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Sec. 223

PLEAS—PEREMPTORY OR IN BAR

45~


Estopped to say that his lessor had only a particular estate, which has since expired.°1
In a case, therefore, in which the Declara­tion alleged a seisin in fee in 1,, the lessor, and the nature of the Defense was that he had a particular estate only, namely, an estate for life, since expired, the Pleader would resort, as in the example, to a Special Traverse, setting forth the lessor’s limited title, by Way of Inducement, and Traversing his seisin of the reversion in fee under the Absque Hoc Clause By such a course the defendant is thus enabled to avoid an objec­tion that might otherwise arise on the ground of Estoppel.
(U) Where the Defendant Desires to Avoid an Issue of Pact as on a Specific or Common Traverse in Favor of Developing and Submitting Some Aspect of the Con. troversy to the Judgment of the Court as an Issue in Law.—In some factual situations it may be inexpedient to submit the Issue involved as an Issue of Fact as on a Specific Traverse; it may be more propitious to sub­mit to the question involved to the Judgment of the Court as an Issue in law. There may be many reasons why it might be desirable that, without going to Trial, a litigant bring a question before the Court for determination in the first instance, and for that purpose an Issue of Law should be raised. In such a case, therefore, the Pleader would state the circumstances of the transaction in an In­ducement, substituting a Special for a Spe­cific Traverse. The facts thus alleged by Way of Inducement are not subject to Tra­verse, but may be Demurred to as insufficient in Law to contradict the Declaration. This operates to submit the case to the Court on the Law without the intervention of a Jury.62
•‘. Blake v, Foster, 5 T.R. 487, 101 EngRep. 1505 (1800).
$2, If the lncli.icejnent Is lnstjmcient In Law to show

* Defense, the entire Plea is bad on a General Do­Thurrer. People er rel. Maloney v. Pullman’s Palace



(UI) The Abs que Hoc Clause and the Con­clusion with a Veriftcation.—Although these reasons seem to show the purpose of the Inducement, they do not account for the Two Other Distinctive Features of the Spe­cial Traverse, viz., the .etbsque hoc Clause and the Conclusion with a Verification. For it will naturally suggest itself that the Af­firmative Matter, in each of the above cases, might have been Pleaded per se, without the addition of the Absque Hoc Clause. So,. whether the Abs que Hoc were added or not,. the Pleading, consistently with any of the above reasons, might have Tendered Issue, like a Specific or Common Traverse, instead of Concluding with a Verification.
These latter Forms were dictated by other principles. The Direct denial, under the Abs que Hoc Clause, was made necessary by this consideration: that the Affirmative Matter, taken alone, would constitute only an Indirect, or as it is called in Pleading, an Argumentative Denial of the precedent statement; and under the Rule that Plead­ings must be Direct and not Argumentative, all Argumentative Pleading is prohibited. In order, therefore, to avoid the Defect in Form of Argumentativeness, the course adopted was to follow up the Explanatory, Affirma­tive Statement of Matter by Way of Induce­ment with a Direct Denial.62
With respect to the Verification, this Con­clusion was adopted in a Special Traverse, with a view to Another Rule, to the effect that wherever New Matter is introduced int~ a Pleading it is improper to Tender Issue, hence the Conclusion must consequently close with a Verification. The Inducement setting forth new matter makes a Verifica­Car Co., 175 III. 12~, 51 N.E. 6&4, 04 LEA. ~0C

(1898).
63. 3 Beeves, History or the English Lan’, e. XXIII, Of Pleading, 584 (Edited by Pinluson, Philadelphia, 1880); LB. 10 lien. VI, 7, pl. 21 (1432); Courtucy v~ Phelps, 1 SkI. 301, 82 Eng.Rep. 1119 (1664); Her­ring v. ljlaclldow, Cro.Dliz. 30, 78 Eng.Rep. 205 (15s3X

454

DEFENSIVE PLEADINGS

Ch. 22


tion necessary, in conformity with that rule.64
The Thiles for Determining the Sufficiency of a Special Ti-averse

THERE were, according to Martin ~ Three Well Established Rules for determin­ing the sufficiency of a Special Traverse as heretofore defined and described.


