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1. Id. at 86.

97. Ill.Rev,St. e. 110, § 46 (Hard, 1021); Powers v.

Rutland E. Co., 83 Vt. 413, 70 A. 110 (1910).

DEFENSIVE PLEADINGS

which did not exist, and which the defend­ant had consequently no opportunity to Plead, before the Last Continuance. This New De­fense he was therefore entitled, at the Day appointed for his reappearance, to Plead as a. Matter that had happened after the Last

Continuance—”Puis

ance.” 2

Darrein Continu­

Defenses arising after the action has been

begun cannot, as a Rule, be shown under the General Issue, for the reason that they do not Deny that a cause of action existed at the Commencement of the suit.3 Such Defenses must be Pleaded either “to the further main­tenance of the action,” or, if they do not arise until after Plea, they must be Pleaded ‘Puis Darrein Continuance.” ~ But in the Action
2. Stephen, A Treatise on the Principles of Pleading in Civil Actions, ~. I, Of the Proceedings in an Ac­tioa, from its Commencement to its Termination, 07 (34 Am. ed. by Tyler, Washington, B. C., 1900).
3. Mount v. Scholes, 120 III. 30.1, 11 N.E. 401 (1887).
4. English: Le Bret v. Papillon, 4 East 502, 102 Rag.

Rep. 023 (1804); Evans v, Prosser, S TAt. 186, 100

Eng.Ilep. 524 (1789); Arkansas: Costar v. Davies, 8

Ark. 213, 46 Am.Dec. 311 (1847); Illinois: Ross v.

Neshit, 2 Gil. (Ill.) 252 (1845); Gibson v. Bourland,

13 I1l.App. 352 (1883); Maine: Rowell V. Hayden, 40

Me. 582 (1855); North Carolina: .Smithwick V.

Ward, 52 N.C. 64, 75 Am.Dec. 453 (1850); New 3cr-

sey: 1-lutchinson v. Hendrickson, 29 N,J.L. 180

(1881); Rhode Island: Fitzpatrick v. Fitzpatrick, (3

Ed. 64, 75 AntDec. 081 (1850).
Thus, payment of a debt sued for or a Release or Com­promise, or another Judgment for the same cause, etc., since the suit was commenced, cannot be Plead­ed Generally In Bar. If the Defense has arisen since the Plea or Issue joined, it must be set up by a Flea of Pals Darrein Continuance. Illinois:

Mount v. Scholes, 120 111. 394, II NE. 401 (1887);

Missouri: Wade v, Emerson, 17 Mo. 267 (1852); New Jersey; Ilutehinson v. Hendrickson, 20 Tc.3.L. 180 (1861); New York: Bowne v. Joy, 9 Johns. (N.Y.) 221 (1812); Ohio: Long-worth v. Flagg, 10 Ohio 301 (1891); Rhode Island: Smith v. Carroll, 13 ILL 125, 21 A. 343, 12 LILA. 301 (1891); Federal:

Leggett v. Rumphreys, 21 How. (U.S.) 66, 16 LEd. 50 (1858).


“The General Rule upon this subject at Common Law

Is, that any Matter of Defense arising after the

Commencement of the Suit, cannot be Pleaded in

Ear of tbe Action generally. If such matter arise

on the Case an Exception to this Rule exists, and such Defenses as a Release Executed after Suit Begun and Issue Joined may be shown under the General Issue, and it is not necessary that they be Pleaded Puis Darrein Continuance.5
The Plea Puis Darrein Continuance may be either in Abatement or in Bar, like other Pleas, according to the Matter. It must be certain and definite in every particular, the greatest degree of strictness being required.6
A Plea Puis Darrein Continuance is a waiver of and substitute for the first Plea, and of the latter no advantage can be taken afterwards. When flied, the Plea, by opera­tion of Law, supersedes all other Defenses in the cause, and the Parties proceed to settle
after thc Commencement of the Suit and Before Plea, It must be pleaded to the further mainte­nance of the Action. But if it arise After Flea, and Before Replication, or After Issue joined, whether of Law or Fact, then it must be pleaded Puis Dan-elm Cost innonce. A Plea of this kind involves great le­gal consequences that do not attach to an Ordinary Plea. It only questions the plaintiff’s right to /5-i-the,’ i,so.j.,ttaj,t the Suit. When filed, it, In’ Opera­tion of Law, supersedes all other Pleas and Defens­es in the Cause, and the parties proceed to settle the Pleading fle Novo, jast as though no Plea or Pleas had theretofore been filed in the ease. By reason of Pleas of this kind having a tendency to delay, great strictness is required in framing them. In this re­spect they are viewed much like Pleas in Abate­ment, and, for the same reason, they must, like those Pleas, he verified by Affidavit.” Mount v. Seholes, 120 III. 304, 399, 11 N.E. 401. 402 (1887).
And see the following eases: Illinois: Van Norman V.

