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The Nature and of Pleading in General


THE NATURE AND OF PLEADING IN GENERAL. The follow ing propositions are to be observed with regard to the nature and properties of pleadings in general: 1. Every pleading must be an answer to the whole of what is adversely alleged. If it answer part only, the oppo site party is entitled to take judgment for the part left unanswered, and his omission to do so will be a discon tinuance or abandonment of the whole action. If it attempts to answer the whole, but is insufficient, then the opposite party's course is to demur to the whole plea. Where the part not answered is immaterial or such as requires no separate or specific answer, the rule does not apply.

2. Every pleading is taken to confess such travers able matters alleged on the other side as it does not tra verse ; and this effect continues through all subsequent actions between the same parties. The effect in re gard to subsequent actions may be avoided by the prac tice of protestation. And even this does not save the party protesting unless the issue is decided in his fa vor, unless the matter be such as the party protesting was precluded by some rule of law from taking issue upon. A protestation ought not to be repugnant to the pleading which it accompanies, nor ought it to be taken upon such matters as the pleading itself traverses. As protestations are made only to save advantages in sub sequent suits, any faults in their forms are not subject to demurrer.

The rule requiring a party, at each stage after the declaration, to demur, or plead, does not apply to: t. Dilatory Pleas. 2. Pleadings in estoppel. 3. Where a new assignment is necessary. These exceptions may be explained as follows : 1. Dilatory pleas merely oppose a matter of form to the declaration, and do not tend either to deny or to confess its allegations. Replication and subsequent pleadings following on dilatory pleadings are not within this exception.

2. Pleadings in estoppel neither admit nor deny the matter of fact adversely alleged, but merely state the previous act, allegation or denial on which the estoppel is declared by the pleader to arise, and pray judgment if the adverse party shall be received or ad mitted to aver contrary to what he before did or said.

3. Declarations are conceived usually in very gen eral terms. In some cases the defendant is not suffi ciently guided and confined by the declaration to the real cause of complaint, and thus applies his plea to a different matter from that which the plaintiff has in view. This compels the plaintiff to make, in his repli cation, a new assignment, or statement of his cause of action, in which he guards against a repetition of the defendant's mistakes. Where the plea correctly applies to a part of the injuries complained of, hut owing to the generality of the statement in the declaration, fails to cover the whole, the plaintiff's course is both to tra verse the plea and to new assign. Thus, in a charge of trespass, if the defendant pleads that he has a right of way over a certain part of the close, and that the alleged acts of trespass were committed by virtue of this right of way, the plaintiff replies by alleging that he brought this action not only for those trespasses mentioned by the defendant, but for others committed on other occasions and at other places, beyond the supposed way, which is usually called a new assign ment extra viam (beyond the way), or, if the plaintiff means to admit the right of way, he may assign sim ply, without the traverse. The new assignment should be sufficiently specific, if possible, to prevent a repeti tion of the defendant's mistake.

party, pleadings, answer, alleged and plea