The first rule was that the Inducement

in a Special Traverse must be such as in itself amounts to a sufficient Answer in Substance to the Last Pleading. As we have seen, it is the object of the Inducement to give an explained or qualified Denial; that is, to state such circumstances as tend to show that the Last Pleading is not true, the Abs que Hoc being added merely to put that Denial in a Positive Form, which previ­ously had been made in an Indirect Form. Now, an Indirect Denial amounted, in Sub­stance, to an Answer, without the aid of the Absque Hoc Clause, and despite the fact that it was Argumentative in Form. It fol­lows, therefore, that an Inducement, when properly framed, must always in itself con­tain, without the aid of the Abs qua Hoc Clause, an Answer, in Substance to the Last Pleading.~ Thus, in our example above, the Allegation that L was seised for life, and


64. But see Mactin, Civil Procedure at Common Law,

c. XI, Defences in Bar by Way of Traverse, Art. IV, Special Traverse, 286 Conclusion Thereof, 243 (St. Paul, 1005); Gould, A Treatise on the Principles of Pleading, Part III, Of Pleading, Div. II, Rules Ap­plicable to Pleading in General, ~. II, Miscellaneous

Rules: VerificatIon, 323, 324 (6th ed, by Will, Al­bany, 1909).
65. civil Procedure at common Law’, c. XI, Defences in Bar by Way of Traverse, Art. iv, Special Trav­erse, § 284, Rules for Determining the Sufficiency Thereof, 241, 242, (St. Paul, 1905).
66. Comyns, Digest of the Laws of England, “Plead­er,” 0. 20 (New York, 1825); English: Pile v. Ricks,

Cro.Car. 336, 79 Eng.Rep. 893 (1632); Thorn V.

Shering, Cro.Car. 586, ‘TO Eng.Itep. 1104 (1630);

Anonymous, 3 Salk. 353, 01 Eng.Rep. 868 (1007);

Connecticut; 1?owler V. Clark, 3 Day (Conn.) 231

(1808); New York: Van Ness v. Hamilton, 10 Johns.

(N.Y.) 371 (1822).

that estate is since determined, is in itself and in Substance, a Sufficient Answer, as Denying, by Implication, that the fee de­scended from L, the lessor, to A, the Plaintiff.

The second Rule, which followed from the same consideration, as to the object and

use of a Special Traverse, was that the An­swer given by the Inducement could be of no other nature than that of an Indirect Denial; the Inducement was bad if it con­sisted of a Direct Denial.°’ Thus, the plain­tiff being bound by Recognizance to pay one X £300 in six years, by £50 per annum, at a certain place, alleged that he was ready every day at that place to have paid to X one of the said installments of £50, but that X was not there to receive it. To this the defendant Pleaded that X was ready at the place to receive the £50, Abs que hoc, that the plaintiff was there ready to have paid it. The plaintiff Demurred on the ground that the Inducement alleging X to have been at the place ready to receive contained a Direct Denial of the plaintiff’s precedent al­legation that X was not there, and should therefore have Concluded to the Country, without the Abs qua Hoc Clause, and Judg­ment was given accordingly for the plain­tiff.6~


The third rule was that the answer given by the Inducement must not be in the Nature of a Plea in Confession and Avoidance.69 Thus, if the defendant, B, makes title as the assignee of a term of years of X, and the plaintiff, A, in answer to this, claims under a prior assignment to himself from X of the same term, this is a Confession and Avoid­ance; for it admits the assignment to the
67. Stephen, A Treatise on the Principles of Pleading in Civil Actions, e. II, Of the Principal Rules of Pleading, 1, p. 196 (3d ed. by Tyler, Washington DC. 1882).
68. Hughes v. Phillips, Yelv. 3$, SO Eng.flep. 28 (1603).
69, Comyns, Digest of tIle Laws of England, “Plead-Cr” 0. 3 (New York, 1825); Lambert v. Coolr, I Lii. itayns 238, 91 Eng.Rep. 1055 (1697); Huller v. Why-tier, Cro,Eliz. 650, 78 Eng.Rep, 889 (1599).

