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91. English: Newton v. Creswick, 3 Mod. 166, 57 Rag.

Rep. 107 (1687); Underwood v. Pants, 2 Str. 1200, 03

Eng.Rep. 1127 (1743); MaIne: Taylor v. Robinson,

29 Me. 323 (1849); Illinois: Wiggins Ferry Co. v.

Blakeman, 54 Ill. 201 (1870) (Contributory Negli­gence); Chicago City fly. V. Leach, 208 Ifl. 108, 70 N.

B. 222, 100 Am.St,Bep. 21(3 (1004) (Fellow Servant).

In Trespass on the Case the defendant may, with few exceptions, prove under the General Issue matters in Confession and Avoidance. Dnnham v. Western Union Telegraph Co., 85 W.Va. 425, 102 SE. 113 (1920).
Evidence of a Defense in Justification Is competent under a Plea of the General Issue, though the com­mencement and ending of the Declaration describe the Action as Trespass, provided the body of the Declaration describe an Action in the Nature of an Action of Trespass on the Case. George v. Illinois Cent. B. Co., 197 Xi].App. 152 (1015).

it was Excusable, or that he was Released from its consequences.92 This latitude was probably allowed for the same reason that permitted the extended use of the General Issue in Assumpsit, though it is difficult to see how it is reconcilable with any o the Principles of Pleading.

Thus, if your automobile is damaged and you sue the wrongdoer in Trespass, the Plea of Not Guilty will serve as a Denial of the Facts stated in the Declaration, and no more. Matters of Justification or Excuse, such as the Defenses of Contributory Negligence, or Leave and License, cannot be proved under this Plea. But if you sue in Case, the defend­ant may, under a Plea of Not Guilty, not only put the plaintiff upon Proof of the whole Charge contained in the Declaration, but may offer any Defense in Justification or Excuse, or he may set up a Former Recovery, or a Release, or Discharge.93 An Action on the Case is said t0 be in the Nature of a Bill in Equity, and the defendant may prove, under the General Issue in that action, almost any­thing, except the Statute of Limitations and Truth in Libel and Slander, which shows that the defendant ought not to recover—an il­logical and whimsical reason for slipshod Pleading.
92. City of Chicago v, Babcock, 143 111. 358, 32 N.E.

271 (1502) (Accord and Satisfaction) Papke v. 0-H. Hammond Co., 192 Ill. 631, 61 N.E. 910 (1901) (Release); Cooper v. Lawrence, 204 I1i.App. 261 (1017) (Conditional priviloge in defamation cases~ such as fair comment on the public acts of a public man).

The exceptions to the General Rule above stated are the Statute of Limitations, a Justification in Slan­der, and the Retaking of a Prisoner on Fresh Pur­suit, which must be specially pleaded.
93. Illinois: Wiggins Ferry Co. v. Blakeman, 54 IlL

201 (1870) (Contributory Negligence); City of Clii­cagov. Bahcoclr, 143 Ill. 858, 32 N.E. 271 (1892) (Ac­cord gind Satisfaction); Kapisehki v. Koch, 180 Ill. 44, 54 N.E. 179 (1899) (Former Recovery); Papke V.

C. H. Hammond Co., 192 Xli. 631, 61 N.E. PiO (1901) (Release); Maryland: Herrick v. Swomley, 56 Md. 439 (1881) (Release); Federal; Brown v. Baltimore & Ohio It. Co., C App.D.C. 237 (1805) (Release).



Ch. 22

245. At Common Law, under a Plea of the General Issue in Trespass on the Case, as in Assumpsit, Debt on Simple Contracts, and Trover, most of the Affirmative Defenses may be admitted without being Specially Pleaded. The Two Principal Exceptions are the Defenses of the Statute of Limitations and Truth in Libel and Slander.
In general, all matters in Justification and Excuse, or in Discharge of the alleged Right of Action, could be shown under the Geri­eral Issue in Case rather than Pleaded Af­firmatively in Confession and Avoidance. There were Two Principal Exceptions to this Rule, which will be considered shortly—the Statute of Limitations and Truth in Slander and Libel Cases.
The Defense of the Statute of Limitations ~ IN the 1690 case, Anonymous,93 in Debt

for rent,! upon Nil Debet Pleaded, Chief Jus­

94. In general, on the Statute of Limitations as De­fense, see:

Treatises: Brookc, Reading Upon the Statute of Lini­itations (London, 1047); Ballantine, A Treatise on the Statute of Limitations (London, 1812); Blan­ahard, Treatise on the Statute of Lhnitntions (Loadon, 1526); Wilkinson, A Treatise on the Limi­tation of Actions, &c. (London, 1833); Berry, Recent Statutes Relating to Prescription and Custom

