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~9. Bliss, Law of Pleading Under the Codes of Civil

Procedure, ~l 138, 422 (St. Louis, 1987), In the

Sec. 224
Nothing could be more absurd than the irregular, variable, and arbitrary Scope of the General Issue in the Different Forms of Action. There is no rhyme or reason or policy in it; nothing but a bewilderment of historical eccentricities. The Function of Pleading is to ascertain with precision the Matters on which the Parties differ and the points on which they agree, and thus to arrive at Certain Clear-Cut Issues upon which the case has to be decided. The main Object of Pleadings is to produce such Is­sues, and thus to narrow the controversy to the real points which have to be contested and proved. The practical utility of Plead­ings to accomplish this function or object has been grievously impaired by the unrea­sonable Scope and Latitude which are allowed to the General Issue in some actions. The apparent Singleness and Simplicity of the General Issue are entirely illusory. It fails to focus the controversy upon the real point. It frequently violates the Rule that a Party must either Plead by Way of Denial or in Confession and Avoidance. In Assumpsit, Case, Debt on Simple Contract, Ejectment, and Trover, the General Issue has an Ex­ceedingly Broad Scope, which cannot be ex­plained by any principle or process of reason. ing. What has to be Specially Pleaded is largely an accidental matter of arbitrary exceptions. SO


When the defendant Pleaded Affirmatively to justify or excuse the charge, it was neces­sary to set forth the Particular Facts of palliatidn and excuse by a Special Plea of Confession and Avoidance, which would ap­prise the Court and the Adverse Party of the nature and circumstances of the Defense; but, Special Pleading having become per­verted into an obstacle to justice, the Courts, by relaxation of the strictness anciently ob­served, permitted the Scope of the General
aO. See Ballantine, The Proposed New Practice Act, 2 U.Ill.L.Bul., 149, 158 (1919).

459
Issue to be extended, so as to leave almost every Defense open, and to allow many af­firmative Defenses to be given in evidence at the Trial under the General Issue.


Where a given Defense can be set up under the General Issue, it is improper to attempt to raise that Defense by a Specific Traverse. Where the General Issue can be used as a Denial, it must be used. The reason for, requiring the General Issue seems to have been to close the Pleadings at an early Stage. The Rule, however, does not prohibit a Party from Pleading Affirmatively New Matter which is Admissible under the General Is­sue, but only such as constitutes a mere DeniaL8
In view of the important character of this Plea in restricting the progress of the Plead­ings and extending the privilege of the de­fendant in establishing his Defense in evi­dence, it seems proper here to explain in what cases it should be used. To do this, it is necessary to examine the Scope of the Different General Issues in each Particular Action, to ascertain what Defenses must or must not be Pleaded Specially.
In One Action a given Defense may be Admissible under the General Issue, while in another the Same Defense would require a Specific Traverse or an Affirmative Plea.
81. English: Warner v. Wainsford nob. 127, 50 Eng. Rep. 276 (1603); Illinois: Governor, to Use of Thom­as v. Lagow, 43 Iii. 134 (1867); MeCord v. Mechan­ics’ Nat. Bank of Chicago, 84 III. 49 (1876); Wad-hams v. Swan, 109 III. 46 (1854); New York Ott v. Schroeppel, 3 Barb, (N.Y.) 56 (184S).
Where defendant’s special pleas were no more than pleas of General Issue, and all matters alleged were available under that Plea, sustaining Demur­rers to special pleas was not error. Alabama: Peo­ple’s Savings Banlc of Tallassee v. Jordan, 200 Ala. 500, 76 So. 442 (1917); Shepherd v. Butcher Tool & Hardware Co., 198 Ala. 275, 73 So. 498 (1916); Huntsville Knitting Co. v. Butner, 198 Ala. 528, 73 So. 907 (1916); VIrginia: Cox v. Hagan, 123 Va. 656. 100 SE. 666 (1919).

PLEAS—PEREMPTORY OR IN BAR

460

DEFENSIVE PLEADINGS

Cli. 22

PLEAS IN CONFESSION AND AVOIDANCE

THE NATURE AND FORM


225. If, histead of Denying in the Direct Form, the Party wishes to assert a Defense in Justification or Discharge of the Matter alleged, lie must Plead by Way of Confession and Avoidance. Pleading in Confession and Avoidance Admits the Truth of Opposing Al­legations, and Avoids their Legal Effect by alleging Other Facts.

Pleas in Confession and Avoidance are di­vided, with reference to their subject-matter,

into

(a) Pleas in Justification or Excuse. Such a Plea, while Admitting the Facts alleged by the plaintiff, shows in effect that he had not at any time a Good Cause of Action, either by reason of some legal right of the ,lefendant justifying his conduct in Point of Law, or some act or conduct of the plaintiff excusing him from liability in the particular case.


(b) Pleas in Discharge. Such a Plea Ad­mits that a Cause of Action once existed in the plaintiff, but shows that it has been Discharged by some Matter subsequent, either of Fact or of Law.

Pleadings in Confession and Avoidance tie not Tender Issue, but Conclude with a Verifica­tion and Prayer of Judgment.


In General

A PLEADING in Confession and Avoid­ance, as the terms imply, does not, like the Traverse, deny the Allegations of Fact con­tained in the Opposing Pleading, but Con­fesses them, mid Avoids their Legal Effect. A Plea in Confession and Avoidance, for in­stance, Confesses the Truth of the Allega­tions in the Declaration, either expressly or by implication, and then proceeds to allege New Matter which deprives the Facts ad­mitted of their Ordinary Legal Effect, and

avoids them- Thus, in an Action of Tres­pass for Assault and Battery, a Plea Admit­ting Facts alleged to have been done by the defendant, but showing that they were done

by the plaintiff, is a Plea in Cünfession and Avoidance.


Affirmative Pleas in Confession and Avoid­ance are either by Way of Justification and Excuse, showing that, even admitting plain­tiff’s prima fade case, he never had a Cause of Action, or by way of Discharge, showing that, although a Cause of Action once existed, yet it has been taken away by some Subse­quent Matter. Pleas of Estoppel are another variety of Affirmative Pleas.52
Pleas in Justification or Excuse
A PLEA in Justification or Excuse shows that the plaintiff never had at any time a good Cause of Action, either by reason of some legal right of the defendant justifying his conduct in Point of Law, or some act or conduct of the plaintiff Excusing him (the defendant) from liability in the particular case. The Former is a Plea in Justification; the latter, a Plea in Excuse. This distinction is supported by authority, though Pleas of Both Classes are usually treated together, as being of the same general effect. Where the defendant, admitting the facts stated by the plaintiff to be true, alleges in contradic­tion the exercise of a right founded upon Matter of Title, Interest in or Respecting Land, Authority derived either Mediately or Immediately from the plaintiff, or the operation of some General Rule of Law ap­plicable to the particular case, the Plea is one of Justification, the Defense being that the doing or omission of the acts complained of was Justified in Point of Law by the ex­istence of such right. Here the facts must be fully set forth, as a Justification must be Specially Pleaded.ss But where, still Ad­82, Dana v. Bryant, 1 Gil. (Ill.) 104 (1844).
83. English: Smart v. Hyde, 8 Mees & W. 723, 151

Eng.}tep. 1231. (1841); Wise v. Hodsoll, 11 Mel. & B.

