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S. English: Chancy v. win, 12 Mod. 580, 88 Eng,Rep.

1533 (1701); O’Brien v. Saxon, 2 B. & C. 908, 107

Eng.Itep. 619 (1824); Selby v. Bardons, 3 3. & Ad. 2,

110 EngUep. 1 (1832); Federal: tyskine v. Iiohn­bach, 14 Wall. 614,20 LEd. 745 (1871).

Pleadings, 1 678 (Baltimore 1906).

e. Crogate’s Case, S Coke 66, 77 Eng,flep 574 (1608)-

Sec. 281

THE NEPLICATION

1121

not in the Words of the Allegation Traversed, all that is last before alleged; but neither the Form of the Denial nor the Inducement Dc Injuria, etc. alleges New Matter; it simply reaffirms in General Terms the wrongs com­plained of in the Declaration, and the Trav­erse Abs que Tali Causa is an Abridged De­nial of the Special Justification in the Plea.


The effect of the Traverse is to Deny all the Material Allegations in the Pica, as it goes to the Whole Plea, but only where such Allegations show Matter of Excuse for the Tort or injury committed.1° It can never be used when the Matter set forth in the Plea is insisted on as conferring a positive right.” Its import is to insist that the defendant com­mitted the act in question from a different motive than that assigned in the Plea.12
FORMS OF PLEA AND REPLJCATION DE INJURIA THERETO
281. This section illustrates Form of Plea In Confession and Avoidance and Replication de Injuria.
SUPPOSE that in trespass for assault and battery the defendant pleads self-defense (son assault demesne) in Confession and Avoid­ance, as follows:
And for a further Plea in this behalf, as to the said assaulting, beating, wounding, and ill-treating, in the said Declaration men­tioned, the defendant, by leave of the Court here for this purpose first had and obtained, according to the form of the Statute in such
10. Comyn.Dig. “Pleader” F. 19 (London, 1822); Illi­nois: Allen v. Scott, 13 Ill. 80 (1851) ; Iron Clad

Dryer Co. v. Chicago Trust & Savings Bank, 50 Ill.

App. 461 (1593); New York: Coburn v. Hopkins, 4

Wend. (N.Y,) 577 (1830).


Where the Defense Is an Excuse for the Noaperform­alice of a Promise which the defendant made, how­ever many the parts or facts of that Excuse may be, the Replication Be Injuria denies them all.
11. Plumb v. McCrea, 12 Johns. (N.Y.) 491 (1815).

U. For limitations upon the use of the Replication de lnjsria, see Keigwia, Cases In Common-Law Pleading, c. VIII, The Replication Be Injuria, 130, 620 (2d cd., Rochester 1934).

ease made and provided, says that the plain­tiff ought not to have or maintain his afore­said action thereof against him, because, he says, that the plaintiff, just before the said time, When, etc., to wit, on the day and year aforesaid, at aforesaid, in the county aforesaid, with force and arms, made an as­sauit upon him, the said defendant, and would then and there have beaten and ill-treated him, the said defendant, if he had not imme­diately defended himself against the plaintiff; wherefore the said defendant did then and there defend himself against the plaintiff as he lawfully might, for the cause aforesaid, and in so doing did necessarily and unavoid­ably a little beat, wound, and ill-treat the plaintiff, doing no unnecessary damage to the plaintiff on the occasion aforesaid; antI so the defendant saith, that if any hurt or damage then and there happened to the plain­tiff, the same was occasioned by the said as­sault so made by the plaintiff on him, the said defendant, and in the necessary defense of himself, the said defendant, against the said plaintiff, which are the supposed tres­passes in the introductory part of this Plea mentioned, and whereof the said plaintiff hath above complained. And this the de­fendant is ready to Verify. Wherefore he Prays Judgment if the plaintiff ought to have or maintain his aforesaid action thereof against him.
In such a case a Replication Dc Injuria would be as follows:
And as to the said Plea by the said defend-. ant last above Pleaded in Bar to the said sev­eral Trespasses in the Introductory Part of that Plea mentioned, the said plaintiff says that, by reason of anything therein alleged, he ought not to be Barred from having and maintaining his aforesaid action thereof against the defendant, because, he says, that the defendant, at the said time when, &c., of his own wrong, and without the cause in the said last-mentioned Plea alleged, committed the said several trespasses in the Introduc­

522

DEFENSIVE PLEADINGS

Cli. 23

tory Part of that Plea mentioned, in Manner and Form as the plaintiff hath above com­plained. And this he Prays may be Inquired of by the Country.