The Limitation of heal Actions, &c. (JMn­don, 1833); Stalman, Acts Relating to Real Prop­

erty . . on lnberitances, Fines anti Ilecov­tries, Dower, Limitation of Actions, &c. (London, 1833); Gibbons, Treatise on the Law of Limitation and Prescription (London, 1835); Manse), Treatise on the Law of Limitation (London, 1839); Shelfond, The Real Property Statutes . . . (London, 1835); Darby & Bosanquet, Practical Treatise on the Statute of Limitations (London, 1867); Brown, Law of Limitation as to Real Property (London, 1869); .Angcll, Treatise on the Limitatioas of Actions at Law (6th ed., Boston, 1870); Banning, A Con­

-cisc Treatise on the Statute Law of the Limi­tations of Actions (London, 1877); Walter, Manual Qf the Statutes of Limitation (4th ed., London, 1883); Wood, A Treatise on the Limitations of Actions at Law and in Equity; with an Appendix Containing the English and American Statutes of Limitation (Boston, 1883); Trickett, Law of Limitations of Ac’ tions in Pennsylvania (Jersey City, 1888).

tice Holt held that the Statute of Limitations might be given in evidence, as the Statute had made it no debt at the time of the Plea Pleaded, the words of which were in the pres­ent tense; but in Case on Non Assumpsit, the Statute of Limitations could not be given in evidence,98 as it spoke of a time past, and re­lated to the time of making the Promise. In 1830, in the case of Chapple v, Durston,97 Vaughan, 3., in referring to Chief Justice Holt’s decision in the Anonymous Case of 1690, declared: “It appears to us that this dis­tinction savors more of ingenious refinement than of plain and practical good sense, and we conceive that the same Rule would now be extended as well to Actions of Debt as of As­sumpsit, the same reasons for Pleading the

Articles: Wigmore, Civil Procedure and Football—De­feating a Valid Claim by Pleading and Then De­murring, While the Statute of Limitations Buns, 4 lil.L.Rev. 344 (1909—1910); Atkinson, Some Proce­dural Aspects of the Statute of Limitations, 27 CoL L.Itcv. 157 (1927); Atkinson, Pleading the Statute of Limitations, 36 Yale L.J. 914 (1927); Danson, Undiscovered Fraud and Statutes of Limitation, 31 Mich.L.Rev. 591 (1933); Blume & George, Limita­tions and the Federal courts, 49 Mich.L.htev. 937 (1951).
Comments: Pleading—Statute of Limitations—Perma­nent or Temporary Injury—Plea of Non-Accrevit, 11 Ill.L.Rev. 56 (1916); Limitation of Action—Plead-big—Amendments Restating Cause of Action, 5 Iowa L.Eul, 275 (1919); Representations Reasonably Belied Upon Against Actual Active Concealment in Tolling the Statute of Limitations, 22 Iowa LRev. 704 (1037); Raising Statute of Limitations by Mo­tion to Dismiss, 3 Fed.Rules Serv. 071 (1940); Lien­itation of Actions: Pleading the Statute of Limita­tions in California, 29 Calif.L.Rev. 210 (1941); Limi­tation of Actions—Landlord and Tenant—Install­ment Bent Payments, 40 Mieh,L.Rev. 132 (1941); The Statute of Limitations as a Pleading Problem in Iowa, 29 Iowa LRcv. 501 (1944); Statute of Limitations as a Defense to Wrongful Death Stat­ute, 42 Ill.L.Bev. 688 (1047); Effect of Failure to Plead the Statute of Limitations as an Affirma­tive Defense, 1949 Ill.L.Forum 170 (1949); Develop­ments in the Law: Statute of Limitations, 63 Harv. L.Rev. 1177 (1950).
95. 1 Salk. 278, 91 Eng.Bop. 243 (1600).
90. Ibid.

