The Supreme Court of Appeals of this state, in three recent eases, two at law and one in equity, has prescribed or suggested what many West Virginia practitioners may consider innovations affecting three very ordinary matters of practice in this jurisdiction. Two of these cases, dealing, respectively, with the manner in which failure of consideration may be asserted as a defense and the necessity of process upon a cross-bill answer, are actual adjudications. One, indicating certain circumstances under which it is deemed the Statute of Frauds should be pleaded specially, contains only dicta so far as that particular question is concerned; but, as exemplified in one of the other cases, the dicta may very soon ripen into actual adjudication. Two of the cases, collectively, are interesting because they indicate a tendency toward a preference for special pleading in a jurisdiction which, upon the whole, is committed to a philosophy of general pleading. Each one, in isolation, is important because it prescribes a specific requirement in a very ordinary matter of practice, failure to observe which will be prejudicial, if not fatal, to the rights of a litigant. One, in particular, is significant, not only for this reason, but also because the basis upon which it was decided seems inevitably to indicate that specific requirements of special pleading will in the future be imposed in other situations where they have not heretofore been considered by many practitioners as necessary. An attempt will be made to expand upon these general observations in the separate topics below.
Recent Developments in Local Procedure,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol47/iss3/2