1’~ -

VORMAL PARTS OF REPLICATION

282. Properly Commencing and Concluding a Rephication requires considerable skill in Plead­ing, hence some suggestions as to the Formal Parts of a Replication are discussed below.
A REPLICATION was usually Entitled in the Court and of the Term at which it was Pleaded; and the names of the plaintiff and of the defendant were stated in the margin— thus, “AD. v. C.D.” ‘~
When the Body of the Replication only contained an Answer to a Part of the Plea, the Commencement should then specify the Part intended to be Answered, for if the Com­mencement professed to Answer the Whole. but the Body contained an answer to Part only, the whole Replication was insufficient.
Every Replication must Conclude either to the Country or with a Verification and Pray­er of Judgment.
A Replication to a Plea in Bar has this

Commencement: “~ * * 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 him, the said C.D., because, he says,” etc. This Formula is commonly called “Precludi Non.” The Conclusion is thus: In Debt, “Wherefore he Prays Judgment, and his debt aforesaid, together with his Damages by him sustained by reason of the detention thereof, to be ad­judged to him;” in Covenant, “Wherefore he Prays Judgment, and his Damages by him sustained by reason of the said Breach of Covenant, to be adjudged to him;” in Tres­pass, “Wherefore he Prays Judgment, and his Damages by him sustained by reason of the committing of the said Trespasses, to be ad-


13. Chitty, On Pleading, c. VIII, Of ReplicatIons, 628 (16th Am. ed. by Perkins, Springifeld 1876).

judged to him;” in Trespass on the Case, in Assumpsit, “Wherefore he Prays Judgment, and his Damages by him sustained by reason of the not performing of the said Several Promises and Undertakings, to be adjudged to him;” in Trespass on the Case in General, “Wherefore he Prays Judgment, and his Damages by him sustained by reason of the committing of the said several grievances, to be adjudged to him.”


And so, in all other actions, the Replication Concludes with a Prayer of Judgment for Damages, or other appropriate redress, ac­cording to the nature of the action.
With respect to Pleadings Subsequent to the Replication, it will be sufficient to ob­serve, in general, that those on the part of the defendant follow the same form of Com­mencement and Conclusion as the Plea; those on the part of the plaintiff, the same as the Replication.
STATUS OF THE

INJURIA UNDER

PRACTICE ACTS

COURT
283. Cases decided under Modern Codes, Practice Acts, and Rules of Court, evince the continued existence and application of the Rep­lication De Injuria.


UNTIL somewhat more than a century ago, the Replication De Injuria was limited to Trespass and Trespass on the Case; in 1832, as a result of Selby v. Bardons,’4 it was ex­tended to Replevin. Two years later, the sit­uation was complicated by the promulgation of the Hilary Rules, which sought to restrict the Scope of the General Issues in the Various Forms of Action. As one of the consequences the institution of Special Pleading was given an additional impetus, thus causing great difficulty when it came to framing Replica­tions in Contract Actions. It is, therefore, not surprising to find that the English courts began, in the year 1836 in the case of Issac

REPLICATION DE

MODERN CODES,

AND RULES OF



14. 3 B, & Ad. 2, 110 Eng.Rep. 1 (1832).

