I
 
 e , z 
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 PRINCIPLES 
 
 COMMON-LAW PLEADING 
 
 A BRIEF EXPLANATION OF THE DIFFERENT FORMS OF COMMON-LAW 
 ACTIONS, AND A SUMMARY OF THE MOST IMPORTANT 
 PRINCIPLES OF PLEADING THEREIN, WITH ILLUS- 
 TRATIONS TAKEN FROM THE CASES 
 
 BY 
 
 JOHN JAY McKELVEY, LL.B., A.M. 
 
 OF THE NEW YORK BAH 
 
 SECOND EDITION, REVISED 
 
 NEW YORK 
 
 BAKER, VOORHIS & COMPANY 
 1917
 
 COPYRIGHT, 1894, 
 BY JOHN JAY McKELVEY 
 
 COPYRIGHT, 1917, 
 BAKER, VOORHIS & COMPANY
 
 PREFACE. 
 
 THE principles of common-law pleading as they came 
 into our law are worthy of special study. They con- 
 stitute a subject of interest and importance alike to the 
 lawyer who practices under a modern code system, and 
 to him whose professional activity lies in some State 
 where the old forms, though modified somewhat it may 
 be by occasional statutory enactment or progressive 
 court decision, still prevail. 
 
 No code has been able to abolish the principles of 
 common-law pleading because they form the foundation 
 upon which every code must build its own system. A 
 code may call things by different names as complaint 
 for declaration, answer for plea but the things re- 
 main the same, and, what is more to the point, the pur- 
 pose for which the thing is used remains the same. 
 Hence to know how to best make the thing serve its 
 purpose one may still study with profit its origin and 
 its use in the cases recorded in the home of its origin. 
 
 It is- in fact the same with Pleading as with other 
 subjects. Our whole system of law is the embodiment 
 of the principles of the common law as found in the 
 cases, and to the cases we must ever turn for light 
 either as a direct aid to the administration of justice 
 or as a means of understanding and applying some 
 statutory restatement of principles first established by 
 the courts. 
 
 iii 
 
 670424
 
 IV PREFACE. 
 
 Such enactment has perhaps ambitiously sought to 
 simplify a principle of law by encasing it in exact lan- 
 guage, but alas, has only succeeded in adding to the 
 labor of application the task of interpretation, thus 
 increasing the chance of error. 
 
 In a democracy such as ours the people are the source 
 of the law, which evolves through the slow process of 
 the decisions of courts and the more rapid process of 
 the enactments of legislatures. When such enactments 
 are confined to the prescribing of new, or the modify- 
 ing of old rules relating to property or persons, they 
 record and reflect the current state of society and thus 
 serve a very useful purpose; but when they attempt to 
 crystallize into a set form all existing rules governing 
 property and person they merely complicate the situa- 
 tion, to the consternation of the lawyer who now finds 
 himself removed one step further from the enlightening 
 sources of the law and is compelled to take his light, 
 as it were, from the original sources through a statutory 
 screen, not always, be it said, of the clearest trans- 
 mitting material. 
 
 From the earliest beginnings down to the time when 
 our several States, with their separate and differing 
 judicial systems, began to adapt and fit the common 
 law to their respective needs we may study the system 
 of pleading in its development through the cases and 
 the English statutes, with the feeling that our knowl- 
 edge thus acquired will be an asset of value in any 
 jurisdiction. 
 
 To such study the student must add, in order 
 to complete his equipment, a further study of cases and
 
 PREFACE. V 
 
 statutes in the particular jurisdiction where he intends 
 to practice. 
 
 It is not the aim of this treatise to carry the student 
 beyond an understanding of the main principles of com- 
 mon-law pleading as they came to us in the beginning, 
 and, except by way of illustration where original prin- 
 ciples have been reasserted by modern decisions, little 
 reference is made to modern cases. 
 
 The subject of common-law pleading has been 
 treated fully, and in great detail, by Chitty. Other 
 text writers, chief among them Stephen, have 
 treated it less in detail, but more clearly. The works 
 of all of these writers, however, are characterized 
 by a greater fulness than is necessary, or even con- 
 venient, for the purposes of the student who expects 
 to practice in this country. What seems to be required 
 is a summary of the main principles of the subject 
 the principles whose influence is still felt in the various 
 systems of pleading which prevail in the different 
 States, without the mass of technical and local rules 
 which encumbered the old English system. It is this 
 need which the present work is intended, in some 
 small measure, to meet. 
 
 The late Professor Ames, of the Harvard Law 
 School, prepared, some years ago, a collection of cases 
 upon the subject, which has been and is used in many 
 Law Schools with satisfactory results. The selection 
 and arrangement of the cases by Professor Ames has 
 been so judicious and effective, and the use of a book, 
 such as his collection of cases, so desirable in connec- 
 tion with a text-book, that I have, in the order of treat- 
 ment of the principles covered by his cases, followed
 
 VI PEEFACE. 
 
 in the main his arrangement and adopted the cases 
 selected by him as illustrations. This matter is con- 
 tained in Part II. 
 
 Part I. contains a brief explanation of the different 
 forms of actions, to which the principles set forth in 
 Part II. mainly relate. I know, in my own case, 
 some explanation of this nature would have been a 
 great help to a proper understanding of the cases. If 
 the explanation given shall prove of assistance to any 
 one else, it will have accomplished its purpose. 
 
 In conclusion, I wish to say that the present work 
 is put forth only as a guide to the main principles of 
 the subject of civil pleading and a help to the under- 
 standing of the cases which illustrate those principles, 
 and in no sense as a complete treatise on the subject. 
 Illustrations taken from the cases have been used to 
 show the application of the principles set forth, and 
 have been referenced for convenience both to Ames' 
 Cases, where contained therein, and to the original 
 reports. 
 
 JOHN JAY McKELVEY. 
 NEW YOBK, Aug. 1, 1917.
 
 CONTENTS. 
 
 PAET I. 
 FORMS OP ACTIONS AND DECLAEATIONS. 
 
 CHAPTER I. 
 
 INTBODUCTOBY. 
 
 1-15 Pages MO 
 
 1. Meaning of word Pleadings. 2. Familiarity with 
 forms of action necessary. 3. How form of action 
 determined. 4 Sufficiency of declaration. 5. Aim 
 of Part I. 6. Study of cases essential. 7. Origin 
 of forms of action. 8. Names of different forms. 
 9. Principle upon which recovery based. 10. Real, 
 personal, and mixed actions. 11. Office of declara- 
 tion. 12. Technical rules. 13. Example of declara- 
 tion. 14. Profert and oyer. 15. Pledges. 
 
 CHAPTER II. 
 
 ACTIONS BASED ON ACQUIRED BIGHTS. 
 
 SECTION I. IN GENEBAL. 
 
 16-20 Pages 11-13 
 
 16. Distinction between two classes of actions. 17. 
 Debt. 18. Covenant. 19. Detinue. 20. Assumpsit, 
 special and general. 
 
 SECTION II. DEBT. 
 
 21-28 Pages 13-19 
 
 21. Theory of action of Debt. 22. Necessary allega- 
 tions in declaration. 23. Debt a broad action. 
 24. Debt on Simple Contract. 25. Debt on Special- 
 
 (vii)
 
 Vlll CONTENTS. 
 
 ties. 26. Debt on Records. 27. Debt on Statutes. 
 28. Statement of breach. 
 
 SECTION III. DETINUE. 
 
 29-31 Pages 19-21 
 
 29. Nature of action of Detinue. 30. What plaintiff 
 recovers. 31. Necessary allegations in declaration. 
 
 SECTION IV. COVENANT. 
 
 32, 33 Pages 21-23 
 
 32. Nature of action of covenant. 33. Necessary alle- 
 gations in declaration. 
 
 SECTION V. SPECIAL ASSUMPSIT. 
 
 34-37 Pages 23-26 
 
 34. Origin of action. 35. Basis of recovery, a con- 
 tract. 36. Nature of contract. 37. Necessary alle- 
 gations in declaration. 
 
 SECTION VI. GENERAL ASSUMPSIT. 
 
 38-42 Pages 27-31 
 
 38. Theory of recovery in General Assumpsit. 39. 
 Different counts. 40. Basis of classification. 41. 
 Necessary allegations in declaration. 42. Exam- 
 ples of indebitatus and other counts. 
 
 CHAPTER III. 
 
 ACTIONS BASED ON NATURAL RIGHTS. 
 
 SECTION I. IN GENERAL. 
 
 43-46 Pages 32-34 
 
 43. Similarity of Trespass, Trover, Replevin, Case, 
 and Ejectment. 44. Natural rights, what they are. 
 45. Nature of recovery in Trespass, Trover, and 
 Case. 46. In Replevin and Ejectment.
 
 CONTENTS. IX 
 
 SECTION II. TRESPASS. 
 
 47-51 ..Pages 34-38 
 
 47. Nature of action of Trespass. 48. Division of the 
 action. 49. Trespass for injury to person; neces- 
 sary allegations in declaration. 50. Trespass for in- 
 jury to property. 51. Necessary allegations in 
 declaration. 
 
 SECTION III. TBOVEB. 
 
 52-59 Pages 38-44 
 
 52. Nature of the action. 53. As originally used. 
 54 Subsequent extension of the action. 55. Rule 
 as to demand and refusal. 56. Action as finally 
 extended. 57. Real nature of wrongful acts re- 
 dressed by this action. 58. Necessary allegations in 
 declaration. 59. As to allegation of demand and 
 refusal. 
 
 SECTION IV. REPLEVIN. 
 
 60-79 : Pages 44-59 
 
 60. Distress the successor of forfeiture. 61. Replevin 
 as a remedy for illegal distress. 62. Real purpose 
 of the action. 63. Replevin in its early form. 64. 
 The proceedings for specific recovery. 65. The 
 subsequent action. 66. Proceeding by writ aban- 
 doned. 67. True distinction between Replevin in 
 the detinuit and detinet. 68. Disappearance of Re- 
 plevin in the detinet. 69. Impression that there 
 were two forms of Replevin wrong. 70. No action 
 of Replevin for damages only. 71. Nature of 
 Avowry and Cognizance. 72. Extension of the 
 action. 73. Advantage of Replevin over Detinue. 
 74. Failure of attempt to make Replevin coexten- 
 sive with Trover. 75. Form of declaration. 76. 
 Necessary allegations in declaration. 77. Allega- 
 tion of place of seizure. 78. Necessary allegations 
 in Avowry or Cognizance. 79. Example of declara- 
 tion.
 
 X CONTENTS. 
 
 SECTION V. CASE. 
 
 80-85 Pages 59-63 
 
 80. Origin of action in Statute. 81. Action before the 
 statute. 82. Separation of Assumpsit and Trover. 
 83. What the action includes. 84 Necessary allega- 
 tions in declaration where action for injury to per- 
 son. 85. Where for injury to property. 
 
 SECTION VI. EJECTMENT. 
 
 86-91 Pages 64-68 
 
 86. Origin of action. 87. How question of title in- 
 volved. 88. Early use of action to try title. 89. 
 Development of action for this purpose. 90. Rule 
 invented by Rolle. 91. Necessary allegations in 
 declaration. 
 
 PAKT II. 
 PLEADINGS SUBSEQUENT TO THE DECLARATION. 
 
 CHAPTER I. 
 
 DEMURRERS. 
 
 i 92-104 Pages 69-75 
 
 92. Names of pleadings subsequent to declaration. 
 
 93. Two methods of answering the declaration. 
 
 94. Nature of the demurrer. 95. Effect of the de- 
 murrer. 96. Nature and effect of plea. 97. De- 
 murrer; when used; form. 98. Joinder in de- 
 murrer. 99. Only one form of demurrer originally. 
 100. Origin of special demurrer. 101. Demurrer 
 to Evidence. 102. Judgment final on demurrer. 
 103. Exception to this rule. 104. A demurrer not 
 a plea. 
 
 SECTION I. GENERAL DEMURRERS. 
 
 I 105-115 Pages 76-83 
 
 105. Early effect of general demurrer; illustration. 
 106. Effect of general demurrer after statute, as to
 
 CONTENTS. XI 
 
 declaration. 107. As to subsequent pleadings. 
 108. Matters of form not called in question. 100. 
 Except in pleas in abatement; illustration. 110. As 
 to demurrer as an admission; illustration. 111. 
 Not an admission of an impossibility ; illustration. 
 112. Distinction; illustration. 113. Nor of a con- 
 clusion of law; illustrations. 114. Nor of imma- 
 terial matters; illustration. 115. Not an admission 
 for all purposes; illustrations. 
 
 SECTION II. SPECIAL DEMURRERS. 
 
 116-119 Pages 83-86 
 
 116. Special demurrer under statute and at common 
 law. 117. Only questions: matters of form stated 
 in the demurrer; illustrations. 118. Includes a 
 general demurrer; illustrations. 119. Special de- 
 murrer at present time. 
 
 SECTION III. EFFECT OF DEMURRER IN OPENING THE RECORD. 
 
 120-126 Pages 87-93 
 
 120. Effect in opening record; illustrations. 121. 
 Pleadings examined only for defects in substance; 
 illustration. 122. Meaning of " record " ; illustra- 
 tion. 123. Where two separate records; illustra- 
 tion. 124. Exception to rule; illustration. 125. 
 Party must get judgment on his own pleadings; 
 illustration. 126. Where a discontinuance; illus- 
 tration. 
 
 CHAPTER II. 
 
 DILATORY PLEAS. 
 
 127-140 Pages 94-101 
 
 127 Defects not appearing on face of declaration. 
 128. Dilatory plea the method of bringing them be- 
 fore court. 129. Must be used at once. 130. Classi- 
 fication of dilatory pleas. 131. Plea to jurisdic- 
 tion. 132. Plea in suspension. 133. Plea in abate- 
 ment 134. Affidavit of truth. 135. How dilatory 
 plea differed from demurrer. 136. Dilatory plea
 
 Xll CONTENTS. 
 
 widely used at common law. 137. Further classi- 
 fication. 138. Common pleas in abatement. 139. 
 Rule as to pleas in abatement. 140. Example of plea 
 in abatement. 
 
 CHAPTER III. 
 
 PLEAS BY WAY OF CONFESSION AND AVOIDANCE. 
 
 141-148 Pages 102-105 
 
 141. Pleas in bar. 142. Pleas by way of confession 
 and avoidance. 143. Example. 144. Verification. 
 145. Express confession at first required; illus- 
 tration. 146. Later, not required; illustration. 
 147. At present time. 148. Two classes of pleas. 
 
 SECTION I. PLEAS IN DISCHABGE. 
 
 148-150 Pages 105-106 
 
 149. Nature of plea in discharge. 150. Common forms 
 of. 
 
 SECTION II. PLEAS IN EXCUSE. 
 
 151-153 Page 106 
 
 151. Nature of plea in excuse. 152. Differs in dif- 
 ferent actions. 153. In general, admits substance 
 of declaration. 
 
 (a). Special Assumpsit. 
 
 154-158 Pages 106-109 
 
 154. What admitted in special assumpsit by plea in 
 excuse. 155. Collateral agreement may be set up 
 by plea in excuse; illustration. 156. But not a part 
 of the agreement itself; illustration. 157. Nor a 
 condition; illustration. 158. Nor lack of consider- 
 ation ; illustration. 
 
 (6). General Assumpsit. 
 
 159-162 Pages 109-111 
 
 159. What admitted in general assumpsit by plea in 
 excuse. 160. Cannot deny debt by plea in excuse;
 
 CONTENTS. Xlll 
 
 illustration. 161. Nor set up credit not expired. 
 162. Nor set up a special contract. 
 
 (c). Debt. 
 
 163-165 Pages 111-112 
 
 163. What admitted in debt by plea in excuse. 164. 
 What can be set up. 165. Difference between debt 
 and general assumpsit, as to plea of credit not ex- 
 pired. 
 
 ( d ) . Trespass. 
 
 166-173. . Pages 112-115 
 
 166. What admitted in trespass for injury to the per- 
 son by plea in excuse. 167. In trespass for injury 
 to property. 168. Plea of son assault demesne; il- 
 lustration. 169. Plea of ownership. 170. Plea of 
 liberum tenementum. 171. Cannot plead in excuse 
 that act involuntary. 172. Nor that defendant had 
 no physical control over act; illustration. 173. 
 Where several acts of trespass are alleged; illustra- 
 tion. 
 
 (e). Trover. 
 
 174-176 Pages 116-117 
 
 174. No plea in excuse in trover; illustration. 175 
 Nature of matters in defense; illustration. 176. 
 Plea in discharge in trover. 
 
 (/) . Detinue. 
 
 177-179 Pages 117-119 
 
 177. What admitted by plea in excuse in detinue. 
 178. Lien must be pleaded in excuse. 179. But not 
 an offer to give the goods up. 
 
 (g) . Replevin. 
 180. Plea in excuse in replevin Page 119 
 
 (/). Case. 
 
 181-187 Pages 120-124 
 
 181. Plea in excuse seldom used in case. 182. Usual
 
 XIV CONTENTS. 
 
 matters of defense. 183. Truth, how pleaded in 
 case for libel. 184. What not good plea in excuse; 
 illustration. 185. Reasonable cause, how pleaded in 
 case for malicious prosecution; illustration. 186. 
 Contributory negligence, how pleaded in case for 
 negligence; illustration. 187. Other matters not 
 proper in excuse; illustration. 
 \ 
 
 (g). Ejectment. 
 
 188. No room for plea in excuse Page 124 
 
 CHAPTER IV. 
 
 PLEAS BY WAY OF TRAVERSE. 
 
 SECTION I. GENERAL REQUISITES. 
 
 189-199 P,ages 125-132 
 
 189. Nature of traverse. 190. Usually negative in 
 form. 191. Must not be argumentative. 192. Must 
 always tender issue. 193. If not demurred to, issue 
 must be joined. 194. Conclusion of law cannot be 
 traversed; illustrations. 195. Nor immaterial 
 matter; illustrations. 196. Immaterial matter will 
 not turn good plea in excuse into bad traverse; 
 illustrations. 197. Where immaterial matter 
 mingled with material, both may be traversed; illus- 
 tration. 198. Traverse must not be too broad; 
 illustrations. 199. Matter implied in a pleading 
 may be traversed. 
 
 SECTION II. CLASSIFICATION OF TRAVERSES. 
 200. Different classes of traverses Pages 132-133 
 
 SECTION III. GENERAL ISSUE AND SPECIFIC TRAVERSES. 
 201. Nature of, and distinction between Pages 133-134 
 
 (a). Special Assumpsit. 
 
 202-207 Pages 134-137 
 
 202. General issue, non assumpsit. 203. Effect of now
 
 CONTENTS. XV 
 
 assumpsit. 204. Puts in issue material averments 
 only. 205. May show omission of conditions ; illus- 
 trations. 206. Does not deny breach; illustration. 
 207. Specific traverses; illustration. 
 
 (Z>). General Assumpsit. 
 
 208-210 Pages 137-138 
 
 208. General issue; non assumpsit. 209. What may be 
 shown under non assumpsit; illustrations. 210. 
 Specific traverse. 
 
