“The [common-law] pleadings in a cause are commenced, on the part of the plaintiff, with the declaration, which is a statement in writing of his cause of action, in legal form.  This declaration, as every other pleading in the cause, is required to be framed agreeable to the established rules & forms of pleading, & if defective in any particular either in substance or form, may be objected to, as insufficient in law, by demurrer, on the part of defendant; or he may allege some matter in abatement of the action, or he may deny the declaration to be true in point of fact, or may set up matter in avoidance of it — such answer on the part of the defendant being technically denominated his plea.

     To the defense thus made, the plaintiff may again, in his turn, reply, either, in case of a demurrer, by reasserting his declaration to be sufficient in law to support this action, & referring that question to the judgment of the court, which is termed a joinder in demurrer; or, in the case of a special plea, he may on his part demur to such plea, as insufficient in law to constitute a defense; or he may deny it to be true in point of fact, or allege some new matter in avoidance of it, according to the circumstances — such answer being styled a replication.

     To the replication the defendant may either demur upon the law, or oppose a rejoinder as to the fact; & to the rejoinder the plaintiff may demur, or oppose a surrejoinder; & so the parties may proceed, by a system of alternate allegation & objection, denial or evasion, technically termed the pleadings, until they arrive at an issue, that is, some specific point of law, or fact, affirmed on one side & denied on the other, & presenting the exact question for the court or jury to determine.” [3]

Counter-Complaint – a complaint filed by a defendant against the plaintiff, alleging that the plaintiff has committed a breach and is liable to the defendant for damages.

• The historical counter-complaint appears to have been banned from the Federal Rules of Civil Procedure (see Rule 7), and replaced with the equally-effective and more cost-effective counterclaim. See Fed. R. Civ. P. 13.

To be Added:

Replication – a plaintiff’s or complainant’s reply to a defendant’s answer or plea.

Joinder – uniting, into a single complaint, two or more elements of a lawsuit (i.e. joinder of claims; joinder of parties; joinder of issue), each of which could have been the basis for a separate suit.

Joinder of Issue – a party’s written acceptance or adoption of an opponent’s issue, argument, or formerly disputed point as the basis of argument in a controversy, submitted jointly for decision. — formerly called similiter.

Demurrer – a former type of pleading that has been replaced by the Motion to Dismiss or via pointing out a substantive defect within the defendant’s answer.

Definition of TRAVERSE:

“n. Common-law pleading. A formal denial of a factual allegation made in the opposing party’s pleading <Smith filed a traverse to Allen’s complaint, asserting that he did not knowingly provide false information>. See DENIAL. — traverse, vb.”

     The following excerpt from Joseph Chitty’s A Practical Treatise on the Criminal provides historic & legal insight into Traverse:

     “It is said that the technical term traverse, from transverto, to turn over, is applied to an issue taken upon an indictment for a misdemeanor, & means nothing more than turning over or putting off the trial to a following session or assize; & that thus it is that the officer of the court asks the party whether he is ready to try then, or will traverse to the next session; though some have referred its meaning originally to the denying or taking issue upon an indictment, without reference to the delay of trial, & which seems more correct.” [5]

    The following excerpt from Franklin Fiske Heard’s The Principles of Pleading in Civil Actions provides historic & legal insight into Traverse:

     “Of traverses there are various kinds. The most ordinary kind is that which may be called a common traverse. This consists of a tender of issue; that is, of a denial, accompanied by a formal offer of the point denied, for decision; & the denial that it makes is by way of express contradiction, in terms of the allegation traversed.” [6]

Definition of PLEA IN BAR:

“A plea that seeks to defeat the plaintiff’s plea of not guilty by which the defendant denies every fact & circumstance necessary to be convicted of the crime charged.”

Definition of REJOINDER:

“1. Common-law pleading. The defendant’s answer to the plaintiff’s reply (or replication).  2. Any answer to a reply.  3. A retort; a sharp or rude reply.”

     The following excerpt from John Harris’s Lexicon Technicum: Or, an Universal English Dictionary of Arts & Sciences provides historic & legal insight into Rejoinder:

     “An Answer or Exception to a Replication; for first the Defendant puts in an Answer to the Plaintiff’s Bill, which is something called, An Exception, the Plaintiff’s Answer to that is called a Rejoinder, especially in Chancery (“contracts”, generally). Tis by the Civilians called Duplication.” [7]

Definition of SURREJOINDER:

“Common-law pleading. The plaintiff’s answer to the defendant’s rejoinder. surrejoin vb.”

     The following excerpt from the case ruling, 61Am. Jur. 2d Pleading § 193, provides historic & legal insight into Surrejoinder:

     “Where the common-law system of pleading is in force, the pleadings do not terminate with the plaintiff’s replication. The defendant may interpose a rejoinder to the replication, & the plaintiff a surrejoinder to the defendant’s rejoinder. Then follows the rebutter, which in turn may be met by a surrebutter.” [8]

Definition of REBUTTER:

“1. Common-law pleading. The defendant’s answer to a plaintiff’s surrejoinder; the pleading that followed the rejoinder & surrejoinder, & that might be in turn be answered by the surrebutter. 2. Someone who rebuts.”

Definition of SURREBUTTER:

“Common law pleadings. The plaintiff’s answer of fact to the defendant’s rebutter.”

Definition of ESTOPPEL:

“1. A bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as true. 2. A bar that prevents the relitigation of issues. 3. An affirmative defense alleging good-faith reliance on a misleading representation & an injury or detrimental change in position resulting from that reliance. Cf. WAIVER (2) — estop, vb.”

[3] Joseph Chitty, A Treatise on the Parties to Actions, the Forms of Actions, & on Pleading 610 (John A. Dunlap & E.D. Ingraham eds., 6th annotated ed. fr. 5th London ed. 1833) ISBN13: 9781240051106

[5] Joseph Chitty, A Practical Treatise on the Criminal Law 486 (2nd Ed. 1826) ISBN 1345836554

[6] Franklin Fiske Heard, The Principles of Pleading in Civil Actions 118 (1880) ISBN 0259775819

[7] John Harris, Lexicon Technicum: Or, an Universal English Dictionary of Arts & Sciences (1704) (s.v. rejoynder) ISBN 1584774185

[8] 61Am. Jur. 2d Pleading § 193, at 192 (1981)

counter-affidavit:

1. An affidavit responding to and contradicting the affidavit produced by an adversary.

ballantines

References:

Disclaimer: All material throughout this website is pertinent to people everywhere, and is being utilized in accordance with Fair Use.

[1] Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6

[2]: Ballantine’s Law Dictionary Legal Assistant Edition by Jack Ballantine (James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.

[3] Sabin D. Puterbaugh, Puteraugh’s Common Law Pleading & Practice 36-37 (3rd ed. 1873) ISBN13: 9781240177844

References:

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