Sec. 283


THE REPLICATION

523


v. Farrar,’5 to hold that the Replication IDe Injuria was applicable to an Action of Tres­pass on the Case for a Breach of Promise.
In the United States, where, in theory at least, the Hilary Rules had not been adopted, it was natural that the English decisions, as influenced by those Rules, should not be adopted. Thus, we find Gould stating that the Traverse Dc In~uria, ccc., Abs que Tall Causa, though of frequent occurrence, is con­fined to actions Ex Delicto, and used only in Replications.10
But this view did not prevail, as shown by the Statement of Scudder, J., in the New Jersey case of Ruckman v. The Ridge field Park Railroad Company,” in which it was urged that the Replication De Injunia was inapplicable in Actions Ex Contractu. The Judge declared: “Formerly the General Traverse, Dc injuria, was confined in practice to Actions of Trespass, Replevin, and cases for injuries. But when, under the New Rules [the Hilary Rules], Special Pleas in Excuse became frequent in Actions of As­sumpsit and Debt on Simple Contracts, it became reasonable that the plaintiff should be a]lowed to take Issue by a General Trav­erse of the Whole Matter of Excuse alleged, and such Pleading was sustained by the Courts. There was no occasion to use this Replication when the usual Plea in Assumpsit was the General Issue. But, as more Special Defenses by Pleading are being favored in the modern practice of our Courts and by Legislation, the Replication De Injuria be­comes applieable as a General Traverse of the Excuse and all the Material Allegations in the Special Plea. It is only allowed where the Plea is in Excuse, and not in Denial of the Cause of Action. It is bad when the
15. 1 M. & W, 65, 150 EngRep. 248 (1836).
‘0. Gould, A Treatise on the Principles of Pleading, Part III, Of Pleading, Div. v, Of Pleas to the Ac­tion, c. III, Of Traverse, 539 (0th ed. by will, Al­bany, 1909).

17. -38 N.J.L. 95 (1875).

defendant insists on a Right as a Justifica­tion; nor is it permitted where the Plea amounts to Matter of Discharge and Not of Excuse, as when the Plea is Payment, Accord and Satisfaction, Release, tcc.” ~
Prior to the Ruckman Case, however, in England in 1852, under the first Common-Law Procedure Act,’9 it was provided that either Party might Plead, in Answer to the Plea or Subsequent Pleading of his adversary, the General Issue, using the following form:

“The plaintiff Joins Issue on the defendant’s [1st] plea,” or “the defendant Joins Issue~ upon the plaintiff’s Replication’ to the first plea.” This Form of Replication, in Clover v. Diccon,2° was said, by Pollock, C.B., to be “in the nature of a General Replication De Injuria,”2and the effect of such a Joinder was to place in Issue all the Material Al­legations of the Pleading to which it was interposed. In Maryland, in 1856, or just four years after the English Act,22 the Repli­cation Dc Injuria was abolished by Statute and a Joinder of Issue was substituted in lieu thereof. And in the District of Columbia, as early as the year 1879, this Form of Joinder was authorized by a Rule of Court, the effect of which was to put in Issue the Substance of the Plea.23 In most American Jurisdictions, following the example of Mary­land, a similar Joinder of Issue has been authoniz~d in most actions and at any Stage of the Pleading, such Form of Pleading being broadly the equivalent of the Replication Dc Injuria, having the effect of a Compendi­


18. Ruekrnan ~ Ridgefield park u. Co., 38 N.J.L, 98,

99 (1875),


19- 15 & 16 Vict. c. 70, 92 Statutes at Large 285, 301 (1852).
20. 9 Exch. 158, 156 Eng.Rep. 08 (1853).
21. Glover v. Dixon, 9 Exch. 158, 150 Eng.Rep. 68, 09 (1853).

22, 15 & 10 vtht. c. 76, 92 Statutes at Large 285, 201 (1852).

23. United States v. Schurz, 102 U.S. 37’S, 20 LEd.

167 (1880).