 (c). Debt. 
 
 211, 212 Page 139 
 
 211. General issue; nil debet, nunquam indebitatus; 
 illustration. 212. Breach cannot be traversed. 
 
 (d). Trespass. 
 
 213-218 Pages 140-143 
 
 213. General issue, not guilty. 214. What may be 
 shown under not guilty; illustrations. 215. What 
 cannot be shown; illustration. 216. Specific trav- 
 erse in trespass for injury to person. 217. In tres- 
 pass for injury to property; illustrations. 218. In 
 trespass for injury to servant; illustration. 
 
 (e). Trover. 
 
 219-225 Pages 143-146 
 
 219. General issue, not guilty; its effect; illustrations. 
 220. What not guilty does not deny; illustration. 
 221. Specific traverse, not possessed. 222. Lien 
 may be shown under not possessed; illustration. 
 223. What not possessed does not deny; illustra- 
 tion. 224. When both pleas necessary; illustration. 
 225. When not necessary. 
 
 (/). Detinue. 
 
 226, 227 Page 146 
 
 226. General issue, non detinet; its effect; illustration. 
 227. Specific traverse, not possessed; its effect; 
 illustrations.
 
 XVI CONTENTS. 
 
 (g). Replevin. 
 
 228-232 Pages 147-149 
 
 228. General issue, non cepit; its effect; illustration. 
 229. Place of taking. 230. Plea of rien en arrere; 
 illustration. 231. Specific traverses to declaration 
 little used. 232. Common to avowry. 
 
 (h). Case. 
 
 233-242 Pages 149-154 
 
 233. General issue, not guilty; its effect; illustration. 
 234. What may be shown under not guilty. 235. 
 Matters forming the inducement not put in issue; 
 illustration. 236. Scienter put in issue ; illustra- 
 tion. 237. In case for deceit; illustration. 238. In 
 case for libel; illustration. 239. In case for nui- 
 sance; illustration. 240. Specific traverses in case; 
 illustration. 241. Effect of immaterial allegations 
 on not guilty; illustration. 242. Specific traverse 
 in case for malicious prosecution. 
 
 SECTION IV. SPECIAL TBAVEBSES. 
 
 243-254 Pages 154-160 
 
 243. Object and parts of special traverse. 244. In- 
 ducement. 245. Absque hoc clause; illustration. 
 246. Conclusion of special traverse. 247. Cannot 
 be pleaded to if good; illustration. 248. When in- 
 ducement may be pleaded to; illustration. 249. 
 When bad in form; illustration. 250. Ditto. 251. 
 when absque hoc clause bad in form. 252. Rules. 
 253. Special traverse not a substitute for general 
 issue; illustration. 254. Nor for rien en arrere. 
 
 SECTION V. REPLICATION DE INJURIA. 
 
 255-261 Pages 160-164 
 
 255. Nature and origin. 256. In what forms of action 
 used ; illustrations. 257. When cannot be used ; 
 illustrations. 258. Will not put in issue immaterial 
 matter; illustrations. 259. Not available where
 
 CONTENTS. XV11 
 
 plea amounts to a traverse; illustrations. 260. 
 Nor where the plea contains a set-off; illustration. 
 261. May be used to a part of plea where other part 
 admitted ; illustration. 
 
 CHAPTER V. 
 
 DUPLICITY. 
 
 5 262-2&9 Pages 165-171 
 
 262. Rule against duplicity; illustrations. 263. Has 
 no exception; Dame Audley's Case. 264. Apparent 
 exception; illustration. 265. Duplicity a formal de- 
 fect; illustration. 266. Surplusage will not make 
 pleading double; illustrations. 267. Pleading double 
 though matter ill pleaded; illustration. 268. When 
 replication double. 269. When replication de injuria 
 not double; illustration. 
 
 CHAPTER VI. 
 
 DEPARTURE. 
 
 ? 270-277 Pages 172-177 
 
 270. Rule against departure; illustrations. 271. Taken 
 advantage of by general demurrer. 272. Ditto. 273. 
 When replication a departure ; illustration. 274. 
 Ditto. 275. When not a departure; illustration. 
 276. Ditto. 277. Departure from immaterial aver- 
 ment. 
 
 CHAPTER VII. 
 
 NEW ASSIGNMENT. 
 
 5 278-287 Pages 178-183 
 
 278. Rule as to new assignment. 279. Only used by 
 plaintiff. 280. Not an admission of facts in plea; 
 illustration. 281. When plaintiff cannot new as- 
 sign; illustration. 282. Ditto. 283. When may both 
 plead and new assign; illustration. 284. Ditto. 
 
 285. Effect of failure to new assign ; illustration. 
 
 286. Ditto. 287. Monkman v. Shepherdson.
 
 XV111 CONTENTS. 
 
 CHAPTER VIII. 
 
 MOTIONS BASED ON THE PLEADINGS. 
 
 SECTION I. ABREST OF JUDGMENT. 
 
 288-293 Pages 184-187 
 
 288. Motion in arrest of judgment; illustration. 289. 
 Defect cured by answering pleading. 290. Motion 
 not granted for defect in form. 291. When motion 
 will not be granted. 292. Ditto. 293. In action of 
 debt on a bond. 
 
 SECTION II. NON-OBSTANTE VEBEDICTO. 
 
 294-300 Pages 187-190 
 
 294. Nature of motion for judgment non-obstante 
 veredicto. 295. Motion available to either party. 
 296. Reason of motion; illustration. 297. Original 
 scope of motion; illustration. 298. To what cases 
 extended; illustration. 299. Ditto. 300. Limitation 
 of motion. 
 
 SECTION III. REPLEADEB. 
 
 301-304 Pages 190-194 
 
 301. Motion for repleader when granted; illustration. 
 302. When not granted. 303. Ditto. 304. No real 
 occasion for repleader.
 
 GASES CITED. 
 
 [References are to pages.] 
 
 Aldredge v. Wood, 93. 
 Anonymous, 84. 
 Anonymous, 88. 
 Anonymous, 157. 
 Anonymous, 159. 
 Anonymous, 166. 
 Anonymous, 172. 
 Anonymous, 191. 
 Agar v. Lisle, 40. 
 Auburn & Owasco Co. v. Leitcn, 
 
 91. 
 Austin V. Moore, 182. 
 
 B 
 
 Baldwin v. Cole, 43. 
 Barber v. Vincent, 78. 
 Barrett v. Barrett, 159. 
 Barrett v. Fletcher, 187. 
 Bartlett v. Wells, 175. 
 Beckham v. Knight, 154. 
 Bedingfreed v. Onslow, 36. 
 Bennett V. Filkins, 155. 
 Bridgewater v. Bythway, 128. 
 Bridge v. Grand Junction Ry. 
 
 Co., 123. 
 Brine v. Great Western Ry. 
 
 Co., 176. 
 
 Brikhed v. Wilson, 14. 
 Brind v. Dale, 108, 135. 
 Brooke v. Brooke, 185. 
 Brooks v. Stewart, 105. 
 
 Broomfield v. Smith, 138. 
 Brotherton v. Wood, 60. 
 Burser v. Martin, 35. 
 Bussey v. Barnett, 138> 139. 
 
 Calverac v. Pinkero, 70. 
 Chancellor of Oxford's Case, 40 
 Chance v. Weeden, 161. 
 Claflinu. Baere, 111. 
 Clements v. Flight, 117, 146. 
 Cocker v. Compton, 182. 
 Cohen v. Home Ins. Co., 165. 
 Colburne v. Stockdale, 131. 
 Cole v. Hawkins, 177. 
 Cole v. Maunder, 79. 
 Collum v. Andrews, 182. 
 Cooke v. Oxley, 184. 
 Cope v. Lewyn, 10. 
 Cotton v. Browne, 122. 
 Couling v. Coxe, 190. 
 Crogate's Case, 162, 164. 
 Crouch v. London & N. W. Ry. 
 Co., 124. 
 
 D 
 
 Dale v. Vale, 76. 
 Dalston v. Janson, 20. 
 Dame Audley's Case, 167. 
 Dannet v. Collingdell, 35. 
 Davies v. Penton, 90. 
 De Pinna v. Pol-hill, 137. 
 
 (xix)
 
 XX 
 
 CASES CITED. 
 
 De St. Aubin v. Guenther, 129. 
 Dover v. Rawlings, 147. 
 Dorrington v. Carter, 117, 144. 
 Duke of Rutland v. Bagshawe, 
 190. 
 
 E 
 
 Earl of Manchester v. Vale, 115. 
 Eavestaff v. Russell, 106. 
 Ellet v. Pullen, 182. 
 Erskine v. Townsend, 10. 
 Everard v. Hopkins, 26. 
 
 P 
 
 Filliene v. Armstrong, 189. 
 Fisher v. Wood, 164. 
 Fletcher v. Wilkins, 48, 52. 
 Frankum v. Earl of Falmouth, 
 
 150. 
 
 Freeman v. Crafts, 182. 
 Fortescue v. Holt, 155. 
 Foshay v. Riche, 127. 
 Fursden v. Weeks, 162. 
 
 G 
 
 Gaile v. Betts, 168. 
 Galway v. Rose, 166. 
 Gardner v. Alexander, 138. 
 Gibbons v. Pepper, 115, 140. 
 Gilbert v. Parker, 132. 
 Goodburne v. Bowman, 189. 
 Goodchild v. Pledge, 19, 103, 
 
 105, 139. 
 
 Goram v. Sweeting, 131. 
 Gordon v. Ellis, 186, 194. 
 Gould v. Lasbury, 104, 106. 
 Grills v. Mannell, 127. 
 
 H 
 
 Haiton v. Jeffreys, 70, 74, 75. 
 Hancocke v. Prowd, 10, 15. 
 Harrison v. Cotgreave, 167. 
 
 Hasselbach v. Mt. Sinai Hospi- 
 tal, 87. 
 
 Hastrop v. Hastings, 91. 
 Hayselden v. Staff, 110, 138. 
 Heard v. Baskerville, 85. 
 Heath v. Milward, 141. 
 Hill v. Wright, 148. 
 Hodges v. Steward, 80. 
 Holcroft v. French, 25. 
 Holmes v. Seely, 37. 
 Horn v. Lewis, 160. 
 Horner v. Ashford, 23. 
 Huddart v. Rigby, 183. 
 Huish v. Phillips, 157. 
 Humphreys v. Bethily, 169. 
 
 In re Wilsons, 55. 
 Isaac v. Farrar, 161. 
 Isaak v. Clark, 40. 
 Ivo de Stokes v. Richard Trint, 
 14. 
 
 Jevens V. Harridge, 14. 
 
 Jones V. Brown, 38. 
 
 Jones v. Chapman, 141. 
 
 J. S. of Dale v. J. S. of Vale, 76 
 
 K 
 
 Kempe c. Crews, 192. 
 Kettle V. Bromsall, 12, 20. 
 King V. Rotham, 84. 
 Kinneyside V. Thornton, 60. 
 Knapp v. Salsbury, 140. 
 
 Lacy v. Reynolds, 188. 
 Lambert v. Taylor, 189. 
 Lane r. Alexander, 128. 
 Lane v. Tewson, 118, 137.
 
 CASES CITED. 
 
 XXI 
 
 Latham t?. Rutley, 136. 
 Leach v. Thomas, 186. 
 Legg v. Evans, 177. 
 Lewis v. Alcock, 152. 
 Lillie v. Price, 151. 
 Livingston v. Rogers, 184. 
 Loweth v. Smith, 179, 181. 
 Lyall v. Higgins, 109, 134. 
 
 Me 
 McPherson f. Daniels, 121. 
 
 M 
 
 Maltravers f. Tuberville, 20. 
 Marsh v. Bulteel, 92. 
 Martin t. Kesterton, 178. 
 Mason v. Farnell, 118. 
 Mayor v. Richardson, 157. 
 Mennie t'. Blake, 55. 
 Metzner v. Bolton, 136. 
 Miflard f. Baldwin, 81. 
 Millard v. Caffin, 48. 
 Mole v. Wallis, 176. 
 Monkman v. Shepherdson, 183. 
 Monprivatt f. Smith, 181. 
 Moore f. Jones, 23. 
 Morgan Pebrer, 111. 
 
 N 
 
 Nash v. Breeze, 109. 
 Niblet v. Smith, 173. 
 Nichols v. Raynbred, 27. 
 Norman v. Westcombe, 179. 
 Norton v. Scholefield, 152. 
 
 O 
 
 O'Brien v. Saxon, 163. 
 Omalley v. 111. Publishing and 
 
 Printing Co., 151. 
 Owen f. Knight, 144. 
 Owen v. Reynolds, 177. 
 
 Palmer v. Elkins, 158. 
 
 Palmer v. Tuttle, 182. 
 
 Patterson f . Clark, 141. 
 
 Paxton v. Male, 61. 
 
 Pearson v. Roberts, 47. 
 
 Penn v. Ward, 163. 
 
 Penno v. Bennett, 164. 
 
 Perring v. Harris, 149. 
 
 Petre v. Duke, 51. 
 
 Piggot's Case, 87. 
 
 Pilgrim v. Southampton, etc., 
 
 Ry., 37. 
 
 Postlethwaite v. Parkes, 38. 
 Potter v. North, 59. 
 Prettyman v. Lawrence, 180. 
 Pullen v. Seaboard Trading 
 
 Co., 129. 
 
 R 
 
 Rathbone v. Rathbone, 170. 
 Rex v. Knollys, 81. 
 Rex v. Phillips, 192. 
 Reynolds v. Blackburn, 171. 
 Richards V. Frankum, 146. 
 Richards v. Hodges, 173. 
 Robinson V. Rayley, 169. 
 Rogers v. Custance, 181. 
 Russell's Case, 127. 
 
 S 
 
 Salter f. Parchell, 164. 
 Saunders v. Crawley, 166, 168. 
 Scheeline f. Mosher, 99. 
 Scovill v. Seeley, 82. 
 Selby v. Bardons, 161. 
 Sergeant v. Fairfax, 191. 
 Shephard V. Shephard, 170. 
 Sieveking v. Dutton. 109, 134. 
 Sir Francis Leke's Case, 130. 
 Sir Ralph Bovy's Case, 130.
 
 xxii 
 
 CASES CITED. 
 
 Slocombe v. Lyall, 141. 
 Smart v. Hyde, 107, 135. 
 Smith v. Parsons, 136, 137. 
 Spencer v. Bemis, 179. 
 Spencer V. Dawson, 151. 
 Squires v. Seward, 141. 
 Staple V. Heydon, 191. 
 State of Maine v. Peck, 74, 85. 
 Stephens v. Underwood, 170. 
 Stinstm v. Gardiner, 83. 
 
 Tavernour v. Little, 153. 
 Taylor V. Markham, 163. 
 Taylor V. Smith, 180. 
 Thomas 0. Morgan, 150. 
 Thorn v. Shering, 156. 
 Tippet V. May, 93. 
 Tobey v. Webster, 37. 
 Tompkins v. Ashby, 83. 
 Torrence v. Gibbons, 142. 
 Tresham v. Ford, 80. 
 
 Trevilian v. Pyne, 53. 
 Tryon v. Carter, 192. 
 
 V 
 
 Vaux v. Mainwaring, 16. 
 Vere v. Smith, 176. 
 
 W 
 
 Walden v. Holman, 75, 77. 
 Walker v. Jones, 128. 
 Watkins v. Lee, 153. 
 Wheedon v. Timbrell, 38. 
 White v. Bodinam, 132. 
 White v. Teale, 144. 
 W T ilson V. Hobday, 13. 
 Wilson v. Palmer, 97. 
 Winchelsea v. Higden, 173. 
 Winn v. White, 135. 
 Wise v. Hodsall, 104, 113, 114 
 Witts v. Polehampton, 191. 
 
 Y 
 
 Young V. Cooper, 116, 143.
 
 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 PART I. 
 
 FORMS OF ACTIONS AND DECLARATIONS. 
 
 CHAPTER I. 
 
 INTRODUCTORY. 
 
 ! The word Pleadings in a broad sense and as 
 used at the present time applies to the statements, 
 written or oral, by which the parties to an action for- 
 mally present the case to the court for trial. 1 
 
 2. The principles of pleading are the rules which, 
 in the development of the law of procedure in actions, 
 have become established with reference to the form 
 in which the parties shall state their respective ver- 
 sions of the matter in dispute between them, and with 
 respect to the manner in which, and means by which, 
 either party may take advantage of a failure on the 
 part of the other to properly formulate his statements. 
 
 One may learn a rule of pleading, such as that a 
 denial must not be made of an immaterial allegation, 
 
 1 As early as 1677 we find "Pleadings" defined as including 
 the " count " or declaration as well as to the subsequent state- 
 ments of the parties. Euer, Doctrina Placitandi, Preface.
 
 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 but to apply the rule one must know what is an im- 
 material allegation. What is an immaterial allegation 
 in one form of action may be a very material one in 
 another. 
 
 Again, one may be told that there is no room for 
 a plea in excuse in the action of trover, but to under- 
 stand this rule one must know something about the 
 form of action known as trover, as distinguished from 
 trespass, or some other form of action in which he is 
 told that a plea in excuse may be used. A general 
 knowledge of the nature of the different forms of 
 action is, therefore, essential to a proper understanding 
 of the principles of pleading. 
 
 3. It is the plaintiff in the action who determines 
 the form which the action shall take : he does it by 
 the first pleading in the action, known as the decla- 
 ration, a formal statement to the court of the facts 
 upon which he deems he has the right to invoke the 
 aid of the court against the defendant. He must take 
 the responsibility of determining whether he has a 
 cause of action, what relief he is entitled to, and what 
 form of action will fit the case. 
 
 The proper determination of these questions is im- 
 portant to the plaintiff in drawing his declaration. A 
 proper determination of the same questions is im- 
 portant to the defendant in deciding what steps to 
 take in reference to the declaration. The declaration 
 will be sufficient if it states a valid cause of action in 
 the form which will give the plaintiff the relief to 
 which the facts entitle him.
 
 INTRODUCTORY. 3 
 
 4. To determine whether or not the declaration 
 in any given action, viewed in this light as a statement 
 of the plaintiff's case, is sufficient, obviously requires 
 something besides a knowledge of the principles of 
 pleading. That something is a general knowledge of 
 the rights and obligations of the individual as a member 
 of civilized society subject to the common law, and of 
 the different forms of action in which such rights and 
 obligations are enforced. A study of the principles of 
 pleading will not teach when a declaration is insuf- 
 ficient as a statement of the plaintiff's case, but only 
 how to bring the matter before the court for action, if 
 from his knowledge of substantive law the pleader has 
 determined that the declaration is insufficient. 
 
