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77. O’Brien v. Sason, 2 Barn. & C. 908, In Eng.Rep.

619 (1824).


7!. Stephen, A Treatise on the Principles of Pleading in Civil Actions, a. XI, Of the l’rineipal Rules of Pleading, 3, pp. 251, 252 (3d Am. cd. by Tyler, Washington, P. C., 1900).

76. See Tebbets v. Tilton, 24 N.H. 120 (1851).

454


DEFENSIVE PLEADINGS

Cli. 22


mitted upon it the trespasses in question, and the plaintiff must establish both these points in evidence. Indeed, besides this advantage of Double Denial, the defendant obtains, un­der the General Issue, in Assumpsit and oth­er Actions of Trespass on the Case, the ad­vantage of Double Pleading in Confession and Avoidance. For he is allowed, in these actions, to bring forward, upon the General Issue, almost Any Matters, though in the Na­ture of Confession and Avoidance, which tend to disprove his debt or liability; so he is not limited, as he would be in Special Pleading, to a reliance on any Single Matter of this de­scription, but may set up any Number of These Defenses. While such is the effect of many of the General Issues in mitigating or evading the Rule against Duplicity, the re­mark does not apply to all. Thus, the general issue of Non Est Factum raises only a Single Question, namely, whether the defendant ex­ecuted a valid and genuine deed, such as is alleged in the Declaration. The defendant may, under this Plea, insist that the deed was not executed by him, or that it was executed under circumstances which absolutely annul its effect as a deed, but can set up no other kind of Defense.7°
The Replication Dc Injuria is similar to the General Issue in being a General Traverse, which is allowed where an Affirmative De­fense is set up by Way of Excuse. Like the General Issue, it is an anomaly and a viola­tion of the Rule against Duplicity, since it permits the Party to set up Numerous De­fenses by one Plea.
DUPLICITY—PROTESTATION
239. A Protestation will not render a Plead­ing Double.

THE nature of this illogical and unneces­sary Form in Pleading has been heretofore explained, and from its nature and object, in being only a collateral objection or reser­vation, without effect in the Action in which

it is used, it is manifest that it cannot cause Duplicity. Thus, in the example given on another page, where the defendant Pleads the delivery and acceptance of goods in satisfac­tion of the plaintiff’s demand, though the plaintiff cannot Reply that the goods were neither delivered nor accepted in satisfac­tion, for this would be Double, yet he may Protest that they were not delivered, and at the same time Deny the acceptance, without incurring the objection. For a Protestation (as already explained) does not Tend to Is­sue in the Action, but is made merely to re­serve to the party the right of Denying or Alleging the Same Matter in a future suit. It consequently cannot fall within the object of the Rule against Duplicity, which is, to avoid a Plurality of Issues.
WHAT DEFENSES MAY BE SHOWN UNDER THE GENERAL ISSUE AND WHAT MAY

OR MUST BE PLEADED SPECIALLY


240. Defenses which may be shown under the General Issue in the various Actions, and those which may or must be Spedally Pleaded are set out in the following Sections.
IN the succeeding sections each of the ac­tions is analyzed with reference to the de­fenses which may be shown under the gen­eral issue and those which may or must be specially pleaded. As will appear, especial at­tention is given to the effect of the Ililary Rules on these questions.8
Be. In general, on the Origin, Development and Ef­fect of the Ililary Rules of 1834, see:
Treatises: Price, New Practice of the Courts of Law at Westminster in Personaj Actions (London, 1833— 1835); Petersdorf, Practical Precedents In Pleading, Prepared in Accordance with the Recent Rules and Statutes; with Explanatory and Practical three­tions, and Preliminary Remarks Upon the Effect and Application of the Late Rules in Pleading (Lon­don, 1835); Charnock, Digest of the various Deci­sions Since the New Pleading Rules Came into op­eration, with Explanatory Observations, Distin­guishing What Defenses May be Given tinder the General Issue (London, 1837); Kennedy, A Treatise on the New Rules of Picading, &e. (London, 1841);