Sec. 223

PLEAS—PEREMPTORY OR IN BAR

455


defendant, B, but seeks to avoid its effect, by showing the prior assignment. Therefore, if the plaintiff, A, Pleads such assignment to himself by Way of Inducement, adding, under an Absque Hoc, a Denial that X as­signed to the defendant, this Special Traverse is bad. The plaintiff should Plead the as­signment to himself as in Confession and Avoidance, without the Traverse.
Still a fourth Rule may be added, which Martin ‘° says was more distinctively a Rule of Practice, resulting from the Nature of an Inducement. The Rule was that with re­spect to Special Traverses, the Opposite Party has no right to Traverse an Induce­ment, or, as the Rule is more commonly ex­pressed, there could be no Traverse upon a Traverses’ Thus, in the example given above, if the Replication, instead of reaffirm­ing the matter denied in the Absque Hoc Clause, had Traversed the Inducement ei­ther in the Special or Common form, deny­ing that L, the lessor, at the time of making the indenture, was seised in his demesne as of freehold for the term of his natural life, etc., such Replication would have been bad, as containing a Traverse upon a Traverse, The reason for the Rule is both Formal and Technical.72 By the first Traverse a matter

is denied by one of the parties which had been alleged by the other, and which, having
19. civil Procedure at Common Law, C. XI, Defences in Bar by Way of Traverse, Art. IV, Special Tra­verse, § 284, Rules for Determining the Sufficiency Thereof, 242 (St. Paul, 1905).
11. Comyns, Digest of the Laws of England, “Plead­er” 0. 17 (New York, 1825); EnglisIi~ Anonymous, 3 Salk. 353, 91 Eng.ltep. 868 (1697); King v. Bishop of Worcester, vaughan 62, 124 Eng.Rep. 967 (1669); Dighy ‘v. Pitzharbert, Bob. 104, 80 Eng.Rep. 253 (1615); Thorn v. Shering, Cro.Car. 586, 79 Eng.Itep. 1104 (1639); Illinois: People v. Central Union Tel. co., 232 III. 260, 83 N.E. 829 (1908); People v. Strawn, 265 111. 292, 106 N.E. 840 (1914); Massa­chusetts: Gerrish v. Train, 3 Pick. (Mass.) 124 (1825); New York; Presser v, Woodwurd. 21 Wend, (N.Y.) 205 (1839),

once alleged it, the latter is bound to main­tain, instead of prolonging the Series of the Pleadings and retarding the Issue by re­sorting to a new Traverse.


This Rule is, however, open to an im­portant Exception, viz., that there may be a Traverse upon a Traverse when the first is a bad one, or, in other words, if the Denial under the Abs que Hoc of the first Traverse be Insufficient in Law, it may be passed by, and a new Traverse taken on the Induce­ment.73 Thus, in an Action of Prohibition, the plaintiff declared he was elected and admitted as one of the Common Council of the City of London, but that the defendants delivered a Petition to the Court of Com­mon Council, complaining of an undue elec­tion, and suggesting that they themselves were chosen; whereas (the plaintiff alleged) the Common Council had No Jurisdiction to examine the validity of such an election, but the same belonged to the Court of the Mayor and Aldermen. The defendants Pleaded that the Common Council, time out of mind, had authority to determine the election of Com­mon Councilmen; and that the defendants being duly elected the plaintiff intruded him­self into the office; whereupon the defend­ants delivered their Petition to the Common Council, complaining of an undue election; without this, that the Jurisdiction to examine the validity ofsuch election belonged to the Court of Mayor and Aldermen. The plain­tiff Replied by Traversing the Inducement; that is, he Pleaded that the Common Council had not authority to determine the election of Common Councilmen, Concluding to the Country. To this the defendants Demurred, and the Court adjudged that the first Trav­erse was bad, because the question in this
13. Cornyns, Digest of the Laws of England, “Plead­er,” G. 18, 19 (New York, 1825); English; Thrale v. Bishop of London, I BIll. 377, 126 Eng.ltep. 221 (1790); Richardson ;- . Mayor & Commrnrnlty of Or-ford, 2 111.11. 186, 126 Eng.Ilep. 498 (1703); Crosse v. Hunt, Carth. 99, 90 Eug.Rop. 662 (lOSS); Rex v. Bolton, I Str. 117, 93 Eng,Itep, 421 (1718),

