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PLEAS—PEREMPTORY OR IN BAR

435


contained in the plaintiff’s Declaration. Thus, to summarize, the defendant may meet an Alleged Cause in a Declaration by Plead­ing One of Three Forms of Traverse; by Pleading in Confession and Avoidance in Justification, in Excuse, or in Discharge; or by Pleading by Way of Estoppel.
Special Pleas—The Different Varieties

PLEAS other than General Issues are or­dinarily distinguished from them by the name of Special Pleas; and when resort is had to these a Party is said to Plead Special­ly, as contrasted with Pleading the General Issue. The Issues produced upon Special Pleas, as being usually more specific and par­ticular than those of Not Guilty, etc., are sometimes described as Special Issues, as con­trasted with what were called General Issues; the latter term having been afterward ap­plied, not only to the Issues, but to the Pleas which tendered and produced them. Thus, instead of Pleading the General Issue, the de­fendant, in certain cases, may effectually an­swer the Declaration by interposing a Spe­cial Plea which creates a Specific Issue. Such an Issue was raised by a Common or Specific Traverse denying some one Material Allegation in the Declaration upon which the Right of Action depends. Many Special Pleas in Bar, however, Admit the Truth of the Plaintiff’s Allegations, but allege New or Affirmative Matter in avoidance of their legal operation.. One type of Special Flea, alleging Matter of Estoppel, neither con fess­es nor denies the truth of the Declaration, though like other Pleas in Bar, It sets up Matter which defeats the Right of Action. Recoupment and Set-Off assert cross-de­?nands due from the plaintiff to the defend­ant.


It Is generally improper to set up a De­fense by a Special Plea which can be shown under the General Issua But in many eases the defendant may be at liberty to show spe­daily to the Court matters of defense, not

merely consisting in a denial, but introduc­tory of new matter, such as coverture or in­fancy. Although these may be admissible under the General Issue, yet being matter of justification or excuse, it is convenient to set forth the particular facts relied on as a defense in a Special Plea, which will apprise the Court and the adverse party of the cir­cumstances and nature of the defense, and keep the Facts and the Law distinct.


Pleas which set up no new affirmative matter, but which merely set up evidential facts inconsistent with the plaintiff’s prima facie case, are said to be argumentative de­nials and improper. But there is a peculiar species of plea, known as a Special Traverse, which is an exception to the rule.
THE VARIOUS FORMS OF TRAVERSE OR DENIAL
216. The different Forms of Traverse or Denial may be classified as:
(I) The Specific or Common Traverse (Il) The Special Traverse

(III) The General Traverse, including

(A) The General Issue

(B) The Replication De Injuria



A Traverse concludes with a Tender of Issue.
AS previously pointed out, Pleas are of Two General Classes, viz., Dilatory Pleas; and Peremptory Pleas, or Pleas in Bar. Pleas in Bar are said to be either in Denial, that is, by Way of Traverse—or by Way of Confession and Avoidance of the Action—or by Way of Estoppel. It will be seen, how­ever, that under the General Issue, Defenses may sometimes be raised of the sort raised by a Plea in Confession and Avoidance, as well as those raised by a Traverse. And of Traverses there are four sorts: First, the Specific or Common Traverse; Second, the Special Traverse; Third, the General Trav­erse, which includes the General Issue and the Replication Dc Injuria. The latter form of the General Traverse will be discussed in the next Chapter,

Where an Ailegation is Traversed or De­nied, it is evident that a question is at once raised between the Parties; and it is a Ques­tion of Fact, namely, whether the facts in the Declaration or other Pleading, as the case may be, which the Traverse denies, are true. A question being thus raised, or in other words, the Parties having arrived at a specific point, where matter was affirmed on one side and denied on the other, the par­ty interposing the Traverse is generally obliged to offer or refer this question to some Mode of Trial, or as it is said, to Tender Is­sue. This he does by annexing to the Tra­verse an appropriate formula, as for in­stance: “And of this he puts himself upon the country,” thus proposing a Trial by the country—that is, by a Jury. If the Tender of Issue be accepted by the other Party, the Parties were at issue on a Question of Fact, and the question itself was called the “Is­sue.” A Tender of an Issue of Fact was and is accepted by what is called a “Joinder in Issue,” or “Similiter,” which consisted of a Form which read thus: “And the said A, as to the Plea of the said B, above Pleaded, and whereof he has put himself upon the country, doth the like.”