810, 113 Eng.Rep. 624 (1841); California: Glazer V.

Clift, 10 Cal. 303 (1858); Tennessee: Tosuhinson V.

Darnan, 2 Head. (Tenu.) 538 (1839); Vermont;

in necessary Self-Defense against an assault

Briggs v, Mason, 31 Vt. 433 (1559).

Sec. 225


PLEAS—PEREMPTORY OR IN EAR

461

mitting the plaintiff’s Allegations, the de­fendant Pleads, for instance, that his conduct was purely in Self-Defense, or that the per­formance by him of a contract obligation was prevented by the plaintiff, the Plea is one of Excuse, the plaintiff’s conduct being re­lied on as his apology for doing or not doing the act in question; and here, again, the statement must be particular, the reason for all Special Pleadings being to fully apprise the adversary of what he is to be called upon to meet.84 Pleas in Justification or Excuse generally include all Pleas in Confession and Avoidance which are not in Discharge of the defendant’s liability. The form of Plea in Justification and Excuse is set out below:

FORM OF PLEA IN CONFESSION

AND AVOIDANCE


(In Justification and Excuse)

IN THE KING’S BENCH

Term, in the year of the reign of King George the Fourth.

Clyde Dowell


aft.

Arthur Brown

I

THAT at the time of the alleged trespass­es the plaintiff made an assault upon John Kane, and was beating him, in breach of the


A Plea In Justification or excuse admits plaintiffs Allegations, but in effect denies plaintiff’s Cause of Action, either because defendant Is justified, or is excused from liability through some act or conduct of plaintiff. Florida East Coast Ry. Co. v. Peters, 72 Pie. 311, 73 So. 151 (1916).

SI. Per Builer, J, in flex v. Lyme, I Doug. 159, 99 Eng.Rep, 98 (1779).
It will be interesting here for the student to compare the Common-Law Method of Pleading in Confession and Avoidance with the statement of 4new matter constituting a defense.” prescribed by the codes. See Bliss, Law of Pleading Under the Codes of Civil Procedure Pt. 2, C. 17 (St. Louis, 1887).

All matters In Confession and Avoidance must be Pleaded Specially. Florida East Coast By. Co. v. Peters, 72 FIg. 311, 78 So. 151 (1910).

peace, whereupon the defendant gently laid his hand on the plaintiff in order to preserve the peace, and to prevent the plaintiff from further beating the said John Kane, doing no more than was necessary for that pur­pose, which are the alleged trespasses. And this the said Clyde Dowell is ready to verify.

Wherefore he prays judgment if the said Arthur Brown ought to have or maintain his aforesaid action against him, etc.


3 CHITrY, Treatise on Pleading with Precedents and Forms, 1070—1071 (13th Am. ed., Springfield 1859), contains other forms.
Pleas in Discharge

A PLEA in Discharge admit.s that the plain­tiff once had a Right of Action, but shows that it is Discharged or Released by Some Matter Subsequent, either of Fact or Law. The most Common Pleas in Discharge are Pay­ment; Release; Tender; Set-Off; Bank­ruptcy; the Statute of Limitatlons.~


83. See Note, Statute of Limitations—Permanent or Temporary Injury—Plea of Non-Aeerevit, 11 Ill.L. Rev. 56 (1916).
As to Arbitrament and Award, see, Indiana: llrown v. Perry, 14 lad. 32 (1830); Maryland: lingling v. Kohihass, 18 I.ld. 148 (1862).
As to Payment or Accord and Satisfaction, see, Eng­lish; Goodchild v. Pledge, 1 Mees. & W. 363, 150 Eng,Rep. 474 (1836); Indiana: Nill v. Comparet, 15 md. 243 (1860).
As to a Release, see, English: Brooks v, Stuart, 9 Adol. & B. 854, 112 Eng.flep. 1437 (1830); Indiana:

Rosier v. Eliason, 14 md. 523 (1860).


As to the Statute of Limitations, see Earcstaff v, Rus­sell, 10 Macs. & \V. 365, 152 Eng.Rep. 511 (1842).
As to set-off, see, Florida: Mitchell v. McLean, 7 Fla.

329 (1857); New York: MeAllister v. Reab, 4 Wend.

(N.Y.) 483 (1830); Pennsylvania: Rimes v. Barnitz,

S Watts (Pa.) 39 (1839).

As to bankruptcy, see Gould v. Lasbury, I Cr.M. & II. 254, 140 Eng.Rep. 1075 (1834).

A Railway Company’s Plea in Action for killing cat tie claiming a Release of liability, but denying neg­ligence, was held bad, as it sought to avoid Ilabil. ity, but failed to confess negligence. Central of Georgia By. Co. v. Williams, 200 Ala. 73, 75 So. 401 (1917).

462

DEFENSIVE PLEADINGS



Cli. 22

Conclusion of Pleading

A PLEADING in Confession and Avoid­ance does not Tender Issue, and, like all oth­er Pleadings which do not Tender Issue, it Concludes with a Verification and Prayer of Judgment.


GIVING COLOR
226. A Plea in Confession and Avoidance must Give Color; that is, admit the apparent truth of the plaintiff’s Allegations and give him credit for an apparent or prima facie Right of Action, which the New Matter in the Plea destroys. Color may be Express or im­plied.
Implied Color is the tacit admission of the plaintiff’s prima facie case by failure to deny

it.
Express Color is a Fictitious Allegation, not Traversable, to give an appearance of right to the plaintiff, and thus enable the defendant to Plead Specially his own Title, which would otherwise amount to the General Issue. It is a licensed evasion of the rule against Pleading Contradictory Matter Specially.


Giving Color

IT is a rule that Every Pleading by way of Confession and Avoidance must Give Color. “Color”, as a Term of Pleading, sig­nifies an apparent or prima fade right; and the meaning of the Rule that Every Plead­ing in Confession and Avoidance must Give Color is that it must admit an apparent right in the Opposite Party, and rely, there­fore, on some New Matter by which that apparent right is defeated.5°


£~. English: Could v. Lasbury, 1 Cr.M. & B. 254, 149

EngJ{ep. 1075 (1834); Holler v. Bush, 1 Salk. 304,

91 Eng.Rep. 342 (1697); Hatton v. Morse, 3 Salk.

273, 91 Eng.Bep. 820 (1702); Ballet v. Byrt, 5 Mod.

252, 87 Eng.Rep. 639 (1696); Margetts v. Bays, 4

Adol. & B. 489, 111 Eng.Rep. 871 (1836); McPherson

v. Daniels, 10 B. & C. 263, 109 Eng.Rep. 448 (1829);

Patrickson v. Barton, Cro.Jac. 229, 79 Eng.Eep. 198

(1600); Taylor v. Eastwood, 1 East. 215, 102 Bag.