0. Id. at 253.

81. See note SI 01% page 485.

Sec. 241 PLEAS—PEREMPTORY OR IN BAR

TIlE GENERAL ISSUE IN TRESPASS
241. “Not Guilty” is the General Issue in Trespass, and it operates as a Denial of the Act of Trespass alleged. ft also Denies the
Lut~vyehe, An Inquiry into the Principles of Plead­ing the General Issue Since the Promulgation of the New Rules. With a List of Statutes which Al­low the Special Matter to be Given in evidence mi­der the General Issue, and an appendix. (London, 1842); MeNamara, A Practical Treatise oil the Sev­eral Counts and Pleas, Allowed to be Pleaded To­gether in Civil Proceedings, under the Statute, 4 Anne, c. 16 (1705); and the New Rules of IIilarl’ Term, 4 Wm. IV, and other Rules and Statutes (Lon~ don, 1844); Roscoe, Of Pleading the General Issue Under the New Rules of the courts of Westminster:

and of the Evidence Applicable to Issues Obtained by Pleading Specially Under those Rules (London, 1845).


Articles: Reppy, The Hilary Rules and Their Effect on Negative and Affirmative Pleas Under Modern Codes and Practice Acts, 6 N,Y.U.L.Q.Rev. 95 (1929); Simp­son, A Possible Solution for the Pleading Problem, 53 Harv,L.Rev. 169, 177—178 (1039).
Comment: Actions and Pleadings Affected by the New Rules, 10 Monthly L.Mag. 24 (1841).

~ In general, on the Origin, History and Develop­ment of the General Issue, see:
Treatises: Stephen, A Treatise on the Principles of Pleading in Civil Actions, ~. IT, Of the 1~iiw-ii,al Rules of Pleading, 168—170, 252, 253 xlvii, lii (3d ed. by Tyler, Washington, D.C. 1893); Perry, Common-Law Pleading: Its History and Principles, c. IX, Of the Rules Which Tend Simply to the Production of an Issue, 241—251 (Boston, 1597); Gould, A Trea­tise on the Principles of Pleading, Pt. III, Div.

c. V, Of the General issue and Special Is­sues, 474; Id. c. II, Of Special Pleas in Bar, 519 (6th ed. by Will, Albany, 190~); Keigwin, Cases in Common Law Pleading, Bk. IT, The Rules of Pleading, a VII, The General Issues, 589—015 (2i1 ed. Rochester, 1034).


Articles: Langdell, Discovery Under the Judicature

Acts, 1873, 1875, Part 1, 11 Harv.L.Bev. 148—155

(1897); Eeppy, The Anomaly of Payment as an Af­firmative Defense Under Modern Codes and Practice

Acts, 10 Cornell L.Q. 269 (1925); Reppy, The Hilary

Rules and Their Effect on Negative and Affirmative

Pleas Under Modern Codes and Practice Acts, 6

N.Y.U.L.Q.Rev. 95 (1020); Stayton, The General Is­sue in Texas, 7 Tex.LSey. 345—347 (1929); Simpson,

A Possible Solution of the Pleading Problem IThe

General Issoe and Its Scope], 53 IJa”r.L.Ret 175— 178 (1939).

plaintiff’s Title or Right of Possession of Goods or Land, unless limited by Statute or Rule of Court. All Defenses in Justification and Ex­cuse, or in Discharge, must be Specially Pleaded.
FORM OF THE GENERAL ISSUE IN TRESPASS

[Trespass:

Not Guiltyj

In the King’s Bench, Term, in the

Year of the Reign of King George

the Fourth.

C. D.

ats.


A.B.