91. 1 C. & 3. 1, 148 Eng.Bep. 1311 (1830).

Sec. 245



Statute applying equally to both. If the Stat­ute is not Pleaded, the plaintiff is liable to be surprised, and therefore equally unprepared to answer in the one action as in the other. In neither case does the Statute extinguish the debt, but Bars only the Remedy, and it is optional whether the defendant will insist upon the Statute or waive it. If he intends to insist upon it, he should Plead it, to prevent surprise, and if he does not, it should be pre­sumed he intends to waive it. This is the view taken by the late Mr. Serjt. Williams, than whom a sounder lawyer, or more accu­rate Special Pleader has rarely done honor to his profession; and he states it to be very usual, and the Modern Practice, to Plead to Debt on Simple Contract, that the Cause of Action did not accrue within six years, that the plaintiff may Reply, either that he was within the Exceptions in the Statute, or that he has sued out a Writ within time, as is the common ease in Assumpsit,” ~
The real reason, however, why the Statute of Limitations must, in general, be Pleaded Specially, stems from another cause. Any Allegation which the Pleader is not obliged to Prove as he states is Immaterial. Allega­tions of this character include the specifica­tion of time, which in pleading is ordinarily Immaterial, unless the date of a transaction is, for some other reason, Material as to its validity. Such Immaterial Allegations are not admitted by Demurrer.°9 It follows, therefore, that the Statement of a Right which appears, according to the date laid for it, to be Barred by the Statute of Lim­itations, is not, for this very reason, held to be bad on Demurrer, as the plaintiff, in Stating his Declaration, is not bound by the Allegation of a Specific Time. Hence, if the defendant desires to take advantage of the Bar of the Statute of Limitations, he can
OS. Chapplo v, Durston, 1 C. & 3. 1, 9, 148 Eng.Rep, 1311, 1314 (1830).
~. Georgia Rome Ins. Co v. Wal-tcn, 113 Ala. 479, 22 So. 288 (1807).

do so only by Pleading the Statute Specially

—that is, by Averring that the Cause of Ac­tion did not accrue to the plaintiff within the period fixed by the Statute. Subject to a few Exceptions,’ this was and is the Common-Law Rule. In Equity 2 and at Law,3 in a few states, the Statute may be reached on De­murrer.
The Defense of Truth in Trespass on the Case for Libel and Slander

THERE was at least One Exception to the extraordinary latitude of Proof tolerated un­

1. Lambert v. Ensign Mfg. Co., 42 W.Va. 813, 26 SB. 431 (1896).
2. I3umbert y. Trinity Chnrch, 7 Paige (N.Y.) 195 (1838).
3. Chemung Canal Bank v. Lowcry, 93 C’S. 72, 23 L.EJ. 800 0570).
4. In genera), on the subject of Truth as a Defense in Libel and Slander eases, see:
Treatises: Rayner, Digest of the Law Concerning Li­bcls: Containing all the Resolutions i,i the Books on that Subject, and many Manuscript Cases, II­Jnstratcd with Occasional Observations; to whicl, is added a Supplement Containing Considerable Ad­ditions (London, 1770); Adair, Discussions of the Law of Libels as at Present Received; in which its Authenticity is Examined, with Incidental Observa­tions on the Legal Effect of Precedents and Author­ity (London, 1785) ; Highniore, I’ariia,nentary De­bates on tho Statute, 32 Ceo. III, c. 00, for Removing Doubts Respecting the Functions of Juries in Cas­es of Libel (London, 1792); Jones, Dc Libellis Famo­sis, or the Law of lAbels (London, 1512) ; 1-Jolt, On the Law of Libel: in which is Contained a Ceneral History of this Law in the Ancient Codes, and of its Introduction and Successive Alterations (Lon­don, 1816; New York, 1818) ; Cuolce, A Trea­tise on the Law of Defamation, with an Ap­pendix Containing the Recent Statutes Affect­ing this Portion of the Law, and Precedents of Pleading Under the New Act (London, 1844),
Articles: Veedor, Flistory and Theory of the Law of Defamation, 3 Col.L,Re~-, 516 (1003); Bryan, Put,­lication of Record Libel, 5 Ya.L.Bei’. 513 (1918); flallen, Excessive Publication in Defamation, 10 Ninn,L.1{ev, 160 (1932); McCor,niclc, Measure of Damages for Defamation, 12 N.C,L.Bev. 120 (1034),