Rep. 83 (1801); Rex v. Johnson, 6 East. 582, 102

Bng.Itep, 1412 (1805); Massachusetts: Thayer v.

Brewer, 15 Pick. (Mass.) 217 (1834); New York:

Brown v. Artcher, 1 11111 (N.Y.) 266 (1841); Van Et~

Thus, in an Action of Covenant on an in­denture of lease, for not repairing, suppose the defendant Pleads a Release by Way of Confession and Avoidance, thus: “And the said C. D. by X. Y., 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, the said CD., because he says that after the said Breach of Covenant, and before the Corn. mencement of this Suit, to wit the said A.B. by his certain deed of release, Sealed with his Seal and now shown to the Court here, did remise, release,” etc., all Damages from said Breach of Covenant, etc. This Plea Gives Color to the Declaration, for it admits an apparent right in the plaintiff, namely, that the defendant did, as alleged



in the Declaration, execute the deed, and break the Covenant therein contained, and would, therefore, prima fade be chargeable with Damages on that ground; but it goes on and shows new matter, not before dis­closed, by which that apparent right is shown not to exist, namely, that the plaintiff exe­cuted a release, Suppose the plaintiff files a Replication to this Plea, saying that at the time of making the said supposed deed of Release, he was unlawfully imprisoned by the defendant, until, by force and duress of that imprisonment, he made the supposed deed of release, etc. Here the plaintiff in his Replication Gives Color to the Plea. He im­pliedly admits that the defendant has priflla fade a good Defense, namely, that such Re.
ten v. Hurst, 0 11111 (N.Y.) 311 (1544): Conger i-. Johnston, 2 Denio (N.Y.) 96 (1846); Ohio: Davis v Mathews, 2 Ohio 257 (1826); Vermont: Merritt V. Miller, 13 Vt. 416 (1841); Federal: Dibble v, Dun­can. 2 McLean, 553, Fcd.CasNo.3,880 (1811).

Pleas in Confession and Avoidance must either ex­pressly or impliedly admit that the Allegations in the Declaration are true, with a statement of mat­ter which destroys their effect, and must confess a prima fade Right of Action in the opposite party, and then state new matter by which that apparent right Is defeated. Bavarian Brewing Ca v. Eetkow­ski, 1 W.W.Harr, 225, 113 A. 903 (Del.Super.1921).

Sec. 226

PLEAS—PEREMPTORY OR IN BAR

463


I

lease was executed as alleged in the Plea, and that the defendant, therefore, is apparently Discharged, but he sets up New Matter by which the effect of the Plea is avoided, name­ly, that the Release was obtained by duress.

Suppose, on the other hand, the plaintiff, instead of Replying as above stated, should Reply that the Release was executed by him, but to another person, and not to the defend­ant. This Replication would be bad as a Replication in Confession and Avoidance, for Wanting Color, because, if the Release were not to the defendant, there would not exist even an apparent Defense, requiring the Al­legation of New Matter to avoid it; and the Plea might be sufficiently answered by a Traverse, denying that the deed stated in the Plea is the deed of the plaintiff. So, in an Action of Trespass Quare Clausum Fregit, where the Declaration charges the defend­ants with breaking and entering the plain­tiff’s close, a Plea by Way of Confession and Avoidance is bad, as Wanting Color, where it alleges that at the time of the alleged Tres­pass one of the defendants was seised in tail of the said close, and the other defendant in possession of it, as his lessee for years, since, if this be so, it follows that the plaintiff has not even a colorable right to maintain the Action as for Trespass to his close.8~ In such
SI. So, in Trespass de bonis Asportatis, a Plea that the goods in question were the property of a third person, and that the defendant took them by virtue of an attachment against him, is bad, as amounting to the General Issue, for it involves a denial of the plaintiff’s possession, and therefore gives no color to the Action. The thing to do in such a case, as We shall see, is to give express color. See, in support and illustration of the text, Brown v. Artcher, 1 Hill (N.Y.) 266; Collet v. Flinn, 5 Cow. (N.Y.) 466.
In Conger v. Johnston, 2 Denio (N.Y.) 96, it was held that a Plea of the Statute of Limitations averring that “the severai Causes of Action, etc., if any such there were or still are, did not accrue within,” etc., was bad for want of color. “Every Plea In Confes­sion and Avoidance,” It was said, “must give color, by admitting an apparent or prima fade right in the plaintiff, It must either expressly or impliedly confess that, but for the matter of avoidance con­tained in the Plea, the Action could be maintained.

a case the usual and regular course would be, not to Plead in Confession and Avoidance, but to plead the General Issue, Not Guilty, which puts the plaintiff’s possession of the close in issue, as well as the mere fact of the Trespass.


The tacit admission, by failure to Deny, which we have just been considering, has been called “Implied Color,” to distinguish it from another kind, which is in some instanc­es inserted in the Pleading, and is therefore called “Express Color.” 88
Where the Nature of the Defense is such that it would contradict the plaintiff’s prima fade case, the defendant cannot Plead it
This Plea makes no such confession, and is there­fore bad. Instead of saying, as the pleader should have done, that the several Causes of Action men­tioned in the Declaration did not accrue within six years, the words are that the several supposed Causes of Action mentioned in the Declaration, ‘if any such there were, or still are, did not accrue within six years. The defendants do not admit that but for the statute of Limitations the plaintiff could have sued.”
And see Margetts v. Bays, 4 Ado]. & B. 489, 111 Bug. Rep. 871 (1836); Gould V. Lashury, 1 Cr., M. & Ii. 254, 140 Eng.Rep. 1075 (1834), (where, in an Action of Debt on Simple Contract, a Plea that the de­fendant was discharged under tile insolvent debtor’s act from the debts and Causes of Action, “if any,” etc. was held bad).
But see, contra, Wise v. Hodsoll, 11 Adol. & E. SIB, 113 Engltep. 024 (1541), where, in an Action of Tres­pass for assault and battery, a Flea, that “if any hurt or damage happened or was occasioned” to the plaintiff, it was by reason of the defendants acting in self-defense, etc., was sustained.
88. “The learned Serjeant Williams, whose notes up­on Saunders’ Reports arc often cited in this work; was a gentleman of very florid complexion, which circumstance gave the irreverent youth of the bar occasion to say that he bad much express color. Tradition Informs us also that the same Serjeant Williams had a country place near Londoji, to which he was wont to resort for the week-end, and that he drove a horse which was given to balking; whereupon it was commented, hew strange it was that a horse belonging to s~ learned a pleader should demur when he ought to go to the country.” Kcig­win, Precedents of Pleading at Common Law, 554 (Washington, fl C., 1910).