Young, 228 III. 425, 81 N.E. 1060 (1907); Oklahoma:

Ham v. Security Nat. Bank of Oklahoma City, 74

Ok-I. 184, 177 P. 508 (1018).


5. City of Chicago v. Babcock, 143 fl] 358, 32 N.E.

271 (1892); Papke v. 0. H. Hammond Co., 102 lii.

631, 61 N.E. 910 (1901).
0. Alabama: Henry v. Porter, 29 Ala. 619 (1857); Il. linois: Ross v. Nesbit, 2 Gil. (111.) 252 (1815); Ken­yea v. Sutherland, 3 Gil. (Ill.) 99 (1840); Mount V. Scho]es, 120 111. 394, 11 N.E. 401 (1887); Gibson V. Bourland, 13 Ill.App, 352 (1883); Maine: ~pmming5 v. Smith, 50 Me. 568, 70 Am.Dec. 629 (1802); CItY of Augusta v. Moulton, 75 Isle. 551 (1884); Pennsyl­vania: Vieary v. Moore, 2 Watts (Pa.) 451, 27 Am. Dee. 823 (1834).

514

Ch. 22


PLEAS—PEREMPTORY OR IN BAR

the Pleadings de novo, just as if no Plea had

theretofore been filed in the case.~

RECOUPMENT AND SET-OFF

278. fly Statute the defendant is generally permitted in Contract Actions to set up a Coun­ter Ikmand, if liquidated, as a Set-Off to de­feat plaintiff’s recovery in Whole or in Part. In some states an Affirmative Judgment for the defendant is permitted.
- Recoupment is generally a Cross-Demand for Damages sustained by defendant in the same transaction, allowed in Reduction of Damages.
The Doctrine of Recoupment

AT Common Law, if A owed B a thousand dollars and B owed A a thousand dollars, A


7. Illinois: I)inet v. I’firshing, 56 Ill. 83 (1877)

Mount v. Selioles, 120 Ill. 394, 11 N.E. 401 (1887); People v. Chicago flys. Ce., 270 III. 87, 110 N.E. 356 (1915); Id. 270 flI. 140, 110 N.E. 402, holding that under the Illinois Practice Act as it then existed, former I’leas no longer waived; New York: Kim­ball v. Huntington, 10 Wend. (N.Y.) 679, 25 Am.Dec. 590 (1833); Rhode Island: Davis v. Burgess, IS ILl.

85, 25 A. 848 (1892); Vermont: Lincoln v. Thrnll, 26 Vt. 304 (1854); Wisconsin: Adams v. Filer, 7 Wis.

- 306, 73 Ani.Dec. 410 (1858); Federal: Wallace v. McConnell, 13 I’~t. (U.S.) 136, 10 LEd. 95 (1830).
“It is laid down in Baeoa’s Abridgment (0 Bae.Abr. [by Gwillimj 377) that if, after a Plea in Bar, the de­fendant pleads a Plea Puis Darrein Continuance, this is a Waiver of his Bar; and no advantage shall be taken of anything in the Bar. And it is added that it seems dangerous to plead any Matter I’uis Darrein Continuance unless yeu he well advised; because, if that matter be determined against you, it is a confession of the matter in Issue. This Rule was adopted in Kimball v, Huntington, 10 Wend. (N.Y.) 679, 25 Am.Dec. 590. The Court say the Plea Puis Darrein Continuance waived all previous Pleas, and on the Record the Cause of Action was admitted to the sonic c-xtent as if no other defense had been urged than contained in this Plea.” Wallace v. Mc­Connell, 13 Pet. (U.S.) 136, 10 LEd. 95 (1839).
8. In general, ou Itecoupinent, Set-Off and Counter­claim, see:
Treatises: Montagu, A Summary of the Law of Set­Off, with an Appendix of Cases Argued and Deter­mined iii the Courts of Law and Eouity upon that Subject (New York, 1806); Babingten, A Treatise on the Law of Set-Of and Mutual Credit, with an Ap­peinlix of Precedents (London, 1827) ; Barbour, A Treatise on the Law of Set-Off, with an Api~ndix

