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Sec. 220

PLEAS—PEREMPTORY OR IN liAR

441

SELECTION OF ISSUABLE PROPOSITION


219. Where there are Several Allegations, all of which are Material, the Party may Traverse any one he pleases.
TIlE Principle of this Rule is that where the case of any Party rests upon Sev­eral Allegations, each of which is essential to its support, it may be as effectually destroyed by controverting one part as another.2° Thus, in an Action of Trespass, if the defend­ant Pleads that A was seised, and demised to him, a Traverse of either the Seisin or the Demise would be sufficient; as in either case, if maintained, it would be effectual to over­come the Defense.21 Again, in Trespass, if the defendant Pleads that A was Seized, and enfeoffed B, who enfeoffed C, who enfeoffed D, whose estate the defendant bath, the plain­tiff may Traverse whichever of the feoff­ments he pleases.28 Great care is necessary, however, in the selection of the Allegation to be thus denied, so as to oppose the one most open to objection; for, as we see in another place, those not expressly denied are taken as admitted.2°
lie was sworn before the Lord Mayor, and that the defendant said be was falsely sworn in that Oath, it was held that the plaintiff’s being sworn before the Lord Mayor, though in the nature of induce­ment, was a traversable matter, being of the sub­stance of the Action. Kimersly v. Cooper, supra.
26. Comyn, Digest, Pleader, 0. 10 (London, 1822). See, also, the following cases: English: Moor v. ]‘ndsey, 1-Iardreg 210, 145 Eng.flep, 475 (1602); Young v. Rudri, Carth. 847, 90 Eng.Rep. 803 (1695); He3’doa v. Thompson, 1 Ado?. & B. 210~ 110 EngEep. 1186 (1834); Learmonth v. Grandine, 4 Mees. & W. i15$, 150 Eng.Rep. 1585 (1830); Read’s Case, C Coke 24, 77 Eng.Ilep. 289 (1600); Young v. Ruddle, 2 Salk. 627, 91 Eng.Rep. 530 (1695); Baker v. Black­man, Oro.Jac. 082, 79 Eng.Rep. 591 (1623); IllInois:

Hopkins v. Medley, 02 Ill. 402 (1881).


27. Moor v, Pudsey, Bardres 316, 145 Eng.Rep. 475 (1002). See, also, Comyn, Digest, Pleader, 0. 10 (London, 1822).
~. Luer, Doctrina Placitandi, 365 (London, 1677)-
29. Toland v. Sprague, 12 Pet. (U.S.) 335, 9 LEd, 1093 (1838).

DENIAL OF THE ESSENTIALS ONLY


220. A Traverse must not be Too Large, nor, on the other hand, too Narrow.

Qualification—A Material Allegation of Title or Estate may be Traversed as Alleged, though stated with unnecessary particularity.
AS a Traverse must not be taken on an Im­material Allegation, so, when applied to an Allegation that is Material, it should take in no more and no less of that Allegation than is necessary to raise a Material Issue. If it involves more than some essential proposi­tion of operative fact, it is said to be too large; if less, too narrow.
Traverse Too Large

IN the first place, it must not be too large.m It may thus be too large by involv­ing in the Issue circumstances of time, place, quantity, etc., which are Immaterial to the Merits of the particular case, though forming part of the Allegation Traversed. Thus, in an Action of Debt on a Bond, conditioned for the payment of £1,550, the defendant Pleaded that part of the sum mentioned in the condi­tion, to wit, £ 1,500, was won by gaming, con­~0. Comyn, Digest, Pleader, C. 15 (London, 1822).

See, also, the following cases: English: Comorne

V. Stockdale, 1 Str. 493, 93 Eng.Bep. 655 (1721);

Lane v. Alexander, Cro.Jac. 202, 70 Eng.Rep. 177

(1607); Goram v. Sweeting, 2 Saund. 206, 85 Eng.