72. People v. Central Union Tel. co., 232 Ill. 260, 83

N.E. 829 (1908).

456

DEFENSIVE PLEADINGS

CIt 22

Action of Prohibition was not whether the Court of Mayor and Aldermen had Juris­diction, but whether the Common Council had; and that, the first Traverse being Im­material, the second was well taken.
As the Inducement cannot, when the De­nial, under the Absque Hoc, is Sufficient in Law, be Traversed, so, for the same reasons, it cannot be answered by a Pleading in Con­fession and Avoidance. But, on the other hand, if the Denial be insufficient in Law, the Opposite Party has then a right to Plead in Confession and Avoidance of the Induce­ment, or (according to the nature of the case) to Traverse it; or he may Demur to the whole Traverse for the Insufficiency of the Denial.
As the Inducement of a Special Traverse, when the Denial under the .ttbsque Hoc is sufficient, can neither be Traversed nor Con­fessed and Avoided, it follows that there is, in that case, no Manner of Pleading to the Inducement. The only way, therefore, of answering a good Special Traverse Is to Plead to the Abs que Hoc, which is done by Tendering Issue on such denial. But, though there can be no Pleading to an Inducement, when the Denial under the Abs que Hoc is sufficient, yet the Inducement may be open, in that case, to Exception in Point of Law. If it be faulty in any respect, as, for example, in not containing a Sufficient Answer in Sub­stance, or in giving an Answer by Way of Direct Denial, or by way of Confession and Avoidance, the Opposite Party may Demur to the whole Traverse, though the Abs que Hoc be good, for this insufficiency in the Inducement.
The Use of the Special Traverse at the Present Time

HAVING explained the Form, the Effect, and the Use and Object of a Special Traverse, it remains to show in what cases this Method .01 Pleading is or ought to be applied at the present day. First, it is observed by Stephen,



that this Form was at no period applicable to every case of Denial, at the pleasure of the Pleader. There are many cases of Denial to which the plea of Special Traverse has never been applied, and which have always been and still are the subjects of Traverse in the Common Form exclusively.14 These it is not easy to enumerate or define; they are determined by the course of precedent, and in that way become known to the prac­titioner. On the other hand, in many cases where the Special Traverse used anciently to occur, it is now no longer practiced. Even when the formula was most in repute, the use of this species does not appear to have been regarded as matter of necessity; and, in cases which admit or require no Allega­tion of New Matter, we find the Special and the Common Traverse to have been indiffer­ently used by the Pleaders of those days. But in Modern Times the Special Traverse, without an Inducement of New Matter, has been considered, not only as unnecessary, but as frequently improper. As the taste in Pleading gradually simplified and im­proved, the prolix and dilatory effect of a Special Traverse brought it into disfavor with the Courts; and they began, not only to enforce the doctrine that the Common Form might allowably be substituted in cases where there was No Inducement of New Matter, but often intimated their preference of that Form to the other.75
There is a tactical disadvantage to the Pleader, in the use of the Special Traverse, that the Inducement tends to open the real nature of the party’s case, by giving notice to his adversary of the precise grounds on which the Denial proceeds, and thus facilitates to the latter the preparation of his Proofs, or enables him to test the Grounds of Defense by Demurrer. And even though the case be
74. Borne v. Lewin, I Lditaym. 041, 91 Eng.Rep.

