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In law as practiced in countries that follow the English models, a pleading is a formal written statement of one party's claims or defenses in response to another party's complaint(s) in a civil action. The parties' pleadings in a case define the issues to be adjudicated in the action.
A lawsuit is a proceeding by one or more parties against one or more parties in a civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used with respect to a civil action brought by a plaintiff who requests a legal remedy or equitable remedy from a court. The defendant is required to respond to the plaintiff's complaint or else risk default judgment. If the plaintiff is successful, judgment is entered in favor of the plaintiff, and the Court may impose the legal and/or equitable remedies available against the defendant (respondent). A variety of court orders may be issued in connection with or as part of the judgment to enforce a right, award damages or restitution, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, and certiorari are common types of writs, but many forms exist and have existed.
A writ of prohibition is a writ directing a subordinate to stop doing something the law prohibits. This writ is often issued by a superior court to the lower court directing it not to proceed with a case which does not fall under its jurisdiction.
A legal fiction is a construct used in the law where a thing is taken to be true, which is not in fact true, in order to achieve an outcome. Legal fictions can be employed by the courts or found in legislation.
In the history of the courts of England and Wales, the Judicature Acts were a series of acts of Parliament, beginning in the 1870s, which aimed to fuse the hitherto split system of courts of England and Wales. The first two acts were the Supreme Court of Judicature Act 1873 and the Supreme Court of Judicature Act 1875, with a further series of amending acts.
The Exchequer of Pleas, or Court of Exchequer, was a court that dealt with matters of equity, a set of legal principles based on natural law and common law in England and Wales. Originally part of the curia regis, or King's Council, the Exchequer of Pleas split from the curia in the 1190s to sit as an independent central court. The Court of Chancery's reputation for tardiness and expense resulted in much of its business transferring to the Exchequer. The Exchequer and Chancery, with similar jurisdictions, drew closer together over the years until an argument was made during the 19th century that having two seemingly identical courts was unnecessary. As a result, the Exchequer lost its equity jurisdiction. With the Judicature Acts, the Exchequer was formally dissolved as a judicial body by an Order in Council on 16 December 1880.
The forms of action were the different procedures by which a legal claim could be made during much of the history of the English common law. Depending on the court, a plaintiff would purchase a writ in Chancery which would set in motion a series of events eventually leading to a trial in one of the medieval common law courts. Each writ entailed a different set of procedures and remedies which together amounted to the "form of action".
In tort law, detinue is an action to recover for the wrongful taking of personal property. It is initiated by an individual who claims to have a greater right to their immediate possession than the current possessor. For an action in detinue to succeed, a claimant must first prove that he had better right to possession of the chattel than the defendant, and second, that the defendant refused to return the chattel once demanded by the claimant.
Assumpsit, or more fully, action in assumpsit, was a form of action at common law used to enforce what are now called obligations arising in tort and contract; and in some common law jurisdictions, unjust enrichment. The origins of the action can be traced to the 14th century, when litigants seeking justice in the royal courts turned from the writs of covenant and debt to the trespass on the case.
Trover is a form of lawsuit in common law jurisdictions for recovery of damages for wrongful taking of personal property. Trover belongs to a series of remedies for such wrongful taking, its distinctive feature being recovery only for the value of whatever was taken, not for the recovery of the property itself.
Audita querela is a writ, stemming from English common law, that serves to permit a defendant who has had a judgment rendered against him or her to seek relief of the consequences of such a judgment where there is some new evidence or legal defense that was not previously available. The writ is thus generally used to prevent a judgment from being executed where enforcement of that judgment would be "contrary to justice". At common law, the writ may be useful where a creditor engages in fraud before the judgment is rendered, or because the debt had been discharged, paid or otherwise satisfied after the judgment is rendered.
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common Pleas served as one of the central English courts for around 600 years. Authorised by Magna Carta to sit in a fixed location, the Common Pleas sat in Westminster Hall for its entire existence, joined by the Exchequer of Pleas and Court of King's Bench.