Rep. 901 (1070); Osborne v. Rogers, I Sannd. 267,

85 Eng.Rep. 318 (1669); Arlett v. Ellis, 7 Barn.

& C. 846, 108 Eng.Itep. 752 (1821); Palmer v, BUns,

2 Str. 817, 03 Eng.Rep. 869 (1728); Stubbs v. Lain­son, I Moos. & \V. 728, 150 Eng.Rep. 027 (1836);

Thurman v, Wild, 11 Adol. & E. 453, 113 Eng.Itep.

487 (1840); California: Caulfield v. Sanders, 17 Cal.

569 (1801); Illinois: Wadhams V. Swan, 109 111. 46

(1834); New Hampshire: Thompson v. Fellows, 21

Nil. 425 (1850); New York: Rogers r. Rink, 10

Johns, (N.Y.) 400 (1813); Davison v. Powell, 16 How.

Er. (N.Y.) 461 (1858); Wisconsin: Schaetzsl t.

Germantown Farmers’ Mut. Ins. Co., 22 Wis. 412

(1.865).
It is a mistake to cover by denial, not only the Mate­rial Allegations necessary to support the plaintiff’s Cause of Action, but also some immaterial qualiti. caflons of the Allegation. English: Lush V. Rue­sell, 5 Exeb. 203, 155 Eng.Rep. 87 (1850); Vermont:

Briggs v. Mason, 31 Vt 433 (1859).

442

DEFENSIVE PLEADINGS

Cii. 22


trary to the statute in such case made and provided, and that the bond was consequently void. The plaintiff Replied that the bond was given for a just debt, and Traversed that the £1,500 was won by gaming in Manner and Form as alleged. On Demurrer it was ob­jected that the Replication was ill, because it made the precise sum parcel of the Issue, and tended to oblige the defendant to prove that the whole sum of £1,500 was won by gaming; whereas the statute avoids the bond if any part of the consideration be on that account. The Court was of opinion that there was No Color to maintain the Replication; for that the Material Part of the Plea was that part of the money for which the bond was given was won by gaming, and that the words, “to wit, £1,500” were only Form, of which the Repli­cation ought not to have taken any notice.3’ So where the plaintiff Pleaded that the Queen, at a Manor Court, held on such a day by L S., her steward, and by copy of Court Roll, etc., granted certain land to the plain­tiff’s lessor, and the defendant Rejoined, Traversing that the Queen, at a Manor Court, held such a day by I. S., her steward, granted the land to the lessor, the Court held that the Traverse was ill, “for the Jury are thereby bound to find a copy on such a day, and by such a steward, which ought not to be.” The Traverse, it seems, ought to have been that the Queen did not grant in Manner and Form as allege&32
Again, a Traverse may be Too Large by being taken in the Conjunctive instead of the Disjunctive, where it is not Material that the Allegation Traversed should be proved Con­junctively. Thus, in an Action of Assumpsit the plaintiff declared on a policy of insurance, and averred “that the ship insured did not arrive in safety, but that the said ship, tackle, apparel, ordnance, munition, artillery, boat,
3L Colborne v, Stoekdale, I Str. 493, 93 Eng.Rep. 655 (1721).
U. Lane v. Alexander, Cro.Jac. 202, 79 Eng.Rep. 177

and other furniture were sunk and destroyed in the said voyage.” The defendant Pleaded with a Traverse: “Without this, that the said ship, tackle, apparel, ordnance, munition, artillery, boat, and other furniture were sunk and destroyed in the voyage in Manner and Form as alleged.” Upon Demurrer this Traverse was adjudged to be bad, and it was held that the defendant ought to have Denied Disjunctively that the ship or tackle, etc., was sunk, or destroyed, because in this Action for Damages the plaintiff would he entitled to recover compensation for any part of that which was the subject of insurance and had been lost; whereas (it was said), if Issue had been taken in the Conjunctive Form in which the Plea was Pleaded, “and the defendant should prove that only a cable or anchor ar­rived in safety, he would be acquitted of the whole.” ~


