin.

If any pleading be intended to apply to part only of the matter adversely alleged, it must be qualified ac cordingly in its commencement and conclusion.

A defect or impropriety in the commencement and conclusion of a pleading is generally ground for de murrer. But it has been held that it is sufficient if the commencement pray the proper judgment even though the conclusion be improper in form, and so also when the conclusion was correct, although the commence ment was informal.

The commencement and conclusion determine the character of a pleading as to whether it is,—in case it be a plea,—to the jurisdiction, or in suspension, or in abatement, or in bar. This is usually expressed in the maxim, conclusio facit placitam (the conclusion makes the plea). Hence if the plea contain matter sufficient to make a good plea in bar, but conclude as in abate ment, it is plea in abatement only, while if it contain only matter sufficient for abatement, and conclude as in bar, it is an insufficient plea in bar, and is bad. Simi larly in the replication and subsequent pleadings.

conclusion and plea