48. Pullilt v. Niurl~o1as, 1 Ley. S3, 53 Eng.itep, 300 (11662j.
49. White v. East Side Mill Cc., 81 Or, 107, 114, 155 P. 364 (1910), 158 P. 173, 174 (1916).
See, also, Comment: Rule of Negative Pregnant in Pleading Applies only to Averment of Material Pacts, 83 Cent.L,J. 143 (1910),
that is, of a Denial, accompanied by a Formal Offer of the point Denied for decision; and the Denial which it makes is in the Pleader’s Own Language and is by way of express contradiction in Terms of the Allegation Traversed—a point of considerable importance when we come to point out the danger of using the Specific Traverse. Such a Traverse or Denial, which for this purpose are synonymous terms, controverts a Single Specific and Material Allegation of the Pleading to which it is interposed.~°
The Function of a Specific Traverse
ITS use in a Plea is thus to Deny any Single One of the Allegations of the Declaration, the failure to prove which would destroy the plaintiff’s case, and where such Allegation would not be controverted by the General Issue in the particular action.
Thus, in an Action of Covenant on a lease for not repairing windows, a Specific or Common Traverse, would read as follows:
“And the said B, the defendant, by X, his Attorney, comes and defends the wrong and injury when, etc., and says that the said A ought not to have or maintain his aforesaid action against him, the said B, because he says that the windows of the said messuage or tenement were not in any part thereof ruinous, in decay, or out of repair, in the Manner and Form as the said A hath above complained against him, the said B. And of this he puts himself upon the country.”
It will be noticed that this Traverse is expressed in the Negative. This, however, is not invariably the case with a Specific or Common Traverse; for if it be opposed to a precedent Negative Allegation, it will, of course, be in the Affirmative. Thus, where
So. But see statement by Martin: ~The Plea must consist In the denial or traverse of one or more facts contained in the Declaration, without which the plaintiff would have no Cause of Action.” Civil Prooedure at Common Law, e. XI, Defences in Bar by way of Traverse, Article 1, § 257, p. 217 (St. Paul, 1905).
PLEAS—PEREMPTORY OR IN BAR
in Special Assumpsit, the defendant Pleads the Statute of Limitations, saying in his Plea “that he, the said B, did not, at any time within six years next before the Commencement of this Suit, Undertake or Promise in the Manner and Form as the said A hath above complained,” etc., the plaintiff’s Replication Traversing the Plea would be in the Affirmative, thus: “And the said A says that, by reason of anything in said Plea alleged, he ought not to be barred from having and maintaining his aforesaid action against the said B, because he says that the said B did, within six years next before the Commencement of this Suit, Undertake and Promise,” etc.
The Danger of Using the Specific Traverse
IN Pleading a Specific or Common Traverse, the Pleader was in grave danger of running into either an Argumentative Denial or a Negative Pregnant.
First, as to the Argumentative Denial:
An example is found in the famous case of Gibbons v. Pepper,51 where the plaintiff brought Trespass for Assault and Battery, to which the defendant Pleaded that he rode his horse upon the highway, his horse became frightened and ran away with him, and he couldn’t stop it; that he called to plaintiff to take care, the plaintiff did not get out of the way, and the horse ran over plaintiff against the will of the defendant. The plaintiff demurred to this Plea, and the Court gave judgment for plaintiff. It may not be considered a proper Plea in Confession and Avoidance, as it did not confess a trespass by defendant and then justify it, but rather alleged, hi effect, that the wrong was committed by the horse. Thus, it could be considered an Argumentative Plea, as there are two affirmatives, the Allegation by the plaintiff of an act done by defendant, and defendSt. ~ Ld.Itaym. 38, 91 Eng.1tep. 922 (1695).
ant’s Plea that this Act was done by the horse. And, the General Rule is that Two Affirmatives do not make a good Negative.