Traverse Too Large—Qualification of Rule

On the other hand, however, a Party may, in general, Traverse a Material Allegation of title or estate to the extent to which it is al­leged, though it need not have been alleged to that extent; and such Traverse will not be considered as Too Large.3’ For example, in an Action of Replevin, the defendant Avowed the taking of the cattle as damage feasant, in the place in which, etc.; the same being the freehold of Sir F. L. To this the plain­tiff Pleaded that he was seised in his denjesne


33- Goram v. Sweeting, 2 wms.saund. 206, 85 Rag. Rep. 991 (1670). And, see also, Stubbs v. Lninson, I Meea. & W. 728, 150 Eng.Rep. 627 (1836); Cali­fornia: Richardson v. smith, 29 Cal. 529 (1866).
On the negative pregnant, see Jones v. Jones, 16 Moos. & W. e9B, 153 Eng.Bep. 1371 (1847); 31 Cyc. 203— 205 2 Standard Enc.Proc. Answers, 56—59.
31. Comyn, Digest, Pleader, 0. 16 (London, 1822).

English: Sir Francis Lelce’s Cnso, 3 Dyer 30-19. 73

Eng.Rep, 819 (1578). Goram V. Sweeting, 2 \Vms.

Saund. 205, 206a, n. 22, 85 Engflep. 991, 992 (1670);

Wood v. Eudden, Rob. 119, 80 EngRep. 269 (1610);

Tatem v. Perient, Yel. 195, 80 Eng.Rep. 128 (1610);

Webb v. Ross, 4 Hurl. & N. 111, 157 Eng.Rep. 778

(1859); Smith v. Dixon, 7 Adol. & B. 1, 112 Engitep.

371 (1837).

(1607).


Sec. 220

PLEAS—PEREMPTORY OR IN BAR

443


as of fee of B. close, adjoining to the place in which, etc.; that Sir F. L. was bound to re­pair the fence between B. close and the place in which, etc.; and that the cattle escaped through a defect of that fence. The defend­ant Traversed that the plaintiff was seised in his demesne as of fee of B. close, and on De­murrer the Court was of opinion that it was a Good Traverse; for, though a less estate than a seisin in fee would have been sufficient to sustain the plaintiff’s case, yet as the plain­tiff, who should best know what estate he had, had Pleaded a seisin in fee, his adversary was entitled to Traverse the Title so laid.35 Again, in an Action of Trespass for tres­passes committed in a close of pasture con­taining eight acres in the town of Tollard Royal, the defendant Pleaded that W., Earl of Salisbury, was seised in fee and of right of an ancient chase of deer called “Cranborn,” and that the said chase did extend itself as well in and through the said eight acres of pasture as in and through the said town of Toflard Royal, and Justified the trespasses as committed in using the said chase. The plaintiff Traversed that the said chase ex­tended itself as well to the eight acres as to the whole town; and, Issue being taken there­on, it was fried, and found for the plaintiff. It was then Moved, in Arrest of Judgment that this Issue and Verdict were faulty, “be­cause if the chase did extend to the eight acres only, it was enough for the defendant, and therefore the Finding of the Jury, that it did not extend as well to the whole town as to the eight acres, did not conclude against the defendants right in the eight acres, which was only in question. But it was answered by the Court, that there was no fault in the Issue, much less in the Verdict (which was according to the Issue); but the fault was in the defendants Plea that now takes the ex­ception, for he puts in his Plea more than he needed, scil., the whole town, which being

to his own disadvantage, and to the advantage of the plaintiff there was no reason for him to Demur upon it, but rather to admit it as he did, and so to put it in Issue. And so Judgment was given for the plaintiff.” 38