Comments: Negligence in the Law of Defamation, 20 Hare-LEe,- 533 (19W); Libel and Slander: Dc­famnatory Acts as Publication: Placing White Per­son in Colored Ward, 5 Cornell L.Q. 340 (1020); Li­bel: Publication to a Stenographer; Excess of Pric­



Ch. 22

der a Plea of the General Issue in an Action of Trespass on the Case in Actions for Def­amation. Logically, the Defense of Truth in Case for Libel or Slander, should have been permitted under the General Issue. But the rule has been that Truth in Slander and Libel must be pleaded Specially, with specific in­lIege, 0 CorneU L.Q. 430 11921); lAbel amid Sla’~dt’v

—Privilegc—--Roport of Municipal Council, 23 Mid:. Liter. 420 (1924); Libel and Slander—Dictation of Letter to Stenographer as Publication, 28 Mieh.L. 11ev. 348 (1930); Libel and Slander—Liability of icewspaper for Publication of a False News Dis­patch, 17 Minn,L.Rev. 820 (1933); Libel—Defama­tory Statements in Appellate Brief—Publication of Execrpts by Legal Scholar as Priveleged, 31 Mich. L.Rev. 255 (1933); Libel and Slander—Liability of ~ce’,vspaper for Publication of a False News Dis­patch, 17 Minn.L.Rev. 820 (1933); Torts—Defania­tion by Radio—Liability of a Broadcasting Station, S So.Cal.L.Rev. 359 (1935); Libel aad Slandci~ Qualified Privilege—Refutntioli of Defamatory ~tatczncnts Made Against a Third Person, 20 Minim. Liter. 438 (1936); Wills—Testamentary Libel— Omission of Libelous Matter from Probate, 21 Minim. J,.flev. 870 (1937); Libel—Grand Jury—Absolute Privilege Accorded in Reportimmg Misconduct of Pub­3ie Official, 31 Minn.LRev. 500 (1047); Libel arid

5iandcr—Liability of Radio Broadcaster for Defamo­atory Utterances Made by Ommc Not in Its Employ, 24 Mimi.L.Rev. 118 (1930); Libel amid Slander—Abso­lute Immunity Under Statute, 38 Miclm.L.Itev. 732 (1940); Libel and Slander-_—Classification of Radio Defamation—Liability of Broadcaster, 39 Mich.L. Rev. 1002 (1941); Torts—Libel and Slandev—l’ieb­lication of Jnadvortcnt Defanmatory Material, 25 3linn.L.Iiev. 495 (1041); Libel and Slammder—Extcmm­sion of the Doctrine of Absolute Privilege to 1mm-ferior Executive and AdnmimiistratiVc Officials, 41) l4iclm.L.Rev. 919 (1942) ; Wills—Testamentary Libel

—Liability 0f Decedent’s Estate and of Executor for the Probate and Pnblieation of a Libellous Will, 32 Va.L.Rev. 189 (1945); Torts—Libel—PublicatiOn tf Allegations in a Declaration, 44 Mieh.L.Rev. 675 (1946); Libel and Slander—Testamentary Libel, 48 Micb.L.Rev. 220 (19~9) ; Defanmatiomm by Will, Wash. U.L.Q. 122 (Winter, 1950); Stateniemmts to F.B.I. Concerning Government Employees as Privileged Communications, 51 Col.L.Rcv. 244 (1051): Tort:

Libel: Pnblieation Through Negligent Failure to

Act: Duty of Property Owner to Remove Defania­tory Statements from Premises, 40 CaLL.ltev. 625 fl952); The Law of Comnmcrcial Disparagement:

Business Defamation’s Inmpotemmt Ally, 63 Yale L.J.