464


DEFENSIVE PLEADINGS

Cli. 22


Specially without giving Express Color in order to have something to avoid.
Express Color is defined to be “a feigned matter pleaded by the defendant in an Ac­tion of Trespass, from which the plaintiff seems to have a good cause of action, where­as he has in truth only an Appearance or Color of Cause.” 80 It is the setting up of a straw man, in order to have something to knock down. It occurs at present only in Trespass, and is very seldom used even in that action. Its use and nature may be thus explained: The necessity of an Implied Color has evidently the effect of obliging the Pleader to Traverse in many instances in which his case, when fully stated, does not turn on a mere Denial of Fact, but involves some consideration of Law. In the example first above given of Want of Color, this would not be so, for if the deed of Release were executed, not to the defendant, but to a dif­ferent person, this, of course, amounts to no more than a mere Denial that the deed, as alleged in the Plea, is the deed of the plain­tiff, and no Question of Law can be said to arise tmder this Traverse. But, in the sec­ond example given above of want of Implied Color, suppose the plaintiff was in the wrongful possession of the close, without any further appearance of title than the posses­sion itself, at the time of the trespass alleged and that the defendants entered in the as­sertion of their title, They could not, with­out more, set forth their title in a Plea by Way of Confession and Avoidance, because, as we have seen, it would not Give Color,
89. 5 Bacon, Abridgment of the Law, “Trespass,” 1,

208 (0th ed. Dublin, 1793); English: Leyfield’s Case,

10 Ce. SOb, 77 Eng.Bep. 1057 (1610); Comyns t. Boy­er, Cro.Elis. 485, 78 Eng.Itep. 786 (11590); Fletcher v.

Marilhier, 9 Adol. & B. 457, 112 Bng.Rep. 1285 (1830);

New York: Brown v. Arteher, 1 Hill. (N.Y.) 206

(1841).
See, also, Tbaycr, Preliminary Treatise on Evidence at the Common Law, e. V, Law and Fact In Jury TrIals, 232—234 (Boston, 1598), on Express Color as a method of withdrawing questions from the Jury by Pleading in confession and Avoidance.

and they would therefore be driven to Plead the General Issue, Not Guilty. By this Plea an issue is produced, whether or not the de­fendants are guilty of the Trespass; but up­on Trial of the Issue it may be found that the question turns entirely upon Construc­tion of Law. The defendants say they are not guilty of breaking the “close of the plain­tiff,” as alleged in the Declaration, and the reason that they are not guilty is that they had the title and right to possession of the close. Their title involves a legal question, and yet this question, under the plea of Not Guilty, would be triable by the Jury under Instructions by the Court. The defendants may wish to avoid this, and to bring the ques­tion up for decision by the Court, instead of by the Jury. They can do this if they cam set forth their Title Specially in their Plea, for then the plaintiff, if disposed to question the sufficiency of the title, may Demur to the Plea, and thus refer the legal question to the Court. But such a Plea, as we have seen, if Pleaded simply according to the fact, would be bad for Want of Color. This difficulty was overcome by the practice of giving Ex­press Color to the Plea in lieu of the Implied Color which was wanting. It is done by in­serting in the Plea a Fictitious Allegation of some Colorable but Insufficient Title in the plaintiff, which was at the same time avoid­ed by showing the Preferable Title of the-defendant. This was called “Giving Color,” and it was held to cure or prevent the objec­tion which would otherwise arise from the want of Implied Color. Such a Plea Con-. teased some apparent title in the plaintiff, as a demise under which he entered and was possessed, and therefore admits that the close was in some sense the close of the plain-tiff, but at the same time it avoids this col­orable title by showing that of the defend­ant, and alleging that the plaintiff’s title un­der the demise was defective in Point of Law, and that nothing passed under the de­mise.

Sec. 228

PLEAS—PEREMPTORY OR IN BAR

465


When Express Color was thus given, the plaintiff was not allowed, In his Replication, to Traverse the Fictitious Matter suggested by Way of Color; for, its only object being to prevent a difficulty in Form, such Tra­verse would be wholly foreign to the merits of the cause, and would only serve to frus­trate the Fiction which the Law, in such case, allows. The plaintiff would therefore pass over the Color without notice, and would either Traverse the title of the defendant, if he meant to contest its truth in Point of Fact, or Demur to it, if lie meant to contest its sufficiency in Point of Law; and thus the defendant would obtain his object of bring­ing any legal question raised upon his title under consideration of the Court, and with­drawing it from the Jury.
Express Color must consist of such mat­ter as, if it were effectual, would maintain the nature of the action.~ On the other hand, the right suggested must be colorable only, and must not amount to a real or actu­al right; for otherwise the plaintiff would be entitled to recover on the defendant’s own showing, and the Plea would be an insuffi­cient answer.°1
PLEADINGS IN ESTOPPEL
227. A Plea in Estoppel is one which neither Confesses nor Avoids, but Pleads a previous inconsistent Act, Aliegation, or Denial of the Party which precludes him from maintaining his Action or Defense.
A MAN is sometimes precluded in law from alleging or denying a fact in conse­quence of his own previous Act, Allegation, or Denial of a contrary tenor; and this pre­clusion is called an Estoppel. An Estoppel may arise either from Matter of Record,— from the deed of the party,—or from Matter in Pals, that is, matter of fact. Thus, any
90. Comyns, Digest of the Laws of England, “Plead­er,” 3, M. 41 (New York, 1825).
Di. Radford v. Harbyn, Cro.Jac. 122, 79 Eng.Rep. 106

matter adjudicated in a Court of Record will forever preclude the party from afterwards contesting the same fact in a subsequent suit with his adversary. This is an Estoppel by Matter of Record. As an instance of an Es~ toppel by Deed may be mentioned the case of a bond reciting a certain fact. The party executing the bond will be precluded from afterwards denying, in any action brought upon that instrument, the fact so recited. An example of an Estoppal by Matter in Pais occurs when one man has accepted rent of another. He will be estopped from after­wards denying, in any action with that per­son, that he was at the time of such accept­ance his tenant. The tenant is likewise es­topped to deny his landlord’s title.


This doctrine of law gives rise to a Kind of Pleading that is neither by Way of Tra­verse nor Confession and Avoidance, viz.: a Pleading that, waiving any Question on the Fact, relies merely on the Estoppel; and, after stating the previous Act, Allegation, or Denial on the Opposite Party, Prays Judg­ment if he shall be received or admitted to aver contrary to what he before did or said.°~ This is called a Pleading by Way of Estoppel. It may be interposed instead of a Traverse, without admitting Traversable Averments on the other sideY3
ADMISSION BY FAILURE TO DENY
228. Every Pleading is taken to Confess such Traversable Matters alleged on the other side as it does not Traverse.
iT is an important Rule of Pleading that a Pleading admits every Traversable Fact al­leged on the other side that it does not Tra­
92. English: Pinminer V. Woodburne, 4 B. & C. 025,

107 Eng.Rep. 1103 (1825); Eastmure v. Laws, 5 Bing.



(N.C.) 444, 132 Eng.Rep. 1170 (1839); Doe V.

Wright, 10 Adol. & E. 763, 113 Eng.flep. 289 (1839):

Illinois: City of East St. Louis v. Flannigen, 34 III.

App. 596 (1889); Vermont: Webster v. State Mat.

Fire Ins. Co., 81 Vt. 75, 69 A. 319 (1908).

(1606).