was required to sue and recover from B in a separate action, and likewise B was required


of Precedents (Albany, 1841); A Treatise on the Law of Set-Off, Recoupment and Counterclaim (3d ed. New York, 1872).
Articles: Leyd, The Development of Set-Off, 04 U. Pa.L.Rev. 541 (1916); Kerr, Counterclaim Fo~inilc,l in Tort, 95 Cent.L.3. 27 (1922); Blurne, A Rational Theory for Joinder of Causes of Action and De­fences and for the Use of Counterclaims, 26 Mich. L.Rev. 1 (1927); Howell, Counterclaims and Cross-Complaints in California, 10 So.Calif.L.Rev. 415 (1937); Lowry, Connterelaims (or Cross Petitions) in Ohio Practice, 19 U.Cinu.LJlev. 311 (1950); Czyak, Counterclaims, Cross-Claims, and Third-Par­ty Petitions under the 1945 Missouri Code, Wash.

U.L.Q. 201 (Winter, 1050); Wright, Estoppel by

Rule: The Compulsory Counterclaim Under Modern

Pleading, 38 Minn.L.Rev. 423 (1954).


Comments: Set-Off and Counterelaim—Chose in Ac­tion Assigned before Maturity Subject to Set-Off for Claim Against Assignor Acquired Before Notice of Assignment, 31 Yale L.J. 069 (1922); Set-Off and Counterclaim—Right to Plead Set-Off and Counter­claim in a Reply, 5 Minn.L.Rev. 487 (1021); Re­coupment—Set-Off and Counterclaim, 28 W.Va.L.Q. 139 (1922); Pleading: Equity Affecting Legal Caus­es of Action as Defenses or Counterclaims: Mode of Trial of Such Issues, 11 Cornell L.Q. 396 (1920); Counterclaims in Courts of Limited Jurisdiction, 44 Harv.L.Eev. 273 (1930); Pleading—Counterclaim— Mutual Libels as Arising out of the Same Transac­tion, 1 Mo.L.flev. 201 (1936); Counterclaim in Iowa, 24 Iowa L.Bev, 310 (1039); Pleading—Complaint— Common Counts in Assumpsit Followed by Allega­tion of Promise to Pay, 21 Minn.L.Rev. 756 (1939); Set-Off, Counterclaim and Reeoupment—Liinita­tion of Actions—Claim Not Barred by Expiration of Limitation Period, 28 Va.L.Rev. 557 (1042): Coun­terclaim: Effect of Statute of Limitations, 31 Calif. L.Rev. 210 (1943); Counterclaim for Malicious Prose­cution in the Action Alleged to be Malicious, 58 Yale Li 490 (1940); Pleading—Counterclaim— Right of Administrators to Counterclaim in Another Capacity, 12 U.Detroit L.J. 140 (1949): Govern­mental Immunity from Counterclaims, 50 ColLEct 505 (1050).
An notations: Set-Off, Counterclaim, and Recoupment. in Replevin or other Action for Possession of Per­sonal Property, 151 A.L,R. 519 (1944); Claim Barred by Limitation as Subject of Set-Off, Counterclaim. Recoupment, Cross Bill or Cross Action, 1 A.L.R.24 630 (1948); Cause of Action in Tort as Counter­claim In Tort Action, 10 A.L.R.2d 1167 (1950); Fail­ure to Assert Matter as Counterclaim as Preclud­ing Assertion Thereof in Subsequent Action, nader Federal Rules or Similar State Rules or Statutes, 22 A.L,B.2d 621 (1952).