Second, as to the Negative Pregnant: A Negative Pregnant is a Plea which apparently traverses a Material Allegation in the Opponent’s Pleading, but which Affirmatively leaves a Material Allegation standing Admitted, under the theory that whatever is not Denied at the next Succeeding Stage of Pleading stands Admitted. Two examples, previously mentioned, will illustrate the point. A alleges that B went out into the rain without an umbrella. 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? Certainly not. But in this instance the Issue is Immateriai. Now, take a case where the Denial is material. A alleges that B struck him over the head with a hickory stick. B specifically Traverses or Denies that he struck A over the head With a hickory stick. Has he Denied the striking? Certainly not, and this time the Admitted Fact is Material, as that is the Fact which counts in an Action of Trespass for Assault and Battery. Thus, the danger of a defendant running into either an Argumentative Denial or a Negative Pregnant, had a tendency to discourage the use of the Specific Traverse—a procedure which it has been the aim of Modern Pleading to
TILE SPECIAL TRAVERSE
223. The design of a Special Traverse, as distinguished from a Specific or Common Traverse, and the General Issue, is to explain or set forth the Grounds of the Denial. The matter set up in the Inducement must be such as amounts to a sufficient answer to the Declaration. The essential parts are:
(a) The Inducement.
(b) The Denial.
Kottler & Peppy Com.taw PTdg. HB.—16
(c) The Verification.
(I) The Inducement in a Special Traverse is that Part which consists of an Affirmative Statement, Introductory to or Explanatory of the Denial; in itself it is an Argumentative or Indirect Denial; it must in itself amount to a sufficient Answer in Substance to the Opposing Pleading; and it must not consist of a Direct Denial, nor be in the Nature of a Confession and Avoidance.
The sufficiency of the Affirmation stated by way of Inducement to constitute a Defense may be tested by Demurrer.
The Inducement cannot be Traversed unless the denial under the “Absque hoc” clause is bad, for it is a Rule that there can be no Traverse upon a Traverse, unless the first one is bad; nor, subject to the same Exception, can it be answered in Confession and Avoidance.
(II) The Denial in a Special Traverse is in the Direct Form pursuing the words of the Allegation Traversed; its Form is by the use of the words “Absque Roe” (without this), that, etc.
(III) The Special Traverse does not Tender Issue, but concludes with a Verification, thus: “And this the said
is ready to Verify.”
(IV) Where a Special Traverse is sufficient, the Other Party must Tender Issue, t0 be accepted by the Patty Traversing.
The Essential Requisites of the Special Traverse
THE Special Traverse had to satisfy Three Requirements as to Form; it consisted of:
First, an Inducement containing an Affrrnative Statement of New Matter, which constituted an Indirect Denial of some Material Allegation in the Pleading to which it was interposed;
Second, the Absque Hoc clause, constituting a Direct Denial of the Same Material Allegation and in the Same Language in which ft is made; and
Third, the Conclusion in which the Party Pleading stated that he was ready to establish the truth of the matters set forth in his Plea, and which went by the name of Averment or Verification.
The foregoing requisites were essential in order for a Special Traverse to be Good as to Form. It was also required that the Indirect Denial contained in the Affirmative Statement by Way of Inducement and the Direct Denial in the Abs que Hoc Clause, should relate to the same matter in the Adverse Pleading, according to Gould.65 It may be observed that it was only a logical conclusion, from the very nature of a Special Traverse, that the Direct Denial of the Abs que Hoc Clause was always a Negative Averment, which necessarily required the Party Pleading to it to do so by repeating his Affirmative Averment and Tendering Issue therein.53
Distinguished from the Specific Traverse— Effect
ThE Traverse known more commonly as the Special Traverse differs from the Specific or Common Traverse, in that it is a Denial, preceded by Introductory Affirmative Matter, of Material Opposing Allegations; and, unlike the other Forms of Traverse, it does not Tender Issue, but Concludes with a Verification.5’
52. Gould, A Treatise oa the Principles of Pleading, Part III, Of Pleading, Div. V, Of Pleas to the Action, e. III, Of Traverse, 537, 541, M2 (6111 etl. by Will, Albany, 1909).
63 Id. at 541.
~4. An to the form of Traverse, see: English: Brud~ nell v. Roberts, 2 WIIsX.B. 143, 95 Eng.Bep. 732 (1702); Palmer v. Ekius, 2 Ld.Raym. 1550, 92 Eng. Bep. 505 (1728); Blake v. Foster, 8 ~.B. 487, 101 Eng.Rep. 1505 (IS®); Delaware: Thomas v. Black, S Houst. (Del.) 507, 18 A. 771 (1889); IllinoIs: Wilcox v. Klnzle, 3 Scam. (IlL) 218 (1841); People cx ret. Maloney -v. Pullman’s Palace Car Co., 175 Ifi. 125, 135, 51 N.E. €64, 64. LBS. 366 (18~S); New
Hampshire: Breck v. Blanehard, 20 N.H. 323, 51
.Am.Dee. 222 (1850).