As we have seen, the Tender of an Issue in Law, by Demurrer, is necessarily accepted by the other Party, but this is not true of the Tender of an Issue in Fact. An Issue of Fact need not necessarily be accepted, for the oth­er Party may consider the Traverse itself as insufficient in Law. A Traverse, for in­stance, may, in denying a part only of the Declaration, be so framed as to involve a part that is immaterial or insufficient to de­cide the action, or the Traverse may be deemed defective in Point of Form, and the other party may object to its Sufficiency in Law on that ground. He, therefore, has a right to Demur to the Traverse as Insuffi­cient in Law, instead of joining in the Issue Tendered.

Ch. 22
With this general statement in mind, the general rules relating to the Traverse may be considered, and then various Forms of Traverse may be considered in order.
THE GENERAL REQUISITES OF TRAVERSE
217. The following General Rules apply to the Traverse, without regard to whether, in Form, it is Common, General, or Special:

(I) The Traverse should generally deny the Opposing Allegation in the Manner and Form in which it is made (modo et forma; i. e. 9xt Manner and Form as alleged”); thus putting the opposite Party to Proof in Manner and Form, as well as in general effect.

(II) A Traverse may be taken upon a Mixed Allegation of Law and Fact, but not upon Matter of Law alone, nor upon matter not alleged. Upon Matter of Fact it must be where the Fact iseither Expressly Alleged, or Necessarily Implied from what is alleged.
(III) The Traverse must not involve an Estoppel against the Party Plead­ing it.
THE different kinds or Forms of Traverse having been previously explained, we shall here take up certain Rules as to the Manner of Pleading Denials.
Form of Denial

IT is customary in a Traverse to deny the Allegation in the Manner and Form in which it is made, and therefore to put the opposite party to prove it to be true in Manner and Form, as well as in general effect. Accord­ingly, he is often exposed at the Trial to the danger of a Variance by a slight deviation in his evidence from his Allegation. This doc­trine of Variance, says Stephen, is founded on the strict quality of the Traverse here stated.’ This strictness is so far modified

436 DEFENSIVE PLEADINGS

1. Stephen, A Treatise on the Principles of Pleading

In Civil Actions, ~. II, Of the Principal Rules of

PLEAS—PEREMPTORY OR IN BAR

Sec. 217
that it is, in general, sufficient to prove ac­curately the substance of the Allegation, and a deviation in point of mere Form or in Mat­ter quite Immaterial will be disregarded. The general principle is that the Traverse brings the fact into question, according to the Manner and Form in which it is alleged, and that the opposite Party must conse­quently prove that, in Substance at least, the Allegation is accurately true. The existence of this principle is indicated by the wording of a Traverse, which, when in the negative, generally denies the last pleading mode et forma [in Manner and Form as alleged]. This will be found to be the case in almost all Traverses, except the General Issue Non Fist Factum, and the Replication d€ injuria. These words, however, though usual, are said to be in no case strictly essential, so as to render their omission cause of Demurrer.2


It is naturally a consequence of the prin­ciple here mentioned that great accuracy and precision in adapting the Allegation to the true state of the Fact are observed in all well-drawn Pleadings; the vigilance of the pleader being always directed to these quali­ties, in order to prevent any risk of Variance or Failure of Proof at the Trial in the event of a Traverse by the Opposite Party.
Traverse Not to be Taken on Matter of Law Alone.