AND the said defendant by William John-

son, his attorney, says that he is not guilty of the said trespasses above laid to the charge or any part thereof, in manner and form, as the said plaintiff hath above complained. And of this the said defendant puts himself upon the country.
MARTIN, Civil Procedure at Common Law, Appendix, Form (52) (St. Paul 1905).
IN Trespass, whether to person or prop­erty, the General Issue is “Not Guilty.” It operates in the first place as a Denial that the defendant committed the Act of Trespass alleged, to wit, the application of force to the plaintiff’s person, the entry on his land, or the taking or damaging of his goods. It also Denies the plaintiff’s Possession, Title, or Right of Possession of the Land or Goods.
Trespass on the Case—Office of “Not Guilty,” 9 III. LRev. 442 (1910); Effect of the Presence of the Gen­eral Issue on the Retrospective Operation of a De­murrer, 10 111,L.Itev. 417, 421 (1016); PleadIng— Statute of Frauds—Admissible Under General De­nial, 64 U.Pa.L.Rev. 754 (1916); Pleading—General Denial—Bills and Notes—Proof of Payment, 1 hlinn L.Rev. 462 (1917); Pleading—Replevin——WIiat De­fenses are Provable Under a General Denial, $ ?,iinn.11,Rev. 563 (1921); Pleading—Proof of Par ment Under a General Denial in Actions of Account, 27 Minn.L,Rcv. 31S (1942).
Annotations: Assumpsit—General Issue, 40 LIlA. (N.

5.) 43 (1914); Defenses Available ruder Genera!

Denial or a Plea of the General issue in Action of

Ejcctment, L.lt.A.19181’. 2-IT (1918).

485

Comments: Plearling—Trespass on the Case­—Office of ‘Not Guilty,” 9 lll.L.Rev. 44 (1900); Pleading—



486

DEFENSIVE PLEADINGS

Ch. 22

Under it, therefore, the defendant can show such Matters as directly controvert the fact of his having committed the acts com­plained of.82 Matter of Justification and Ex­cuse would admit them, and must therefore be Specially Pleaded.83 In Trespass for As­sault and Battery, if the Defense is that the defendant did not assault or beat the plaintiff, it will be proper to Plead the General Issue; but if his Defense be of any other description the Plea will be inapplicable.83 So, in Tres­pass Quare Olausuni Fi-egit, or Trespass Dc Bonis Asportatis, if the defendant did not in fact break and enter the close in question, or take the goods, the General Issue, “Not Guilty,” will be proper, and it will also be applicable if he did break and enter the close, but it was not in the possession of the plain­tiff, or not lawfully in his possession, as


82. See Gibbons v. Pepper, I Ld.flayru. 38, 91 Erig. Rep. 922 (1695), (where the horse ran away with the defendant, and so it would not he his act which produced the inju,-v) ; English: Pcarcy v. Walter, U Car. &P. 232, 172 Eng.Rep. 1220 11834); New

Hampshire: Puller v. ltourieevilhe, 29 N.H. 554 (1854).


83. English: Cotterill v. Starkey, S Car. & 1’. 091, 34 Eng.Com.Law 905, 173 Eng.Rep. 070 (1839); lIall v. Fearuhey, 3 Q.B, 910, 114 Eng.flep. 781 (1842) (in­eritaijie accident); Massachusetts: Waters v, Lii-Icy, 4 Pick. (Mass.) 147 (1826); New York: But­terwertli v. Soper, 13 Johns. (N.Y.) 443 (1810); Sonth Carolina: Gambling v. Prince, 2 Nott. & 11cC. (S.C.) 138 (1819).
*4. English: fladkin v. Powell, I Cowp. 478, 98 Eng, Rep. 1105 (1776); Illiuoki: Olsen v. Upsahl, CO Ill. 273 (1873); Chicago Title & Trust Co. m’. Core, 223 lU. 58, 79 N.E. 108 (1006).
In case of Trespass to the person the defendant must always Plead his Justification specially when the act is his own. English: Knapp v. Salsbui’y, 2 Camp. 500, 170 Eug.Rep. 1231 (iSle); Boss T. Litton, 5 Car. & P. 407, 172 Eng.Rep. 1030 (1832).
In case of self-defense, justifying the act done in de­fense of property, see: Kentucky: Ford v. Logan, 2 A.K.Marsh. (Ky.) 324 (1820); Massachusetts: Satup­son v. Henry, 11 Ph-k. (Mass.) 379 (3831); New

York: Hyatt v. Wood, 3 Johns. (N.Y.) 230 (1808). And see Illinois: Conis leek m’. Odcrman, 18 Ill App. 326 (1885); New York: Ht.rrick v. Manly, I Caines ~N.Y.) 253 (1803); Gates v. Lomishui’y, 20 Johns. (N. 1.) 427 (1823).