1328 (1700).


7th RobInson v. I4aley, I Burr. 320, 97 Ellg.Itop. 330 (3757).

Sec. 224

PLEAS—PEREMPTORY OR IN BAR

457


such as would admit of an Inducement of New Matter explanatory of the Denial, the usual course is to omit any such Inducement, and to make the Denial in an Absolute Form, with a Tender of Issue; thus substituting the Common for the Special Formula. The latter, however, appears to be still allow­able when the case is such as admits of an Inducement of New Matter, except in certain instances to which, by the course of precedent, the Common Form of Traverse has always been exclusively applied. And, where allowable, it should still be occasion­ally adopted, in a view to the various grounds of necessity or convenience by which it was originally suggested.
TUE GENERAL ISSUE—ITS

NATURE AND USE
224. The General issue is a Denial of the

Legal Conclusion sought to be drawn from the Declaration.


It Denies by a General Form of expression the defendant’s liability, and enables the de­fendant to contest, without Specific Averments of the Defense to be asserted, most of the Al­legations which the plaintiff may be required to prove in order to sustain his action, and in some actions to raise also various Affirma­tive Defenses. It fails to perform the Func­tions of Pleading, either in giving Notice or in reducing the case to Specific Issues.
The Nature and Use of the General Issue

WHILE the Specific or Common Traverse is of frequent occurrence, there is another class of Traverse which, from its great im­portance and use, requires particular study. This form of Traverse is known as the Gen­eral issue, under which, in most of the Mod­ern Common-Law Actions, there is an appro­priate Form of Plea fixed by Ancient Usage, as the proper method of Traversing the Dec­laration, where the defendant means to deny the defendant’s liability. This Form of Traverse appears to have been so called because the issue that it Tenders is of a more general and comprehensive character



than that tendered by the Specific or Com­mon Traverse. The General Issue, which is one of the two General Traverses, the Repli­cation De Injuria 76 being the other, differs from the Specific or Common Traverse in that it Denies by a General Form of expres­sion, such as “Not Guilty,” the defendant’s liability, instead of Denying some Specific Allegation of Fact on which his liability de­pends. Or, put in a slightly different way, it differs in two respects:
First, in Point of Form, the General Issue Traverses, not by words of Direct Denial, but, as Professor Keigwin says, “by a fixed phrase of compendious negation”, such as Nil Debet in Debt or Non Assumpsit in Special or General Assumpsit; and
Second, it generally operates to Deny and thus places in Issue, not a Single, Material Al­legation, but all the Essential facts which con­stitute the plaintiff’s cause of action,n
As thus developed, the Scope and Effect of the Plea by way of the General Issue assumes great significance, as the Tender of Issue thus made on the Declaration oper­ates to close the Pleadings, and to enable the defendant to escape from the earlier re­quirement that he must rest his Defense

on a Single, Material Allegation, thereby, from the defendant’s point of view, facili­tating the progress of the cause. It should be observed, however, that the General Issue was in Form a Specie of “Licensed Du­plicity, in that by such a Plea the defendant, into flatu [at one breathil Denies all the Several Facts alleged in the Declaration.” ~ Thus, the General Issue provides a brief and convenient form of Plea in many actions, comprehensive in its nature, and under which the defendant is or was permitted to prove,
6. The Replication Dc Injuria Is discussed in Chap­ter 23.

~1- Keigwin, Cases In Common-Law Pleading, Bk. II, The Rules of Pleading, e. VII, The General Issues, 500 (24 ed. flochester, 1934).

78. IbId.

DEFENSIVE PLEADINGS

without Specific Allegation, almost All Mat­ters in Denial of his liability, as alleged, or to contest in evidence All Allegations requir­ing Proof on the part of the plaintiff.