524

DEFENSIVE PLEADINGS



Ch. 23

otis Denial. Keigwin suggests that the prac­tical effect is that in any action a Party may “not only Reply, but Rejoin or Surrejoin Dc Injuria” 21 He wrote that “some Lawyers who shudder at the imaginary intricacies of Pleading would be shocked to learn that they have all their lives been using the archaic and mysterious Replication Dc Injuria in disguise, and to an extent vastly beyond the

• Contemplation of the Common-Law, very ‘much as the bourgeois in Moliere’s comedy was startled to discover that he had always spoken prose without knowing that it was prose.” 26
Two Delaware cases testify as to the con­~Unued existence and application of the Repli­cation Dc Injuria in its virgin form where the Code is not adopted. In the tirst case, Murden

v. Russell,26 decided in 1915, the plaintiff brought an Action of Trespass by Assault, and for the removal of the plaintiff’s houseboat from a beach. The defendant Pleaded in Jus­tification, that the title to the beach was in a Town, and that as the Agent of the Town, he removed the boat, as he lawfully might do, The plaintiff filed a Replication IDe Injuria to each of the two Pleas as set forth above, whereupon the defendant filed a Special De­murrer, on the ground, first, that such a Rep­lication is proper only in Reply to a Plea in Excuse; and second, that such a Replication Is improper when the defendant, in his own right, or as a servant to another, claims an In­terest or Title in Land, citing as authority the tamous English Crc gate’s Case,27 New Jersey Case of Taverna v. Churchill,28 and the New York Case of Plumb v. M’Crea.2°


~4. Cases in Common-Law Pleading, Bk. IT, The Rep­iieation Do Injuria, § 137, The Joinder in Issue, 619 (2d ed, Rochester 1934).
~ Ibid.
~I. ~ Boyce (Dcl.) 362, 93 A. 379 (1015). SI. S ‘Co. Gob. 77Eng.Rep. 574 (1608).
‘SS. 77 N.J.L. 430, 72 A. 43 (1(103).

The plaintiff did not dispute the principles urged in support of the Demurrer, and left the question of their application to the Court, which sustained the Demurrer and gave Judgment for the defendant, Boyce, 3., in accordance with the Rule at Common-Law, declaring: “The Replication Dc Injuria is proper when Matters in Excuse are pleaded; but when Justification, or a claim of Title or Interest in Land, is pleaded the Replica­tion must be by way of a Special Traverse.”


In the second case, Empire Box Corpora­tion v. Jefferson island Salt Mining Co.,31 de­cided in 1941, the plaintiff filed a Declara­tion containing Four Counts, Three Special Counts, and One on a Common Count. To the eleventh and twelfth Pleas, the plaintiff filed a Replication Dc Injuria, whereupon the de­fendant entered a Special Demurrer, on the grounds first, that a Replication De Injuria is not available in Actions Ex Contractu; and second, that a Replication IDe Injuria is not permitted where a Plea sets forth Matters of Discharge. The Special Demurrer to the Rep­lication IDe Injuria was sustained on the ground that such Form of Replication was not a Proper Form of Traverse in an Action of Assunipsit. While this is not correct as the Replication Dc Injuria finally developed, the position of the Court is made clear by Chief Justice Layton, who declared: “The System of Pleading in force in this State, and strictly adhered to, is that System which prevailed in England at the time of our Independence ex­cept as changed or modified by Constitutional or Statutory Enactment. In Asswnpsit, the General Issue of Non-Assumpsit puts the whole Declaration in issue, and almost every­thing may be given in evidence which shows that the plaintiff at the time of Commencing Suit had no Cause of Action. Reading’s Heirs v. State, 1 Han. 190. By the Rules adopted by the Judges of the Superior Courts of Common
30. ]%f,wdon y, ItuaselI, 5 Boyeo (Del.) 202, 304, 03 4.

379, 380 (1915~.

‘fl 12 .Jobns. (N.Y.) 401 (1815).

31. 2 Terry (Del.) 409, 413, 24 A.2d 322, 324 (1941).

Sec. 284

THE REPLICATiON

525


Law at Westminster at Hilary Term, 1834, it was provided that ‘in every Species of As­sumpsit, all matters of Confession and Avoid­ance, including not only those by way of Dis­charge, but those which show the transaction to be either void or voidable in point of Law, on the ground of fraud or otherwise, shall be Specially Pleaded * * ~ These Rules are not in force in this State. Wooley, Del. Pr. § 340, 1463. The Replication Dc Injuria is a Species of Traverse varying from the Common Form of General Denial. At the Common Law it was confined to Actions of Tort where the Plea consisted of Matter of Excuse. Chitty, Pleading (4th Am. from 3d. London Ed.1825) 593; Gould, Pleading, 539; Stephen, Pleading (3d Am. from 2nd. Lon­don Ed.) 180; Coffin v. Bassett, 2 Pick., Mass., 357; Tubbs v. Caswell, 8 Wend., N.Y.,