PLEAS—PEREMPTORY OR iN BAR
While it was not ordinarily allowed to Plead Argumentatively what amounted to the General Issue, yet if the defendant were desirous of raising a Question of Law, and referring it to the Court rather than to the Jury, he was allowed, by this curious hybrid Plea known as the Special Traverse, to make an Argumentative Denial. The Inducement to the Traverse discloses the real nature of the Party’s Case and shows the Grounds upon which the Denial proceeds. The Plea Concludes with a Direct Denial under the Abs que 11cc Clause and an offer to Verify.
(I) The EpeciaZ Traverse—Normal Form.
—An illustration of how such a Traverse, in its Normal Form, operates will help to make the matter clear. Let us assume that A, the heir of a lessor, L, brought an Action of Debt against B, the lessee, on a covenant to pay rent, the Declaration alleging that the plaintiff’s ancestor, L, was seised in fee of the land; that L demised the land to the defendant B, for a certain term of years; that the defendant, B, covenanted to pay a certain rent; that L, the ancestor of the plaintiff died, that the reversion descended to A, the plaintiff; and that the rent became due from B, the defendant, to A, the plaintiff.
Suppose that B, the defendant, opposes the alleged liability, as set forth in the Declaration, by saying “that, after the making of the said indenture, the said reversion of the said premises did not belong to the said L, the plaintiff A’s ancestor, and his heirs in the Manner and Form as the said A hath in his said Declaration alleged. And of this the said B puts himself upon the country.” This is a Specific or Common Traverse.
Suppose, however, that instead of using a Specific Traverse, the defendant B pleads that the plaintiff, A, ought not to maintain his action “because he says that L, the plaintiff’s ancestor, now deceased, at the time of the making of the said indenture, was seized in his demesne as of a freehold, for the term of his natural life, of and In the said demised
premises, and continued so seized thereof until and at the time of his death; and that, after the making of the said indenture, and before the expiration of the said term, to wit,
onthe dayof ,A.D.
at aforesaid, the said L died; where
upon the term created by the said indenture wholly ceased and determined; Without this, that after the making of the said indenture, the reversion of the said demised premises belonging to the said L and his heirs in the Manner and Form as the said A hath in his said Declaration alleged. And this the said B is ready to verify. Wherefore he Prays Judgment if the said A ought to have or maintain his aforesaid action against him.”
• The Substance of this Plea is that the plain~ tiff’s ancestor, L, was seized for life only, and therefore that the term terminated at his death, which involves a Denial of the Allegation in the Declaration that the reversion belonged to the father in fee. The defendant’s course was therefore to Traverse the Declaration. Instead of doing so in the Common Form (by using the Specific or Common Traverse), he has adopted the Special Form (the Special Traverse), first setting out the New Affirmative Matter, that the plaintiff’s ancestor, L, was seized for life, etc., and then annexing to this the Denial that the reversion belonged to him and his heirs by that peculiar formula: “Without this, that,” etc.
The Special Traverse does not, like the Specific or Common Traverse, Tender Issue, but Concluded, prior to the Hilary Rules in 1834, with the words: “And this the said B is ready to Verify, wherefore he Prays Judgment,” etc., which is called a “Verification” and ‘Prayer of Judgment,” and is the constant Conclusion of all Pleadings in which Issue is not Tendered.55 The Affirmative
65. There never was, apparently, any good reason for concluding this Plea with a verification, thus postponing the tender of the Issue. By the Hilary Rules In 1834, such a Plea was required to conclude to the country; that is, to tender Issue. Martin, Civil Procedure at Common Law, c. XI, Defences in Bar by
Part of the Traverse—that is, the part which sets forth the New Matter—is called its “Inducement”; the Negative Part is called the “Absque Hoc Clause”; those being the Latin words formerly used, and from which the modern expression, “without this,” is translated.56 These different parts and properties are all essential to a Special Traverse, which must always thus consist of an Inducement, a Denial, and a Verification; that is, prior to the Hilary Rules.
The Regular Method of Pleading in answer to a Special Traverse was to Tender Issue upon it, with a repetition of the Allegation Traversed. Thus, to the Plea heretofore given by way of illustration, the Replication would read:
“And, as to the said Plea by the said B above Pleaded, the said A. says that by reason of anything therein alleged he ought not to be barred from having and maintaining his aforesaid action against the said B, because the said A says that after the making of the said indenture the reversion of the said demised premises belonged to the said L and his heirs, in the Manner and Form as the said A hath in his said Declaration above alleged. And this he Prays may be inquired of by the country.”