Traverse Too Narrow

A TRAVERSE must not be Too Narrow)1 Of a Traverse that is Too Narrow, the follow­ing is an example: In an Action of Assumpsit brought for a compensation for the plaintiff’s service as a hired servant, the plaintiff al­leged that he served from March 21, 1647, to November 1, 1664. The defendant Pleaded that the plaintiff continued in the service till December, 1658, and then voluntarily quitted the service, without this, that he served until November 1, 1664. This was a Bad Traverse; for, as the plaintiff in this Action for Dam­ages is entitled to compensation pro tanto for any period of service, it is obviously no answer to say that he did not serve the whole time alleged)’8 So a Traverse may be Too Narrow by being applied to Part Only of an Allegation which the Law considers as in its nature indivisible and entire; such as that of a prescription or grant. Thus, in an Action of Trespass for Breaking and Entering the plaintiff’s close, called S.C., and digging stones therein, the defendant Pleaded that there are certain wastes lying open to one an­other—one the close called S.C., and the other cafled S.G.—.and so proceeded to prescribe for the liberty of digging stones in both doses, and Justified the trespasses under that prescription. The Replication traversed the prescriptive right in B.C. only, dropping E.G.; but the Court held that the Traverse could


38. Wood v. Budden, Rob. 119, 80 Eng.Rep. 269 (1616).
37. Osborne v. Rogers, 1 Wms.Saund. 264, 289, n. 1,

85 Eng.Rep. 322, 325 (1670); Morewood v. Wood, 4 T.R. 157, 100 Eng,Rep. 948 (1791); Bradburn v. Ken­nerdale, Carth. 164, 90 Eng.Rep. 1196 (1688); Rich­ards v. Peake, 2 Barn. & C. 918, 107 Eng.Rop. 623 (1824).

35- Sir Francis Leke’s Case, 3 Dyer 364b, 73 Rng.Rep.

819 (1578),

38. Osborne v. Rogers, 1 Wrns.Snund. 264, 269, n. 1, 85

EngIlep. 322, 325 (1670),

444

DEFENSIVE PLEADINGS

CE 2~


not be so confined, and must be taken on the whole prescription as laid.39
NEGATIVES AND AFFHIMATIVES PREGNANT46
221. These are Statements of Fact, either in a Negative or Affirmative Form, which carry within them or imply within them material con­trary, Affirmative, or Negative Statements or Inferences in favor of the adverse party. Such a Statement renders the Pleading bad für Amhiguity.
THE doctrine of Negatives and Affirma­tives Pregnant appears most properly to ar­range itself under the head of ambiguity or evasiveness. The principle underlying the Rule against a Negative Pregnant has n.t been always dearly and satisfactorily ex­plained in the various treatises. This seems true even though the older cases reveal that the fault was a frequent ground of objection. Thus, as early as the year 1449, in the case which appeared in a Year Book,4’ in an action for negligently keeping a fire, by which plaintiff’s houses were burned, the defendant Pleaded that the plaintiff’s houses were not burned by the defendant’s negligence in keep­ing his fire; and it was objected that the Traverse was not good, as it had Two Intend­xnents,—one, that the houses were not burn­ed; the other, that they were burned, but
89. Morewoocl v. Wood, 4 TB. 157, 100 Eng.Rep. 948 (1791).
40- In general, on the subject of Negatives and At­firmatives Pregnant at Common Law, and under Modern Codes, Practice Acts and Rules of Court, see:
Treatises: Stephen, A Treatise on the Principles of Pleading In Civil Actions, c. IT, Of the Principal Rules of Pleading, § 5, pp. 335—337 (3d Am. ed. by Ty­ler, Washington, 3). C., 1900); Shiprnan, Handbook of Common-Law Pleading, e. xvir, General Rules Relating to Fleas, § 251 (3d ed. by Ballantine, St. Paul, 1923); Fonieroy, Code Remedies, c. IV, §~ 509— 514 (4th ed. by Bogle, Boston, 1904).
Comments: Rule of Negative Pregnant In Pleading Applies only to Averment of Material Facts, 83 Cent, U. 145 (1916); Pleading—NegatIve Pregnant, 18 Ky.L3. 394 (1930).
41. 28 Hen. VI, 7 (14-49).

not by negligent keeping of the fire; and so it was a Negative Pregnant. The same ground, that is, that of ambiguity, vQas taken in a case in the early part of the Reign of Edward Il (1307—1327) .~2 These two cases are believed to be the earliest authorities on the rule itself. And what is found in the later books on the subject tend to support the same view.