129. There is, perhaps, no direct decision in this State which so limits the use of this Form of Traverse, but the limitation is neces­sarily inferred from the System of Pleading itself in force with us, and from whatever decisional authority there may be. Thomas v. Black, S Houst. 507, 18 A. 771; Murden v. RusseU, 5 Boyce 362, 93 A. 379; Woolley, Del.Pr. § 475. In England, after the adop­tion of the Hilary Rules by which the Scope of the General Issue in Assumpsit was great­ly narrowed, the use of this Form of Trav­erse seems to have been permitted in Actions Ex Contractu; and the decision in Ridgefield Park R. R. Co. v. Ruckman, 38 N.J,L. 98, is apparently based on the System of Pleading obtaining in the State of New Jersey in which Special Pleas in Excuse of alleged Breach of Contract were allowed to be Pleaded.”


DEPARTURE DEFJNED AND THE REASON

FOR THE RULE AGAINST DEPARTURE
284. A Departure is an Abandonment at a Later Stage of Pleading of the Ground on which the Plaintiff has placed his Cause of Action, or the Defendant his Defense. Such a Fault in Pleading is not permitted as the Record would by such means be extended to an in-

definite length, and the Formulation of a Spe­cific Issue unnecessarily delayed.
Departure Defined

THE Common-Law Rule was that in Pleading there must be no Departure. A Departure occurs where, in any Pleading, a Party Abandons the Ground taken in his last Antecedent Pleading, and Resorts to Another, distinct from and not fortifying the first. From this definition it becomes clear that this Fault in Pleading can never arise until the Replication, but it may arise in that or any Subsequent Stage of Pleading. It is, therefore, a Settled Rule that the Repli­cation or Rejoinder must not Depart from the Allegations of the Declaration or Plea in any material matter.32 Its most frequent point of occurrence is in the Rejoinder by the defendant, and the Fault may be either in the Substance of the Defense, or the Law on which it is founded, and this also applies where plaintiff Departs in his Replication from the Ground on which he placed his Action in the Declaration. The Pleader must not Abandon a Previous Ground in his Pleading and assume a New One, For
32. Co.Litt. 304a (Philadelphia 1853); English: Hick­man v. Walker, wines 27, 125 Eng.Rep. 1037 (1737);

Tolputt v. Wells, I Maule & S. 895, 105 Eng,Rep.

148 (1813): Roberts v. Mariett, 2 Saund. 188, 85

Eng.Rep. 954 (1670); Cutler v. Southern, 1 Saund.

116, 85 Eng.flep. 125 (1667); Dudlow v. Watchorn,

16 East 39, 104 Eng.Rep. 1003 (1812); Winstone V.

Linn, a Barn. & C. 460, 107 Eng.Rep. 171 (1823);

Prince v. Brnnatte, 1 Ring. (N.C.) 435, 131 Eng.llep.

1184 (1835); Meyer v. Haworth, S Ad. & E. 467, 112

Engdtep. 910 (1838); Green v. James, 6 M. & W. 656,

151 Eng.Itep. 575 (1840); Illinois: MeConnel V.

Kibbe, 29 Ill. 483 (1863); Pressley v. Bloomington &

N. By. & Light Co., 271 Ill. 622, 111 N.E. 511 (1916);

Massachusetts: Keay v. Goodwin, 16 Mass. 1 (1819);

Sibley v. Brown, 4 Pick. (Mass.) 137 (1826); MIssis­sippi: MeGavock v. Whitfield, 45 Miss. 452 (1871);

New Hampshire: Tarleton v. Wells, 2 N.H. 308

(1820); New York: Munro ‘i. Alaire, 2 Cai. (N.Y.)

820 (1805); Sterns v. Patterson, 14 Johns. (N.Y.)