against the better title of the defendant, or li he did take the goods, but they did riot be­long to the plaintiff, for, as the Declaration alleges the Trespass to have been committed on the close or goods of the plaintiff, the Plea of Not Guilty involves a Denial that the de­fendant broke and entered or took the close or goods of the plaintiff, and is therefore a fit Plea, if the defendant means to contend that the plaintiff had no possession of the close, or property in tile goods, sufficient to entitle him to call them his own.85 If the Defense is of a’iy other kind, the General Is­sue will not apply; as, for instance, where the defendant intends to show a Justification or Excuse, or a Discharge.86
PLEAS IN CONFESSION AND AVOIDANCE IN TRESPASS
242. In Trespass, all Defenses in Justifica­tion and Excuse, or in Discharge, must be
S5. English: Badkin v. Powell, I Cowp. 475, 95 Eng.

Rep. 1195 (1770); illinois: Ebersol v. Trainer, SI

lll.App. 645 (1898); smith v. Edelstein, 92 Ill.App.

38 (1900); Massachusetts: Proprietors of Monumoi

Great Beach v. Rogers, I Mass. 100 (1804); New

York: Brown v. Arteher, I Hill. (N.Y.) 200 (1841).
Jim Trespass the defendant may offer as many Titles to the Land as he pleases, and, if they fail him, may resort to and defend upon his possessory right. Mackay v. Reynolds, 2 Bay (S.C.) 474 (1802); Strange v. Durham, 2 Bay (S.C.) 420 (1802). And see Norms v. Keeler, 6 Johns. (N.Y.) 63 (1810),
The Plea of “Liberuni Tenemnentum,” which states a general freehold title in the defendant without eth­envise describing it, is an instance of a Special Plea in Trespass “Quare Clausum Fregit” which admits both the plaintiff’s possession and the Trespass charged. Illinois: Fort Dearborn Lodge v. Klein, 115 III. 177, 3 N.E. 272, 56 Am.Rep. 133 (1885); Marks v. Madsen, 261 Ill. 51, 103 N.E. 623 (1913); Ward v. Mississippi River Power Co., 265 II]. 480, 107 N.E. 115 (1914); South Carolina: Caruth v. Allen, 2 MeCord (S.C.) 220 (1822).
86. Alabama: Finch’s Ex’rs v. Alston, 2 Stew. & P.

(Ala.) 83, 23 Am.Dee. 299 (1532); Illinois: Hahn v.

Ritter, 12 Ill. 80 (1850); Chicago Title & Trust Co. i’.

Core, 223 III. 58, 79 N.E. 108 (1006); Massachusetts:

Iluggles V. Lesure, 24 Pick. (Mass.) 187 (1830); Mich­igaim: Seneeal v. Labadin, 42 lfleh, 126, 3 NW. 290

(1870); New York: Coles v. Carter, 0 Cow. (N.Y.)

091 (1827).

Sec. 242

PLEAS—PEREMPTORY OR IN BAR

487

Specially Pleaded in Confession and Avoid­ance.



ALL Defenses in Justification and Excuse, and in Discharge, must be Specially Pleaded in Confession and Avoidance in Trespass,87 as Self-Defense (Son Assault Demeane), Leave and License, Defense of Property, En­try or Seizure by Virtue of Judicial Process, or Contributory Negligence, and such Mat­ters in Discharge as Release,88 Statute of Limitations, Arbitration and Award, and Former Recovery.
The Plea of Liberurn Tenementum, the “Common Ear,” is that the land was the soil and freehold of the defendant. This Plea admits possession in the plaintiff, such as would enable him to sue a stranger, but as­serts a freehold in the defendant and a right
87. Under leave and license: In Tiespass, Justifica­tion under a license must be specially pleaded, and cannot be shown under the General Issue, notwith­standing the broad proi-isions of Code 1007, Ala.