Sec. 278


515

516


DEFENSIVE PLEADINGS

Ch. 2


to sue and recover from A in a separate ac­tion. This was so because the early Common Law doctrine was that the only remedy where Cross-Demands existed was for each party to sue separately,9
The absurdity of this situation became crystal clear in a situation where A sold a thousand bushels of Grade A wheat to B, but on delivery it turned out to be Grade B wheat, whereupon B refused to pay. When, therefore, A sued B for the purchase price, and B desired to cut down the amount of A’s recovery by asserting his Claim for Damages for Breach of Warranty, it was necessary for him to bring a separate action.
However, through a long series of judicial decisions, the Common-Law Doctrine of Re­coupment was developed. At first, Recoup­ment could be used solely as a Defense to diminish the plaintiff’s recovery. Further­more, it was confined to Contract Actions, and to Cross-Demands arising from the very contract sued upon by plaintiff.’0 As it evolved, however, Recoupment came to lie for Matters arising from the same transac­tion, as well as the same contract.
The defendant may generally Recoup for Damages caused by plaintiff’s Breach with­out Notice under the General Issue.1
9. Pomeroy, Remedies and Remedial Rights by the Civil Action, 789 (Boston, 1594).
10. Id. at 792.
11: Illinois: Higgins v. Lee, 16 Ill. ~93 (1835); Bab­cock v. Trice, 18 Ill. 420, 68 Am.Dee. 560 (1857); Streeter v. Streeter, 43 Ill. 155, 160 (1867); Mur­ray v- Carlin, 67 III. 286 (1873); Waterman v. Clark, 76 III. 428, 431 (1575) (note, Special Plea); Cooke V. ProNe, SO III. 381 (1875); Baker V. Fawcett, 69 III. App. 300 (1886); Peiree y. Sholtey, 100 Ill.App. 341 (1914); Maryland: Sullivan v. Boswoll, 122 Md. 539, 89 AtI. 040 (1914); New York: Barber v. Rose, 5 (Till. (N.t) 76 (1843).
For Recoupment nnder the General Issue, see: Icrank.

En v. P. B. Lilly Lumber Co., 66 w.Va. 164, 66 SE.

225 (1909); Cf. Set-Off, independent items, Plea of

Set-Off required. Illinois: Wilson v. Wilson, 125

Ill.App. 385 (1906); West Virginia: Philippi Plan­ing Mill Co. v. Cross, 75 WXa, 303, 83 SY-- 1004

(1914)-


It is not necessary that the Claim by wa) of Recoupment be a liquidated debt. It Stow v. Yarwood,2 the Court speaks ol Recoupment as follows: “This Doctrine ol Recoupment tends to promote justice, and U prevent needless litigation. It avoids circuity of action, and multiplicity of suits. It ad­justs by one action adverse claims growing out of the same subject-matter. Such claims can generally be much better settled in one proceeding, than in several. It is not nec­essary that the opposing claims should be of the same character. ‘ * * A claim orig­inating in contract, may be set up against one founded in tort. It is sufficient that the coun­ter claims arise out of the same subject-matter, and that they are susceptible of ad­justment in one action.” 13
The Doctrine of Set-Off

AT Common Law, where Cross-Demands existed, the defendant, until Recoupment was recognized, could not Pray for any Relief in his Pleadings. If he had a claim against the plaintiff, he could only set it up in another suit of his own. Although the Doctrine of Set-Off of Mutual Claims had early been rec­ognized in Equity, it had not found its way into the Common Law. But in 1729 the doc­trine was incorporated into the Common Law by means of the Statute of 2 George 11, c. 22, § 13, 16 Statutes at Large 53 (1729).


By this Statute a defendant was allowed in an Action upon a Debt to set up a liquidated demand of his own to counter-balance that of the plaintiff, either in whole or in part14
12. 14 Ill. 423 (1853).
13, Id. at 426, See, also: Delaware: Houghton & Co.

V. Alpha Process Co., 5 Boyce (Del.) 383, 05 AU. 669

(1915); Florida: Jarrett Lumber Co. v. Reese, 66 Fla.

317, 63 So. 581 (lola); Illinois: Keegan v. lUnnare,

123 Ill. 280, 14 N.E. 14 (1887); Massaehusetts:

Bennett -v. Kupfer Bros. Co., 213 Mass. 218, 100 N.E.