93. See Dana v. Bryant, I Gil. (III.) 104 (1844).

466


DEFENSIVE PLEADINGS

Ch. 22

verse.94 Thus, in an Action of Covenant on an indenture, a Plea of Release, as it does not Traverse the execution of the indenture, is taken to admit it, And a Replication of Du­ress to such a Plea, since it does not Traverse the Release, admits its execution. So, in an Action of Covenant on an indenture of lease, for failure to repair, a Plea Traversing the want of repair admits the indenture. The effect of such an admission is to Conclude the Party, even though the Jury should improp­erly go out of the Issue and find the con­trary of what is thus Confessed on the Rec­ord95

The Rule extends only to such Matters as are Traversable. Matters of Law, therefore, or any other matters which are not fit sub­jects of Traverse, are not so admitted.°6
S4. Comyns, Digest of the Laws of England, “Plead­er,” 0. 2 (New York, 1825); English: Hudson v.

Jones, 1 Salk. 90, 91 Eng.flep. 84 (1706); Nicholson

v. Simpson, 11 Mod. 336, 88 Eng.Bep. 1075 (1721);

Illinois: Dana v. Bryant, 1 Gi]l. (III.) 104 (1844);

McCormick -c. Iluse, 66 III. 315 (1872); People, to

Use of Foster v. Gray, 72 Ill. 843 (1874); Kentucky:

Fowier ‘c. Commissioner, to Use of Taylor, I Dana

(Ky.) 358 (1833); New Hampshire: Chcevcr v. Mor­rick, 2 N.H. 370 (1821); New York: Brigga v. Don,

19 Johns. (N.Y.) 95 (1821); Vermont Carpenter v.

Briggs, 15 Vt. 34 (1843); Federal: United States v.

Willard, 1 Paine 539, Fed.Cas.No.16,698 (1826);

Buckeye Cotton Oil Co. v. Sloan, 250 Fed. 712, 163

C.G.A. 44 (1918); English v. Arizona ex rd. Griffith,

214 U.S. 359, 29 S.Ct. 668, 53 LEd. 1030 (1009).


~5. Hughes, Procedure, Its Theory and Practice, 748 (Chicago, 1905); Boileau V. Butlin, 2 Exeh. 604, 12 Jur. 899, 154 Eng.flep. 057 (1848); Wilcox v. Servant of Skipwith, 2 Mod. 4, 86 Eng.Ilep. 909 (1675).

A party is bound by the Allegations of Fact in his own pleading, and when there is no denial of such Allegations they are accepted as true, if material, and that meaning ascribed to the words that Is usu­ally intended by their use. Florida East Coast fly. Co. v. Peters, 80 Fla. 382, 86 So. 217 (1916).


An admission In pleading is conclusive against the party making it on the Trial of the Particular Issue to which the admission relates. Where the defend­ant pleads several pleas, the plaintiff cannot use an admission in one plea to establish a fact denied iii another. Starkweather V. Kittle, 17 Wend. (N.Y.) 20 (1SS’?).
94. King v. Bishop of Chester, Pierce and Cook, 2 Salk. 581, 91 Eng.Itep. 472 (1697).

PROTESTATION
229. A Traversable Fact in Pleading may be passed over without Traverse, and the right to contest it in another action preserved by a Protestation in the Pleading in the present action. A Protestation has no effect in the existing suit. Now that several Pleas may he used, there is little, if any, need for Protesta­tion.
THE practice of Protestation of Facts not Denied arose where the Pleader, wishing to avail himself of the right to contest in a fu­ture action some Traversable Fact in the pending action, passes it by without Tra­verse, but at the same time makes a declara­tion collateral or incidental to his main Pleading, importing that the Fact so passed over is untrue. The necessity for this arose from the Rule that Pleadings must not be double, and that Every Pleading is taken to Admit such Matters as it does not Traverse.97 Such being its only purpose, it is wholly without effect in the action in which it oc­curs, as, notwithstanding its use, every Trav­ersable Fact not Traversed is taken as Ad­mitted in the existing suit. Now that Sev­eral Pleas may be employed, there seems no reason for not denying every Allegation that one does not wish to admit, and no occasion for Protestation.
Suppose, in an Action of Assumpsit for goods sold, the defendant Pleads that he gave the plaintiff certain goods in full satisfaction and Discharge, etc., and that the plaintiff ac­cepted them in full satisfaction and Dis­charge; and the plaintiff, while Traversing the acceptance, does not wish to admit the delivery of the goods to him, lest the deliv­
91. Comyn, Digest of Ihc Ln~vs of Enrtland, “Pleader,”

N (New York, 1825); English: Young v. Rndd.

Garth, 347, 00 Eng.Itep. 803 (1695); Illinois: Thus v.

Stobie, 81 Ill. 202 (1876); New Hampshire: State v.

Beasom, 40 N.E. 372 (1860); New York: Briggs V.

Don, 19 Johns. (N.Y.) 96 (1821).


This practice was abolished by a rule of Ililary Term and the admission ceased to be conclusive in subse­quent actions.

PLEAS—PEREMPTORY OR IN BAR

ery; even though not accepted, might be­come the subject of dispute in some subse­quent action. To accomplish this purpose he takes the delivery by Protestation, and Trav­erses the acceptance, in his Replication, thus: “And the said .4.3. says, that by rea­son of anything in the said Plea alleged, he ought not to be barred from having and main­taining his aforesaid action against the said C.D., because, Protesting that the said O.D. did not give or deliver to him, the said .4.3., the said goods as the said C.D. hath above in Pleading alleged, for Replication, never­theless, in this behalf, the said .4.3. says that he, the said .4.3., did not accept the said goods in full satisfaction and Discharge of the said Promises and Undertakings, and of all Damages accrued to the said .4.3. by rea­son of the Nonperformance thereof, in Man­ner and Form as the said C.D. hath above alleged; and this the said .4.3. Prays may be inquired of by the country.”


As stated above, the only object and effect of the Protestation is to allow the party to pass by a Fact without Traversing it, and without precluding himself from disputing it in another suit. It is wholly without effect in the action in which it occurs. Under the Rule already laid down, every Traversable Fact not Traversed is, notwithstanding the Protestation, to be taken as admitted in the existing suit.°5
It is also given as a Rule, that if upon the Traverse the Issue is found against the Party Protesting the Protestation does not avail; and that it is of no use except in the event of the Issue being determined in his favor; with this Exception, however, that if the Matter taken by Protestation be such as the Pleader could not have taken Issue upon, the Protestation in that case shall avail, even
e~. DilTh v. Stobie, Si Ifl. 202 (1876). See also, Boat­man’s Say. Inst. v. Holland, 38 l~to. 49 (1860); 31 Cyc. 214, v. 4s; Id. 215, n. 50.