5331. Louisville & N. B. Co, v Bartee. 204 Ala.

539, 55 So. 304, 12 A.L.R. 251 (1020); Sturman

~‘. Colon, 48 Ill. 463 (1808) Chicago Title & Trust



- Co. v. Core, 223 113.55, 70 N.E. 108 (1906), Cf. Kapisehki v. Koch, 180 Ill. 44, 54 N.E. 179 (1809).
Concerning self-defense (son assault demesne) see:

Thomas v. Riley, 114 I1l.App. 520 (1004).


For defense of property, see 1]linois Steel Co. v. No­vak, 184 UI. 503., 56 N.E. 066 (1000).
Necessity for landlord to enter to make repairs, see:

Comsteek v. Oderman, IS I1l.App. 320 (1885).

For cases under entry or seizure by virtue of Judicial

Process, see: Olsen v. Upsahl, 69 Ill. 273 (1873);

MeNall v. Vehon, 22 Ill. 499 (1850); Bryan v. Bates,

15 Ill. 87 (1853); hg v. Burbank, 50 Ill.App. 291

(1894); Blakek v. Randall, 76 Ill. 224 (1875).
Justification under Legal Authority is not available as defense to Action of Trespass unless Specially Pleaded, but defendant may show under General Is’ sue in mitigatIon that he was acting in good faith and under what he considered Legal Authority. Jackson v. Boblin, 16 Ala.ADp. 105, 75 So. 697 (1017).

88. In general on the subject of a Release as a De­fense see:

Article: Fallon, Time Nature of Release, ii Temple L.Q. 170 (1937).


Comment: Who Has the Burden of Proof in Setting Aside Releases Executed by Injured Railroad Em­ployees, 53 Diclc.L.Rev. 298 (1049).

to the immediate possession as against the plaintiff. This admits that the defendant did the act complained of against the possession of the plaintiff, but Justifies 1L8° The Gen­eral Issue disputes both possession and title, but this Plea shows defendant’s Title on the Record, and may compel the plaintiff to make a New Assignment of the locus in quo with more specific description.


FORM OF PLEA OF LrnERUM TENEMENTUM IN TRESPASS QUARE CIAU5UM FRECIIT

In the Court, Term,

C.D.

ats.
A,B.


AND for a further plea in this behalf, as to the breaking and entering the said close, in which, etc., in the said declaration men­tioned, and with feet in walking, treading down, trampling upon, consuming and spoil­ing the grass and herbage then and there growing, the said defendant, by leave of the court here for this purpose first had and ob­tained, according to the form of the statute in such case made and provided, says that the said plaintiff ought not to have or main­tain his aforesaid action thereof against him; because he says that the said close in the said declaration mentioned, and in wh!ch, etc., now is and at the said several times when, etc., was the close, soil and freehold of him, the said defendant. Wherefore he, the said defendant, at the said several times when, etc., broke and entered the said close, in
89. Ft. Dearborn Lodge -v. Klein, 115 Jll. 177, 3 N.E.

272, 56 Am.Rcp. 133 (1885); Illinois Ceut. B. Co. v.

Ratter, 207 UI. 88, 69 N.E. 751 (1904); Marks v.

Madsen, 261 Ill. 51, 103 N.E. 625 (1913); Ward v.

Mississippi River Power Co., 265 III, 480, 107 N.E.

115 (1914).
In Trespass Quare Clausum Fregit for coustrnctiflg a s,dc’wallc along land against objection, the defend­ant, by pleading Liborum Tenementum, admits that plaintiff was ia possession and the doing of the acts charged. Morgan v. City of Vienna, 206 Jll.App. 322 (1917); Boyd v. Kiimnel, 161 Ill.App. 206 (1011).