332 (1913).
14. The Statute of 2 Ceo, II, c. 22, i 13, 16 StatuteS at Large 59 (1729), was re-enacted and amended in 1733, by the Statute of S Gee. II, c. 24, 5, 16 Stat-

PLEAS—PEREMPTORY OR IN BAR

And, as Set-Off developed, it was necessary that it be for a liquidated demand, whereas Recoupment could be for an unliquidated demand. Also, the defendant could recover a balance in Set-Off, but not in Recoup­ment.15 Set-Off answered very nearly to the
utes at Large 535, and, as amended, read in part as follows: “Mutual Debts may he set against each other, either by being Pleaded in Bar, or given in evideaee on the General Issue ~nd in case the plaintiff shall recover in any such Action or Suit, Judgment shall be entered for no more than shall appear to be truly and justly due to the plain­tiff, after one debt being set against the other as aforesaid.”

15. Pomeroy, Remedies and Remedial Bights by the Civil Action, 792 (Boston, 1894).



compensatio of the Civil Law, where Mutual Debts compensate each other, and operate as payment, to extinguish so much of the recip­rocal demand. But in English Law this Right of Set-Off only arises in the course of an ac­tion as a Plea. A debt is not extinguished pro tanto, by mere operation of law, when the debtor acquires a claim against the creditor.1°
IC. Loyd, Development of Set-Off, 04 U.PaL.Uev. 541, 543 (1016). Cross-Demands do not cancel each other in the Common Law. 2 Williston, The Law of Contracts, § 859 (New York, 1927).

Sec. 278


517’

Sec.


CHAPTER 23
THE REPLICATION

279. The Various Rinds of Replication.

280. The Replication De Injuria—Definition, Scope and Availability.

281. Forms of Plea and Replication Dc hijuria Thereto.

282. Formal Parts of Replication.

283. Status of the Replication Dc Injuria Under Modern Codes, Practice Acts and Rules of Court.

284. Depai-ture Defined and the Reason for the Rule Against Departure.

285. The Kinds of Departures and the Stage of Pleading at Which They May Occur,

280. The Mode of Taking Advantage of a Departure.

287. Status of Departure Under Modern Codes, Practice Acts and Rules of Court.

New Assignment—Definition, Necessity and Application,

Form of New Assignment.

New Assignment as in the Nature of a New Declaration.

Status of New Assignment Under Modern Codes, Practice Acts and Rules

of Court.

TIlE VARIOUS KINDS OF REPLICATION 1


279. A replication must either traverse a plea, or confess and avoid the matter pleaded by the defendant, or present matter of estoppel to the plea. A fourth sort of replication is a new assignment.
1. In general, on the subject of Itepileations, see:
Treatises: Ener, A System of Pleading, e. XXXII, De­parture, 213—217 (Dublin, 1791) ; La~ves, An Ele­mer,tarv Treatise of Pleading in Civil Actions, e. VII, Of Replications and the Subsequent Pleadings, 140—165 (1st Am, ed. Portsmouth 1808); llening, The American Pleader and Lawyers Guide, Repli­cations (Richmond 1520); 1 Saunde,-s, The Law of Pleading and Evidence, Replication, 774—776 (4th Am ed., Philadelphia 1844); Rime, A Treatise on the Replieatio, de Injuria (London 1842); Shipinnn, I-land book on Corn ‘no,’ Lan’ l’lr, ad in g, e. XV, II ej i eatious, ~ 211—213, (Svd ed. by Ballantine, St. Paul 1923) ; 1 Chitty. A Treatise on tl,e Parties to Ac­tions, the Fo,’,as of Actions, and on Pleading, e- VII Of Replications, 603—685 (6th Am. ed., Springfield, 1833); Stephen, A Ti-eatise on the Principles of Pleading in Civil Actions, 93—95, 265—207, 345—348 (3rd Am. ed. by Tyler, Washingtan, 0. C., 1000); 1 Tldd, Practice of the Court of ICing’s Bench in Per­sonal Actions. c- XXIX, Of XThplieations, and other Subsequent PleadIngs, 625—640 (Philadelphia, 1807).

WHERE a defendant pleads in Confession and Avoidance, at the Replication stage of Pleading the plaintiff may Demur or Plead. If he does not Demur, he may deny or trav­erse the truth of the matter alleged in the Plea, either in Whole or in Part, or he may confess and Avoid the Plea.2 If he decides upon the latter, he must be careful to avoid a Departure, which, in the case of the plaintiff, is an abandonment at a later Stage of Plead­ing of the ground on which the plaintiff placed his Cause of Action. li-i case of an Evasive Plea it may be permissable for plain­tiff to enter a New Assignment, and, in some cases, he may Reply by showing Matter in Estoppel.