AGAIN, in respect to all Traverses, it is laid down as a Rule that a Traverse must not be taken upon Matter of Law? A Denial of


Pleading, 219 (Edited by Williston, Cambridge, Mass., 1895).
~ Comyn, Digest, Pleader, 0. 1 (London 1522); Nevll and Cook’s Case, 2 Leon. 5, 74 Eng.Rep. 310 (1589).
3. Bonnet v. Flikins, I WmsSaund. 23, ii. 5, 85 Eng. Rep. 20, 24 (1666).
-See, also, the following eases: English: ICenleot V.

Bogan, Yelv. 200, 80 Eng.Rep. 131 (1610); Prlddle &

Napper’s Case, U Coke lOb, 77 Eng.Rep. 1155

(1612); Richardson v, Mayor & Coinmonalty of

OrIon), 2 31.11. 182, 126 Eng.Rep. 496 (1703); Hob­son V. Middleton, 6 Barn, & C. 297, 108 l!)ng.Rep. 461

(1527); Seymour v. Maddox, 16 48. 320, 117 Eng.

437
the Law involved in the precedent Pleading

is, in other words, an exception to the suffi­ciency of that Pleading in Point of Law, and is therefore within the scope and proper province of a Demurrer, and not of a Trav­erse. Thus, where, to an Action of Trespass for fishing in plaintiff’s fishery, the defendant Pleaded that the locus in quo was an arm of the sea, in which every subject of the rea]m had the liberty and privilege of free fishing, and the plaintiff, in his Replication, Trav­ersed that in the said arm of the sea every subject of the realm had the liberty and privi­lege of free nshing, this was he]d to be a Traverse of a mere Inference of Law-, and therefore bad.’ Upon the same principle, if a Matter be Alleged in Pleading, “by reason whereof” [virtute cujus] a certain legal in­ference is drawn, as that the plaintiff “be­came seised,” etc, or the defendant “became liable,” etc., this vit’tute cujus is not Trav­ersable, because, if it be intended to question the Facts from which the seisin or liability is deduced, the Traverse should be applied to the Facts, and to those Cnly; and, if the legal inference be doubted, the course is to De­mur.


Traverse May be Taken on Allegation of Law and Fact

BUT, on the other hand, where an Allega­tion is Mixed of Law and Fact, it may be Traversed.6 For example, in answer to an


Bcp. 004 (255~ Russcll’s Case, I Dyer 2Gb, p1. 171,

73 Eng.Rep. 59 (1536); Grills v, Mannell, Wines 378,

125 Eng.Rep. 1223 (1742); New York: Fosliny V.

fiche, 2 Hill (Nt) 247. (1842).


4, Richardson v. Mayor & Coinmonalty of Orion), 2

31.11. 182, 126 Eng.Ilep. 406 (1793).


S. Euer, Doctrina Placitandi, 351 (London, 1677); Priddle & Napper’s Case, U Coke lOb, 77 EngRep. 1155 (1612).
6. Rennet v. Filkina, I Wms.Saund. 23, a. 5, S5 Eng. Rep. 20, 24 (1600); Deal v. Simpson, 1 LdRnym, 4i2, 91 Eng.Rep. 1171 (1698); Warden & Cominonalty of the Mystery at Grocers v. Archbishop of Canter­bury, 3 WIls. KB. 221, 95 Eng.Rep. 1023 (1771); Lu­cas r. Noekells, 4 Bing. 729, 130 Eng.Rep. 950 (1828);

438


DEFENSIVE PLEADINGS

Ch. 22


Allegation that a man was “taken out of prison by virtue of a certain Writ of Habeas Corpus,” it may be Traversed that he was “taken out of prison by virtue of that Writ.”7 So, where it was alleged in a Plea that, in consequence of certain circumstances therein set forth, it belonged to the wardens and commonalty of a certain body corporate to present to a certain church, being vacant, in their turn, being the second turn, and this was answered by a Special Traverse, without this, that it belonged to the said wardens and commonalty to present to the said church, at the second turn, when the same became va­cant, etc., in Manner and Form as a]leged, the Court held the Traverse good, as not applying to a mere Matter of Law, but to “Matters of Law, or rather Matter of Right (as is this) resulting from Facts.” So, it is held, upon the same principle, that Traverse may be taken upon an Allegation that a certain person obtained a church by simony.°
Traverse Not to be Taken on Matter Not Al­leged