65 (1953).

stances of the misconduct charged, with time and place.5

The Common Law Courts felt that to per­mit the Defense to be shown by the defendant under the General Issue, would result in talc­ing the plaintiff by surprise. It is reported that this Issue was taken up at a meeting of all the Judges, called to consider a case in­volving this Issue which arose in the Court of Common Pleas. At that meeting it was determined by a large majority of the Judg­es that, in the future, evidence of the De­fense of Truth of the Defamatory Matter Charged in the Declaration, should not be admissible under a Plea of the General Issue, but should be Pleaded Specially.6
246. In Trespass on the Case, the General Issue of “Not Guilty” under the Runty Rules operated only as a Denial of the Breach of Duty or Wrongful Act; all other Deenses were required to be Pleaded Specially.

THE Scope of the Plea of the General Issue in Trespass on the Case—Not Guilty—was greatly restricted by the Hilary Rules of 1834, Section IV, which provided that “the Plea of Not Guilty shall operate as a denial only of the breach of the duty or wrongful act alleged to have been committed by the defendant, and not of the facts stated in the Inducement; and no other defense than such denial shall be admissible under that Plea; all other Pleas in denial shall take issue on some particular matter of fact alleged in the Declaration.” The term “Inducement”, as used therein, refers to those Facts and Cir­cumstances which are required to be Stated in an Action of Trespass on the Case, in order to disclose the plaintiff’s Right as it existed

S. Stoevell v. Beagle, 57 Ill. 97 (1870); Dowic V. Pridcile, 216 111. 553, 75 N.E. 243, 3 Ann.Cas. 526 (1905).
6- Underwood v. Parks, 2 5tr. 1200, 93 Eng.Eep. 1127



at the time of the defendant’s Wrongful Act. The Plea of the General Issue, after the flu­ary Rules, operated to Deny the Wrongful Act of the defendant, and to admit the In­ducement, which disclosed the plaintiff’s Right.
Under Section TV of the Hulary Rules all Matters in Confession and Avoidance were re­quired to be Pleaded Specially, as in Actions of Assurnpsit. The Defenses of the Statute of Limitations and Truth in Defamation were required to be so Pleaded even before the Hilary Rules, as we have previously observed.
247. The General Issue in Trover, as in

Trespass and Trespass on the Case, is “Not

Guilty,” which is a Formal Denial of the

Wrongful Conversion. It denies a Legal Con­clusion, and so Admits All Defenses, except

Release and the Statute of Limitations.



Not Guiltyj

In the King’s Bench, Term,

William TV

C. D, 1

AND the said defendant, by William John­son, his attorney, comes and defends the wrong and injury, when, etc., and says, that he is rot guilty of the said supposed griev­ances above laid to his charge, or any or ei­ther of them, or any part thereof, in manner

-and form as the said plaintiff hath above thereof complained against him. And of this he the said defendant puts himself upon the

- country, etc.
3 CHITTY, Treatise on Pleading with Precedents and Forms, * 1030 (13th Am. ed., :Springfield 1859).
THE scope of the General Issue in the Ac­ion of Trover is so broad, because of its rela­:tionship to Trespass on the Case, that nearly

Any Defense may be shown, whether going to Dispute a Material Allegation in the Plain­tiff’s Declaration, or going to Dispute Lia­bility. Thus, such a Defense as the Bank­niptcy of the defendant, may be shown, but neither a Release nor the Bar of the Statute of Limitations may be admitted.’ This lati­tude is permissive only, however, and the de­fendant is at liberty to Plead Specially any Defense which admits both the property in the plaintiff and the conversion, but Justifies the latter.8



248. The Defenses of a Release and the Statute of Limitations were required to be Pleaded Specially.
AS stated above, in Trover under Not Guilty, the only Defenses which could not be shown were a Release and the Statute of Limitations.


249. The Effect of the Hilary Rules in Trover was to restrict the General Issue of “Not Guilty” to a Denial of the Wrongful Conver­sion only.
7. English: Webb v. Fox, 7 T.R. 391, 101 Eng.Rep.

1037 (1797); Ward v. Blunt, cro.Eliz. 147, 78 Eng.

Rep. 404 (1555); New York: Kennedy v. Strong, 10

Johns. (N.Y.) 291 (1815); Hurst v. Cook, 19 Wend.