To a large degree, the Requisites of a Rep­lication resemble those of a Plea, and are, first, that it must Answer so much of the Plea as it professes to Answer; second, that it must not Depart from the Cause of Action
2. Henry v. Ohio River B. Co., 40 WVa. 234, 21 S.E.

863 (1893).

288.

289.


290.

291.


518

Sec. 280


THE REPLICATION

519


set up in the Declaration; third, that, like a Plea, it should be Certain, Direct and Posi­tive, and not Argumentative; and fourth, that it must be Single.
THE REPLICATION DE INJURIA—DEFINI­TION, SCOPE ANT? AVAILABILITY
280. In certain Actions, where the defend­ant Pleads Matter of Excuse, the plaintiff, in­stead of Traversing Specially, is permitted to Reply by a Denial in General and Summary Terms. This Traverse is used only to Deny Matter of Excuse, and occurs only in the Repli­cation. Such a Pleading is Known as the Rep­lication De Injuria.
A REPLICATION DE INJURIA is a com­penius Form of Denial which, broadly speak­ing, does for the plaintiff at the Replication Stage of Pleading, what a Plea of the General Issue does for the defendant at the Plea Stage of Pleading, that is, it denies all the Material Allegations in the Plea. But in what situa­tion is this most technical procedural device used? If we suppose that the defendant’s Plea sets out several Distinct Matters which are essential to constitute his Defense, the General Rule has been, according to the prin­ciples so far observed, that the plaintiff, in framing his Reply to such a Plea, was re­quired to select one of the several Facts or Matters alleged and Traverse or Confess and Avoid that Particular Fact or Matter, and, as an incident thereof, admit by implication all the other matters. Thus, for example, in Trespass De Bonis Asportatis for taking goods, conceivably the defendant might Plead that the goods in question consisted of a num­ber of cases of alcoholic liquor, that the plain­tiff was unlawfully in possession of them, having no License to keep such goods and having them f or illegal sale, that the defend­ant was an officer having the authority to seize liquors unlawfully kept, and that he did seize them for the reason stated, and deliv­ered them to the officer appointed by the Law to receive goods so seized. Assuming that the goods were not contraband, that the

plaintiff had lawful possession of them, that the defendant was not an officer, that he had no authority to seize any goods, and that he used the goods for his own consumption, the plaintiff, at the Replication Stage of Pleading might Reply by Traversing any one of the facts relied upon by the defendant. If, how­ever, he undertook to Traverse more than one, or all of these facts, he would be guilty of violating the Rule of Pleading against Du­plicity, unless the Common-Law Rule as to Singleness of Fact Denied be changed in such a situation. The Common-Law, under such circumstances, did permit the plaintiff to Traverse a Plurality of Matters or Facts con­tained in the defendant’s Plea, by Replying that the defendant committed the trespasses stated itt the Declaration, of his own wrong and without such cause as in the plea alleged, Dc lnjurja Sua Pro pr-ta Abs que Tali Ca-usa. Such a Form of Replication, known as a Rep­lication Dc Injuria,3 operates as a Compendi­ous Denial of Every Material Fact set out in the Plea, thus creating an Issue of Fact, just as the General Issue enabled a defendant to Traverse, at the Plea Stage of the Pleading, all the Material Allegations in the plaintiff’s Declaration. The Replication De Injuria dif­fered from a Common Ti-averse, which was a Denial of a Material Allegation of Fact in the Pleader’s Own Language, in that the Rep­lication De Injuria was not a Denial in Di­rect and Categorical Terms, but rather by a Fixed Form in the Nature of a Blanket Nega­tion and in that it operated to put in Issue Not One, but All the Material Facts constitu­ting the defendant’s composite Defense.