The Bill of Middlesex was a legal fiction used by the Court of King's Bench to gain jurisdiction over cases traditionally in the remit of the Court of Common Pleas. Hinging on the King's Bench's remaining criminal jurisdiction over the county of Middlesex, the Bill allowed it to take cases traditionally in the remit of other common law courts by claiming that the defendant had committed trespass in Middlesex. Once the defendant was in custody, the trespass complaint would be quietly dropped and other complaints would be substituted.
The Court of King's Bench, formally known as The Court of the King Before the King Himself, was a court of common law in the English legal system. Created in the late 12th to early 13th century from the curia regis, the King's Bench initially followed the monarch on his travels. The King's Bench finally joined the Court of Common Pleas and Exchequer of Pleas in Westminster Hall in 1318, making its last travels in 1421. The King's Bench was merged into the High Court of Justice by the Supreme Court of Judicature Act 1873, after which point the King's Bench was a division within the High Court. The King's Bench was staffed by one Chief Justice and usually three Puisne Justices.
Legal practice is sometimes used to distinguish the body of judicial or administrative precedents, rules, policies, customs, and doctrines from legislative enactments such as statutes and constitutions which might be called "laws" in the strict sense of being commands to the general public, rather than only to a set of parties.
Slade's Case was a case in English contract law that ran from 1596 to 1602. Under the medieval common law, claims seeking the repayment of a debt or other matters could only be pursued through a writ of debt in the Court of Common Pleas, a problematic and archaic process. By 1558 the lawyers had succeeded in creating another method, enforced by the Court of King's Bench, through the action of assumpsit, which was technically for deceit. The legal fiction used was that by failing to pay after promising to do so, a defendant had committed deceit, and was liable to the plaintiff. The conservative Common Pleas, through the appellate court the Court of Exchequer Chamber, began to overrule decisions made by the King's Bench on assumpsit, causing friction between the courts.
The Exchequer of Ireland was a body in the Kingdom of Ireland tasked with collecting royal revenue. Modelled on the English Exchequer, it was created in 1210 after King John of England applied English law and legal structure to his Lordship of Ireland. The Exchequer was divided into two parts; the Superior Exchequer, which acted as a court of equity and revenue in a way similar to the English Exchequer of Pleas, and the Inferior Exchequer, which directly collected revenue from those who owed The Crown money, principally rents for Crown lands. The Exchequer primarily worked in a way similar to the English legal system, holding a similar jurisdiction. Following the Act of Union 1800, which incorporated Ireland into the United Kingdom, the Exchequer was merged with the English Exchequer in 1817 and ceased to function as an independent body, although the Irish Court of Exchequer, like other Irish courts, remained separate from the English equivalent.
Civil procedure in South Africa is the formal rules and standards that courts follow in that country when adjudicating civil suits. The legal realm is divided broadly into substantive and procedural law. Substantive law is that law which defines the contents of rights and obligations between legal subjects; procedural law regulates how those rights and obligations are enforced. These rules govern how a lawsuit or case may be commenced, and what kind of service of process is required, along with the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks are to function.
A penal bond is a written instrument executed between an obligor and an obligee designed to secure the performance of a legal obligation through the in terrorem effect of the threat of a penalty for nonperformance.
References
Footnotes
- ↑ Wurzel (1939), p. 40.
- ↑ Wurzel (1939), p. 42.
- ↑ Wurzel (1939), p. 43.
- ↑ Perry (2000), p. 154.
- ↑ Perry (2000), p. 155.
- ↑ Wurzel (1939), p. 54.
- ↑ Wurzel (1939), p. 55.
- ↑ Wurzel (1939), p. 56.
- ↑ Wurzel (1939), p. 60.
- ↑ Perry (2000), p. 156.
Bibliography
- Perry, R. Ross (2000). Common-Law Pleading: Its History and Principles; Including Dicey's Rules Concerning Parties to Actions and Stephen's Rules of Pleading. Lawbook Exchange. ISBN 978-1-58477-105-0.
- Wurzel, Harold (1939). "The Origin and Development of Quo Minus". Yale Law Journal. 49 (1): 39–64. doi:10.2307/792271. hdl: 20.500.13051/12892 . ISSN 0044-0094. JSTOR 792271.