though the Issue taken were decided against him.°9


ARGUMENTATIVE PLEAS
230. As a Pleading is a Statement of the op­erative Facts which constitute the Plaintiff’s Cause of Action or the Defendant’s Defense, and not of evidence or argument, it must set forth its Allegations of Fact in a Direct and Positive Form, and not leave them to be col­lected by Inference and argument only.
IT is a branch of this Rule that Two Af­firmatives do not make a Good Negative; nor Two Negatives a Good Affirmative. The reason for this Rule is that not only must pre­cision be observed in Allegations of Material Facts, but the Adverse Party must be enabled to Traverse such Allegations by a Direct and Distinct Denial.
Thus, for example, if a defendant, instead of Pleading Performance of a Covenant Gen­erally or Specially, as might be proper, al­leges simply that he has not broken his cove­nant, he leaves the Fact of Performance to be inferred from that of the covenants not being broken, so that the Former Fact can­not be directly put in Issue by a Traverse of the Plea; and the Plea is therefore bad.1
In an Action of Trover for ten pieces of money the defendant Pleaded that there was a wager between the plaintiff and one C con­cerning the quantity of yards of velvet in a cloak, and the plaintiff and C each delivered into the defendant’s hand ten pieces of money, to be delivered to C if there were ten yards of velvet in the cloak, and if not, to the
9~. i~&Jj,p v. Otivay, 2 Wnis.Saund. 102, lOSa, n. 1~

85 Engitcp. 803 (1670~.


1. Hodgson v. East India Co., S T.R. 278, 101 Eng. Rep. 1389 (1700); Boone v. Eyre, 2 Bl.W. 1312, 90 Eng.Rep, 767 (1778).
On the subject of argumentativeness, see the ease of Moses v. Allen, 01 Md. 42, 50, 46 A. 323 (1900), in which the Flea set forth reasons which properly were Matters of Evhlence, and hence could not be traversed except by a replication of the same faulty character. The Demurrer, therofore, was properly sustained.

Sec. 230


467

plaintiff; and proceeded to allege that, upon measuring of the cloak, it was found that there were ten yards of velvet therein, where­upon the defendant delivered the pieces of money to C. Upon Demurrer, Gawdy held the Plea to be good enough, “for the measur­ing thereof is the fittest way for the trying it:

and when it is so found by the measuring, he had good cause to deliver them out of his hands to him who had won the wager. But Fenner and Popham held, that the Plea was not good: for it may be that the measuring was false, and therefore he ought to have Averred in fact, that there were ten yards, and that it was so found upon tile measuring

thereof.” 2


So, in an Action of Trespass, for taking and carrying away the plaintiff’s goods, the defendant Pleaded that the plaintiff never had any goods. “This is an infallible argu­ment that the defendant is Not Guilty, and yet it is no Plea.” ~‘
Again, in Ejectment, the defendant Plead­ed a surrender of a copyhold by the hand of Fosset, then Steward of the Manor. The plaintiff Traversed that Fosset was Steward. All the Court held this to be No Issue, and that the Traverse ought to be that he did not surrender; for if he were not Steward, the surrender is void.4 The reason of this
2. Ledesham v. Lubram, Cro.Eliz. 870, 78 Eng.Itep.

1096 (1602).

decision appears to be that to Deny that Fos­set was Steward could be only so far Material as it tended to show that the surrender was a nullity; and that it was, therefoi?e, an Ar­gumentative Denial of the surrender, which, if intended to be Traversed, ought to be Traversed in a Direct Form.
It is a Branch of this Rule that Two Af­firmatives do not make a Good Issue.5 The reason is that the Traverse by the Second Af­firmative is Argumentative in its nature.

Thus, if it be alleged by the defendant that a Party died seised in fee, and the Plaintiff al­leged that he died seised in tail, this is not a Good Issue; ~ because the Latter Allega. tion amounts to a Denial of a seisin in fee, but denies it by Argument or Inference only. It is this Branch of the Rule against Argu­mentativeness that gave rise to the Form of a Special Traverse. Where, for any of the reasons mentioned in a preceding part of this work, it became expedient for a Party Trav­ersing to set forth New Affirmative Matter tending to explain or qualify his Denial, he is allowed to do so; but as this, standing alone, will render his Pleading Argumenta­tive, he is required to add to his Affirmative Allegation an Express Denial, which is held to cure or prevent the Argumentativeness.7 Thus, in the example last given, the plaintiff


(1827); New Hampshire: Watriss v. Pierce, 36 N.

H. 230 (1858); New York: Spencer v. Southwick, 9

Johns. (N.Y.) 314 (1812); Dyett v. Pendleton, S Cow.

(N.Y.) 723 (1326); Fidier v. Deiavan, 20 Wend. (N.

Y.) 57 (1838); Federal: fletcher v. Peek, 6 Cranch

(U.S.) 87, 3 LEd. 162 (1810).

5. Comyas, Digest, ‘Pleader,” B. 3 (New York, 1825):

Coke, Littleton, 126a (Philadelphia, 1853); Euer, Doctrina Placitand$, 43, 349, 360 (London, 1677).


See, also, Chandler v. Roberts, 1 Doug. 60, 99 Eng. Rep. 41 (1779); Y.B. 5 Hen. VII, 11, 12.
8, Euer, Doetriaa Plaeitandi, 349 (London, 1677); Y. B. 5 Hen. VII, 11, 12.
7. 4 Bacon, Abridgment of the Law, “Pleas”, H. 3 (Dublin, 1786).
See, also, Courtney v. Phelps, SkI. 301, 82 Eng.Itep. 1119 (1664); l-Ierring V. Blacklow, Cro.Eliz. 30, 78 EngJlep. 295 05S3); I.E. Hen. VI, 7, p1. 21.

468 DEFENSIVE PLEADINGS

Ch.22

3. flier, Doetrina Placitandi, 41 (London, lCfl).
4. Wood v. Butts, Cro.Eliz, 260, 78 Eng.Rep. 515 (1~91). For other statements of the rule, with il­lustrations, see 4 Bacon, Abridgment of the Law, ‘Pleas” I, 5 (Dublin, 1786); Comyns, Digest, ‘Plead­er” 15. 3 (New York, 1825).

See, also, the following eases: English: B1aekiuo~e v. Tidderley, 11 Mod. 38, 88 Eng.Rep. 869 (1704); Id. 2 Salk. 423, 91 Eng.Rep. 869 (1704); Murray v, East India Co., S Earn. & Aid. 215, 106 Eng.Rep. 1167 (1821); ConnectIcut Goshen & Sharon Turn­pike Co. v. Sears, 7 Conn. 92 (1828); Illinois: Mis-ncr v. Granger, 4 Gil. (Ill.) 09 (1847); Spurck v. For~ gyth, 40 IlL 438 (1866); IndIana: Clark v. Line­berger, 44 mcI, 223 (1873); Board of Com’rs of Clin­ton County v. Hill, 122 Ted. 215, 23 N.E. 779 (1890);