 5. It often happens that the student takes up 
 the study of common-law pleading before he has be- 
 come familiar with the different branches of substantive 
 law and the various forms of action which have arisen 
 under the common-law system. It is perhaps neces- 
 sary that this should be so, inasmuch as some knowl- 
 edge of the different pleadings and their offices is es- 
 sential to a proper understanding of the cases which are 
 the main sources of the substantive law. It is there- 
 fore with a view to helping the student to more read- 
 ily grasp the principles which govern the decisions of 
 the various questions of pleading arising in the reported 
 cases, that an explanation of the different forms of 
 action, and of the necessary allegations in the declara- 
 tions of each, is here introduced. The aim has been to 
 present the matter in the briefest form consistent with 
 clearness. The subject of the declaration in each form
 
 4 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 of action has been taken up in connection with the 
 explanation of such action, in preference to treating 
 forms of action separately, as is usually done. 
 
 6. One may justly inquire before entering upon 
 a study of the several forms of common-law actions 
 referred to, wherein a knowledge of the distinction 
 between the several forms will aid in modern practice. 
 
 The answer is that whatever form for the statement 
 of his position modern statutory regulations may have 
 imposed upon the party who, as plaintiff or defendant, 
 seeks the aid of the Courts, the principles underlying 
 the relief to which he is entitled must often be sought 
 directly in cases which have " wended their toilsome 
 way through the Courts by means of the old common- 
 law forms." And even when the principles involved 
 have been restated in statutory law it is more than 
 likely the old cases will be resorted to for the purpose 
 determining the proper meaning or application of the 
 statutory provisions. Hence as there can be no escape 
 from a resort to the cases, it is clear that they will be 
 better understood and interpreted if there be a famil- 
 iarity with the different forms in which they were cast. 
 
 7. The different forms of action were the out- 
 growth of the many and varied states of facts pre- 
 sented to courts by plaintiffs seeking redress against 
 defendants. It became a convenience to designate 
 similar causes of action i. e., causes of action where 
 the plaintiffs based their rights to relief upon the same 
 theory by the same name. The result was a number 
 of classes of actions, each with its separate name and
 
 INTRODUCTORY. D 
 
 form of statement, in which classes were included all 
 of the ordinary cases arising between litigants. But 
 with the development of the law and the broadening of 
 the field of actionable wrongs, cases were frequently 
 presented which could not be brought within any one 
 of the established classes of actions and yet the plain- 
 tiffs were clearly entitled to relief. The plaintiffs were 
 therefore permitted to state the facts and demand the 
 relief to which they deemed they were entitled, and 
 these actions were termed "Actions on the Case" or 
 "Actions of Trespass on the Case." Later they became 
 a class by themselves, known as " Case" and an action 
 was spoken of as being brought in Case, just as in 
 Trespass or in Debt. 
 
 8. The different forms of common-law actions 
 were: 
 
 I. DEBT. VI. TRESPASS. 
 
 II. DETINUE. VII. TROVER. 
 
 III. COVENANT. VIII. REPLEVIN. 
 
 IV. SPECIAL ASSUMPSIT. IX. CASE. 
 
 V. GENERAL ASSUMPSIT. X. EJECTMENT. 
 
 It is interesting to note that there is a great difference 
 in the statutory systems which have in most States 
 superseded the old common-law classification of ac- 
 tions. Where in one an attempt will be made to pre- 
 serve the distinctions, as in Alabama, 1 in another, as 
 
 i Alabama Code, 1907, 5382 et seq. The statute even pre- 
 fecribes the forms for the complaint (same as declaration) in the 
 several forms of action and subdivides both contract and tort 
 actions into many different classes.
 
 6 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 in our latest and most modern of state judicial systems, 
 that in Arizona, we find all distinctions brushed aside, 
 even that between law and equity, 1 and a complaint 
 may combine without separate statement several dif- 
 ferent causes of action. 
 
 9. Before noticing separately the different forms 
 of action and the declaration in each, it may be of 
 assistance to call attention to an elementary principle 
 upon which is based the theory of recovery in all actions 
 alike. It is this: that to have a cause of action you 
 must have (1) a right, (2) a wrong, i. e., a violation 
 of the right. 
 
 The most ancient and best definition of an action 
 has been said to be that of the Mirror, "An action is 
 nothing else but a lawful demand of right." 2 The 
 natural classification of actions is accordingly that 
 which rests upon a distinction between the rights 
 sought to be redressed. It is this principle of classifi- 
 cation which the author has adopted, and pursuant to 
 it has divided the ten forms of action above given into 
 two general divisions: (1) those based on acquired 
 rights, treated of in Chapter II.; (2) those based on 
 natural rights, treated of in Chapter III. 
 
 10. Actions are commonly divided, with respect 
 to their subject-matter, into three classes, Real, Per- 
 
 1 Revised Statutes of Arizona, 425. "The complaint shall 
 set forth clearly the names of the parties, a concise statement 
 of the cause of action, without any distinction between suits at 
 law and in equity and shall also state the nature of the relief 
 which he demands." 
 
 2 Mirror of Justices, ch. II, 1.
 
 INTRODUCTORY. 7 
 
 sonal, and Mixed. Real actions are those in which, the 
 specific recovery of real property in some form is 
 sought. Personal actions are those in which damages 
 are sought for injuries to the person, to personal prop- 
 erty, or to real property, or in which the specific recov- 
 ery of personal property is sought. Mixed actions are 
 those in which the specific recovery of real property is 
 sought, together with damages. 
 
 Except from an historical point of view, a study of 
 the old common-law real actions would be of little value, 
 as they have long since ceased to be used, and there are 
 no principles connected with them which have survived 
 to influence the modern forms of procedure. The old 
 writs of right, entry, formedon, and dower were the 
 most common of these real actions. 
 
 The distinction between personal actions 'and mixed 
 actions is of no importance ; at the same time it is well 
 to understand the meaning of the terms, as they are 
 frequently met with. It will be seen by referring to 
 the explanation of the objects of the various forms of 
 action treated of, that all of them except the action of 
 ejectment belong to the class known as personal actions. 
 There is no applicability in the term, as they relate ex- 
 clusively neither to personal property nor to the person. 
 
 11. In all forms of action it is the office of the 
 declaration to state the cause of action. This neces- 
 sarily involves a statement of the right and of the 
 wrong. To show that the cause of action belongs to 
 the plaintiff it must appear that the right is the plain- 
 tiff's, and that the wrong by the defendant is a violation 
 of that particular right. Examination of the declara-
 
 8 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 tion in the different forms of action will prove in every 
 instance that if the allegations reveal a right in the 
 plaintiff, and a violation of that right by the defendant, 
 the declaration is good in substance, and the rules laid 
 down as to what allegations are necessary to show a 
 good cause of action will be found to look toward that 
 one end, namely, the statement of the right and its vio- 
 lation. Any other rules must relate only to matter of 
 form. If this simple principle so simple and ele- 
 mentary that it seems to scarcely need stating be kept 
 in mind, it will aid very materially to fix in the mind 
 the rules relating to the declarations in the different 
 forms of action, and to make them easy of application 
 in any given case. 
 
 12. There were many technical rules, sometimes 
 local to a particular court, and many of which are ob- 
 solete, which relate to different parts of the declara- 
 tion, especially to the beginnings and endings. As 
 these rules have nothing to do with the main principles 
 of pleading, a statement of them could be of no value 
 to the student, and might tend to confuse the subject. 
 They are therefore omitted. 
 
 13. While it is not the purpose of the author to 
 make the present work in any sense a book of forms, 
 it may be helpful to set forth in full one example of 
 a declaration (as well as of each of the other pleadings 
 as they are taken up), in order to call attention to the 
 different parts, and to distinguish between that which 
 is merely formal and that which constitutes the sub- 
 stance of the declaration.
 
 INTRODUCTORY. 
 
 A declaration in any form of action began with a 
 heading showing the court in which the action was 
 brought and the date of the filing of the declaration, as : 
 
 IN THE KING'S BENCH ON 
 THE STH DAY OP JANUABY, 
 1840. 
 
 Middlesex, as.: 
 
 Next came the venue or name 
 of the county in which the ac- 
 tion was brought, as: 
 
 Then came a statement of 
 the names of the parties and 
 attorneys, and of the form of 
 action adopted, as: 
 
 Then came a statement of 
 the facts upon which the action 
 was based, necessarily varying 
 with the circumstances of each 
 case. This was the substance 
 of the declaration the part 
 with which we are concerned 
 in the different forms of actions : 
 
 Then came a statement of 
 th amount of damages claimed : 
 
 JOHN DOE, by A. B., his at- 
 torney, complains of RICHABD 
 ROE, who has been summoned 
 to answer the said plaintiff of a 
 plea of trespass. 
 
 For that the said RICHABD 
 ROE heretofore to wit, on the 
 1st day of December in the 
 year of our Lord 1839, with 
 force and arms, made an assault 
 upon the said plaintiff, and 
 beat, wounded, and ill-treated 
 him, so that his life was de- 
 spaired of; and other wrongs 
 to the said plaintiff did ; against 
 the peace of our said lord, the 
 king. 
 
 To the damage of said plain- 
 tiff of 100. And, therefore, 
 he brings his suit, etc. 
 
 14. In the reports the word " profert " frequently 
 occurs in reference to the declaration as well as the 
 word " oyer." A plaintiff is said to " make a profert " 
 in his declaration, or a defendant is said to " crave 
 oyer " or " demand oyer." In certain actions where
 
 10 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 the plaintiff's claim appeared in the statement of the 
 facts to be by virtue of a deed, or other writing, it was 
 necessary for him to make an offer to bring the deed 
 or other writing into court to exhibit to the court and 
 to the defendant ; or in the technical words of the time, 
 to " make a profert " of it. The best illustration of 
 this perhaps was in the case of an executor or adminis- 
 trator suing in his representative capacity. His right 
 to maintain the action depending upon the letters of 
 administration or letters testamentary, as the case might 
 be, he was required to make a profert of them. 1 Simi- 
 larly the defendant, if he was entitled to see a document 
 referred to in the declaration and of which a profert 
 was made, demanded the right to see it and was said to 
 " crave oyer " or " demand oyer " of it. Oyer could 
 not properly be demanded unless a profert had been 
 made by the adversary. 2 A profert, if inserted as a 
 part of the declaration, usually followed the statement 
 of the amount of damages. 
 
 15. In the reports of the earlier cases the decla- 
 ration will sometimes end with the words " Pledges, 
 etc." It was customary in some of the courts to require 
 the declaration to name the " Pledges " i. e., the 
 persons who stood as guarantors to the court that the 
 plaintiff would prosecute his suit. 3 Hence a declara- 
 
 , . , a -r,, , jJohn Doe, 
 tion would end with Pledges j Richard 
 
 1 Cope v. Lewyn Hobart, 38o. 
 
 2 Erskine v. Townsend, 2 Mass. 494. 
 
 s "And these are pledges of prosecution, John Doe and Richard 
 Roe," Hancocke v. Prowd, 1 Saunders, 328.
 
 ACTIONS BASED ON ACQUIRED EIGHTS. 11 
 
 CHAPTER II. 
 
 ACTIONS BASED ON ACQUIRED EIGHTS. 
 
 SECTION I. IN GENEEAL. 
 
 16. Of the ten forms of common-law actions men- 
 tioned in the preceding chapter, the first five, Debt, 
 Detinue, Covenant, Special Assumpsit, and General 
 Assumpsit, in one sense form a group by themselves 
 as distinguished from the last five forms: Trespass, 
 Trover, Replevin, Case, and Ejectment. 
 
 The wrongs which are redressed in the former class 
 of actions are those which are violations of special 
 rights, rights which exist because of special relations 
 into which the parties have entered. 
 
 17. The basis of the action of Debt is the viola- 
 tion by the defendant of a right which exists because 
 the plaintiff and defendant have placed themselves, 
 by their acts, in the special relation of debtor and 
 creditor. This right may be called an acquired right, 
 to distinguish it from the rights, which every person 
 possesses because he is a member of civilized society, 
 and which may be called natural rights. 
 
 18. In Covenant the action is for violation of a 
 similar acquired right; a right which has been ac- 
 quired from the making of the covenant and which 
 implies a special obligation on the part of the cove-
 
 12 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 nantor, and not a general obligation on the part of all 
 members of society. 
 
 19. In Detinue this feature is not quite so ap- 
 parent; in fact, the tendency has been to class the 
 action with that of Trover, and to treat the detaining 
 in the former action as a tortious act similar to the 
 converting in the latter. 
 
 It is conceived that the true theory of the action of 
 detinue is that the detention is the violation of a special 
 or acquired right. For, while it is true that one person 
 has the natural right not to have his property interfered 
 with by another, and that wrongful detention is an 
 interference which would be a violation of this right, 
 yet, viewed in this light, the wrongful act furnishes 
 ground for an action of Trover, and not of Detinue. 1 
 
 The same act may furnish grounds for an action of 
 Detinue, but not unless it is viewed in another light, 
 namely, as a detention of property which the defend- 
 ant is under an obligation to deliver to the plaintiff, 
 or, in other words, a failure to perform a special obli- 
 gation, a violation of a special right, which the plain- 
 tiff has acquired, not by reason of his simple ownership 
 of the property, but by reason of the fact that there is 
 a special relation between himself and the defendant, 
 such as a bailment. The plaintiff owning or having 
 the general right to the property which is lawfully in 
 defendant's possession, has asserted that right in such 
 a way e. g., by demand as to acquire a special 
 
 i Kettle v. Bromsall, Willes' Rep. 120, where the distinction 
 is noticed, and it is held that Trover and Detinue cannot be 
 joined.
 
 ACTIONS BASED OX ACQUIRED KIGIfTS. 13 
 
 right to the immediate possession of the property, 
 and to put upon the defendant a special obligation to 
 deliver it to him. Hence the judgment in the action 
 of Detinue is, in the alternative, for the recovery of 
 the property or its value. The special obligation to 
 deliver the property, similar to an obligation based on 
 a promise and arising because of the special relation of 
 the parties, is thus recognized and enforced. In fact, 
 the action of Detinue has been brought upon a contract 
 to deliver a specific chattel. 1 It seems clear, therefore, 
 that Detinue is properly classed with the actions of 
 Debt, Covenant, and Assumpsit. 2 
 
 2O. In Assumpsit, both Special and General, the 
 right and corresponding obligation which form the 
 basis of the action are clearly personal to the particu- 
 lar parties to the contract or transaction which gives 
 rise to such right and obligation. 
 
 1 Fitzherbert, Xatura Brevium, p. 138. 
 
 2 These forms of action are generally distinguished by the term 
 actions ex contractu, &s distinguished from the actions known as 
 ex delictit, on the theory that the former are brought upon con- 
 tract and the latter for a tort or wrong. The terms, however, are 
 not strictly applicable, as the idea of contract in its usually 
 understood sense does not necessarily enter into the action of 
 Debt or that of Detinue, both of said actions many times being 
 founded upon obligations arising from special relations between 
 the parties other than contractual. Further, to say that an action 
 is for a wrong does not distinguish it, as every action is for a 
 wrong. The writer submits that the true basis of the distinction 
 which undoubtedly does exist is that the one class of actions is 
 for wrongs which are violations of original or natural rights. 
 rights which belong to one person as against all others; while 
 the other class is for wrongs which are violations of special or 
 acquired rights, rights which one person has against some
 
 PRINCIPLES OF COMMON-LAW i LEADING. 
 
 SECTION II. DEBT. 
 
 21. Debt is one of the earliest actions known to 
 the law. 1 It is based upon the theory that the defend- 
 ant has something, usually a sum of money, which he 
 is under obligation to deliver to the plaintiff by reason 
 of something having been done by or between the par- 
 ties which has caused the obligation to arise, and that, 
 being under such obligation, the defendant detains this 
 something, known as the debt. The plaintiff may have 
 given the defendant goods in return for which the debt 
 is due, or the defendant may have executed a bond 
 under the terms of which the debt has arisen. What- 
 ever the facts may be, the plaintiff in the action of debt 
 is suing to recover something due to him, which the 
 defendant should, but will not, deliver to him. 2 Deten- 
 tion is the essence of the action of Debt, as it is of 
 the action of Detinue, 3 but in the former case it is the 
 detention of something the title to which has not yet 
 passed to the plaintiff, while in the latter it is the 
 detention of a specific thing to which the plaintiff 
 
 other particular person or persons who have come into some 
 special relation with him. 
 
 ilvo <le Stokes v. Richard Trint, A.0. 1200, Selden Society 
 Publications, Select Civil Pleas, Vol. 1, Case 38. 
 
 2 In Brikhed v. Wilson, Dyer 24 b, an action was brought in 
 debt for twenty quarters of malt. 
 
 3 Referring to the action, we find the phrase used, " plaintiff 
 brought his action in the debet and detinet," i. e. t owes and de- 
 tains. Jevens v. Hartidge, 1 Saund. 6. See also Wilson v. Hob- 
 day, 4 M. and S. 121, where it is held that a declaration in debt 
 is good which simply alleges the detaining of the money and not 
 the owing of it.
 
 ACTIONS BASED Olf ACQUIRED EIGHTS. 15 
 
 already has title. In the common-law declarations in 
 Debt this theory of the wrongful detention, by the 
 defendant, of something belonging to the plaintiff, is 
 followed to its logical conclusion by the demand for 
 damages for the detention of the debt. 1 The sum de- 
 manded as damages was nominal, but it illustrates 
 clearly the theory of the action. 
 
 22. To show a good cause of action in Debt the 
 declaration should contain, in accordance with the 
 principle heretofore laid down: 
 
 (a) A statement of the right on the part of the 
 plaintiff; (6) A statement of the wrong or violation 
 of the right by the defendant. But the very idea of 
 debt implies a right on the part of the plaintiff and a 
 violation of the right by non-payment of the debt. If 
 a debt is shown to exist, a prima facie cause of action 
 is shown. It happens, therefore, that in this form of 
 action the right and the wrong are stated together in 
 the statement of the facts which show the debt to exist. 
 
 23. As the action of Debt is a very broad one, 
 the statement of facts will differ with the varying 
 character of the circumstances which have given rise 
 
 i Referring to the declaration in an action of Debt, we read: 
 " although often required had not rendered the said 160Z to the 
 said Mary * * * and unjustly detained the same, where- 
 fore she then said she was worse and had damage to the value of 
 20 1" and then we find " it was then considered by the Court 
 that the said Mary should recover against the said Richard her 
 eaid debt and her damage on occasion of the detention of that 
 debt to sixty shillings." Hancocke v. Prowd, 1 Saund. 328, at 
 p 330 a.
 
 16 PKINCIPLES OF COMMON-LAW PLEADING. 
 
 to the debt. To enumerate the many different cases 
 of debt would be beyond the scope of the present chap- 
 ter. A few words, however, in reference to the most 
 common instances of the action may be helpful. 
 
 24. Debt on Simple Contract. 
 
 We frequently find cases designated in the reports 
 as " Debt on simple contract." This means that the 
 form of the action is in Debt, and that there has been 
 a contract, oral or written, and express or implied, 
 but not under seal, between the parties, which has 
 created the debt. An action to recover money lent 
 by the plaintiff to the defendant; money paid to the 
 defendant's use; money had and received by the de- 
 fendant to the plaintiff's use; for the price of goods 
 sold and delivered, or of work, labor, and services, if 
 brought in Debt, is included in the particular class 
 known as Debt on simple contract. 
 