The effect, therefore, of a Special Traverse, is, as in Replevin where the defendant Pleads an Avowry, to postpone the Issue to One Stage of the Pleading later than would be attained by a Specific or Common Traverse, for if the defendant should Deny in the Common Form without an Inducement, and Conclude to the Country, it would only remain
Way of Traverse, § 286, Conclusion of Special Traverse, 243, 244 (St. Paul, 1905).
~6. The denial may be introduced by other forms of
expression besides abaqite koc. Et non will suffice.
Bennet v. J4’Ilkins, 1 Wms.Saund. 20, 85 Eng.Rep. 20
(1666); Walters v. Hodges, Lut. 1625, 125 Eng.Ilep.
for the plaintiff to add the Similiter, and Issue would therefore be Joined, whereas, on a Special Traverse, the Issue is Not Tendered until the Next Pleading.
(II) The Special Traverse—Abnormal Form,~—Once established as a recognized part of the Common Law System of Pleading, the Special Traverse grew in favor. As a result of this development it was adopted in cases where the original reasons for such a Form of Pleading were inapplicable, as in cases where the Inducement included No New Explanatory Matter, but consisted in a mere repetition of the Original Declaration.57 Thus, for example, in cases of assault, where the defendant Justified his act under a Warrant of Arrest, the plaintiff was permitted to Reply that the defendant of his own wrong, made the assault, without this,—that he had any Warrant of Arrest to justify his act.
Although this Form of the Special Traverse was Abnormal and a manifest departure from the General Requirements of a Special Traverse as defined by the leading authorities, it nevertheless received the approval of the Courts~ As, however, it was used only occasionally, it has in Modern Times been largely superseded by the Specific or Common Traverse.
Form of Declaration and Special Traverse
AS the Special Traverse was and is one
of the most technical Pleas known to the Common Law, its Character and Scope may appear more clearly from a study of its form. Accordingly, a Form of a Declaration, to
57. Stephen, A Treatise on the Principles of Pieading in Civil Actions, c. II, Of the Principal Rules of Pleading, § 1, p. 186 (3d ed. by Tyler, Washington, P. C. 1882).
58. See Martin, civil Procedure at Common Law, e. xr, Defences In Bar by Way of Traverse, 285, Special traverse—Abnormal Form, 242 (5t. Paul, 1905), citing as authority the ease of Stennel v. Hogg, I Wms.Saund. 223, 85 Eng.Rcp. 240 (1669),
PLEAS—PEREMPTORY OR IN BAR
gether with a Special Traverse, are included below:
FonM OF DECLARATION
IN THE KING’S BENCH,
Term, in the ~. year of the reign of King George the Fourth.
C.D. was summoned to answer A.B., son and heir of ES., his late father, deceased, of a plea that he keep with the said AS.
the covenant made by the said CD. with the said ER., according to the force, form, and effect of a certain indenture in that behalf made between them. And thereupon the said A.B., by __, his attorney, complains: For that whereas, the said MB., at the time of making the indenture hereinafter mentioned, was seised in his demesne as of fee of and in the premises hereinafter mentioned to be demised to the said Cii; and, being so seised, he, the said ES., in his life
time, to wit, on the day of ______
in the year of our Lord , at ______
in the county of , by a certain in-denture then and there made between the said ES. of the one part and the said CD. of the other part (one part of which said indenture, sealed with the seal of the said C. D., the said AS. now brings here into court, the date whereof is the day and year aforesaid), for the considerations therein mentioned, did demise, lease, set, and to farm let, unto the said CD., his executors, administrators and assigns, a certain messuage, or dwelling house, with the appurtenances, situate at , to have and to hold the same unto the said C.D., his executors, administrators, and assigns, from the
day of _______ then last past to the fi.ill end and term of years thence next ensuing, and fully to be complete and ended, yielding and paying therefor yearly and every year, to the said ES., his heirs or assigns, the clear yearly rent or sum of
dollars, payable quarterly, at the four most usual feasts or days of payment of rent in
the year; that is to say, on the 25th day of March, the 24th day of June, the 29th day of September, and the 25th day of December, in each and every year, in equal portions. And the said CM. did thereby, for himself, his executors, administrators, and assigns, covenant, promise, and agree, to and with the said ES., his heirs and assigns, that he, the said C.D., his executors, administrators, or assigns should and would well and truly pay, or cause to be paid to the said ES., his heirs or assigns, the said yearly rent or sum of Dollars, at the several day and times aforesaid, as by the said indenture, reference being thereunto had, will more fully appear. By virtue of which said demise, the said LID, afterwards, to wit, on the