IT is also a Rule that a Traverse must not be taken upon Matter not alleged.’0 The meaning of this Rule will be sufficiently ex­plained by the following cases: A woman brought an Action of Debt on a deed, by which the defendant obliged himself to pay her 1 200 on demand if he did not take her to wife, and Alleged in her Declaration that, though she had tendered herself to marry the


Drewe v. Lainson, 11 Ado), & 13, 538, 113 Eng.Rcp. 5110 (1840).
7. Deal v. Simpson, 1 Ld.flnyrn. 412, 91 EngIlep. 1171 (1608),
8. Warden & Conirnonalty of the Mystery of Grocers

V. Archbishop of Canterbury, 3 Wils. 1CR. 221, 234,

95 Eng.llep. 1023, 1030 (1771).
9. Ibid.
10, Rex v, ICilderhy, 1 Wrns. Sound. 311, 3124, a. 4, 85

Eng.Eep. 428; 4-33 (1669); Crosse V. Hunt, Carth. 00,

90 Er,g.Rep. 062 (1688); Powers v. Cook, 1 Ld.Raym.

63, 91 Eng.Rep. 938 (1005); Worley v. Harrison, 3

Adol. & F. 660, 111 EngItep. 508 (1835); Bii-d V.

Bolman, 9 Mees. & \V. 761, 152 EngIlep. 322 (1842).

defendant he refused, and married another woman. The defendant Pleaded that, after making the deed, he offered himself to mar­ry the plaintiff, and she refused; absque hoc, “that he refused to take her for his wile be­fore she had refused to take him for her husband.” The Court was of opinion that this Traverse was bad, because there had been no Allegation in the Declaration, “that the defendant had refused before the plaintiff had refused,” and therefore the Traverse went to deny what the plainff had not af­firmed.1’ The Plea in this case ought to have been in Confession and Avoidance; stating merely the Affirmative Matter, that before the plaintiff offered the defendant offered, and that the plaintiff had refused him, and omitting the abs que hoc. Again, in an Ac­tion of Debt on Bond against the defendant, as Executrix of J. S., she Pleaded in Abate­ment that J. S. died intestate, and that Ad­ministration was granted to her. On Demur­rer it was objected that she should have gone on to Traverse “that she meddled as Execu­trix before the Administration granted,” be­cause, if she so meddled, she was properly charged as Executrix, notwithstanding the subscquent grant of Letters of Administra­tion. But the Court held the Plea good in that respect; and I-Jolt, C. J., said “that, if the defendant had taken such Traverse, it had made her Plea vicious, for it is enough for her to show that the plaintiff’s Writ ought to Abate, which she has done, in showing that she is chargeable only by another name. Then as to the Traverse, that she did not Ad­minister as Executrix before the Letters of Administration were granted, it would be to Traverse what is not Alleged in the plaintiff’s Declaration, which would be against a Rule of Law, that a man shall never Traverse that which the plaintiff has riot Alleged in his Declaration.” 12
ii. Crosse v, Bunt, carth. 00, 90 Eng.llep. 662 (1688),
12. Powers v. Cook, 1 Ld.Raym. 03, 01 Eng.Rop. 938 (1605).

Sec 215

PLEAS—PEREMPTORY OR IN BAR

439


There is, however, the following Exception to this Rule, viz.: That a Traverse may be taken upon Matter which, though not Ex­pressly Alleged, is Necessarily Implied.’~ Thus, in Replevin for taking cattle the de­fendant made Cognizance that A was seised of the close in question, and, by his command, the defendant took the cattle damage feasant. The plaintiff Pleaded in Bar that he himself was seised of one-third part, and put in his cattle abs que hoc, “that the said A was sole seised.” On Demurrer, it was objected that this Traverse was taken on Matter not Al­leged, the Allegation being that A was seised, not that .4 was sole seised. But the Court held that in the Allegation of Seisin that of Sole Seisin was Necessarily Implied, and that whatever is Necessarily Implied is Traversa­ble, as much as if it were expressed. Judg­ment for plaintiff.” The Court, however, ob­served that in this case the plaintiff was not obliged to Traverse the Sole Seisin, and that the effect of merely Traversing the seisin Mocto et F’orma, as alleged, would have been the same on the Trial as that of Traversing the Sole Seisin.
Traverse Involving Estoppcl

