released by law. In some States also, a debt, due by a third person to the defendant, may be seized in the hands of such third person, and held as security for the satisfaction of the judgment. This is accomplished by a process known as foreign attachment or garnishment, and is served by notifying the third person to hold the debt, due from him to the defendant, subject to the order of the court or to final process. In all these forms of process, a summons to the defendant, to appear and answer, is necessarily embodied, all other original process being, in a certain sense, collateral and subsidiary to the mandate, by which the defendant is brought before the court.

Read 3 Bl. Comm., pp. 272-292.

Com. Dig., Attachment; Process A, C, D, E.
Stephen Pl.,
pp. 5-21.

1 Tidd Prac., pp. 116–130, 145–149, 165–199, 218

261.

3 Chitty Gen. Prac., pp. 140-145.

§ 280. Of the Return of Process.

Appearance.

The sheriff, having served the process, must endorse thereon a short statement of his mode of service, (called his return,) and lodge the process, so endorsed, with the clerk of the court, on or before the return-day. It is the duty of the defendant to appear in court on the returnday, and, on his failure so to do, judgment may go against him by default. The plaintiff likewise must appear, or judgment may be taken against him by the defendant upon nonsuit. Anciently, both parties to a suit appeared in person, and orally made their respective claims concerning the matter in dispute. Appearance is now generally made by

attorney, and the mutual allegations of the parties are submitted to the court in writing.

Read 3 Bl. Comm., pp. 25-29, 273, 277, 278, 282, 287,

295, 296.

Com. Dig., Pleader B; Process B, D 3-7, E 1-3;
Retorn.

Stephen Pl., pp. 5, 21-28.

1 Tidd Prac., pp. 262–269.

§ 281. Of Pleadings.

These mutual allegations are called the pleadings. Their object is to apprise the court of the exact point or points, concerning which its judgment is desired. In order to secure this object, numerous technical rules concerning them have been from time to time adopted, tending to certainty, clearness, and brevity, in the statement of the real material issue. The discussion and illustration of these rules forms the subject-matter of the treatises on Pleading.

Read 3 Bl. Comm., pp. 293, 310–313.

1 Chitty Pl., pp. 213, 214, 221-239.

Stephen Pl., pp. 123–137, 240-426.

Gould Pl., Ch. i, §§ 1-3; Ch. iii; Ch. viii, §§ 1-31, 65-79.

§ 282. Of the Classes and Order of Pleadings. The questions, presented to the court in any action at law, may be grouped in three classes: (1) Has the court, to which the process has been returned, authority to hear and determine the points in controversy? (2) Has the action itself been properly instituted? (3) Upon the merits of the controversy, which of the parties is entitled to a judgment, and for what amount shall such judgment

be rendered? Pleadings may, therefore, be grouped into three corresponding classes: (1) Pleadings which raise the question, whether the court has the requisite authority, called pleadings to the jurisdiction; (2) Pleadings which raise the question, whether the action has been properly instituted, called pleadings in abatement; (3) Pleadings which raise the question, whether, on the merits of the controversy, the plaintiff or defendant should have judgment, and which embrace all other pleadings than those previously named. These three classes of questions must be raised, when raised at all, in the foregoing order. An objection to the jurisdiction must be made, if ever, before the attention of the court has been directed to proceedings, which would become useless if the objection were afterward made and sustained. An objection to the mode, in which the action has been instituted, must be urged before the merits of the controversy are submitted to the court. In either of these cases, failure to raise these questions, at the proper time, is regarded as a waiver of the right to raise them, and an irrevocable submission of the parties to the judgment of the court, upon the action as already instituted.

Read 3 Bl. Comm., pp. 301, 303.

Bac. Abr., Pleas and Pleadings A.

Com. Dig., Abatement C.

1 Chitty Pl., pp. 440, 441.

Stephen Pl., pp. 46, 430, 431.

Gould Pl., Ch. ii; Ch. v, §§ 1-9.

§ 283. Of Demurrer.

ance.

Traverse. Confession and Avoid

The question finally presented to the court for its decision, under any of these classes of pleadings, is called the issue, and is reached in one of three different ways: (1)

By a denial, upon one side, that the facts, alleged upon the other, are legally sufficient to sustain the action or the pleading, which denial is called a demurrer; (2) By a direct denial, upon one side, of the facts alleged upon the other, which denial is called a traverse; (3) By an admission, upon one side, of the facts alleged upon the other, coupled with an allegation of new facts, which justify or excuse or change the legal character of the facts admitted, which admission and allegation are called a confession and avoidance. A demurrer creates an issue of law. A traverse creates an issue of fact. A confession and avoidance may be traversed, or answered by another confession and avoidance, or by a demurrer; in the end, however, always terminating in a traverse, raising an issue of fact, or in a demurrer, raising an issue of law.

Read 3 Bl. Comm., pp. 314-324.

Bac. Abr., Pleas and Pleadings H, N.
Com. Dig., Pleader G, Q, R 1-16.

1 Chitty Pl., pp. 604, 653, 654, 660-670.
Stephen Pl., pp. 44, 52-59, 137-240.

Gould Pl., Ch. i, §§ 2-25; Ch. vii; Ch. ix, §§ 1-46.
2 Tidd Prac., pp. 750–773.

§ 284. Of the Jurisdiction of Courts.

The jurisdiction of a court is defined by law, and depends upon the character of the parties-litigant, and upon the subject-matter of the controversy. Where no jurisdiction has been given by law to the court over the subject-matter of the controversy, all proceedings in regard to it must inevitably be void; and the court should at once dismiss the action, whenever the want of jurisdiction becomes apparent. If the want of jurisdiction is dependent on the character of the parties-litigant, it can be waived, and

will be waived in case they suffer the action to proceed without objection.

Read Gould Pl., Ch. v, §§ 14-25.

Cooley Const. Lim., pp. 398–407.

§ 285. Of Pleas to the Jurisdiction.

An objection to the jurisdiction of a court may be taken either by motion or by plea. When the character of the parties and the subject-matter are so far disclosed by the process, or by the process taken in connection with the declaration, that an inspection thereof shows at once the want of jurisdiction, the attention of the court may be directed to the error by a motion, and it will immediately dismiss the action. But if the fault be not apparent upon such inspection, a formal pleading, on the part of the defendant, becomes necessary, in which the want of jurisdiction and its causes are distinctly stated, and which is called a plea to the jurisdiction. To this plea the plaintiff must reply either by a traverse, or confession and avoidance, or demurrer, and the defendant must answer, until an issue either of fact or law is reached.

Read 3 Bl. Comm., pp. 302, 303.

Bac. Abr., Pleas and Pleadings E.
Com. Dig., Abatement D.
1 Chitty Pl., pp. 441–446.

Gould Pl., Ch. v, §§ 13-30.

§ 286. Of Pleas in Abatement.

An objection to the mode, in which the action has been instituted, must be made by plea in abatement. The grounds of this objection are manifold, embracing: (1) Defects in the process; (2) Defects in the service of the process; (3) Incapacity of the plaintiff to sue; (4) Incapacity of the defendant to be sued ; (5) Misdescription of the plaintiff';