Massachusetts: Dale v. flennie, 4 Pkk. (Mass.) 503

Sec. 231

PLEAS—PEREMPTORY OR IN BAR

4i30


may allege, if he pleases, that the Party died seised in tail; but then he must add, Absque Hoc, that he died siesed in fee, and thus re­sort to the Form of a Special Traverse.5 The doctrine, however, that Two Affirmatives do not make a Good issue, is not taken so strict­ly but that the Issue will, in some cases, be good, if there is sufficient Negative and Al­finnative in effect, though, in the Form of Words, there be a Double Affirmative. Thus, in Debt on a lease for years, where the de­fendant Pleaded that the plaintiff had noth­ing at the time of the lease made, and the plaintiff Replied that he was seised in fee, this was held a Good Issue.9
Another Branch of the Rule against Argu­mentativeness is that Two Negatives do not make a Good Issue.’° Thus, if the defendant Plead that he requested the plaintiff to de­liver an abstract of his title, but that the plaintiff did not, when so requested, deliver such abstract, but neglected so to do, the plaintiff cannot Reply that he did not neglect and refuse to deliver such abstract, but should Allege Affirmatively that he did de­liver.1
PLEAS AMOUNTING TO THE

GENERAL ISSUE
231. Where a Plea amounts to the General Issue, it should be so Pleaded. In other words, where the Matter of Defense may be raised un­der the General Issue in the Particular Ac­tion involved, it must be so Pleaded. This General Rule is subject to the Qualification that

where Express Color is given, or where suIt i­dent Implied Color is given, the Plea will not Amount to the General Issue, Where the Dc-tense is in Confession and Avoidance, it may


S. Duer, Doctrina Plaeltandi, 349 (London, 1677).
9. Coke, Littleton, 126a (PhIladelphia, 1853); TomlIn cc Burlace, 1 Wils.K.E. 6, 95 Eng.Rep. 461 (1742).

10. comyns, Digest, “Pleader”, B. 3 (New York, 1825). See, also, English: Martin v. Smith, 0 East 557, 102 Eng.Rep. 1401 (1805); IllinoIs: Ryan v. Vanland­ingham, 25 IlL 128 (1800).


it Martin v. Smith, 6 East 557, 102 Eng.Rep. 1401

be Specially Pleaded, even though the Plea consists of Matter which may be given in evi­dence under the General Issue.


IT is a well-established Rule of Pleading that, if Facts are alleged Specially which can be given in evidence under the General Is­sue, such Plea is obnoxious to Special De­murrer. The point has been frequently urged with success that a Special Plea amounted to the General Issue.’2 If the General Issue can be used, then it must be used, and to employ a Specific Denial would be Bad in Form. Thus, even if the defendant wishes to Deny one of Several Material Elements making up the Cause of Action, thereby narrowing the issues of Fact, he is not allowed to do so. The reason or purpose of insisting upon the General Issue seems to have been that of avoiding making of Long Records and of Closing the Pleadings at an Early Stage.’3
12. Coke, Litueton, 303b (Philadelphia, 1853)

Comyns, Digest, “Pleader”, E. 14 (New York. 1825). See, also, the following eases: English: Holler v. Bush,

Salk. 394, 91 Eng.Rep. 342 (1607); Birch V. Wilson.

2 3Iod 274, 86 Eng.Rep. 1068 (1C77): Lywier V.

Wood, CroCar. 1s7, 79 Eng.llep. 737 (1629); Warner

V. Wainsford, Rob. 127, 80 Eug.liep. 276 (1603);

1.15. 10 Hen. VI, in; YR 22 lIen, VI, 37 Illinois;

City of Qnincy v. Warfield, 25 III. 276 (1861)

Knoebel v. Kireher, 33 Ill. 308 (1864); Illinois Cent.

1?. Co. r. Johnson, 34 Xli. 389 (2864); Johnston V.

Ewing Female University, 35 III. 518 (18641; Gov­ernor, to use of Thomas v. Lagow, 43 III. 134 (1867)

Cushman v. Hayes, 46 III. 155 (1807); Mceord v.

Mechanics’ Nat. Bank of Chicago, 84 III. 49 (1876);

Wadhams v. Swan, 109 Ill. 54 (1884); Massachu­setts: Thayer v. Brewer, 15 Pick. (Mass.) 217 (1834);

Purintoi~ v. Jamroek, 195 Mass. 187, 80 N.E. 802, 18

L.1I.A.,N.S., 929 (1907); New York: President, etc.,

of Think of Auburn v. Weed, 10 ,Tohns. (N.Y.) 309

(1822); Wheeler v. Curtis, 11 Wend. (N.Y.) 660

(1834); Underwood v. Campbell, 13 Wend. (N.Y.) 7S

(1834); Collet v. Flinn, 5 Cow. (NY,) 466 (1826);

Federal: Van Ness v. Forrest, 8 Cranth 30, 3 LEd.

478 (18W.
13. Warner v. Wainsford, Rob, 127, 80 Eng.ltep, 270 (1603).

“The reason for disallowing Pleas of this kind is not, however, that they tend to inconvenient prolizity, or that they refer matters of fact to the Court—(for they are not, like Pleas of the former class, liable to either of those objectIons); but they lead to in­novation awl confusion, In the establithed Modes of

(1805).

470


DEFENSIVE PLEADINGS

Ch, 22

It is clear, however, that Pleading the cir­cumstances Specially has the advantage of presenting the Questions of Law on which the case turns and of making the Issue more Spe­cific; yet the Rules of Common-Law Plead­ing defeated their own ends and purposes by insisting on the General Issue for the sake of the false appearance of singleness, simplic­ity, and brevity, and made the plaintiff prove what the defendant could not actually dis­pute. This abuse has been remedied to some extent under Modern Statutory Systems.’4


The following cases illustrate the General

Rule: In an Action of Trespass for entering the plaintiff’s garden, the defendant Pleaded that the plaintiff had no such garden. This was Ruled to be No Plea, as it amounted to nothing more than “Not Guilty”; for, if he had no such garden, then the defendant was Not Guilty. So the defendant withdrew his Plea, and said, “Not Guilty.” 15


So, in Trespass for Depasturing the plain­tiff’s herbage, “Non depascit herbas” is No Plea; it should be “Not Guilty” 16
So, in Debt for the price of a horse sold,

that the defendant did not buy is No Plea, for it amounts to Nil Debet.’7


Again, in Trespass for entering the plain­tiff’s house and keeping possession thereof for a certain time, the defendant Pleaded that J.S. was seised in fee thereof, and, being so seised, gave License to the defendant to
Pleading, and tend, not only to destroy the settled distinctions between the different species of pleas, but also to the introduction of New Pleas, unknown to the Law.” Gould, A Treatise on the Principles of Pleading, Pt. III, Div. V, c. 11, 519 (6th ed. by Wi]h, Albany, 1009).
fl. In Vermont, the fact that a Special Plea aiuorn]ts to the General Issue, did not make It objection­able nuder the Practice Act. Roberts v. Danforth, 92 Vt. 88, 102 A. 335 (1917).
See, also, Ho den v, Fitchburg H. Co., 70 Vt. 125, 39 A. 771 (1898).
13. Y.B. 10 Hen. VI, 16.
16. Ruer, Doctrina Placitandi, 42 (London, 1077).
17. Y.B. 22 Edw. IV, 29,

enter into and possess the house, till he should give him notice to leave it; that thereupon the defendant entered and kept the house for the time mentioned in the Declaration, and had not any notice to leave it, all the time. The plaintiff Demurred Specially, on the ground that this Plea amounted to the Gen­eral Issue, “Not Guilty”; and the Court gave Judgment on that ground for the plaintift’8