 Actions in debt for money lent, money had and 
 received, etc., must not be confounded with what are 
 known as the common counts for money lent, money 
 had and received, etc. The latter belong to the class 
 of actions called General Assumpsit and will be 
 noticed hereafter. 1 
 
 i Vaux v. Mainwaring: Fortescue 197. In this case plaintiff 
 brings an action of debt, and alleges that the defendant bought 
 of the plaintiff divers goods and merchandise for so much money 
 as they should be worth, to be paid on request, and says in fact 
 they were worth 437 1. On demurrer the declaration would be 
 bad. 
 
 " Debt is upon the contract or sale, but Tndebitatus Assumpsit 
 is an action on the promise, and lies only because of the prom- 
 ise; if you bring Indebitatus Assumpsit for 107. for a horse sold,
 
 ACTIONS BASED ON ACQUIRED EIGHTS. 17 
 
 In general it may be said that the distinguishing 
 feature of the action of debt on simple contract is, that 
 the debt for which the action is brought arises from 
 some act of the plaintiff, such as something given to, 
 or done by or on behalf of the plaintiff for, the defend- 
 ant, in return for which the debt is due. The statement 
 of the facts required in a declaration consists of the 
 statement of this act on the part of the plaintiff, whether 
 it be the performance of some service at the request of 
 the defendant, the selling of goods, the loaning of 
 money, or any one of the numerous other things which 
 may have caused the debt. 
 
 25. Debt on Specialties. 
 
 An obligation to pay a sum of money i. e., a debt 
 could be created by a bond or other agreement 
 under seal. Such a sealed instrument was known as 
 a Specialty. In such a case a statement of the facts 
 causing the debt included simply a statement of the 
 existence of the bond or other instrument upon which 
 the debt was founded. The debt arose from an act on 
 the part of the defendant. He himself created the 
 debt by his execution of the instrument out of which 
 it arose. 
 
 26. Debt on Records. 
 
 An obligation to pay a sum of money might be 
 created independently of any action of the parties, as 
 
 if it was sold for more or less, yet the plaintiff shall recover what 
 it was sold for; but if debt be brought on that contract, if it come 
 out to be more or less, the plaintiff cannot recover, for it is a 
 praecipe quod reddat ( so much money in particular ) ." 
 
 2
 
 18 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 by a judgment of the court. The manner of its crea- 
 tion was immaterial, however; if it was an obligation 
 to pay a sum of money, it was a debt and recoverable 
 in the action of Debt. Hence, we have the class of 
 debt actions known as Debt on Records. Here the 
 statement of facts consisted of a statement of the judg- 
 ment with sufficient detail to connect the defendant 
 with the plaintiff in respect to the liability on the same. 
 
 27. Debt on Statutes. 
 
 Sometimes a statute imposed a penalty and a de- 
 fendant found himself subject thereto. Again, the 
 action of Debt was applicable, as the penalty was an 
 obligation to pay a sum of money, and hence a debt. 
 
 Here it was necessary to refer to the statute which 
 was relied upon and to state the facts which showed the 
 defendant to have violated the same and to have made 
 himself subject to the penalty. 
 
 28. In spite of the fact that a statement of the 
 facts in debt is a statement both of the right and the 
 wrong, we find the rule frequently laid down that the 
 declaration should contain a statement of the breach 
 or refusal to pay the debt. 
 
 The reason of this rule is not quite clear, as when 
 sufficient facts have been alleged in the declaration to 
 show that there is a debt, a prima facie cause of action 
 has been made out. The legal meaning of the word 
 debt is something due, something which should be paid 
 by the defendant to the plaintiff; given the debt, and 
 a prima facie cause of action exists to recover it. It 
 was, however, customary to allege a refusal on the part
 
 ACTIONS BASED ON ACQUIRED EIGHTS. 19 
 
 of the defendant to pay the debt. 1 The case of Good- 
 child v. Pledge 2 seems to show that the statement of 
 the breach was a mere matter of form, and that it was 
 not necessary to the substantial validity of the 
 declaration. 
 
 SECTION III. DETINUE. 
 
 29. The action of Detinue was in respect to chat- 
 tels what the action of debt was in respect to money. 
 In debt a recovery of the sum of money due was the 
 main object of the action. In detinue recovery of a 
 specific chattel was the main object. The action of 
 detinue was, perhaps, as early a crystallization of the 
 common law as that of debt. At all events we find it 
 
 1 See note, ante, p. 14. 
 
 2 1 M. & W. 363. Ames, Cases on Pleading, 37. The action was 
 in Debt for 20 for goods sold and delivered. The second plea 
 was that when the said sum of 20 became due and payable the 
 defendant paid it. This plea concluded to the country, i. e., 
 requested a determination of the matter by the jury. The rule 
 required a plea containing new matter to conclude with a veri- 
 fication (post, p. 103). By a special demurrer the question 
 whether or not the plea should have ended with a verification, 
 and hence whether or not it contained new affirmative matter, 
 was raised. It was contended by counsel that the plea amounted 
 to a denial of the refusal to pay, t. e., the breach, and, therefore, 
 properly concluded to the country. Baron Parke says: "Is the 
 statement of the breach in debt anything more than a mere form? 
 The moment the goods are delivered, is there not a cause of 
 action, throwing the proof of its discharge on the defendant? If 
 the breach is mere form, you cannot traverse it; then your plea 
 is in discharge and ought to conclude with a verification." 
 Again he says : " I think it will be found on looking into the 
 cases that a statement of the breach is mere form ; if so, the plea 
 admits the debt and is a plea in confession and avoidance."
 
 20 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 among the very earliest reported cases. 1 So identical 
 were the two actions in the theory upon which recovery 
 was allowed that they were frequently joined, and we 
 have declarations which seek a recovery of a debt for 
 goods sold and delivered, or in the event that the facts 
 do not warrant the conclusion that there was a sale, 
 then a recovery of the specific goods on the ground 
 that the defendant is wrongfully detaining them. 2 
 
 30. In the action of Detinue the plaintiff recov- 
 ered the specific chattels, or in the event they could 
 not be returned, their value, together with damages 
 for their detention. 
 
 31. To show a good cause of action it is neces- 
 sary for the declaration to contain: 
 
 (a). A statement of the plaintiff's right. 
 
 The chattels should be described with sufficient 
 certainty for identification and their value be stated; 
 it should be alleged that they belong to the plaintiff, 
 that the defendant has possession of the chattels and 
 acquired it lawfully, as by finding or bailment, but 
 holds it subject to the plaintiff's superior right to im- 
 mediate possession which has been asserted by a de- 
 mand. 3 The facts will always show some special 
 relation between the plaintiff and the defendant, such 
 as that of bailor and bailee, by which the defendant 
 has had, or is assumed to have had, a lawful posses- 
 
 1 Maltravers v. Turberville, Selden Society Publications, Vol. 
 3, Case 8, 1200 A.D. 
 
 22 Saunders, 117b; Daleton v. Janson, 5 Mod. 89, at. p. 92. 
 * Kettle v. Bromsall, Willes' Rep. 120.
 
 ACTIONS BASED ON ACQUIRED EIGHTS. 21 
 
 sion of the goods; that such lawful possession has 
 terminated and that the plaintiff accordingly has the 
 right to an immediate possession of the goods. The 
 object of the allegation of value is that, in case the 
 goods themselves cannot be returned, judgment may 
 be rendered for their value. 
 
 (6). A statement of the wrong, or breach on the part 
 of the defendant. 
 
 Having shown the plaintiff's right to the possession 
 of the goods, the declaration should allege the wrong- 
 ful act on the part of the defendant upon which the 
 action is based, i. e. f his refusal to deliver the chattels 
 to the plaintiff. 
 
 SECTION IV. COVENANT. 
 
 32. The action of Covenant is what its name im- 
 plies, an action based upon a covenant, or proimse 
 under seal. The object of the action is to recover 
 damages for breach of the covenant. The action is 
 an exceedingly old one; it existed long before the 
 action of assumpsit was allowed, and illustrates the 
 importance which the early law attached to a sealed 
 instrument. With the growth of the modern action 
 of assumpsit, the idea of the importance of the seal 
 disappeared and that of consideration took its place. 
 The early idea, under which recovery was allowed for 
 a breach of a promise, seems to have been that of un- 
 doubted intention on the part of the promisor to as- 
 sume the liability, shown by his solemnly and delib- 
 erately putting the stamp of his individuality upon it
 
 22 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 in the shape of his seal. The covenantor was liable, 
 not because it was just that he should be liable, or 
 because the covenantee hr.J parted with anything 011 
 the faith of the covenant, but because he had delib- 
 erately, by his sealed writing, announced that he held 
 himself liable. In the transition from this view of a 
 promisor's liability to that which looks upon the con- 
 sideration as the determining factor, it was sought 
 to graft the idea of consideration upon the theory of 
 recovery upon a sealed instrument, and the rule, or 
 so-called presumption of law, was established, that in 
 the case of a sealed instrument consideration would 
 be conclusively presumed. The real fact of the matter 
 was that there were two distinct grounds for holding 
 a promisor liable upon his promise, either one of which 
 was sufficient. One, and the earlier, because he delib- 
 erately intended to make himself liable and so indicated 
 by the solemnity of the seal ; the other, because he had 
 received a consideration which it would be unjust to 
 the promisee to allow him to keep unless he was held 
 liable upon his promise. 
 
 33. To show a good cause of action in Covenant, 
 it is necessary for the declaration to contain : 
 
 (a). A statement of the plaintiff's right. In this 
 form of action the right of the plaintiff is shown by 
 a statement of two things. 
 
 (1). A statement of the covenant. It is necessary 
 to set forth either the whole instrument or that part 
 of it which contains the covenant for breach of which 
 damages are sought, being careful to allege that the
 
 ACTIONS BASED ON ACQUIRED EIGHTS. 23 
 
 instrument is under seal. 1 The covenant is the basis 
 of the special relation between the parties out of which 
 the plaintiff's right arises. 
 
 (2). A statement of the performance or happening 
 of any conditions precedent to the defendant's covenant. 
 If the covenant is not conditional, then performance 
 by the plaintiff need not be alleged, as consideration is 
 no part of the theory of recovery. 2 
 
 (&). A statement of the breach, or non-performance, 
 on the part of the defendant. 
 
 SECTION V. SPECIAL ASSUMPSIT. 
 
 34. An action for breach of a contract not under 
 seal was known, when it first came into use, as a species 
 of an action on the case, " being an action of modern 
 invention, to get rid of the law wager/' 3 Later it was 
 separated from that general class of actions and formed 
 a class by itself under the name of Special Assumpsit. 
 
 35. The recovery in this form of action is upon 
 a promise; the basis of the plaintiff's right and the 
 
 1 Moore t\ Jones, 2 Ld. Raymond, 1536, where it was held that 
 although on production of the instrument it appeared that it 
 ended with the words " in witness whereof we have hereunto set 
 our hands and seals," still the declaration was bad on demurrer, 
 as it did not allege the fact of the sealing of the instrument. 
 
 2 Hornet v. Ashford, 3 Bing. 322. Action of Covenant. The 
 plaintiff alleges a covenant by the defendant " for the consider- 
 ation therein mentioned," to submit to certain restraints, and 
 alleges as a breach that he did not submit, but exceeded his 
 liberties. On demurrer it was argued that the declaration did 
 not sufficiently allege a consideration. Held, that the declaration 
 was good. 
 
 3 Lawes, Pleading in Aasumpsit, p. 520.
 
 24 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 defendant's liability is the consideration for that 
 promise. Unless a consideration is alleged and 
 proved, the action must fail. 1 
 
 36. The contract for breach of which a recovery 
 is sought, may be in express terms and either oral or 
 in writing, or may be implied from the acts of the 
 parties, i. e., implied in fact. 
 
 The contract implied in fact is in reality an express 
 contract. Acts of the parties in dealing with each other 
 may tell as plainly the terms of a contract between 
 them as written or spoken words. 
 
 In any case, however, the consideration must always 
 be present. 
 
 37. To show a good cause of action the declara- 
 tion should contain: 
 
 (a). A statement of the plaintiff's right. 
 
 The right arises out of a special relation between the 
 parties created by the contract which exists between 
 
 i The exception in the case of assumpsit upon a promissory 
 note is no real exception ; as the theory of recovery here is simi- 
 lar to that of the action of covenant; the bill or note is really a 
 specialty, and, except in name, has always been treated as such 
 by the courts. The practice of suing in assumpsit, where the 
 essence of the action is consideration, upon a bill or note, led to 
 many attempts to assimilate a bill or note to an ordinary con- 
 tract with respect to consideration; attempts which only caused 
 a confusion of ideas as to the real nature of this class of obliga- 
 tions. The plain truth is, that a bill or note is in the nature of 
 a specialty; the defendant is liable, not because he has received 
 a consideration, but because he has by his act in executing and 
 delivering the bill or note declared himself to be liable, and the 
 custom of merchants in such case holds him liable; no consider- 
 ation need be alleged or proved.
 
 ACTIONS BASED ON ACQCIEED EIGHTS. 2u 
 
 them. The statement of the right, therefore, re- 
 quires 
 
 (1). A statement of a valid contract. This com- 
 prises a statement of a promise on the defendant's part 
 and a consideration therefor, which may be either an 
 act or a promise on the plaintiff's part. 
 
 If the consideration for the defendant's promise is 
 an act on the plaintiff's part, such as the doing of some 
 work or the delivering of some property, i. e., if the 
 contract is a unilateral 1 one, the performance of the 
 consideration must be alleged, for performance is an 
 essential part of the contract. Until the performance 
 takes place there is no contract. 
 
 If, however, the consideration for the defendant's 
 promise is another promise on the plaintiff's part, i. e., 
 the contract is a bilateral 2 one, then, to state a valid 
 contract, all that need be alleged in the way of consid- 
 eration is the making of the promise by the plaintiff, 
 and not the performance of that which is promised. 3 
 
 1 This term has been very aptly applied to contracts of this 
 character by Professor Langdell in his work on contracts. It is 
 imilateral or one-sided, in the sense that before it exists at all as 
 a contract, performance on the other side must be complete, as it 
 is this very performance that converts it from a mere offer into a 
 binding promise or contract. As a contract, therefore, it binds 
 only one party, the other having already performed. 
 
 2 This is also a term of Professor Langdell's to designate that 
 other class of contracts which are two-sided in the sense that 
 there are promises to be performed on both sides. Langdell, 
 Summary of Contracts, p. 102. 
 
 s Holcroft v. French, Brownlow, p. 137, where it was held that 
 " if the consideration be executory, then the Declaration ought to 
 contain the time and place where it was made and after it ought 
 to be averred in facto when it was performed or executed ac- 
 cordingly; but if it be by way of a reciprocal agreement, then
 
 2G PRINCIPLES OF COMMON-LAW PLEADING. 
 
 (2). A statement of the performance or happening, 
 or of some good excuse for the non-performance or not 
 happening of whatever is conditional to performance 
 by the defendant of his promise. 
 
 The performance by the plaintiff of his promise may 
 or may not be conditional to performance by the de- 
 fendant. If it is, such performance must be alleged. 
 Some other act on the part of the plaintiff, which he 
 is not bound by his promise to perform, may be made 
 by the contract a condition precedent to the defendant's 
 promise. In such case performance of such act must 
 be alleged. The defendant's promise may be condi- 
 tional upon the happening of some event, or the doing 
 of something by some third party. If so, the happen- 
 ing of the event or the doing of the act must be alleged. 
 In short, after the statement of the contract, such facts 
 must be alleged as will show that the plaintiff is not in 
 fault and that the duty of performance rests on the 
 defendant. 
 
 (fr). A statement of the breach, i. e,., the failure of 
 the defendant to do that which the plaintiff has shown 
 a right to have him do. 1 
 
 the plaintiff may count, that in consideration that he hath prom- 
 ised to do a thing for the defendant the defendant hath promised 
 to do another thing for him, then he need not that the declaration 
 contain time or place for the consideration or otherwise that it 
 is performed and executed." 
 
 1 The two following cases illustrate the difference between the 
 two kinds of contracts as to the necessary allegations in the 
 declarations: 
 
 Everard r. Hopkins. Action upon the case. (Assumpsit.) 
 The plaintiff alleges in his declaration that the defendant, a sur- 
 geon, promised to cure the plaintiff's servant for the sum of five 
 marks. Breach, that he failed to cure. The sufficiency of the
 
 ACTIONS BASED ON ACQUIRED EIGHTS. 27 
 
 SECTION VI. GENERAL ASSUMPSIT. 
 
 38. The theory of recovery in the forms of ac- 
 tion classed under the head of General Assumpsit is 
 the same as that in Special Assumpsit, namely, dam- 
 ages for breach of a promise. The promise, however, 
 is a fictitious one. ]STo real promise exists. As every 
 promise to be binding must have a consideration, the 
 consideration was found for this fictitious promise in 
 the existence of the debt. It was, therefore, neither 
 a real promise nor a real consideration; only a form 
 which was seized upon to allow recovery in certain 
 cases where it was not desired to use the action of 
 Debt. 
 
 Wherever there was a debt the courts acted upon 
 the theory that there was a promise to pay a sum of 
 money equal to the debt, for breach of which an action 
 could be maintained. 
 
 39. The several varieties, or counts, as they 
 were known, of General Assumpsit, have been vari- 
 ously classified at different times and by different 
 
 declaration was called in question under a demurrer put in at a 
 Subsequent stage of the action. The court were of opinion that 
 the declaration was bad because it did not allege a payment of 
 the consideration. 
 
 Nichols v. Raynbred, Hobart, p. 88 b. "Nichols brought an 
 assumpsit against Raynbred, declaring that in consideration that 
 Nichols promised to deliver the defendant to his own use a cow, 
 the defendant promised to deliver him fifty shillings. Demurrer. 
 Adjudged for the plaintiff in both coxirts, that the plaintiff need 
 not to aver the delivery of the cow because it is promise for 
 promise"
 
 28 
 
 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 writers, but if there is any virtue in classification, the 
 following will be found to accord with such reason as 
 may lie at the bottom of it. 
 
 General Assumpsit, 
 
 or 
 Common Counts. 
 
 (l-H 
 
 (2). 
 
 Indebitatus As- 
 sumpsit, 
 
 or 
 
 Indebitatus 
 Counts. 
 
 Quantum me- 
 ruit. 
 
 Quantum vale- 
 bant. 
 
 "Money paid to the defendant's use. 
 
 Money had and received. 
 
 Money lent. 
 
 Interest. 
 
 Account stated. 
 
 Any one of the nu- 
 merous states of 
 fact upon which a 
 debt may be 
 founded, the most 
 common of which 
 are: 
 
 Money 
 Counts (1), 
 
 Other 
 Counts (2). 
 
