Definition
In common-law pleading, the rejoinder is the defendant's second pleading — specifically, the defendant's answer of fact to the plaintiff's replication. It occupies the fourth position in the sequence of common-law pleadings: declaration, plea, replication, rejoinder. After the plaintiff has replied to the defendant's plea, the rejoinder is the defendant's opportunity to respond to that reply with new matter of fact, narrowing the dispute further toward a triable issue.
The rejoinder must conform to the plea that preceded it, must be certain, direct, and positive in its allegations, must not be argumentative or stated by way of recital, and must answer every material averment in the replication. It must not be double — that is, it may not advance more than one distinct ground of defense.
Common Language
Modern common usage (Wiktionary): A quick response that involves disagreement or is witty, especially an answer to a question; more broadly, a response that answers another response.
Historical common usage (Webster's 1913): An answer to a reply; or, in general, an answer or reply.
The common meaning — any witty or pointed reply — captures none of the technical significance of the term. In law, the rejoinder is not simply any response; it is a precisely positioned pleading in a formal sequence, subject to strict formal requirements and carrying specific procedural consequences. A researcher encountering "rejoinder" in a legal text should not read it as a synonym for "response" or "rebuttal" in the colloquial sense.
Common Confusion
Rejoinder is sometimes loosely conflated with the replication or with later pleadings in the common-law sequence (surrejoinder, rebutter, surrebutter). The distinctions are positional and technical: the replication is the plaintiff's answer to the defendant's plea; the rejoinder is the defendant's answer to that replication. Confusion compounds because modern procedural systems — federal and most state civil practice — have abolished the extended pleading sequence entirely, making all these terms archaic in live practice while leaving them embedded in historical records. Researchers working across eras must be precise about which party filed which instrument at which stage.
Why It Matters in Research
Rejoinder is a term that belongs almost entirely to historical legal sources. Under modern notice pleading (Federal Rules of Civil Procedure and their state counterparts), the extended common-law pleading sequence was abolished. What survives is essentially complaint, answer, and in some courts a reply to a counterclaim. The rejoinder as a formal pleading does not exist in contemporary American federal practice.
This creates a research trap: legal materials from the eighteenth and nineteenth centuries will reference rejoinders as live procedural documents with substantive requirements. Nineteenth-century reporters and treatises assume familiarity with the full pleading sequence. A researcher reading those materials without understanding where the rejoinder falls in the sequence — or what formal defects could be assigned to it — will misread the procedural posture of a case.
The requirements Bouvier enumerates (conformity to the plea, certainty, no double pleading, answering all material averments) were enforceable grounds for demurrer. A defective rejoinder could be attacked just as a defective declaration could be. This is not merely terminological — the procedural stakes were real.
For corpus researchers in Law Mind, rejoinder will appear densely in early American and English common-law pleading materials, treatises on practice, and in reported decisions through roughly the mid-nineteenth century in American courts and somewhat later in jurisdictions slow to adopt code pleading. It becomes rare after the Field Code reforms in New York (1848) and their spread, and nearly absent from federal materials after 1938.
One additional modern use warrants attention: in patent prosecution practice, a rejoinder refers to the re-insertion of previously withdrawn claims into examination after a restriction requirement is overcome. This is a USPTO-specific procedural term with no connection to common-law pleading. Researchers working in intellectual property materials will encounter it in this entirely distinct sense.
Historical Dictionary Support
Black's Law Dictionary (both the first and second editions) gives identical, spare definitions: the second pleading on the part of the defendant, being his answer of matter of fact to the plaintiff's replication. This is accurate as far as it goes, but it strips out the formal requirements that made the rejoinder a source of litigation in its own right.
Bouvier is substantially richer. His entry adds the requirements of conformity to the plea, certainty, directness, positivity, and the prohibition on double pleading — all with case citations. This detail is more useful for understanding how courts actually evaluated rejoinders in practice.
Burrill's entry, truncated in the source material provided, signals at minimum that the term has Latin and Law French roots, consistent with its position as part of the inherited Anglo-Norman pleading vocabulary.
All historical sources treat the rejoinder as purely a common-law pleading term and give no indication of the modern patent prosecution usage. That meaning is entirely absent from the historical shelf — a researcher relying solely on historical dictionaries for a contemporary patent prosecution question would find no guidance.
Jurisdictional Note
The rejoinder as a formal pleading was abolished in federal courts by the Federal Rules of Civil Procedure (1938) and in most states through code pleading reforms beginning in the mid-nineteenth century. It survives as live practice only in jurisdictions, if any, that retain common-law pleading forms, and as a historical matter in courts of equity or admiralty that maintained distinct pleading traditions. In current patent prosecution, the term carries a distinct, agency-specific meaning governed by USPTO rules.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Pleadings (Common Law); Replication; Code Pleading and the Field Code Reforms.