So, in an Action of Trover for divers loads

of corn, the defendant in his Plea entitled himself to them as tithes severed. The plain­tiff Demurred Specially, on the ground that the Plea “amounted but to Not Guilty,” and the Court gave Judgment for the plaintitL1~



So, in Trespass for Breaking and Entering

the Plaintiff’s Close, if the defendant Pleads a demise to him by the plaintiff, by virtue whereof he (the defendant) entered and was possessed, this is bad, as amounting to the General Issue, “Not Guilty.” 20


So, in Debt on a Bond, the defendant, by his Plea, confessed the bond, but said that it

was executed to another person, and not to the plaintiff. This was held bad, as amount­ing to Non Est Facttcm.°’


These examples show that a Special Plea thus improperly substituted for the General Issue may be sometimes in a Negative, some­times in an Affirmative Form. When in the Negative, its Argumentativeness will often serve as an additional test of its faulty quali­ty. Thus, the Plea in the first example, “that
iS. Saunder’s Case, 12 Mod. 513, 88 Eng.Rop. 1486 (1701),
10. Lynner v. Wood, Cro.Car. 157, 79 Eng.Bep. 737 (1029),
20. laques’ Case, Style 355, 82 Eng.Rep. 773 (1652); J-Ialhet v. liyrt, S Mod. 253, 87 Eng.Rep. 4337 (1606).

21. Gifford y. Perkins, 1 Sid. 450, 82 Eng.ltep. 1211 (1670).
Where matters set np in a Special Plea In fin Action on a Sheriff’s bond were provable nailer the General Issue, the Plea was properly rejected. Raleigh County Court v. Cottle, 79 W.Va. 661, 92 tE. 110 ‘(1918).

Sec. 231

PLEAS—PEREMPTORY OR IN BAR

471


the plaintiff had no such garden,” is evident­ly but an Argumentative Allegation that the defendant did not commit, because he could not have committed, the trespass. This, how­ever, does not universally hold; for in the second and third examples the Allegations that the defendant “did not depasture,” and “did not buy,” seem to be in as Direct a Form of Denial as that of Not Guilty. If the Plea be in the Affirmative, the following consid­erations will always tend to detect the im­proper construction: If a Good Plea, it must, as heretofore shown, be taken either as a Traverse or as in Confession and Avoidance. Now, taken as a Traverse, such a Plea is clearly open to the Objection of Argumen­tativeness; for as we have seen, Two Af­firmatives make an Argumentative Issue. Thus, in the fourth example, the Allegations show that the house in question was the house of J.B., and they therefore Deny Ar­gumentatively that it was the house of the plaintiff as stated in the Declaration. On the other hand, if a Plea of this kind be intended by Way of Confession and Avoidance, it is bad for Want of Color, for it admits no ap­parent right in the plaintiff. Thus, in the same example, if it be true that J.S. was seised in fee and gave License to the defend­ant to enter, who entered accordingly, this excludes all title of possession in the plain­tiff, and without such title he has No Color to maintain an Action of Trespass.22 So, in the example where the defendant Pleads the plaintiff’s own demise, the same observation applies; for if the plaintiff demised to the de­fendant, who entered accordingly, the plain­tiff would then cease to have any title of pos­session, and he consequently has No Color to support an Action of Trespass.
The fault of Wanting Color being in this manner connected with that of amounting to The General Issue, it is accordingly held that a Plea will be saved from the latter fault

where Express Color is given,23 Thus, in the example of Express Color given, in a former part of this work, the Plea is cured, by the Fictitious Color of Title there given to the plaintiff, of the objection to which it would otherwise be sub ject—that it amounts to Not Guilty. So, where sufficient Implied Color is given, a Plea will never be open to this kind of objection. And it is further to be observed that, where sufficient Implied Color is given, the Plea will be equally clear of this objection, even though it consist of matter which might be given in evidence under the General Issue. Defendants are allowed, in certain actions, to prove, under this Issue, matters in the Na­ture of Confession and Avoidance, as, for example, in Assumpsit, a Release or Pay­ment. In such cases the plaintiff, though al­lowed, is not obliged, to Plead Non Assump­sit, but may, if he pleases, Plead Specially the Payment or Release; and, if he does, such Plea is not open to the objection that it amounts to the General Issue.24



It is said that the Court is not bound to

allow this objection, but that it is in its dis­cretion to allow a Special Plea amounting to the General Issue, if it involve such Matter of Law as might be unfit for the decision of a Jury.2~ It is also said that, as the Court has such discretion, the proper method of taking advantage of this fault is not by Demurrer,


23. Anonymous, 12 Mod. 537, 88 Eng.Bep. 1502 (1701):

Saunders Case, 12 Mod, 513, 88 Eng.Ilep. 1486

(1701); Lynner v. Wood, Cro.Car. 157, 79 Erig.ltep.

737 (1029); Birch v. Wilson, 2 Mod. 27-1, SIt Eng.

Rep. 1068 (1677); Borne v. Lewin, 3 Salk. 273, ‘31

Eng.flep. 821 (1700).


24. English: Maggs v. Ames, 4 Ring. 470, 130 Eng.

Rep, 849 (1828) ; 11011cr v. Bush, 1 Salk. 394, Dl

Eng.llop. 342 (1607); Carr V. Hincliliff. 4 Barn. &

C. 552, 107 Eng.Rep. 1104 (1825); Illinois: Bones v.

Bankers’ Life Ins. Co., 282 Ill. 236, 118 N.E. 443

(1918); virginia: Baltimore & 0. It. Co. v. Folly,

Woods & Co., 14 Grat. (Va.) 447 (1858); West Vir­ginia: Morgantown Bank v, Foster, 35 W.Va. 357,

13 SE. 996 (1891).


20. Bacon, New Abridgment of the Law, “Pleas” G 3.

374 (Dublin, 1793); Birch v. Wilson, 2 Mod. 274, 86 Eng.Rep. 1068 (1677).

~‘ RoBert Bush, 1 Salk, 394, 91 Eng.Rep. 342 (1697).

472


DEFENSIVE PLEADINGS

Ch. 22

but by Motion to the Court to set aside the Plea and enter the General Issue instead of it.25 By the clear weight of authority, how­ever, the objection is also ground for Special Demurrer. The objection may and must be raised either by Motion or Special Demur­rer.27


As a Plea amounting to the General Issue is usually open also to the objection of being Argumentative, or that of Wanting Color, we sometimes find the Rule in question discussed as if it were founded entirely in a view to those objections. This, however, says Ste­phen, does not seem to be a sufficiently wide foundation for the. Rule; for there are in­stances of Pleas which are faulty, as amount­ing to the General Issue, which yet do not seem fairly open to the objection of Argu­mentativeness, and which, on the other hand, being of the Negative Kind or by way of Traverse, require No Color. Besides, there is Express Authority for holding that the true object of this Rule is to avoid prolixity, for it is laid down that “the reason of press­ing a General Issue is not for Insufficiency of the Plea, but not to make Long Records when “there is no cause.” 28
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