A Negative Pregnant, therefore, may be defined as such a form of Negative Expres­sion as may imply, or carry with it, an Af­firmative, or to put the matter in another way, it is a Specific Denial which apparently Denies a Material Allegation, but which in fact leaves an Affirmative Allegation stand­ing admitted, whereas an Affirmative Preg­nant is an Affirmative Allegation implying a Negative.43 To illustrate the Negative Pregnant, let us take two cases, one in which the issue is Immaterial and one in which the issue is Material. Suppose, in the first case, that 4 alleges that B went out into the rain without an umbrella, and then B Specifically Traverses or Denies that he went out into the rain without an umbrella. Has he denied that he went out into the rain? He has not. In
4~- 7 Edw. U, 213, 226 (1313).
42. Blachmore y. Tidderley, 2 Ld.Raym. 1099, 92 Eng Rep. 228 (1704); Macfadzen v, Olivant, 6 East 387, 102 Eng.Rep. 1335 (1805).
“Such a denial is one pregnant with the admission of the Substantial Fact which is apparently contro­verted; or In other words, one which, although in the Form of a Traverse, really admits the impor­tant fact contained In the Allegation

“Denials In the Forut of a Negative Pregnant arise (1) when the Allegation is of a Single Fact, with some qualifying or modifying circumstances, and the Traverse is in ipsis verbis, using exactly the same-language, and no more; (2) when the Allegation is of several distinct and separate facts or occurrences connected by the copulative conjunction, and the-traverse Is in ipsis verbis of the same facts and oe­eurreaces also connected by the same conjunction.” Curnow v Phoenix Ins. Co., 46 S-C. 70, 94,24 S.E. 74~ 77 (1896). Thus, If the defendant Is charged with taking a horse and a mule, a denial that lie took the horse and the mule Is a Negative Pregnant; Moser v. Jenkins, S Or. 447 (1875).

Sec. 221

PLEAS—PEREMPTORY OR IN BAR

445


this instance the Issue is ImmateriaL But suppose that A alleges that B struck him over the head with a hickory stick, and then that B Specifically Traverses or Denies that he struck A over the head with a hickory stick, Has B denied that he struck A? The answer is no, and in this case the defendant, by the Form of his Plea, has left Affirmatively Standing a Material Allegation, to wit, the striking.”
Such a Mode of Pleading was deemed faulty under the Rule that such an Ambigu­ous Form of Expression must be strictly construed against the Pleader. Thus, in the early case of Myn v. Cole,~~ in Trespass for Entering A’s house, B, the defendant, Plead­ed that the plaintiff’s daughter gave him a License to do so, and that he entered by that License. In the Replication A stated that he did not Enter by her License, This was considered as a Negative Pregnant. It will be observed that this Form of Traverse may imply, or carry within it, that a License was given, though the defendant, B, did not Enter by that License. It is, therefore, in the Lan­guage of Pleading, said to be Pregnant with that Admission, that is, that a License was given. At the same time, the License is not expressly admitted; and the effect, there­fore, is to leave it in doubt whether the plain­tiff means to Deny the License or to Deny that the defendant Entered by virtue of that License. It is this ambiguity which appears to constitute the fault.46
44- In Baker v. BaIley, 16 Barb. 54 (1852), under the New York Code of 1848, the administrators of A’s

estate alleged that B assaulted A on a certain day at a certain place, and that the assault caused the death of A. The answer, among other things, tra­versed or denied that .8 assaulted A, the decedent, on the day alleged. At the Trial, B offered evidence to prove that he never assaulted A at all. It was held that this Offer of Proof was inadmIssible under the Answer, as the Negative Pregnant admitted that the defendant made the assault alleged, but on a dif­ferent day.