488


DEFENSIVE PLEADINGS

Cli. 22


which, etc., and with feet in walking, trod down, trampled upon, consumed and spoiled the grass and herbage then and there grow­ing, as he lawfully might for the cause afore­said, which are the same trespasses in the introductory part of this plea mentioned, and whereof the said plaintiff hath above com­plained. And this the said defendant is ready to verify. Wherefore he prays judgment if the said plaintiff ought to have or maintain his aforesaid action thereof against him.
SHIPMAN, Handbook of Common-Law Pleading 311 (3d ed. by Ballantine, St. Paul 1923).
THE HILARY RULES—THEIR EFFECT UPON NEGATIVE AND AFFIRMA­TWE DEFENSES IN TRESPASS
243. Under the Ililary Rules “Not Guilty” operated in trespass quare clausum fregit only as a denial that the defendant committed the trespass alleged in the place mentioned; and in trespass de bonis asportatis only as a denial of the defendant having committed the trespass alleged by taking or damaging the goods.
The Hilary Rules of 1834 restricted the Scope of the General Issue by providing that, in Trespass Quare Clausurn Fregit, the Plea of Not Guilty shall operate as a Denial that the defendant committed the Trespass alleged in the place mentioned, but not as a Denial of the plaintiff’s Possession or Right of Pos­session. If this is intended to be Traversed, it must be by a Specific Traverse.
In Trespass Dc Bonis Asportatis, the Plea of Not Guilty operated under the Hilary Rules as a Denial of the defendant having committed the Trespass alleged, by taking or damaging the goods mentioned, but not of plaintiff’s property therein. To put in Is­sue the plaintiff’s Right, the Specific Tray­erse “Not Possessed” was used. Prior to these Rules of Court there was no occasion for a Specific Traverse.

THE GENERAL ISSUE IN TRESPASS

ON THE CASE
244. The Plea of “Not Guilty” is the proper General Issue in an Action of Trespass on the Case, and is a Formal Denial of Liability, ad­mitting almost All Defenses.

FORM OF THE GENERAL ISSUE IN


TRESPASS ON THE CASE

[Trespass on the Case:

Not Guilty]

In the King’s Bench, Term, in the Year of the Reign of King George

the Fourth.

C. D.


ats.

A.a


1k

AND the said CD., by William Johnson, his attorney, comes and defends the wrong and injury, when, etc., and says that he is not guilty of the premises above laid to his charge in manner and form as the said A.B. hath above complained. And of this tile said CD. puts himself upon the country.


STEPHEN, Principles of Pleading in Civil Actions, 278 (2d ed. by Andrews, Chicago 1901).
THE General Issue in the Action of Tres­pass on the Case is “Not Guilty,” and the Scope and Effect of this Plea is much broader than in the Action of Trespass Vi Fit Armis, where it operates as a Mere Denial or Trav­erse of the Facts alleged. An effect is given it similar to that in the Action of Assumpsit, by which the defendant may contest under it, not only the truth of the Material Facts al­leged in the Declaration, but may also give in evidence any Defense which, as Lord Mans­field observed, “would in equity and con­science, under the existing circumstances, preclude the plaintiff from recovering, because the plaintiff must recover upon the

justice and conscience of his case, and on

Sec. 244

PLEAS—PEREMPTORY OR IN BAR



489

that only.” The defendant, upon the Gen­eral Issue of Not Guilty, not only put the plaintiff upon the Proof of the Whole Charge in the Declaration, including Matters of In­ducement, as well as Matters constituting the Gist of the Action, but he might also offer evidence of Defenses going to Dispute Liabil­ity, more popularly known as Affirmative Defenses. And this included Affirmative De­fenses in Discharge of the cause of action, as wail as Defenses in JustifIcation and Excuse. The net effect of this departure from the True Principles of Pleading, was to permit the defendant, under the General Issue, any Matter of Defense in contravention of the Plaintiff’s Right of Action, even though such matters were strictly the proper subjects of a Plea in Confession and Avoidance of the Declaration; 91 although the defendant could, if he chose, bring forward by Way of a Special Plea all Matters in Confession and Avoidance of the Declaration. Thus, in ef­fect, under the General Issue, the defendant’s Defense might be that he did not commit the Wrongful Act complained of, or that


90. Bird v. Randall, 3 Burr. 1353, 07 EngRep. 566

(1762). See, also, the following cases: Eaglish:

Birch v. Wilson, 2 Mod. 276, 86 Eng.Rep. 1008 (1617);

Brad4ey v. Wyndbam, I Wils.K.B. 44, 05 EngRep.

483 (1743); Pennsylvania: Greenwalt V. Hornex’, 6

Serg. & B. (Pa.) 76 (1820); Tennessee: Plowman v.

Foster, C Cold. (Tenn.) 52 (1808),

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