entered into the said premises, and was thereof possessed for the said term, the reversion thereof belonging to the said E.B. and his heirs. And he, the said C-D, being so possessed, and the said E.B. being so seised of the said reversion in his demesne as of fee, he, the said E.B., afterwards, to wit, on the
day of , in the year aforesaid, at , aforesaid, in the county aforesaid, died so seised of the said reversion; after whose decease the said reversion descended to the said AS., as son and heir of the said E.&; whereby the said AS. was seised of the reversion of the said demised premises in his demesne as of fee. And the said A.E. in fact says that he, the said A.Th, being so seised, and the said C.D. being so possessed as aforesaid, afterwards, and during the said term, to wit, on the ______
dayof ,A.D. ,at ,in
the county of , a large sum of money,
to wit, the sum of dollars, of the
rent aforesaid, for divers, to wit, years of the said term then elapsed, became and was due and owing, and still is in arrear and unpaid, to the said A.B., contrary to the form and effect of the said covenant in that behalf. And so the said AS. in fact
saith that the said C.D. (although often requested) hath not kept his said covenant in that behalf, but hath broken the same, and to keep the same hath hitherto wholly refused, and still refuses, to the damage of the said AS. of dollars; and therefore he brings his suit, etc.
SHIPMAN, Handbook of Common-Law Pleading, 346 (3d ed. by Ballantine, St. Paul 1923).
The following Plea would be a Special
FoRM OF SPECIAL TRAVERSE
IN flIE KBcG’s BENCH,
Term, in the year of the reign of King George the Fourth.
And the said CD., by , his attorney, comes and defends the wrong and injury, when, etc.; and says that the said AS. ought not to have or maintain his aforesaid action against him, because he says that the said ES., deceased, at the time of the making of the said indenture, was seised in his demesne as of freehold, for the term of his natural life, of and in the said demised premises, with the appurtenances, and continued so seised thereof until and at the time of his death; and that, after the making of the said indenture and before the expiration of the said term, to wit, on the day of
A.D, , at , aforesaid,
the said ES. died; whereupon the term created by the said indenture wholly ceased and determined. Without this, that after the making of the said indenture, the reversion of the said demised premises belonged to the said E.B. and his heirs, in manner and form as the said A.B. hath in his said declaration alleged; and this the said Cii is ready to verify. Wherefore he prays judgment if the said A.B, ought to have or maintain his aforesaid action against him.
SHIPMAN, Handbook of Common-Law Pleading, 347 (3d ed. by Ballantine, St. Paul 1923).
The Use and Object of the Special Traverse
OBSERVING that “it is remarkable
- . that no author should have hitherto offered any explanation of the objects for which it [the Special Traverse] was originally devised, and in a view to which it continues to be, in some cases, adopted,” 50 Stephen declares that the general design of a Special Traverse, as distinguished from a Specific or Common Traverse, is to explain or qualify the Denial, instead of putting it in the Direct Form; and there were several different factual situations, in reference to which the Ancient Pleaders seemed to have thought it necessary to adopt this Form of Pleading. 60
(I) Where the Defendant is Estopped by Some Rule of Law from Making a Direct and Positive Denial,—In some factual situations as presented in a Declaration, a Direct Denial may be regarded as inappropriate by reason of its opposition to some General Rule of Law. Thus, in the example of a Special Traverse above discussed, it was improper to Traverse in the Specific or Common form, viz., “that after the making of the said indenture the reversion of the said demised premises did not belong to the said L and his heirs,” &c., because, by a Rule of Law, a tenant is precluded, or in the Language of Pleading, Estopped from Alleging that his lessor, Ii, had no title in the premises demised; and a general assertion that the reversion did not belong to him and his heirs would appear to be prohibited by the same Rule. A tenant, however, is not by law
~0. A Treatise on the Principles of Pleading in Civil Actions, c. II, Of the Principal Rules of Pleading,
* 1, p. 180 (34 ed. by Tyler, Washington, ii 0. 1882).
60. Id. at 180, :190.