45. Oro.Jac. 87, 79 Engtep. 75 (1605).

46. Stephen, A Treatise on the Principles of Pleading in Civil Actions, a II, Of the Principal Rules of

The following is another example: In Trespass for Assault and Battery, the de­fendant Justified, for that he, being master of a ship, commanded the plaintiff to do some service in the ship; which he refusing to do, the defendant Moderately Chastised him. - The plaintiff Traversed, with an Abs que Hoc, that the defendant Moderately Chastised him; and this Traverse was held to be a Negative Pregnant; for, while it apparently means to put in Issue only the question of Excess (Admitting, by Implica­tion, the Chastisement) it does not neces­sarily and distinctly make that Admission; and is, therefore, Ambiguous in its Form.4’ If the plaintiff had Replied that the defend­ant Immoderately Chastised him, the objec­tion would have been avoided; but the proper Form of Traverse would have been de injuria sua propi--la abs que aliqua tall cansa. This, by Traversing the whole “cause alleged,” would have distinctly put in Issue all the Facts in the Plea; and no Ambiguity or doubt as to the extent of the Denial would have arisen.


This Rule against a Negative Pregnant, it is said by Stephen, appears in modern times, at least, to have received no very strict con­struction. For many cases have occurred in which upon various grounds of distinction from the General Rule, that Form of Ex­pression has been held free from objection.

Thus, in Debt on a Bond, conditioned to per­form the covenants in an indenture of lease, one of which covenants was that the de­Pleading, § 5, 335 (3d Am. ed. by Tyler washington,

B. C. 1882); Blade v. Drake, Bob. 295, 296, 80 Eng. Rep. 439, 440 (1617), in which the Court declared:

“Therefore the Law refuseth Double Pleading, and Negative Pregnant, though they be true, because they do inveaglc, and not settle the Judgment upon one point.”


47. Aubery v. James, 1 Vent. 70, 86 Eng.Rep. 49

(1670); See, also: Utah: Rock Spring Coal Co. v.

Salt Lake Sanitarium Aas’n, 7 Utah 158, 25 P. 742

(1891); Federal: Ex Pane Wall, 107 U.S. 265, 2 S.

Ct. 560, 27 L,Ed. 552 (1882); Davis v. Green, 260

U.S. 349, 43 S.Ct. 123, 67 LEd. 290 (1922).

446

DEFENSIVE PLEADINGS



Ch. 22

fendant, the lessee, would not deliver pos­session to any but the lessor, or such persons as should lawfully evict him, the defendant Pleaded, that he did not deliver the posses­sion to any but such as lawfully evicted him. On Demurrer to this Plea, it was Objected that the same was ill, and a Negative Preg­nant, and that he ought to have said that such a one lawfully evicted him, to whom lie delivered the possession, or that he did not deliver the possession to any; but the Court held the Plea, as pursuing the words of the covenant, good, being in the Negative, and that the plaintiff ought to have Replied, and Assigned a Breach; and therefore Judgment was given against him.48


A Denial that a person “carelessly and negligently did an act” is not a Denial that he did the act, and a Denial that a person “negligently” failed to look out for danger, is not a Denial that he actually failed to do so.
“Material Facts alleged Conjunctively must be Denied Disjunctively.” ~ The de­nial must not be in a Form that raises an Issue of the literal truth of the Entire Allega­tion, without indicating whether it is claimed to be entirely or only partially false.
THE SPECIFIC OR COMMON TRAVERSE
222. The Specific or Common Traverse is an

Express Denial of a Particular Allegation in

the Opposing Pleading in the Terms of the

Allegation, accompanied by a Tender of Issue

Qt Formal Offer of the point Denied for Trial. OF the various kinds of Traverses, Spe­cific, Special or General, the most ordinary and the most natural and primitive Travers~ is the so-called “Common or Specific Trav­erse.” It consists of a Tender of Issue;

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