 For use and occupation, 
 For board and lodging, 
 For goods sold and delivered, 
 For goods bargained and 
 
 sold, 
 
 For work, labor, and services, 
 For work, labor, and materials. 
 
 4O. The reason for the division of the common 
 counts into the three main heads seems to lie in the 
 form in which the consideration and promise is stated. 
 
 In the indebitatus counts the obligation to pay was 
 first alleged as a debt, and then the existence of the 
 debt was made a consideration for the promise to pay 
 a sum of money coextensive with the debt.
 
 ACTIONS BASED ON ACQUIRED BIGHTS. 29 
 
 In the Quantum meruit and the Quantum valebant 
 counts the subject-matter of the debt i. e., the fact 
 that the plaintiff had performed work, sold and deliv- 
 ered goods, etc. was alleged directly as a consideration 
 for the promise to pay for them without first alleging 
 that by reason of such matter a debt arose; and the 
 promise was stated as a promise to pay in the case of 
 a Quantum meruit, as much as the plaintiff deserved; 
 in the case of the Quantum valebani, as much as the 
 goods were worth. These two counts were similar and 
 sometimes Used interchangeably, though the former 
 applied more properly to personal services than to other 
 matter causing a debt. 
 
 The so-called money counts were only called such 
 because they related exclusively to money transactions 
 as the basis of the debt which formed a consideration 
 for the supposed promise. 
 
 41. To show a good cause of action in General 
 Assumpsit the declaration should contain : 
 
 (a). A statement of the plaintiff's right. The spe- 
 cial relation between the parties out of which the 
 plaintiff's right arises is really that of debtor and cred- 
 itor. By a fiction, however, the plaintiff is allowed to 
 recover upon a supposed promise. The statement of 
 the plaintiff's right, therefore, includes two things: 
 
 (1). A statement of such facts as will show the 
 existence of a debt due from the defendant to the 
 plaintiff. 
 
 (2). A statement of the promise on the part of 
 the defendant.
 
 30 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 (6). A statement of the wrong, or breach on the 
 part of the defendant. 
 
 42. The following forms will illustrate the man- 
 ner of stating the consideration, promise, and breach 
 in General Assumpsit, and also the difference between 
 the indebitatns counts and other counts. 
 
 (Beginning as in form of declaration ante, p. 9, 
 designating the action as " trespass on the case on 
 promises.") 
 
 For that whereas the said John Doe was on the 
 5th day of January, 1840, in London indebted to the 
 said Richard Roe in the sum of 50, lawful money, 
 for divers goods, wares, and merchandise by the said 
 Richard Roe, before that time, sold and delivered to 
 said John Doe, and at his special instance and re- 
 quest, and being so indebted he, the said John Doe, 
 in consideration thereof, afterwards, to wit: on the 
 day and year last aforesaid, in London aforesaid, 
 undertook and then and there faithfully promised the 
 said Richard Roe to pay him the said last-mentioned 
 sum of money when he, the said John Doe, should 
 be hereunto afterwards requested ; * nevertheless the 
 said John Doe, not regarding his said promise and 
 undertaking, hath not yet paid the said sum of money 
 although often requested so to do by the said John Doe, 
 and has wholly neglected and refused and still does 
 neglect and refuse to pay said sum, to the damage of 
 the said Richard Roe of 10, and therefore he brings 
 his suit.
 
 ACTIONS BASED ON ACQUIRED EIGHTS: 31 
 
 (Beginning as before.) 
 
 For that whereas on the 5th day of January, 1840, 
 in London, in consideration that the said Richard Roe, 
 at the special instance and request of the said John 
 Doe, had before that time sold and delivered divers 
 goods, wares, and merchandise to the" said John Doe, 
 he, the said John Doe, undertook and then and there 
 faithfully promised the said Richard Roe to pay him 
 so much money as the said last-mentioned goods, wares,, 
 and merchandise were reasonably worth when he, the 
 said John Doe, should be thereunto afterwards re- 
 quested. And the said Richard Roe avers that the 
 said last-mentioned goods, wares, and merchandise at 
 the time of the said sale and delivery thereof were 
 reasonably worth the sum of 50 of lawful money in 
 London, whereof the said John Doe afterwards, to wit, 
 on the day and year last aforesaid, had notice. 
 
 (Conclusion same as in the above indebitatus count 
 from the *.)
 
 32 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 CHAPTER III. 
 
 ACTIONS BASED ON NATURAL EIGHTS. 
 
 SECTION I. IN GENERAL. 
 
 43, The actions of Trespass, Trover, Replevin, 
 Case, and Ejectment are alike in that they are used to 
 redress similar wrongs, wrongs which are violations 
 of original or natural rights. In this respect these 
 actions differ from Debt, Covenant, Detinue, Special 
 Assumpsit, and General Assumpsit, which, as explained 
 in the preceding chapter, are based on secondary or 
 acquired rights. 
 
 44. These original or natural rights are either 
 personal rights or property rights. Every man has a 
 right to personal security. Any violation of this right 
 by interference with his person is a wrong for which 
 he may have redress. Every man has a right to the 
 free enjoyment and use of that which belongs to him, 
 whether it be his family, his goods and chattels, or his 
 land. 
 
 In one sense all are his property, and in this sense 
 of the word property, his rights relating to them may 
 be called property rights. A violation of any one of 
 them is a wrong for which the person injured may 
 sue in the courts for relief. At common law he may 
 adopt one of the five forms of action above mentioned, 
 according to the nature of the injury complained of, 
 and the kind of relief which he wishes to secure.
 
 ACTIONS BASED ON NATURAL EIGHTS. 33 
 
 45. In the actions of Trespass, Trover, and Case, 
 as will be explained more fully hereafter, damages 
 alone are sought, and usually for more or less direct 
 injuries to person or property. It is significant, and 
 somewhat illustrative of the state of society, that we 
 find very few of these actions in the early reports com- 
 pared with the large number involving questions re- 
 lating to real estate. 1 The explanation of this is not 
 difficult to find. It is certainly not because the rights 
 of personal security and enjoyment of property, for 
 violations of which these actions furnished the remedy, 
 were unasserted, but because in the beginning of or- 
 ganized society men were much more prone to redress 
 direct injuries to person or property with the sword 
 than by resort to actions at law. 
 
 In further confirmation of this, such actions as we 
 do find of this character are usually actions upon the 
 case for the redress of indirect injuries not resultant 
 upon direct forcible acts which would be likely to 
 create hot blood. 
 
 46. The actions of Replevin and Ejectment are 
 different from the other three of this class, Trespass, 
 Trover, and Case, in the nature of the relief sought. 
 Whereas in the latter damages is the object; in the 
 
 1 In Mr. Baildon's introduction to Vol. III. of the Selden So- 
 ciety Publications (Vol. I. of the Select Civil Pleas), he says: 
 " Personal actions are comparatively rare, though several will be 
 found in this volume. I have paid particular attention to actions 
 of this class, and have copied nearly all I found; so that their 
 rarity in this volume will show what a very small proportion 
 they bear to the mass of litigation concerning land." 
 
 3
 
 34 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 former it is specific recovery : in Replevin, of chattels ; 
 and in Ejectment, of land. 
 
 SECTION II. TRESPASS. 
 
 47. The form of action known as Trespass, takes 
 its name from the wrongful act for which it furnishes 
 a means of redress. The legal meaning of the word 
 trespass is any direct physical interference with the 
 person or property of another. A blow to the per- 
 son, a taking of personal property, a going upon the 
 land of another, are instances of trespass. Injury to 
 the person or property may result from other acts, 
 such as the putting of an obstruction in the highway, 
 or the negligently kindling of fire upon one's own land 
 which spreads to a neighbor's : these acts are wrongful 
 acts they are violations of rights just as much as 
 direct acts are, but they are not trespasses, and to 
 adopt the action of Trespass for their redress would 
 at common law be fatal to a recovery. 
 
 48. For convenience in treating of the declaration 
 in the action of Trespass, the action may be divided 
 into two classes: 
 
 (a). Trespass for injury to the person. 
 
 (&). Trespass for injury to property. 
 
 49. To show a good cause of action in trespass 
 for injury to the person, the declaration need contain 
 only a statement of the wrongful act. 
 
 This is only an apparent exception to the general 
 rule that in all forms of actions the declaration must 
 contain a statement of the right and of the violation
 
 ACTIONS BASED ON NATURAL EIGHTS. 35 
 
 of that right, or the wrong. A little reflection will 
 show that a formal statement by the plaintiff of his 
 right as a human being not to be injured would be 
 absurd. This right is something which every person 
 possesses, because of the fact that he is a person. It 
 cannot be questioned by the court or controverted by 
 the defendant. There is, therefore, no necessity of 
 alleging it. 
 
 The action, however, is none the less based upon 
 the possession of a right by the plaintiff and its viola- 
 tion by the defendant. The right does not need to 
 be stated, because the court is already informed of it. 
 A statement simply of the wrong is, therefore, all that 
 is required. 
 
 5O. In trespass for injury to property, the tres- 
 pass complained of may be either to personal property 
 or to real estate. 
 
 The right not to have one's property injured belongs 
 to every one, but, given an injury or trespass, one must 
 show that the property injured was his, in order to 
 show that he is the wronged person, and the one entitled 
 to recover. This is so whether it be personal or real 
 property which is affected. 
 
 51. To show a good cause of action in trespass 
 for injury to property real or personal, the declaration 
 should contain: 
 
 (a). A statement that the property injured was the 
 plaintiffs. 1 For the purposes of the action, legal own- 
 
 1 Dannet f. Collingdell, 2 Shower 395 ; Burser V. Martin, 
 Croke's Jac. 46. The latter case was as follows: Action of
 
 36 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 ership is not necessary. Since the incidents of owner- 
 ship, and among them the right not to have the prop- 
 erty injured, prima facie, follow possession, possession 
 was deemed sufficient. 
 
 The possession which gives one the right to recover 
 for injury to personal property differs from that in 
 the case of real property. In the former case the 
 possession may be: (1), bare, naked possession un- 
 coupled with right; (2), possession coupled with own- 
 ership; or, (3), ownership coupled with the right to 
 immediate possession, designated frequently as con- 
 structive possession. In the case of real property, 
 actual possession is necessary to support the action ; 1 
 the ownership may or may not be in the plaintiff. The 
 third case mentioned in respect to personal property, 
 that of ownership coupled with the right of immediate 
 possession, is not sufficient to support the action of 
 trespass in respect to real property. The owner must 
 first regain actual possession of the land. 2 
 
 Trespass. The plaintiff alleges in his declaration the taking of 
 a horse from the person of the plaintiff. Plea, not guilty. Ver- 
 dict for plaintiff. Defendant moves in arrest of judgment, be- 
 cause the plaintiff does not allege that the horse was his horse, 
 or that it was taken from the plaintiff's possession. Judgment 
 for the defendant. 
 
 1 Bedingfreed V. Onslow, 3 Lev. 209, where the principle is laid 
 down that only the person who has the possession in fact of the 
 real property to which an injury has been done, can maintain an 
 action of trespass quare dausum fregit; one owning a reversion- 
 ary interest might bring an action of case for the injury done, 
 but not of trespass. 
 
 2 It is not sufficient to regain possession after the trespass has 
 been committed. In an action of trespass, quare clausum fregit, 
 it appeared at time of trespass the premises were in occupation 
 of L., the plaintiff's lessee. Plaintiff offered to show she re-
 
 ACTIONS BASED ON NATURAL EIGHTS. 37 
 
 It will be seen that when the plaintiff has connected 
 himself with the property by the necessary allegation 
 of possession, the natural right which he possesses not 
 to have his property injured attaches to the particular 
 property in question. As the court is fully informed 
 of the existence of this right there is no need of a formal 
 statement of it, and there is nothing left for him to 
 allege, but 
 
 (&). A statement of the wrongful act on the part of 
 the defendant. 
 
 It has been thought somewhat singular that the 
 action of trespass was allowed for injury to a man's 
 servant, wife, or child, by which he lost their services 
 or society. The explanation seems to be that they were 
 regarded as property; that certain benefits resulted 
 from their possession, and that a direct act of inter- 
 ference with them, which resulted in depriving a man 
 of these benefits, was just as much a trespass as an 
 act of interference with a man's horse, by which he was 
 deprived of its use. The fact that the object injured 
 in the case of the servant, for example, was a distinct 
 personality separate and apart from the master, so 
 that the same act which was a trespass to property 
 from the master's standpoint, was also a trespass to 
 the person from the servant's point of view, was im- 
 
 sumed possession of the premises after the trespass was com- 
 mitted, but before action, which was rejected by the Judge. 
 Held, Evidence not admissible and that trespass is not maintain- 
 able by the person who comes into possession after the commis- 
 sion of the trespass. Pilgrim v. Southampton & Dorchester Ry. 
 Co., 18 Law J. C. P. 330. A lessor cannot maintain an action of 
 trespass Holmes v. Seely, 19 Wend. 507; Tobey v. Webster, 3 
 Johnson, 468.
 
 38 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 material. And, when one considers it, there is really 
 nothing particularly degrading to the family relations 
 in this way of looking at the matter; for while we 
 have in modern times eliminated most of the ideas 
 which made man the absolute master over his house- 
 hold, we still must concede a certain analogy between 
 one's right to the uninterrupted enjoyment of the so- 
 ciety and services of the members of his household, 1 
 and his right to the enjoyment of the benefits which 
 accrue from the possession of property. If a violation 
 of this right, by direct act of interference, can be 
 redressed by action of trespass in the one case, why 
 not also in the other ? 2 
 
 SECTION III. TROVER. 
 
 52. The action known as Trover or Conversion, 
 and sometimes as Trover and Conversion, has for a 
 long time been one of the most common forms of ac- 
 tions adopted for redress of injuries to personal prop- 
 erty whereby plaintiff is deprived of possession. The 
 action was formerly one of the many actions included 
 under the head of Trespass on the case, or Case. 3 
 
 1 Jones v. Brown, 1 Espinasse, 217. 
 
 2 Where the benefits 1 no longer existed, as in case of termination 
 of the service or separation of the wife, the man could not show 
 that anything that was his had been interfered with, and hence 
 neither trespass nor case was maintainable. Wheedon f. Tim- 
 brell, 5 Durnf. & East, 357; Postlethwaite r. Parkes, 3 Burrows, 
 1878. 
 
 8 In Small's 1 Declarations, published in 1693, we find both the 
 action of Trover and that of Assumpsit classed as Trespass on 
 the case.
 
 ACTIONS BASED ON NATURAL EIGHTS. 39 
 
 53. The peculiar facts which, supported the ac- 
 tion as an action on the case, were the losing of goods 
 by the plaintiff, the finding by the defendant, and the 
 subsequent wrongful converting of the goods by him 
 to his own use. It will thus be noted that in its orig- 
 inal form the gist of the action was the wrongful con- 
 verting of the goods. The matter of the plaintiff 
 having lost them was merely an incident ; so was the 
 fact of the defendant having found them. These facts 
 made no difference in the wrongfulness of the act of 
 the defendant in converting them to his own use. The 
 act would have been just as wrongful and just as 
 actionable if the plaintiff had placed the goods in the 
 defendant's possession to keep for him and the de- 
 fendant had converted them, or if the plaintiff, while 
 retaining the ownership, had lost possession and the 
 defendant had acquired it in any other way. 
 
 54. The reluctance to adopt new forms and the 
 predisposition to follow the path already made safe 
 by precedent, which has always been characteristic of 
 courts and lawyers, coupled with the evident adapta- 
 bility of this form of action to all cases of a wrongful 
 exercise of dominion over personal property, led to its 
 extension to all acts of interference with personal 
 property where the plaintiff was deprived of posses- 
 sion. As thus broadened, the action became a sepa- 
 rate form, and instead of being called an action of 
 trespass on the case for trover and conversion (finding 
 and converting), was known simply as an action of 
 Trover or Conversion. The element of losing and 
 finding remained for a long time as a formal allega-
 
 40 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 tion in the declaration, though manifestly a pure fic- 
 tion in the majority of cases. 1 As it did not have to 
 be proven and could not be denied, no difficulty arose 
 from this. 
 
 55. The use of the term conversion as descrip- 
 tive of all the wrongful acts which were redressed by 
 this form of action, and the practice of alleging the 
 act, whatever the proof might show it to be, -as a con- 
 verting to the use of the defendant, led to some em- 
 barrassment. For example, the action of trover was 
 adopted to recover damages for a converting by the 
 defendant of the plaintiff's horse to his own use; the 
 facts as proved would perhaps show that the defend- 
 ant, having borrowed the plaintiff's horse, gave it to 
 X, who rode it so hard that it died. This was any- 
 thing but a converting by the defendant of the horse 
 to his own use, at least in the original sense of the 
 term. To meet this difficulty a rule came into exist- 
 ence which has ever since played an important part 
 in the action of trover. It was to the effect that a 
 wrongful refusal by the defendant to give up the 
 property was conclusive evidence of his having con- 
 verted it to his own use. 2 Thus, in the above instance, 
 the plaintiff would demand the horse; the defendant 
 
 13 Bl. Comm. 152; 1 D'Anvers' Abridgment, 23; Isaak v. 
 Clark, 2 Bulstrode, 306. 
 
 2 " From a very early period it has been holden, that it is good 
 evidence prima facie to prove a conversion, that the plaintiff 
 require the defendant to deliver the goods, and he refused; and 
 thereupon it shall be presumed he converted them to his own 
 use." Chancellor of Oxford's Case, 10 Co. 56: Agar v. Lisle, 
 Hutt. 10.
 
 ACTIONS BASED ON NATURAL EIGHTS. 41 
 
 could not deliver it in response to the demand, nor 
 could he show that his failure to deliver it was justi- 
 fiable, as his act of parting with the horse was a 
 wrongful one. He was, therefore, in the position of 
 wrongfully refusing to deliver the property, and under 
 the rule above referred to, the act of conversion was 
 deemed proved. 
 
 56. This form of action, however, was destined 
 to a broader field than those cases where there was an 
 actual conversion or where there was a wrongful re- 
 fusal, and a way was soon found to apply it to all 
 actions where there was a wrongful act depriving 
 plaintiff of the possession of the goods. It was by a 
 gradual, but a very radical change, in the meaning of 
 the term conversion., so as to include all acts of the 
 kind referred to. The " converting of goods to the 
 defendant's own use," became the exercising by the 
 defendant of any " act of dominion " over the goods. 
 This is the final development of the idea, and in this 
 form it has been laid down repeatedly. 
 
 The common-law action of conversion became, there- 
 fore, a means of redress for a very large class of wrong- 
 ful acts. The term conversion became a general term 
 to designate these acts. 
 
