Definition of REPLICATION


REPLICATION

pleading. The plaintiff s answer to the defendant s
plea.


2. Replications will be considered, 1. With regard to their several
kinds. 2. To their form. 3. To their qualities.


3. - §1. They are to pleas in abatement and to pleas in bar.


4. - 1. When the defendant pleads to the jurisdiction of the court, the
plaintiff may reply, and in this case the replication commences with a
statement that the writ ought not to be quashed, or that the court ought not to
be ousted of their jurisdiction, because &c., and concludes to the country,
if the replication merely deny the subject-matter of the plea. Rast. Entr. 101
Thomps. Entr. 2; Clift s Entr. 17; 1 Chit. Pl. 434. As a general rule, when the
plea is to the misnomer of the plaintiff or defendant, or when the plea
consists of matter of fact which the plaintiff denies, the replication may
begin without any allegation that the writ or bill ought not to be quashed. 1
Bos. & Pull. 61.


5. - 2. The replication is, in general, governed by the plea, and most
frequently denies it. When the plea concludes to the country, the plaintiff
must, in general, reply by adding a similiter; but when the plea concludes with
a verification, the replication must either, 1. Conclude the defendant by
matter of estoppel; or, 2. May deny the truth of the matter alleged in the
plea, either in whole or in part; or, 3. May confess and avoid the plea; or, 4.
In the case of an evasive plea, may new assign the cause of action. For the
several kinds of replication as they relate to the different forms of action,
see 1 Chit. Pl. 551, et seq.; Arch. Civ. Pl. 258.


6. - §2. The form of the replication will be considered with regard
to, 1. The title. 2. The commencement. 3. The body. 4. The conclusion.


7. - 1. The replication is usually entitled in the court and of the term
of which it is pleaded, and the names of the plaintiff and defendant are stated
in the margin, thus "A B against C D." 2 Chit. Pl. 641.


8. - 2. The commencement is that part of the replication which
immediately follows the statement of the title of the court and term, and the
names of the parties. It varies in form when it replies to matter of estoppel
from what it does when it denies, or confesses and avoids the plea; in the
latter case it commences with an allegation technically termed the preclude
non. (q. v.) It generally commences with the words, "And the said plaintiff
saith that the said defendant," &c. 1 Chit. Pl. 573.


9. - 3. The body of the replication ought to contain either. 1. Matter
of estoppel. 2. Denial of the plea. 3. A confession and avoidance of it; or, 4.
In case of an evasive plea, a new assignment. 1st. When the matter of estoppel
does not appear from the anterior pleading, the replication should set it
forth; as, if the matter has been tried upon a particular issue in trespass,
and found by the jury, such finding may be replied as an estoppel. 3 East, R.
346; vide 4 Mass. R. 443. 2d. The second kind of replication is that which
denies or traverses the truth of the plea, either in part or in whole. Vide
Traverse, and 1 Chit. Pl. 576, note a. 3d. The third kind of replication
admits, either in words or in effect, the fact alleged in the plea, and avoids
the effect of it by stating new matter. If, for example, infancy be pleaded,
the plaintiff may reply that the goods were necessaries, or that the
defen-dant, after he came of full age, ratified and confirmed the promise. Vide
Confession and Avoidance. 4th. When the plea is such as merely to evade the
allegation in the declaration, the plaintiff in his replication may reassign
it. Vide New Assignment, and 1 Chit. Pl. 601.


10. - 4. With regard to the conclusion, it is a general rule, that when
the replication denies the whole of the defendant s plea, containing matter of
fact, it should conclude to the country. There are other conclusions in
particular cases, which the reader will find fully stated in 1 Chit. Pl. 615,
et seq.; Com. Dig. Pleader, F 5 vide 1 Saund. 103, n.; 2 CainesR. 60 2 John.
R. 428; 1 John. R. 516; Arcb. Civ. Pl. 258; 19 Vin. Ab 29; Bac. Ab. Trespass, I
4; Doct. Pl. 428; BeamesPl. in Eq. 247, 325, 326.


11. - §3. The qualities of a replication are, 1. That it must
answer so much of the defendant s plea as it professes to answer, and that if
it be bad in part, it is bad for the whole. Com. Dig. Pleader, F 4, W 2; 1
Saund. 338; 7 Cranch s Rep. 156. 2. It must not depart from the allegations in
the declaration in any material matter. Vide Departure, and 2 Saund . 84 a,
note 1; Co. Lit. 304 a. See also 3 John. Rep. 367; 10 John. R. 259; 14 John.,
R. 132; 2 CainesR. 320. 3. It must be certain. Vide Certainty. 4. It must be
single. Vide U. S. Dig. Pleading, XI.; Bouv. Inst. Index, h. t.; Duplicity;
Pleadings.




Source: Bouviers Law Dictionary 1856 Edition

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