The General Rule as to When the Replication Dc Infuria May be Interposed to a Plea

THE Common-Law Rule was that a Repli­cation could not be Double or contain Two or More Replies to the Same Plea. And it


3. Gould, A Treatise on the Principles of Pleading, Part UI, Of Pleading, Div. v, Of Pleas to the Ac­tion, C. III, Of Traverse, 539 (6th ed, by Will, Al­bany, 1909).

t20


DEFENSIVE PLEADINGS

Cli. 23


should be kept in mind that the Statute of Anne,4 enacted in 1705, which permitted a defendant to Plead Several Defenses, did not extend to Replications, except in the single instance of a Plea in Bar to an Avowry in Re­plevin, which is in the Nature of a Replica­tion, but which is in reality a Plea, as the Avowry was in reality in the Nature of a Declaration.
Where a Plea sets up a series or group of circumstances which together constitute the Defense, the strict Theory of Pleading re­quires the plaintiff to select some one of such Several Matters and take Issue upon that Single Specific Allegation alone. The Repli­cation De Injuria, like the General Issue, is an instance of Licensed Duplicity, to permit a Denial of Several Matters in one Compen­dious Form. Before the enactment of Mod­ern Statutes permitting the filing of more than One Replication, the use of the Replica­tion De Injuria was of great advantage to the plaintiff as it put the defendant to the Proof of all the Material Allegations in his Plea, in­stead of leaving the plaintiff to stand or fall by the Denial of a Single Allegation, the oth­ers being admitted by failure to Deny them.5
As the General Issue was used by a defend­ant, so a Replication Dc Injuria was avail­able to the plaintiff at the Replication Stage of Pleading. It was said to be a Uniform
4. 4 Anne, c. 16, ~ 4, 11 Statutes at Large 135 (1705). Since the Statute, which permitted the do­fenriant to Plead more than One Defense or Plea to a Singlo Count, did not give plaintiffs a similar privilege of making more than One Replication to One Plea, the Proeethiral Device of the Replication Dc Injuria, which was a Comprehensive Traverse, was created to cover the need, and become of groat importance. But under the Modern Procedure Re­forms, the great mass of technical learning on the subject has become largely obsolete. Ames, cases on Pleading, 104, note (24 ed., Cambridge 1905).
.S. I Cilitty, On Pleading, e. VIII, Of Replications § 2, Forms and Parts of Replications, 600 (10th Am, ed., Springfield 1867); Keigwin, Precedents of Pleading at common Law, 464-474 (washington, 110., 1910) Poe, Pleading, c. XXVI, Replication and Subsequent

Rule that such a Replication would be used only when the defendant set up Matter mere­ly in Excuse of the wrong alleged in the Tort Actions of Trespass and Case, and the Con­tract Actions of Assumpsit, Covenant and Debt, and where such Plea was untrue.e It was said not to be admissible where the Facts Pleaded amounted to a Justification.~ It was not, however, an easy matter to distinguish between Matter of Excuse and Matter of Jus­tification. Accordingly, it is not surprising to learn that Dc Injuria has frequently been used in Replying to Pleas which were in Jus­tification and not in Excuse, As a result the distinction caine to be largely disregarded in both England and the United States.8


The Effect of the Replication Dc Injuria

THE Complete Form of this Traverse is Dc Injuria Sua Propria Absque Tali Causa (that the defendant, of his own wrong, and without any such cause as his Plea alleged), commit­ted the injury complained of.° It is preceded by a general Inducement or Introduction, and Denies, in General and Summary Terms, and


6. Massachusetts: Sampson v. Henry, 11 Pielc (Mass.) 379 (1831); New York: Gates v. Lounsbury, 20 Johns. (N.Y.) 427 (1823).
It was formerly allowed only in Trespass and Tres­pass on the Case. English: Jones v. Kitdhin, I Bbs. & 1’. 70, 126 EagRep. 787 (1797): Isaac v. Farrar, 1 Mees. & IV. 415, 150 Eng.Rep. 348 (1830); Massachu­setts: Coffin -v. Bassett, 2 Pick. (Mass.) 357 (1824).
7. Iii New York, the Courts followed this distinction lip until common-Law l’leading was abolished by the Code of Procedure in 1848, The same Doctrine applied in Illinois in the ease of Allen v, Scott, 13 Ill. 50 (1851), and in New Jersey in the case of Ta­verna v, Ohm-chill, 77 N.J.L. 430, 72 A. 43 (1909). In Delaware the Replication Dc Injaria remained re­stricted to cases in which the defendant’s Pica con­tai,,s Matter of Excuse. Murden v. Russell, S Boyce (Del.) 362, 93 A. 379 (1915). But, in the Federal Courts, no such distinction was observed. Erskine V. Hohabach, 14 Wall. 624, 20 L.Ed, 745 (1871).
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