132 (1817): Andrus v. Waring, 20 Johns. (N.Y.) 160

(1822); Pennsylvania: Allen v. Colliery Engineers

Co., 106 Pa. 512,46 A. 899 (1900); Tennessee: Haley

v. McPherson, 3 Humph. (Tenn.) 104 (1842).

526

DEFENSIVE PLEADINGS



Cli. 23

example, he must not Rely on the Effect of the Common Law in his Declaration or Plea, and on a Custom or Statute in his Replication or Rejoinder?3 But Time, Place, or other Immaterial Matter, in the Allegation of which in the Replication or Rejoinder there is a Variance from the Declaration or Plea, is not a Departure?4 Thus, in Special Assumpsit, if the Declaration, in a case where the Time is not Material, state a Promise to have been made ten years ago, and the defendant Plead that he did not Promise within six years, the plaintiff may Reply that the defendant did Promise within six years without a Depar­ture, because the Time laid in the Declaration was immaterial.35
13. Co.Litt, 304a (Pbiladelphia 1853); English: Rex v, Larwood, Carth. 306, 90 Eng.Rep. 780 (1694); Mole v. Walls, I Lev. 81, 83 Eng.Rep. 307 (1662); Fulmerston v. Steward, Plow. 102, 75 Eng.Rep, 160 (1554); Indiana: leatman V. Cullen, 5 Blacicf. (lad.) 240 11839); Pennsylvania: Allen v, Tusearora \‘al. fly. Co., 229 Pa. 97, 78 A. 34 (1910).
In a divorce suit, where the Petition relied on irapo­teney, additional grounds cannot he set up in the Reply, for a Reply cannot be used to aid the Peti­tion by setting up a New Cause of Action or to in-graft thereon an Omitted Aflegation. Smith v. Smith, 206 Mo.App. 646, 220 SW. 398 (1021).
A Replication setting up a Different Cause of Action

from that alleged in the Declaration is a departure.

New Jersey: Potts v, Point Pleasant Land Co., 47

NiL. 476, 2 A. 242 (1885); Rhode Island: EunUch

V. ICenyon, 20 11.1. 498. 40 A. 99 (1808); Federal:

Wiard v. Semken, 19 D.C. 475 (1891).


34- Gledstane v. Hewitt, 1 C. & 3. 505, 148 Eng.Itep.

1548 (18S~ Legg v. Evans, 6 l~1. & W. 36, 151 Eng.

Rep. 311 (1840); Lee v. Rogers, 1 Lev, 110, 83 Eng.

Rep. 322 (1603); Cole v, Hawkins, 10 Mod. 348, 88

EngSep. 759 (1717).
Matter which maintains, explains, and fortifies the

Declaration or Plea is not a Departure. Yore v.

Smith, 2 Lev. 5, 83 Eng.Rep. 426 (1683); Owen v.

Reynolds, Fort. 341, 92 Eng,Rep. 851 (1719); Dye

v. Leatherdale, 3 Wils. KB, 20, 95 Eng.Rep. 010

(1769); Woods v. Haukshead, Yelv. 14, 80 Eng.Rep.

11 (1602); Fisher v. Pimbley, 11 East 188, 103 Eng.

Rep. 976 (1809).


A Replication in Estoppel is No Departure or aban­dcoiment of the ease statod in the Declaration.

The Reason for the Rule Against Departure THE Rule against Departure was evidently

necessary to prevent the retardation in the development of the Issue. For, while the Parties, in Pleadin~ are respectively con­fined to the grounds they have first taken in their Declaration or Plea, the Process of Pleading, after a few Alterations of State­inent, will exhaust all the Facts involved in the cause, and thereby develop the Issue in dispute. But if at any Stage of the Available Series of Pleadings, a New State of Facts be introduced, the Termination of the Plead­ings in a Single, Clear-Cut, Well-Defined Issue of Fact, is in consequence postponed. Besides, if One Departure were permitted, the Parties might, on the same principle, shift their ground, either in Point of Fact or in Point of Law, as often as they pleased; and an almost indefinite, if not intolerable length of altercation might, in many cases, be the consequence.

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