- In Case, Eiectment, Trespass, in its Three Forms, and Trover, the Plea of the General Issue was, Not Guilty; in Replevin, Won Cepit; in Detinue, Non Detinet; in Debt upon a Simple Contract, Nil Debet; in Debt on a Specialty and in Covenant, it was Non efl Factum; and, in both Special and General As­sumpsit, Non Assumpsit, or that the defend­ant made no such Promise. The effect of these General Issues varied with the different Forms of Action, as to what Defenses could be set up under them, and what must be raised by Specific Denials aimed at Particu­lar Allegations, and what by Pleas in Confes­sion and Avoidance.
To confine the investigation to the points of actual disagreement, and relieve the plain­tiff of the burden of proving what the defend­ant does not really dispute, it is provided in Code Pleading that the plaintiff may Verify his Complaint, and then the Denials of the Answer must be Specific, and must also be made under Oath. This requires the Denials to be truthfully made, and to put in Issue only the points on which the defendant means to rely. Thus, in a suit on a fire insurance policy, there may be rio dispute as to the execution of the contract sued on, but the company may expect to avoid liability by showing in Defense some excuse. Accord­ingly, if the Complaint be Verified, the com­pany cannot Deny the signature or due ex­ecution of the policy, of which the Proof might be difficult for the plaintiff to obtain and produce. It is a great imposition to com­pel the plaintiff to produce, and the Court to hear, evidence in regard to what is not truly disputed. It is burdensome enough to have to establish rights in real controver­sies.7° At Common Law, while it is a prin­

ciple that Pleadings ought to be true, ye there were no means of enforcing the RulE Thus the Common-Law Pleadings often fail ed to reduce the case to the real Issues ii dispute.


Report of the Common-Law Commissioners, ot which the Rules of HilT. 4 Wm. IV were founded by which the Scope of the General Issue was limit ed, it is said: “Special Pleading, considered in its principle, is a valuable forensic invention peculiar to the Common Law of England, by the effect of which the precise point in controversy between the parties is developed, and presented in a shape fit for decision. If that point is found to consist of matter of fact, the parties are thus apprised of the exact nature of the question to be decided by the Jury, and are enabled to prepare tl,eir proofs with proportionate precision. If, on the other hand, it turns out to be Matter of Law, they have the means of immediately obtaining the decision of the cause, without the expense and trouble of a Trial, by De­murrer; that is, by referring the legal question so evolved, to the determination of the Judge. But where, Instead of Special Pleading, the General Is­sue is used, and under it the defendant is allowed to bring forward matters in Confession and Avoid­ance, these benefits are lost. Consisting, as that Plea does, of a mere summary denial of the case stated by the plaintiff, and giving no notice of any defensive Allegation on which the defendant means to rely, it sends the whole ease on either side to Trial, without distinguishing the fact from the law, and without defining the exact question or ques­tions of fact to be tried. It not unfrequently, there­fore, happens that the parties arc taken by surprise, and find themselves opposed by some unexpected matter of defense or reply, which, from the want of timely notice, they are not In due condition to re­sist. But nfl effect of more common, a,id indeed al­most invariable, occurrence is the unnecessary ac­cumulation of proof, and consequently of expense; for as nothing is admitted upon the Pleadings, each party is obliged to prepare himself, an far as it is practicable, with evidence upon nil the difFerent points which the Nature of the Action can by pos­sibility make it Incumbent upon him to establish, though many of them may turn out to he undisput­ed, and many of them may be such as his adversary, if compelled to plead specially, would have thought it unñesirable to dispute. It may even happen (and that Is not an unfreguent occurrence) that the con­troversy under this form of Plea turns entirely up­on the Matter of Law, there being no fact really in dispute; and In that case the Mode of Decision by Jury is not only defective, but misplaced, and the Trial might have been spared altogether, if the par­ties bad proceeded by way of Special Pleading, and raised the questIon upon Demurrer.”

458

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