A TRAVERSE must not involve an Estop­pel against the Party using it. An illustra­tion of this Rule appears in an Action on a Deed. A Party to a deed, who Traverses it, must plead Non Est Factum, and should not Plead that he did not grant, did not demise, etc.’5 This Rule seems to depend on the Doc­trine of Estoppel. A man is sometimes pre­cluded, in Law, from Alleging or Denying a Fact in consequence of his own previous act,


i~ Rex v. Kilderhy, I Wms.Saund. 311, 3124, n. 4, 85 Eng.Bep. 428, 433 (1669); GIlbert v. Parker, 2 Salk, 629, 91 Eng.Rep. 532 (1704); Meriton V. Briggs, 1 Ld. Raym. 39, 91 Fng,Rep. 922 (1695).
14. Gilbert v. Parker, 2 Salk. 629, 91 Eng.Eep. 537 (1704).
16. Robinson ,c Corbctt, I Let. 662, 125 Fog. Rep. 344 (1699); Taylor v, Needham, 2 Taunt. 278, 127 Rug. Rep. 1084 (1810).

allegation, or denial to the contrary, and this preclusion is called an “Estoppel.” It may arise either from Matter of Record, from the Deed of the Party, or from Matter in Pais; that is, Matter of Fact.


It is from this Doctrine of Estoppel, ap­parently, that the Rule as to the mode of Traversing deeds has resulted, for though a Party against whom the deed is alleged may be allowed, consistently with the Doctrine of Estoppel, to say “Non Est Factum,” viz, that the deed is not his, he is, on the other hand, precluded by that doctrine from denying its effect or operation; because, if allowed to say “Non Concessft’ or “Non Demisit,” when the instrument purports to grant or to demise, he would be permitted to contradict his own deed. According]y, it will be found that in the case of a person not a Party, but a Stranger, to the deed, the Rule is reversed, and the Form of Traverse in that case is “Non Concessit,” etc.; 16 the reason of which seems to be that Estoppels do not hold with respect to strangers.

MATERIALITY OF TUE TRAVERSE
215. A Traverse must riot be taken on an Immaterial Allegation. This rule prohibits a Traverse;

(I) On Matter that is Irrelevant or In­sufficient in Law;
(II) On Matter that is Prematurely al­leged;
(III) On Matter of Aggravation;
(IV) On mere Matter of Inducement
THIS rule prohibits a Pleader from Trav­ersing on Matter that is either Irrelevant or Insufficient in Law.’7 Thus, in Debt for Rent
10. Taylor v. Needham, 2 Taunt. 27S, 127 Eng.I~ep.

1084 (1810).


11. English: Serjoant v. Fairlax, I Lov, 32, 83 Eng. Rep. 283 (1061); Kent and Rail, Nob. us, 80 Lug. Rep, 262 (1600); Bridgwater V. Bythway, 3 Let. 113, 83 Eng.Rep. 602 (1682); Connecticut: Parish

v. Stanton, 2 Root (Conn.) 155 (1704); New Hamp­shIre: Thompson v. Fellows, 21 N.H. 425 (1850);