(N.Y.) 463 (1838).
As taking the goods for just cause, Kline v. Rusted, 3 Caines (N.Y.) 275 (1805); or disproof of plaintiff’s title by showing title in a stranger, Itotan V. Fletch­er, 15 Johns. (N.Y.) 207 (1818); though in the latter case the defendant must also show some title in him­self, Duncan v. Spear, 11 Wend. (N.Y.) 54 (1833). And see Illinois: Fisher v. Meek, 38 Ill. 92 (1865);

Maine: Fenlason v. Rackliff, 50 Me. 362 (1803).

B. Webb v. For, 7 TB. 391, 101 Eng.Rep. 1037 (1797); But see, Kennedy v. Strong, 10 Johns. (N.Y.) 291 (1815), where the practice of Special Pleading in such cases is condemned. Any Special Plea show­ing no conversion Is bad on Special Demurrer in Trover. Illinois: Fulton v. Merrill, 23 Ill.App. 599 (1887); Gates v. Thede, 91 Ill.App. 603 (1900).

Sec. 249




Cli. 22

AS Trover was in Form an Action on the Case, it fell within the Scope of Section IV of the Hulary Rules. Under the Reforming Rule, the Plea of the General Issue operat­ed to Deny the Wrongful Act of the defend­ant, and no longer, as at Common Law, De­nied the Right in the plaintiff, even though the Facts of Right might, in some degree, constitute a part of the description of the Wrongful Acts.° In the examples which the authors of the Hilary Rules gave under Sec­tion IV, in Paragraph 3, with respect to the Operation of the Rule as to the General Issue in Trover, it was said that “in an action for converting the plaintiff’s goods, the conver­sion only, and not the plaintiff’s title to the goods,” were in issue under the Plea.
According to Chitty 10 and Greenleaf,” only the Conversion in Fact, was in issue, ir­respective of its character. Martin, however, states that the decisions have receded from this view, and that the term “Converskm/’ as used in the Rules, means a Wrongful Con­version, in the same sense as it did Prior to the Rules, and that there can be no such thung as a Justifiable Conversion.’2
After the Hilary Rules, under a Plea of the General Issue in Trover, a defendant was per­mitted to prove any Defense tending to show that the Act complained of was not Wrong­ful, and hence not a Conversion, and, of course, such Plea admitted the plaintiff’s title, which constituted the sole Inducement
P. Fraukum v. Earl of Falmouth, 2 Ad. & E, 452, 111 Eng.Rep. 175 (1835).
10. 1 Ohitty, Treatise on Pleading and Parties to Ac­tions with Precedents and Notes, c. VII, Of Pleas in Bar, 053 (16th Am. cd. by l’crkins, Springfield, 1879).
Ii. 2 GreeMeaf, Treatise on the Law of Evidence,

6-48 Trover (10th cd. Boston, 1568).

12. Clvii Procedure at Common Law, c. XI, Defences in lIar by Way of Traverse, Art. II, General Trav­erse—Application Thereof, * 266, Trover, 227 (St. Paul, 1905). See, also. Young v. Cooper, 6 Each, 259, 135 Eng.Rep. 038 (1851); Whitmore v. Green, 13 1Sf. & W. 104, 153 Eng.ltep. 43 (1844).

in the action, to be true.” Evidence of a lien cannot be shown under this Plea,” as it ques­tions the plaintiff’s possession or right of pos­session, which stands admitted by the Plea; ‘~ if this Allegation is to be placed in Issue, in England, after 1834, it must be done by a Specific Traverse. After the Hilary Rules, in England, the Scope of the General Issue was greatly restricted, being limited to a De­nial of the Wrongful Act of Conversion, hence most Defenses had thereafter to be Pleaded Specially.’6 If the plaintiff’s title was to be put in Issue, the defendant was required to interpose a Specific Traverse of “Not Pos­sessed.”

In general, it has usually been said, that in the Several States of the United States, the Rules as they existed in England prior to 1834, or at Common Law, are followed.


250. The General Issue in Ejeetment is “Not Guilty,” which permits all Defenses, Affirma­tive as well as Negative, to be shown. Equita­ble Defenses are still not allowed in sonic jurisdictions.


Not Guilty]

In the King’s Bench, Term,

William IV
C. D.

ANTi) the said C. D. by William Johnson, his attorney, comes and defends the force

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