 57. A great deal will be found in the reports 
 about conversion being established by the proof of 
 other wrongful acts affecting the property from which 
 conversion will be conclusively presumed. This rule 
 is generally applied to the case of a wrongful refusal
 
 42 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 to deliver up the goods,- mention of which has been 
 made above. It is believed that since the scope of 
 the action has been broadened in the manner in which 
 it has, there is no reason or necessity for the invoking 
 of this rule. There is, of course, a literal converting 
 to one's own use, such as eating or wearing of the 
 goods, as the case may be; such act is wrongful and 
 actionable, and is one of the acts which will support 
 the action of trover. There are other acts of inter- 
 ference with property, such as burning up another's 
 property which happens to be in one's possession, or 
 selling property which has been delivered to one as 
 bailee, or taking property from the possession of an- 
 other, or refusing to deliver up property which is de- 
 manded by the rightful owner, which are all just as 
 wrongful and just as actionable as the literal conver- 
 sion of property; but they are not conversion in its 
 original sense, nor does it accomplish anything or tend 
 to clearness to say that they are evidence of conver- 
 sion, they may be evidence and they may not be. 
 Certainly there is no logical connection between burn- 
 ing property up and an intention to convert it to one's 
 own use. And the refusal to deliver property to the 
 owner is just as consistent with having lost it as having 
 used it. It is only misleading in such cases to say that 
 conversion is the ultimate thing to be proved and that 
 such acts are conclusive evidence of it. In the broader 
 sense in which the term conversion is used such acts 
 are themselves acts of conversion. While they have 
 been so denominated in the case of all the other acts 
 which may now support this action, it is still custom-
 
 ACTIONS BASED ON NATURAL BIGHTS. 43 
 
 ary to treat the demand and refusal as evidence of an 
 imaginary conversion. 1 
 
 58. To show a good cause of action in trover, the 
 declaration should contain : 
 
 (a). A statement showing that the property be- 
 longed to the plaintiff. This is to so connect him with 
 the property that it may appear that it is the plain- 
 tiff's right not to have his property interfered with 
 which has been violated. The plaintiff may rely upon 
 an actual possession or upon a right to an immediate 
 possession. Either shows sufficiently the right of the 
 plaintiff not to have the property interfered with. 
 
 As we have already seen ( 54) it was formerly 
 customary to allege the possession in the plaintiff, the 
 losing by him, and the finding by the defendant, but 
 the very earliest cases do not show that the allegation 
 of losing and finding was ever held material. 
 
 (&). A statement of the wrongful act or conversion 
 on the part of the defendant. 
 
 The gist of the act of conversion was its wrongful- 
 ness. An act of interference with the property of 
 another which was justifiable was not wrongful,, and 
 therefore was not a conversion. Such an act might be 
 a justifiable trespass, but there is no such thing as a 
 justifiable conversion. 
 
 iln Baldwin r. Cole, 6 Mod. 212, Chief Justice Holt Seems to 
 have thought that this rule as to demand and refusal being evi- 
 dence of conversion was superfluous, for he says that " the very 
 denial of goods to him who has a right to demand them is an 
 actual conversion."
 
 44 PEINCIPLES OF COMMON-LAW PLEADING. 
 
 59. If this distinction be borne in mind the ne- 
 cessity and office of the demand and refusal about 
 which so much is said in dealing with the action of 
 trover, will be clearly understood. A proper state- 
 ment of the conversion involves the statement of some- 
 thing besides the mere act of interference with the 
 property. It requires the statement of such facts as 
 will show the act to be wrongful. These facts are 
 either: (1), that the act of interference was wrongful 
 in the beginning, i. e., was a direct interference with 
 the possession, actual or constructive, of the plaintiff; 
 or, (2), that the act of interference was a wrongful 
 keeping of the property or refusal to give it up in re- 
 sponse to a demand on the part of the plaintiff. 
 
 In the former case no demand and refusal is neces- 
 sary to make the act wrongful, and, therefore, it need 
 not be alleged. In the latter case the act which is 
 wrongful is the refusal, and this is the act which is 
 really the ground of action, though, as pointed out 
 above, it is usually treated as evidence of a supposed 
 converting of the property. As it is in reality the 
 wrongful act, it must of necessity be alleged. 
 
 It will be observed that where the plaintiff relied 
 upon actual possession as the basis of his right in the 
 property which he claims has been violated, there is 
 no room for the element of demand and refusal. 1 For 
 the conversion here is always an original wrongful 
 taking of, or interference with, the property. 
 
 1 This is also true where the plaintiff relies upon what is 
 known as constructive possession.
 
 ACTIONS BASED ON NATUKAL RIGHTS. 45 
 
 SECTION IV. REPLEVIN. 
 
 60. The action of replevin was originally used 
 as the remedy for an illegal distress. 
 
 Distress was the common-law successor of the old 
 feudal remedy of forfeiture. Under the feudal sys- 
 tem if a tenant failed in the various services which 
 were required of him, such, as attending the lord in 
 time of war, or tilling the soil, or attending to the 
 lord's courts in times of peace, the lord might claim 
 forfeiture of the land. 1 
 
 61. Under the common law, instead of the land 
 itself being subject to forfeiture or seizure, the chat- 
 tels of the tenant which were upon the land were 
 subject to be seized or distrained by the lord for any 
 failure by the tenant in respect to the incidents of his 
 tenure. 2 The services required of the tenant which 
 were incident to his tenure became reduced to certain 
 fixed charges upon the land, such as rent, and the 
 seizure by the lord of the tenant's chattels was usually 
 for non-payment of rent or some like charge. This 
 was designated a Distress. It was against the abuse 
 of this power that the action of replevin was allowed 
 as a remedy to the tenant. 
 
 The action of Replevin is supposed to have been de- 
 vised by Glanvil, which would fix its origin as some- 
 where in the latter half of the twelfth century. 
 
 62. The purpose of the action of replevin, in its 
 finally established form, was to restore immediately 
 
 1 Gilbert, Replevin, p. 2. 
 
 2 Hammond, Nisi Prius, p. 433.
 
 46 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 to the tenant his chattels, so that he might proceed 
 uninterruptedly with his husbandry, and also to give 
 him damages for the wrongful seizure. The latter 
 object, however, was subordinate, the recovery of the 
 chattels being the real object of the action. The orig- 
 inal proceedings in replevin were so peculiar, both 
 by reason of their form and of the practice and rules 
 relating to them, that it has rendered the action a 
 somewhat difficult one to understand. It would be 
 beyond the scope of this book to go into the mass of 
 ancient law concerning replevin. It may be found in 
 the references cited. 1 
 
 63. There is, however, a certain feature of re- 
 plevin in its early form which it is important to under- 
 stand. This is that it was really a combination of 
 two things: (1), the proceedings by which a specific 
 recovery of the chattels was had; and, (2), the pro- 
 ceedings by which the legality of the seizure or dis- 
 tress was determined. By the first proceedings the 
 tenant really accomplished all he desired, i. e., he got 
 back his chattels. The second proceedings he proba- 
 bly would have preferred not to continue, but in them 
 lay the protection to the lord in case he had rightfully 
 distrained, since here the matter of the legality of the 
 distress was determined. Hence as a condition of the 
 tenant having the benefit of the first proceedings he 
 was required to give security that he would proceed 
 with the second. The form which the second took was 
 
 i Hammond, Nisi PriuS, pp. 372-460; Gilbert, Replevin, Chap- 
 ter 2.
 
 ACTIONS BASED ON NATUEAi, EIGHTS. 47 
 
 that of an action for damages for an alleged illegal 
 taking and detention. 
 
 64. Originally the proceedings for specific re- 
 covery were entirely separate from the action for dam- 
 ages. They were before it in point of time ; until they 
 were concluded, no process was served upon the defend- 
 ant to appear in the action for damages. They were 
 instituted by a writ which the plaintiff procured from 
 the Court of Chancery, commanding the sheriff to 
 seize and restore to him his chattels, as a condition of 
 procuring which writ he was obliged to give security 
 to prosecute an action to determine the right to the 
 chattels and to return them to the defendant if he 
 could not show that the seizure was illegal. 1 To this 
 writ the sheriff made a return according to the facts, 
 and if the return was to the effect that he was unable 
 to replevy the chattels because he could not find them 
 or because the defendant had sold or otherwise disposed 
 of them, the plaintiff was entitled to various other writs 
 for the purpose of accomplishing the object desired. 2 
 The final outcome of the whole matter was that the 
 plaintiff either did or did not get back his chattels. 
 Here ended the preliminary proceedings for the spe- 
 cific recovery of the chattels and at this point the 
 action for damages began. 3 If the plaintiff had suc- 
 
 1 This requirement as to security for the return of the chattels 
 was not originally required, but was imposed by the statute of 
 Westminster, 2, c. 2. 
 
 2 Gilbert, Replevin, 80, 91, et seq. 
 
 s This distinction between the proceeding to recover actual 
 possession of the goods and the action resulting from the pro- 
 ceeding was recognized by Chief Justice Willes in Pearson v.
 
 48 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 ceeded in recovering his chattels, as he was under bond 
 to prosecute an action, the only thing left for him to 
 do was to proceed with it. 
 
 If, on the contrary, the sheriff had been unable to 
 .restore to him the chattels because of their destruc- 
 tion, sale, or concealment by the defendant, the plain- 
 tiff could still proceed with his action, and, as will be 
 seen later, the full value of the chattels would be 
 included in his damages. 
 
 65. The manner in which the plaintiff proceeded 
 with his action was similar to that in any other action. 
 The defendant was summoned into court 1 to answer 
 the plaintiff's declaration, in which was set forth the 
 facts constituting the plaintiff's cause of action for 
 damages for the wrongful taking and detention, and 
 to which reference will be made more fully hereafter. 
 
 Roberts, Willes' Reports, 668' (1755), where he says, p. 672, 
 " There are two forms of replevins, one only to have the goods 
 again which may be by plaint in the Sheriff's Court, or a man- 
 datory writ to the Sheriff and another by way of action to re- 
 cover damages," and was used by him as a ground of deciding 
 the case. At that time, however, the two proceedings had be- 
 come so amalgamated into one, and, in spite of the peculiar 
 method of obtaining the principal relief at the commencement 
 of the action, had been so long regarded as an action in rem., 
 i. e., for specific recovery, that the authorities scarcely war- 
 ranted Chief Justice Willes in using the distinction as the basis 
 of his decision in the case. The case of Millard v. Caffin (2 Sir 
 W. Blackstone, 1330), in 1778, and that of Fletcher v. Wilkins 
 (6 East, 283), in 1805, show the way in which the different pro- 
 ceedings in replevin had all come to be regarded as parts of a 
 single action in rem. 
 
 i Gilbert, Replevin, pp. 83-85.
 
 ACTIONS BASED ON NATUBAL EIGHTS. 49 
 
 66. This method of proceeding by writ was 
 found to be extremely cumbersome, and it was dis- 
 covered that little was accomplished by the proceed- 
 ings subsequent to the writ itself compared with the 
 time and trouble involved. As a consequence, they 
 gradually fell into disuse. By a statute, 1 it was then 
 provided that upon an ordinary complaint, or " plaint," 
 as it was called, to the sheriff and the giving of the 
 necessary security, the sheriff could at once recover the 
 chattels by issuing a precept to his bailiff to seize them. 
 At the time of the seizure the action was also begun 
 by the bailiff summoning the defendant to appear in 
 court to answer the plaintiff's declaration. 2 It will 
 thus be seen that the summary method of restoring the 
 chattels to the plaintiff was practically incorporated 
 into the action itself. 
 
 67. This change in the method of proceeding 
 resulted in the disappearance of a practice which pre- 
 vailed of framing the declaration in replevin according 
 to the result of the sheriff's efforts to seize the chattels 
 and restore them to the plaintiff. 
 
 Under the old method of recovering the chattels 
 in the proceeding by writ, if the sheriff was success- 
 ful in restoring the goods to the plaintiff, the declara- 
 tion in the action alleged the detention as a completed 
 act, and was said to be in the detinuit (he detained). 
 If the sheriff was not successful in restoring the chat- 
 tels to the plaintiff, the declaration alleged the de- 
 
 1 Statute of Marlbridge, c. 21. 
 
 2 Gilbert, Replevin, p. 80. 
 
 4
 
 50 PBINCIPLES OF COMMON-LAW PLEADING. 
 
 tention as still continuing, and it was said to be in 
 the detinet (he detains). In the one case the damages 
 were limited to the injury suffered by the detention; 
 in the other, they included also the value of the goods. 
 If only a part of the goods were restored, the declara- 
 tion was in the detinuit as to those which were restored, 
 and in the detinet as to the rest. 1 
 
 68. But with the new method of commencing 
 the action for damages at once upon the institution 
 of the proceedings by plaint to the sheriff, it must 
 have happened frequently that the declaration was 
 made out at the commencement of the proceeding, or 
 at all events before the results of the sheriff's efforts 
 to find and restore the goods could be known with cer- 
 tainty, and it became impracticable to observe this dis- 
 tinction between declaring in the detinet and in the 
 detinuit. The declaration was therefore always made 
 
 i In Small's Declarations, Replevin, p. 34, will be found an 
 example of this, which appears to have been taken from the 
 records of an actual case. As instances of this sort of declara- 
 tions are rare, I quote this declaration in full: 
 
 "as. : W. Burton, of L. Chaplain, and B. W. were summoned 
 to answer unto J. J. of a Plea wherefore they took the Cattel of 
 him the said J. J. and them unjustly detained against the sure- 
 ties and pledges, etc. And whereupon the said J. J., by J. C., his 
 attorney, complaineth that the said W. and B. the day, etc., in 
 
 the year, etc., In the Town of H., in a certain place called , 
 
 they took four score sheep of him the said John, and seventy 
 sheep thereof they unjustly detained until, etc. And ten sheep 
 residue thereof of the price of twenty shillings as yet unjustly 
 detain against the sureties and pledges, etc. Whereupon he saith 
 that he is the worse, and hath damage to the value of 20, and 
 thereupon he bringeth his suit and prayeth that the said W. and 
 B. may secure the delivery of the said 10 sheep unto him, etc."
 
 ACTIONS BASED ON NATUKAL EIGHTS. 51 
 
 out in the detinuit, but the damages recovered included 
 the value of the chattels in case they were not restored 
 to the plaintiff, 1 and for this purpose it was customary 
 to allege their value. 2 
 
 69. The distinction between the so-called action 
 of replevin in the detinuit and that in the detinet was 
 never anything but a distinction in form, 3 and when 
 it became impracticable to make the distinction it be- 
 came obsolete. The distinction has been noticed here 
 more fully than it otherwise would have been, because 
 an impression has seemed to prevail that there were 
 at one time two different actions of replevin based 
 upon it, in one of which, i. e., in the detinet, damages 
 only were sought. 4 
 
 1 Fitzherbert, Natura Breviura, 69 L. and Note (C). 
 
 2 Stephen, Pleading, p. 43. 
 
 3 Hammond, Nisi Prius, pp. 460, 461. 
 
 * Chitty, in his work on Pleading (5th Am. Ed., p. 145), refers 
 to the action as of two sorts, one of which, that in the detinet, 
 for the value of the goods and damages, he says is obsolete. 
 
 In Buller's Nisi Prius (p. 52), the action of Replevin in the 
 detinet is treated as though it were an action commenced with- 
 out the usual proceedings by writ or plaint, and it is compared, as 
 to its advantages, with the action of Trespass. 1 Saunders, 
 347 b, note 2, is to the same effect. 
 
 In both Chitty and the note in 1 Saunders' Reports, the case 
 of Petre v. Duke, Lutw. 1147, is cited as an authority upon the 
 distinction between the supposed two forms of Replevin. But 
 the case is no authority upon the point, as an examination will 
 show. 
 
 In the English report of this case (Lutw., Nelson's Ed., 360), 
 the writ is spoken of as being in the detinet, and the declaration 
 or count as in the detinuit. It is said that an exception was 
 taken for this cause, but as the parties by agreement amended 
 their pleadings, the point was not passed upon. Then follows
 
 52 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 TO. No case of replevin can be found in the re- 
 ports where the object was not the specific recovery of 
 the chattels and which was not commenced by the 
 proceeding, either by plaint or writ, to obtain such 
 recovery. 1 
 
 The statement of Chief-Justice Willes in the case 
 of Pearson v. Roberts, which has been quoted (ante, 
 p. 47, note 3), has been construed as meaning that 
 there was an action of Replevin for damages only, dif- 
 ferent from the one which was instituted by the pro- 
 
 the statement, "but certainly it was a material objection, for in 
 a Replevin in the detinet the plaintiff must recover the value of 
 the goods and his damages for the taking; but if it is in the 
 detinuit, that is in the preterperfect tense, it implies that the 
 plaintiff hath his goods again; and therefore he shall only recover 
 for the wrongful taking." An examination of the original report 
 in Lutw. 1147, shows that the word writ refers to the recital of 
 the writ' contained at the beginning of the declaration, and that 
 the substance of the objection therefore is that the allegation in 
 the body of the declaration is inconsistent with the recital, the 
 one showing that the goods are still detained by the defendant, 
 and the other that they have been restored to the plaintiff by the 
 sheriff. In this form the objection becomes intelligible, as an 
 objection to the form of the declaration upon the theory that the 
 court could not say what damages to award unless it was clear 
 whether or not the plaintiff had succeeded in getting back the 
 property. In the other form the objection is not intelligible, but 
 only confusing, as it is no objection that the writ or plaint is in 
 the detinet and the declaration or count in the detinuit. In fact 
 the writ or plaint is always and rightly in the detinet, since the 
 goods at that time are in the defendant's possession, and the 
 declaration is as a matter of fact usually in the detinuit. This 
 case is correctly cited in Gilbert, Replevin, p. 167. and in reality 
 only confirms the explanation given in the text of the real nature 
 of the distinction between Replevin in, the detinet and in the 
 detinuit. 
 
 i Fletcher v. Wilkins, 6 East, 283.
 
 ACTIONS BASED ON NATURAL EIGHTS. 53 
 
 ceedings for specific recovery. Lord Ellenborough, in 
 Fletcher v. Wilkins (6 East, 283, at p. 286), so con- 
 strues it, for he says: "And Lord Ch. J. Willes there 
 distinguished between a replevin by plaint or man- 
 datory writ to the sheriff, to have the goods again, 
 and replevin by action to recover damages." He ex- 
 presses the opinion, however, that the statement is 
 not correct, and that there is no such action of replevin 
 for damages only. It has already been explained that 
 Willes probably had in mind the early distinction be- 
 tween the proceedings for the recovery of the chattels, 
 which were preliminary to the action for damages for 
 the seizure, and the action itself. 
 
 71. Although it is not the purpose of the writer 
 in this part of the book to treat of pleadings subsequent 
 to the declaration, yet in the action of replevin it is 
 proper under this head to examine the first pleading 
 on the part of the defendant which was frequently a 
 declaration in fact though not in name. 
 
 Wherever the defendant claimed the right to the 
 chattels, he set up his right and prayed for their re- 
 turn, and damages for their detention, in a pleading 
 which was called the avowry or cognizance. 1 This was 
 in every respect like a declaration and was so treated. 2 
 As will be seen later, the plaintiff pleaded to it as 
 
 1 Where the defendant alleged a right in himself, by virtue of 
 which he seized the goods, the pleading was called an avowry; 
 where he alleged the right in another, by whose command he 
 acted in making the seizure, the pleading was called a cognizance 
 (or conusance, Trevilian v. Pyne, Salk. 107). Comyns' Digest, 
 Title Pleader, 3 K. 13, 14. 
 