440

DEFENSIVE PLEADINGS

Cli. 22


against a lessee for years, if the defendant Plead that before the rent was due he as­signed the term to another, of which the plaintiff had notice, a Traverse of the notice would be bad, as producing an Immaterial Issue; for it is not mere notice of the assign­ment that discharges the lessee, but the les­sor’s consent to the assignment, or his accept­ance of rent from the assignee.’8 So? in an Action of Debt on a Bond conditioned for the payment of 10 pounds 10 shillings at a certain day, if the defendant should Plead Payment of 10 pounds, a Traverse of such payment would be bad, for, if the whole sum of 10 pounds 10 shillings were not paid, the bond

would be forfeited; and the payment of a less sum is wholly immaterial.’9 The plaintiff in such case should Demur. So, where, to an Action of Trespass for Assault and Battery, the defendant Pleaded that a Judgment was recovered, and Execution issued thereupon against a third person, and that the plaintiff, to rescue that person’s goods from the Execu­tion, assaulted the bailiffs, and that in aid of the Bailiffs, and by their command, the defendant mollitsr mantis imposuit upon the plaintiff, to prevent his rescue of the goods, it was holden that a Traverse of the Command of the Bailiffs was bad; for, even without their Command, the defendant might lawfully interfere to prevent a rescue, which is a breach of the peace.’°


The Rule also prohibits a Pleader from Traversing on Matter which, though not Im­material to the case, is prematurely alleged.2
New York: Rogers v. Lurk, 10 John~. (New Yoric) 400 (1813).
18. Serjeant v. Fairfax, I Lev. 32, 83 Eng.Rep. 283 (1661).
19. Kent and Hall, Rob. 113, 80 Eng.Rep. 262 (1600).
2O. Bridgwater v. Bythway, 3 Lev. 113, 88 Eng.Rep.

602 (1682).


Z1. Sir Ralph Bovy’s Case, I Vent. 217, 86 Eng.Itep.

146 (1672); Ricketts v. Loftus, 14 Q.B. 482, 117 Eng.



Rep. 188 (1849); Middlcton V. Craveley, i2 Price

513, 147 Eng.Rcp. 794 (1823).

Thus, If, in Debt on Bond, the plaintiff should declare that, at the time of sealing and de­livery, the defendant was of Full Age, the de­fendant should not Traverse this, because it was not necessary to allege it in the Declara­tion; though, if in fact he was a minor, this would be a good subject for a Plea of Infancy, to which the plaintiff might then well reply the same matter, viz, that he was Of Age.2
Again, this Rule prohibits the taking of a Traverse on Matter of Aggravation; that is, matter which only tends to increase the amount of Damages, and does not concern the Right of Action itself. Thus, in Trespass for Chasing Sheep, per quod the sheep died, the dyIng of the sheep, being Aggravation only, is not Traversable.’3
And where Matter of Inducement is sb leged, which is not essential to the substance of the case, but only explanatory of the main Allegations, a Denial would be unriecessary.~ It is otherwise, however, when such matter is not merely explanatory. If essential, though in the Nature of Inducement, it may still be Traversed.25
22. Sir Ralph llovy’s case, 1 Vent. 217, 86 Eng.Itep.

148 (1672).


23. Leech v. Widsley, I Vent. 54, 86 Eng.Rep. 38. (1669).
24. 5 Bacon, New Abridgment, Pleas and Pleading, 11.

5, 586 (Philadelphia, 184a); Spaeth V. Hare, 0 Mees. & W. 326, 1~2 Eng.Rep. 138 (1842). Thus, in an Ac­tion of Debt against executors, they pleaded a Judg­ment recovered, and that there were no assets in their hands beyond what was sufficient to satisfy the said Judgment. The plaintiff replied that the Judgment was satisfied, but kept on foot by fraud sari covin. The defendants traversed that the Judg­ment was satisfied, and this was considered a bad traverse, because to allege that it was satisfied was only Inducement to the Allegation that it was kept on foot by fraud and covin. This was the main point, and this should have been the subject of the traverse. Comyrt, Digest, Pleader, G. 14 (London 1822); The Protector v. Bolt, tlardres 68, 145 Log. Rep. 385 (1856).
25. Rimeraly v. Cooper, Cro.E11z. 168, 78 Lng.Rop..

426 (1589); Carvike y. Blagravo, 1 Brod. & 13. 531,

129 Eng.Rep. 827 (1819). Thus, where the plaintiff

declared, in Trespass on the Case for slander, that


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