 2 Coke, Littleton, 303 a (7t) ; Bacon's Abridgment, Replevin A.
 
 54: PRINCIPLES OF COMMON-LAW PLEADING. 
 
 though, he were a defendant. If the defendant claimed 
 no right in the chattels, but denied the seizure, there 
 was a regular plea, as in other actions, which he could 
 put in, and this element of a cross action by avowry 
 or cognizance did not enter into the action. 
 
 72. The origin and nature of replevin has been 
 somewhat fully described. It has been seen that one 
 of the peculiarities of it was the manner in which the 
 plaintiff recovered his goods in the first instance be- 
 fore or at the very commencement of the action. This 
 peculiarity survived through the various changes which 
 the form of the action underwent, and has always been 
 a distinctive feature of it. As a result, in this form 
 of action there was no waiting for relief until the 
 determination of a possible lengthy suit; no risk of a 
 disposal of the chattels so that specific recovery would 
 be impossible. Here was relief at the start, and of a 
 very substantial kind. It is not to be wondered at 
 that under these circumstances the lawyers and the 
 courts found a way of extending the action to all cases 
 of wrongful interference with personal property where 
 specific recovery was desired. Just as the action of 
 trover was extended beyond its original scope as a 
 remedy for the wrongful conversion of goods which were 
 found, so the action of replevin was extended beyond 
 the cases of wrongful distress. As trover became a uni- 
 versal action for damages for any wrongful interference 
 with personal property accompanied by loss of posses- 
 sion, so replevin became the universal action for the
 
 ACTIONS BASED ON NATURAL EIGHTS. 55 
 
 specific recovery of personal property wrongfully 
 taken. 1 
 
 73. The advantage of the action of replevin 
 over that of detinue is obvious. In detinue the prop- 
 erty could be recovered only after the determination, 
 and then only if it was still in the possession of the 
 defendant; while in replevin the property could be 
 secured at the very outset. 
 
 74. Replevin was never extended at common 
 law beyond the case of an original wrongful taking of 
 the goods from the possession of the plaintiff. An at- 
 tempt was made to broaden the form of action so as 
 to include all cases where detinue or trover could be 
 brought. 2 This attempt was not successful, as it was 
 thought to be an injustice to allow this summary 
 method of regaining possession to be used in case the 
 defendant had acquired possession by no wrongful act, 
 but simply refused to acknowledge the right claimed 
 by the plaintiff. The object of the action, as its origin 
 and its subsequent use show, was to first put the par- 
 ties in statu quo, and then determine their respective 
 claims to the chattels. 
 
 1 Hammond's Nisi Prius, 451. 
 
 2 Mennie v. Blake, 6 E. & B. 843. 
 
 In re Wilsons, 1 Sch. & Lef. 320, note (a). In this case the 
 nature of the action is so clearly put that it is worth while to 
 quote the language of Lord Redesdale. Replevin " is merely 
 meant to apply to this case, viz.: where A takes goods wrong- 
 fully from B. and B applies to have them redelivered to him, 
 upon giving security, until it shall appear whether A has taken 
 them rightfully. But if A be in possession of goods in which B 
 claims a property, this is not the writ to try that right."
 
 56 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 75 As has been explained, the main relief, that 
 of specific recovery, is secured in replevin, not by the 
 final judgment, except so far as it may be a confirma- 
 tion of the restoration of the goods to the plaintiff, 
 but by the preliminary proceedings. In fact the form 
 of relief which the declaration seeks is not specific re- 
 covery, 1 but damages for the wrongful taking and de- 
 tention of the chattels. 
 
 76. To show a good cause of action in replevin 
 the declaration should contain : 
 
 (a). A statement of the plaintiff's right. 
 
 To show the plaintiff's right, all that need be alleged 
 is that the goods, specific recovery of which is sought, 
 were in the plaintiff's possession at the time of the 
 wrongful taking. The right not to have them inter- 
 fered with being a natural right, follows as a matter' 
 of course, and need not be alleged. 
 
 (6). A statement of the violation of the right by 
 the defendant, i. e., a statement of the wrongful tak- 
 ing and detention. 
 
 77 From the original use of the action as a 
 remedy for wrongful distress exclusively, it happened 
 that it was necessary to allege the place in which the 
 chattels were taken, for unless the chattels were taken 
 on the land of the tenant, it was not a distress, and he 
 could not have an action of replevin, but must resort 
 to some other action for relief. This was, therefore, at 
 
 i Except possibly in the early history of the action when the 
 custom of declaring in the detinct was in vogue. See declaration 
 set forth in note 1 on p. 50.
 
 ACTIONS BASED ON NATURAL RIGHTS. 57 
 
 that time, a matter of substance, as a denial of the 
 seizure in the place alleged, if proved, was a good de- 
 fense to the action. When the action was extended 
 to cover other wrongful seizures besides wrongful dis- 
 tress, the reason for the requirement of an allegation 
 of the place of seizure vanished. The allegation was, 
 however, still held to be necessary, though only as a 
 matter of form. 
 
 78. To show a good cause of action on the part 
 of the defendant for a return of the chattels and dam- 
 ages, the avowry or cognizance should contain : 
 
 (a). A statement of the right upon which the de- 
 fendant relies, whether it be in himself or in another 
 by whose command he acted. 
 
 It will be observed that, as the chattels which are 
 the subject of the action were admittedly in the plain- 
 tiff's possession at the start, and the defendant claims 
 them under a distress; or to use a term which will 
 cover all cases in which the action, as extended, was 
 used, a seizure, he must show that seizure to have 
 been legal. For, if he shows the seizure to have been 
 legal his subsequent possession was lawful, and the 
 chattels were his property, concerning which he had 
 the natural right not to have them interfered with in 
 any way. But as he cannot rely on possession as prima 
 facie proof of ownership in himself, since, as said 
 above, possession was at the start admittedly in the 
 plaintiff, he must allege facts which will show a right 
 of possession either in himself or the person by whose
 
 58 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 command he made the seizure. If it is a case of dis- 
 tress, then he must set forth fully the facts as to the 
 tenancy, rent in arrear, chattels being upon the leased 
 property, and seizure. If it is a case other than dis- 
 tress, then he must set forth other facts, e. g., abso- 
 lute ownership in himself , which will show a right 
 of immediate possession on his part at the time of the 
 seizure. 
 
 (&). In theory, if the avowry or cognizance is a 
 declaration, it should allege the wrongful act which 
 is a violation of the right set forth. But the wrong- 
 ful act, theoretically at least, is the taking of the chat- 
 tels away from the defendant, and this is done under 
 process, in the action itself, and is a part of the rec- 
 ords of the case. The court would not intentionally 
 allow its processes to be used to commit a wrongful 
 act; but, until the determination of the question be- 
 tween the parties, it has no means of telling who has 
 the right to the chattels, and deems it better that the 
 parties should be placed in statu quo, even at the ex- 
 pense of a possible wrong, inasmuch as it can and does 
 protect the defendant against any such possible wrong 
 by requiring the plaintiff to give security in the man- 
 ner already described. From the defendant's point of 
 view, whatever the actual facts may be as to the justice 
 of restoring the chattels to the plaintiff, the act of 
 restoration is a violation of his right not to have his 
 property interfered with hence technically a wrong- 
 ful act. But it can readily be seen that there is no 
 necessity of, or propriety in, formally alleging as a 
 wrong an act which has been committed by authority 
 of the court itself.
 
 ACTIONS BASED ON NATURAL, RIGHTS. 59 
 
 79. A good example of a declaration in replevin 
 is found in the case of Potter v. North, 1 Saunders' 
 Rep. 346 g. 
 
 " Henry North, late of Mildenhall, in the said 
 County, esquire, was summoned to answer John Potter 
 ef a plea wherefore he took a horse called a nag, of 
 him the said John, and unjustly detained him against 
 sureties and pledges, etc. And whereupon the said 
 John, by Edward Coleman his attorney, complains that 
 the said Henry, on the 18th day of June, in the 19th 
 year of the reign of our said lord Charles the Second, 
 now King of England, at Mildenhall aforesaid, in a 
 certain place there, called the Fenn, took the said horse 
 of him the said John, and unjustly detained him against 
 sureties and pledges, until, etc. ; wherefore he the said 
 John says that he is worse and has damage to the value 
 of 40 Z, and therefore he brings suit, etc." 
 
 SECTION V. CASE. 
 
 8O. The form of action known as Case, in its 
 comprehensive form, probably had its origin in a stat- 
 ute l which was enacted in the time of Edward the 
 First (1285 A. D.), 2 and in which it was provided: 
 
 "And whensoever from henceforth it shall fortune 
 in the Chancery that in one Case a Writ is found and 
 in like Case falling under like Law and requiring like 
 Remedy, is found none, the Clerks of the Chancery 
 
 1 Statute of Westminster, 2, 13 Edw. I., c. 24. 
 
 2 4 Beeves' History of English Law, 430 ; 2 Blackstone Com. 
 51 ; 3 Wodd. 168.
 
 60 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 shall agree in making the Writ; or the Plaintiffs may 
 adjourn it until the next Parliament, and let the Cases 
 be written in which they cannot agree, and let them 
 refer themselves until the next Parliament, by Con- 
 sent of men learned in the Law, a Writ shall be made, 
 lest it might happen after that the Court should long 
 time fail to minister Justice unto Complainants." 
 
 The intent of the statute was to allow the statement 
 of any cause of action, for which there was no existing 
 form, according to the facts in the particular case, thus 
 furnishing a means for recovery in all cases where there 
 was a wrong, but no established form or writ in which 
 to sue. 
 
 81. Undoubtedly before this statute actions were 
 allowed which were of the nature afterward known as 
 Actions upon the Case. 1 Several actions of this sort 
 are found among the Select Civil Pleas published by 
 the Selden Society, 2 and show conclusively that the 
 
 1 Kinneyside v. Thornton, 2 Blackstone Rep. 1113; Brotherton 
 v. Wood, 3 B. & B. 62, 63. 
 
 2 Selden Society Publications, Vol. III. Select Civil Pleas, 
 Cases 7, 84, 86, 106. 
 
 Case 7 (1200 A.D.) is an example of boldness in framing new 
 writs hardly to be expected on the part of the courts at that 
 time. The case is 1 really one of boycotting, and is perhaps the 
 earliest of which we have any record. 
 
 Case 106 is of the same nature, and is interesting enough to be 
 citod in fu'l. It is as follows: 
 
 " Northhampton Henry Cumin, put in the place of Gerard de 
 Malquincy (a curious practice which prevailed at that time of 
 allowing a plaintiff or defendant to substitute some one else in 
 his place), who was summoned to show why he [Gerard] had 
 hindered William Lupus from tilling his land, which he [Wil- 
 liam] deraigned (proved) by the assize (action to recover posses-
 
 ACTIONS BASED ON NATURAL RIGHTS. 61 
 
 principle of framing new writs for new cases which, 
 through the statute cited, subsequently produced the 
 comprehensive action of case, was not unknown to the 
 common law. 
 
 82. The tendency toward crystallization into set 
 forms was strong enough to evolve two new and dis- 
 tinct forms from the general class, and, as we have 
 seen, 1 it was not long before the actions of Assumpsit 
 and Trover were recognized as separate from Case. 
 
 There was, however, a large general class of actions 
 left, actions of so varied a character as to the facts 
 upon which they were based, that they could not well 
 be brought within any one or more forms. These are 
 the actions which have, since the branching off of 
 Assumpsit and Trover, constituted the class of actions 
 known as Case. 
 
 83. Without attempting to specify the numerous 
 instances where the action of case is applicable, it may 
 be said that it includes all actions for damages for 
 
 sion of land) against the said Gerard, comes and concedes that 
 William may till his land on account of the ejectment of said 
 Gerard, and William remits to him the damages which he would 
 have recovered hy the [verdict of the] jury." 
 
 Case 86, Paxton v. Male, is another good example of an action 
 on the case. It seems to combine the element which was after- 
 ward brought under the action of conversion with that which be- 
 longed strictly to case. The complaint was that the defendant 
 "unjustly took his (plaintiff's) oxen and sold them at Waltham 
 Fair, which oxen were worth five marks, so he says, and besides 
 had troubled him in other ways, on account of which his land 
 was untilled," to his damage of 20 marks." 
 
 i Ante, pp. 23, 38.
 
 62 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 wrongful acts which do not fall within any of the other 
 classes of actions, and that the wrongful acts are usually 
 indirect or somewhat remote from the injuries resulting 
 therefrom. 1 It is to be noted, too, that the wrongful 
 acts are always violations of natural rights, and never 
 of rights which arise from contract or other special 
 relations. 
 
 84. As in the action of trespass, so in that of 
 case, the injury for which redress is sought may be 
 either to the person or to the property of the plaintiff. 
 
 If the injury is to the person, then the declaration 
 to show a good cause of action need contain only 
 
 A statement of the wrongful act on the part of the 
 defendant. 
 
 The right which is violated by such wrongful act 
 being an absolute or natural right, need not be stated. 
 The same reasoning applies here as in ' Trespass. In 
 alleging the wrongful act, however, it may be necesary 
 to state somewhat fully the circumstances, in order to 
 connect the act with the injury, as its cause. There 
 is a certain class of cases where the defendant's act 
 will be wrongful only if the plaintiff is in a proper 
 legal position at the time of the act. In such cases 
 it is necessary to allege facts showing the position of 
 the plaintiff to be a proper one. Many cases of inju- 
 
 i The familiar example of the log thrown into the highway 
 illustrates as well as any this characteristic of the action on the 
 case. If the log hits and injures some one when it is thrown, 
 trespass is the proper form of action to adopt. If some one 
 coming along the road stumbles over it and is injured, the proper 
 form of action is Case.
 
 ACTIONS BASED ON NATURAL EIGHTS. 63 
 
 ries resulting from negligence are of this character. 
 The plaintiff may be in a building, upon land, in an 
 elevator or upon a train, or in any place where he has 
 no right to be; if he suffers injury because the build- 
 ing is not safe, because of an uncovered pit upon the 
 land, because the elevator is not guarded, or because 
 of an accident to the train, he himself is to blame; he 
 has, so to speak, violated his own right not to have his 
 person injured. Therefore, the fact that the plaintiff is 
 rightfully in the place where he suffers the injury is 
 an element to show the act of the defendant to be a 
 wrongful act as respects the plaintiff, and must, of 
 course, be alleged in the declaration. 
 
 85. If the injury complained of is to the plain- 
 tiffs' property, the declaration, to show a good cause of 
 action, should contain : 
 
 (a). A statement of such facts as will show that the 
 plaintiff has some interest in the property, which may 
 be the subject of injury. The word property here is 
 used in the broad sense as including both chattels, real 
 estate, choses in action, and anything which is of value, 
 or from which plaintiff rightfully enjoys a benefit. 
 
 When the plaintiff's interest is once shown, his right 
 not to have it injured is, of course, plain, and requires 
 no formal statement. 
 
 (&). A statement of the wrongful act on the part of 
 the defendant.
 
 64 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 SECTION VI. EJECTMENT. 
 
 86. The form of action known as Ejectment is a 
 good illustration of the length to which the courts some- 
 times went in adapting established forms to new uses. 1 
 
 The action was, in the beginning, an action of tres- 
 pass brought by a person in possession of land under 
 a lease for years, against one who entered upon the 
 land and ejected him. It was known as the writ of 
 ejectione firmce. 2 The object was simply the recovery 
 of damages. This relief, however, was inadequate, 
 especially where the tenant had a long term, and the 
 practice grew up of applying to a court of equity for 
 relief against the lessor for specific performance, 
 against a stranger for an injunction restraining him 
 from interfering with the tenant's possession. This 
 carried a great deal of business into the equity courts 
 from the courts of common law, and resulted in the 
 latter adding to the relief by way of damages, given 
 in the action of ejectione firmce, relief by .way of spe- 
 cific recovery. 3 Such relief was, however, never prayed 
 
 1 In 1 3 Blackstone Com., p. 200 et seq., will be found the his- 
 tory, in detail, of the action. 
 
 2 The earliest recorded instance of the bringing of an action of 
 this kind is said to be that ia Year Book Trin. 44 Edw. III., 22, 
 26. Prior to this time there appears to have been an action 
 known as quare ejecit, in which the lessee could recover the pos- 
 session of his land and damages for the ouster, but only against 
 his lessor or some one claiming under him. No remedy existed 
 for the tenant against a stranger until the invention of the writ 
 of ejectione firmce. The distinction between the two actions is 
 stated in Year Book 21 Edw. IV., 10, 30. 
 
 s Gilbert, Ejectment, pp. 3, 4. Gilbert fixes this innovation in 
 the reign of Edward IV. ( 1460) . Adams fixes the time as be- 
 tween 1455 and 1499. Adams, Ejectment, p. 9.
 
 ACTIONS BASED ON NATURAL EIGHTS. 65 
 
 for in the declaration, and in form the action still 
 remained an action of trespass for damages. 
 
 87. The trespass complained of was the ejection 
 of the plaintiff from the possession of the premises. 
 If the plaintiff had been on the premises as a mere 
 intruder and had no interest in the premises which 
 entitled him to possession, and, on the contrary, the 
 defendant entered, ousted the plaintiff, and took pos- 
 session himself, claiming to be entitled thereto, his 
 act was not a wrongful one; at least not wrongful as 
 far as the plaintiff was concerned, for it was no viola- 
 tion of any right of the plaintiff's; not of his right to 
 the undisturbed enjoyment of his property, because 
 it was not his; not of his right not to have his person 
 interfered with, because he was wrongfully on an- 
 other's land, and his right in that respect was subject 
 to the right of the defendant to oust him with all neces- 
 sary force. It resulted, therefore, that the plaintiff in 
 the action was bound to allege and prove his right to the 
 possession of the land, or his title, as it is generally 
 called, in order to show that the defendant's act of 
 ousting him was wrongful. 
 
 88. As the action was always brought by a les- 
 see for years, the elements of his title consisted of 
 a good title in his lessor, a lease to himself, and an 
 entry under the lease. One would have supposed 
 that under these circumstances the action was of a 
 special nature, and not at all applicable to the case 
 of a person who had never been in possession as a 
 lessee or otherwise, but who wished to have his title 
 5
 
 66 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 to land in the possession of another determined. Yet 
 such were the resources of the lawyers that they found 
 a way to utilize the action as a general means for the 
 trial of title. The manner adopted was to have A, the 
 claimant of the land, make a formal entry upon it (in 
 the absence, or at all events without the knowledge, of 
 the person really in possession), and execute a lease to 
 
 B, some friend who accompanied him. B remained 
 upon the land until X, the person actually in possession, 
 returned or discovered him, and then considered himself 
 ejected. An action was then brought in B's name 
 against X. B's right depended upon the title of A, 
 his landlord, and A's title to the land was thus deter- 
 mined. As B was a friend to A, if he succeeded, A 
 had no difficulty in getting the possession. 
 
 89. The next step in the development of the 
 action was to procure C, another friend of A's, to 
 casually happen upon the land shortly after the mak- 
 ing of the lease and eject B, instead of waiting for 
 X to eject him. B then brought the action against 
 
 C, and if X knew nothing about the proceedings, -or 
 they were intentionally concealed from him, he would 
 be ousted from the premises under the judgment re- 
 storing them to B, without any chance to defend his 
 right to them. 1 Therefore the rule was adopted, which 
 was made use of afterward so effectively by Rolle, re- 
 quiring C, the casual ejector, to notify X, the person in 
 actual possession of the land, that an action had been 
 brought against him for ejecting B from the land, and 
 
 i Adamfe, Ejectment, pp. 12, 13.
 
 ACTIONS BASED ON NATURAL EIGHTS. 67 
 
 that as he (C) had no title he did not propose to defend 
 it. 1 Upon this X could apply to the court and be made 
 defendant, and the action would proceed between B 
 and X. 
 
 90. Here the inventive genius of Rolle saw a 
 chance to simplify things. Here was a chance to im- 
 pose conditions upon X, who was an applicant to the 
 court for a favor, to wit, to be allowed to come in and 
 defend the action. X was, therefore, compelled to 
 stipulate to admit on the trial the fact of the making 
 of the lease from A to B, the entry and subsequent 
 possession by B, and the ouster of B by C. 2 There was 
 nothing left then to try but the title of B's lessor A. 
 The lease, entry, and ouster had never been more than 
 a hollow form; now as a result of this rule, they be- 
 came a fiction pure and simple. Even the form was 
 no longer observed, and it was customary to allege the 
 lease to John Doe, entry by him and ouster by Richard 
 Roe, fictitious names merely used for the purposes of 
 the suit. In this form the action of ejectment has 
 remained to the present time, wherever the common- 
 law form prevails. 
 
 91. As has been said, the theory of the action is 
 that of trespass 3 for forcibly ejecting plaintiff from 
 
 1 For form of notice, see Gilbert, Ejectment, 191. 
 
 2 Gilbert, Ejectment, p. 8. 
 
 a The action of ejectment is always treated as a mixed action, 
 for the reason that the plaintiff recovers both possession and 
 damages, though Stephen doubts the propriety in so calling it, 
 as the declaration in form te merely for damages. Stephen, 
 Pleading: Appendix, p. vii.
 
 68 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 his land. The declaration conformed to this theory. 
 To show a good cause of action in ejectment the 
 declaration should contain: 
 
 (a). A statement of the plaintiff's rights. The ac- 
 tion is really brought for a violation of both the plain- 
 tiff's right not to have his person interfered with, and 
 the right to the undisturbed enjoyment of his property. 
 The former needs no statement; the latter, however, 
 will not appear to attach to the property which is the 
 subject of the suit, until an allegation is made of such 
 facts as will show that the property belonged to the 
 plaintiff. These facts, since ejectment is always 
 brought nominally by a lessee, are the title in the lessor 
 (impliedly alleged by the allegation of the lease), the 
 lease, and the entry and subsequent possession. 
 
 (&). A statement of the wrongful act on the part of 
 the defendant. 
 
 The wrongful act is the ouster, and the declaration 
 follows out the theory of the action by alleging it and 
 praying damages therefor. Originally the damages 
 were substantial in amount, but when the fiction which 
 has been described was adopted, and the real defendant 
 though not the nominal one was compelled to admit the 
 ouster as a condition of being allowed to come in and 
 defend the action, it was not deemed fair to give any 
 substantial damages against him, and nominal damages 
 only were allowed. 
 
 The plaintiff, if successful, could subsequently re- 
 cover his damages for loss of the profits of the land 
 during the defendant's wrongful occupation by another 
 action known as an action of trespass for mesne profits.
 
 PART II. 
 
 PLEADINGS SUBSEQUENT TO THE DECLARATION. 
 
 CHAPTER I. 
 
 DEMURRERS. 
 
 92. In an action at law the pleadings subsequent 
 to the declaration seldom extended beyond the fourth 
 stage. They .were known respectively as the Plea,, the 
 Replication, the Rejoinder and the Sur-re joinder. 
 There were pleadings subsequent to the sur-rejoinder ; * 
 but it seldom, if ever, became necessary to use them, 
 and they need not be noticed here. In addition to 
 these four forms of pleadings, there was a method by 
 which either party could answer the other's pleading 
 at any stage, known as the Demurrer. This was an 
 entirely different thing from any one of the pleadings 
 above named, but in the general sense of the word 
 pleadings may be classed as a pleading. The Demurrer 
 will be treated of in this chapter. 
 
 93. When the plaintiff had set forth his cause of 
 action in his declaration, in a manner which he deemed 
 sufficient to entitle him to the relief sought, it was the 
 defendant's turn to make some statement to the court 
 
 1 The succeeding two are called the Rebutter and Surrebutter. 
 Euer, Doctrina Placitandi, 1667, p. 1, Preface. 
 
 69
 
 70 PKINCIPLES OF COMMON-LAW PLEADING. 
 
 of his position with respect to the wrongful act charged 
 against him. Two general methods of answering the 
 declaration were open to him the first, by way of a 
 demurrer; the second, by way of a plea. 
 
 94. These two methods were entirely unlike in 
 their nature and effect. 
 
 The demurrer was a pleading which could be used 
 by either party at any stage of the pleadings, provided 
 the other had not already used it, and provided issue 
 in fact had not been joined. 1 The defendant could 
 demur to the plaintiff's declaration. If he did not 
 demur, but put in a plea, the plaintiff could demur to 
 the plea. If the plaintiff did not demur, but put in 
 a replication, the defendant could demur to the repli- 
 cation; and so on through the whole list of successive 
 pleadings. But when a demurrer had been put in by 
 either party, the pleadings were at an end, as there could 
 be no demurrer or pleading to it. 2 
 
 95. The effect of the demurrer was to raise a 
 question of law upon the pleadings as they stood prior 
 to the demurrer, which it was the province of the judge 
 
 1 Calverac v. Pinkero, Prac. Reg. Com. Pleas, 156. 
 
 2 Haiton v. Jeffreys, 10 Modern Rep. 280; Ames' Cases, 6. 
 
 In Euer, System of Pleading (1771), p. 187, we find the state- 
 ment: "Also one may demur to a demurrer for the doubleness 
 of it; but otherwise if he who might demur does not demur to 
 it but joins in the demurrer." And in Regula Placitandi, 137 
 (2d Ed., 1694), we read: "A Demurrer is double when that he 
 that doth demur doth assign in his demurrer (for cause of it) 
 one Error in Fact and another Error in Law to be in the Plea 
 upon which he demurs which ought not to be done in one 
 Demurrer."
 
 DEMUBBEES. 71 
 
 to decide. No issue of fact was raised, and the delay 
 and expense incident to a jury trial were avoided. 
 
 96. The plea., on the other hand, was a pleading 
 exclusively adapted to the use of a defendant, and was 
 never used by the plaintiff except in the case of 
 replevin, reference to the peculiar nature of which 
 has already been made. 1 The effect of it was to raise 
 an issue of fact or present new matters of fact to the 
 court, which, unless the plaintiff stopped the course 
 of the action by a demurrer, had to be determined 
 upon a trial. 
 
 97. The office of the demurrer was to test the 
 sufficiency of the preceding pleading in point of sub- 
 stance and form. Whenever either party detected a 
 defect in the other's pleading, whether because (in the 
 case of the declaration) it did not show a sufficient 
 cause of action, or (in the case of the plea) an adequate 
 defense, or because it was framed in an informal man- 
 ner, an opportunity was presented to raise a question 
 of law for the court to determine. The means adopted 
 to bring the question before the court was the demurrer. 
 The form of it was as follows : 
 
 In the - (name of court). 
 
 The day of , in the year of 
 
 our Lord . 
 
 Title ] And the said defendant (or plaintiff), by 
 
 of [ , his attorney, says that the declara- 
 
 Action. J tion (or plea) is not sufficient in law. 
 
 i Ante, p. 53.
 
 72 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 The effect of this was as though the defendant had 
 said: "Admitting everything the plaintiff has alleged 
 in his declaration to be true, the facts do not show any 
 cause of action against me, or he has alleged them in 
 such an informal manner that he is not entitled to pro- 
 ceed with this action against me." 
 
 98. When either party had put in a demurrer, 
 the only thing for the other to do was to put in a 
 " joinder in demurrer," as it was called. This was in 
 the following form : 
 
 In the - - (name of court). 
 
 The -- day of - , in the year of 
 our Lord . 
 
 T^'fl "^ 
 
 ' And the plaintiff says that the declaration 
 of > 
 
 . . .is sufficient in Jaw. 
 
 Action. J 
 
 The question as to the sufficiency of the pleading 
 demurred to was thus presented to the court for a 
 determination. 
 
 99. Originally, there was but one form of de- 
 murrer. The effect of it was to bring up all questions 
 as to the sufficiency of the pleading both in form and 
 substance. The rule was a harsh one, however, as a 
 party was frequently thrown out of court upon some 
 technical defect in his pleading, which, as he had no 
 notice of the ground of the demurrer, he was not pre- 
 pared to meet. It was therefore provided by statute, 1 
 
 127 Eliz., Ch. V., 1 (1585).
 
 DEMURRERS. 73 
 
 " That from henceforth (1585), after demurrer joined 
 and entered in any action or suit in any court of record 
 within this realm, the judges shall proceed and give 
 judgment according as the very right of the cause and 
 matter in law shall appear unto them, without regard- 
 ing any imperfection, defect, or want of form in 
 any .... pleading, .... except those only which 
 the party demurring shall specially and particularly 
 set down and express, together with his demurrer." 
 
 100. As a result of this statute the special de- 
 murrer came into existence. It was the same as the 
 old form, with the addition at the end of a statement 
 of such defects in the form of the other's pleadings as 
 the party demurring proposed to object to. The old 
 form was still used where the party demurring desired 
 to call in question the substance only of the pleading, 
 but it was known as a general demurrer, to distinguish 
 it from its statutory offshoot, the special demurrer. 
 
 101. There is also what is referred to in some 
 of the books as a Demurrer to the evidence. With this 
 we are not concerned in a discussion of the pleadings 
 in an action or of those motions which have to do with 
 the pleadings, such as the motions in arrest of judg- 
 ment, non obstante veredicto, etc. The demurrer to 
 the evidence is, as its name implies, a different sort of 
 thing, and pertains to the evidence and not to the plead- 
 ings. It served a similar purpose, i. e., it called in 
 question the sufficiency of the evidence to establish the 
 claim of the plaintiff or defence of the defendant ad- 
 mitting all the evidence to be true. It was the per-
 
 74 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 cursor of the more modern motion to dismiss or motion 
 to direct a verdict. It was not a pleading, nor did it 
 relate to the pleadings. 1 
 
 102. At common law the judgment given upon 
 the demurrer was final, i. e., it disposed of the action. 
 If the demurrer was sustained and the pleading de- 
 murred to held insufficient, there was no opportunity 
 for the defeated party to amend and go on with the 
 action. If, on the contrary, the pleading was held 
 good and the demurrer overruled, the party demurring 
 was deemed to have had his chance in court, and as he 
 had chosen to rely upon some defect in the other's 
 pleading instead of answering the facts set forth, final 
 judgment was given against him. 2 It is customary 
 everywhere at the present time for the courts to allow 
 an amendment in case a pleading is held to be bad on 
 demurrer. 
 
 1O3. There was one exception to the rule that 
 final judgment would be given on a demurrer. It was 
 in the case of the plea in abatement. The plea in 
 abatement was, as will be seen later, 3 a dilatory plead- 
 ing, i. e., it was interposed solely for purposes of delay. 
 In case of a demurrer to a plea in abatement where 
 the demurrer was overruled, the judgment given in 
 favor of the defendant did not decide the case upon 
 its merits, and the plaintiff was at liberty to pursue 
 
 lEuer, System of Pleading (1771), p. 185. 
 
 2 State of Maine v. Peck, 60 Me. 498; Ames' Cases on Plead- 
 ing, 19. 
 
 3 Post, p. 95.
 
 DEMURRERS. 75 
 
 the action or bring another one later. 1 Therefore, in 
 case the demurrer was sustained, the court did not give 
 final judgment against the defendant. In such case 
 the judgment was known as a judgment of respondeat 
 ouster (let him answer over). Upon such judgment 
 the defendant was at liberty to put in another plea. 2 
 
 104. In the general sense of the word pleading, 
 a demurrer may be said to be a pleading, for it is one 
 of the means used by the parties to present the case 
 to the court for determination. 
 
 A demurrer, however, is not a plea. It has been 
 said to be " so far from being a plea that it is an excuse 
 for not pleading." 3 A statute, therefore, "which per- 
 mits the defendant to put in several distinct pleas, 
 does not authorize a party to put in a demurrer and 
 a plea at the same time. 4 There is an obscure case 
 in Jenkins' Century Cases, 133 (A. D. 1474), 5 in which 
 the plaintiff seems to have put in both a replication 
 and a demurrer to the plea, but it may be imperfectly 
 reported, and may not have been the exception to the 
 general rule which it appears. 
 
 T-Post, p. 96. 
 
 2 Walden v. Holman, 2 Lord Raymond, 1015; Ames' Cases, 5. 
 
 sHaiton v. Jeffreys, 10 Modern Rep. 280; Ames' Cases, 6. It 
 will be observed that the word pleading here is used synonymously 
 with putting in a plea. 
 
 * Statute of 4 Anne, Ch. XVI. 1, construed in Haiton v. Jef- 
 freys, supra-. 
 
 s J. S. of Dale v. J. S. of Vale, Ames' Cases, 1.
 
 76 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 SECTION I. GENERAL DEMURRERS. 
 
 105. A general demurrer before the statute of 
 27 Elizabeth, as has already been observed, tested the 
 sufficiency of a pleading both in substance and form. 
 A good illustration of this is found in the case of J. S. 
 of Dale v. J. S. of Vale, 1 which was in substance as 
 follows : 
 
 A v. X. Trespass for taking the plaintiff's goods. 
 X pleads that he (X) was possessed of the goods as 
 his own until A took them and gave them to the plain- 
 tiff. A demurs generally to the plea. Judgment for 
 A. The plea is bad. The statement that A took the 
 goods and gave them to the plaintiff is no more than 
 saying that the plaintiff took them, since A is in fact 
 the plaintiff, and therefore amounts to nothing. The 
 substance of the plea, therefore, is that the goods 
 belonged to X, the defendant. It was held that this 
 amounted to a general denial of the trespass, and hence 
 the form of the plea should have been not guilty. 
 
 1O6. Since the statute referred to, the office of 
 the general demurrer has been limited to matters of 
 substance entirely. It has been shown in the preced- 
 ing chapters what matters constitute the substance of 
 the declaration in the various forms of actions. These 
 matters all go to make up the cause of action, and if 
 the cause of action is imperfectly made out by reason 
 of the omission of any one or more of them, the result 
 will be that the declaration will be held to be bad upon 
 general demurrer. 
 
 1 Jenkins' Century Cases, 133 ; Ames' Cases, 1.
 
 DEMUKKERS. 77 
 
 107. As it is with the declaration, so it is with 
 the subsequent pleadings. They must contain matters 
 which, admitting them to be true, constitute a valid 
 answer to the facts set up in the preceding pleading, 
 otherwise they will be bad upon general demurrer. 
 
 108. But with matters of form the general de- 
 murrer, after the statute, had nothing to do. Matters 
 which constituted evidence of the falsity of the facts 
 set up in the preceding pleading, and which should 
 have properly been brought in as evidence under a 
 general denial of the wrongful act charged in the 
 declaration, or a specific traverse or denial of some fact 
 stated in the pleading, might be set out in full and no 
 objection could be made to it under a general demurrer. 
 
 1O9. There was, however, one exception to this 
 rule, and that was in the case of a plea in abatement. 
 Even after the statute of 27 Elizabeth which resulted 
 in limiting the use of general demurrers to matters of 
 substance, the courts found a way to preserve its full 
 scope in respect to the plea in abatement. It may 
 have been because in the case of a plea in abatement 
 judgment upon the demurrer was not final, and, there- 
 fore, an injustice, by reason of the party not being 
 informed of the defect upon which his adversary in- 
 tended to rely, was less likely to occur. Whatever may 
 be the reason, the fact remains that the court did not 
 apply the statute in the case of a demurrer to a plea 
 in abatement. The case of Walden v. Holman 1 is an 
 illustration in point. 
 
 i2 Ld. Raymond, 1015; Ames' Cases, 5.
 
 78 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 A v. X. The plaintiff describes the defendant in 
 his declaration by the name of John. The defendant 
 pleads in abatement that he was baptized by the name 
 of Benjamin, and then referring to himself adds a 
 denial, " That the same John was every known by the 
 name of John." The plaintiff demurs generally. 
 Plea held bad in form because of the addition of the 
 unintelligible denial. Chief Justice Holt says : " Mat- 
 ters of form may be taken advantage of on a general 
 demurrer when the plea only goes in abatement, for 
 the statute of Elizabeth only means that matters of 
 form in plea which goes to the action shall be helped 
 on a general demurrer." 
 
 110. It has been said before that a general de- 
 murrer is an admission of the facts stated in the plead- 
 ing demurred to. But the admission is solely for the 
 purpose of determining whether the facts are sufficient 
 in law, i. e., constitute a good cause of action. The 
 admission is not an admission for any other purpose, 
 and, therefore, cannot be used as evidence, against the 
 party demurring, in the same or any other action or 
 proceeding. The nature of the admission is shown in 
 the case of Barber v . Vincent. 1 
 
 A v. X. Action of Assumpsit for a horse sold to X. 
 X pleads infancy. A replies that the horse was a neces- 
 sary. X demurs generally. It was urged on the 
 defendant's part in the argument that an infant was 
 only chargeable for such necessaries as meat, drink, 
 etc. Demurrer overruled, and replication held good 
 on the ground the demurrer admitted the horse to be a 
 necessary. If the defendant had denied that the horse 
 was a necessary, then the question of what articles 
 
 i Freeman, 531 ; Ames' Cases, 3.
 
 DEMURKEBS. T9 
 
 came within the term necessaries would have been 
 material, but as he had demurred there was no room 
 for any argument on the point. 
 
 111. The admission of facts by a demurrer is 
 subject to four qualifications which are generally 
 recognized in the cases. 
 
 (1). A general demurrer does not admit what the 
 court, as a court, knows to be impossible or knows to 
 be untrue. This is for the reason that the court is 
 assumed to be an intelligent body, conversant with the 
 ordinary laws of nature and with all facts of a public 
 nature. 
 
 A v. X. Action of Trespass for assault and battery. 
 X pleads that A entered his land and broke and dis- 
 placed stones thereupon, and to stop him, he, X, threw 
 stones at him gently, and they fell upon him gently. 
 General demurrer. Plea held to be bad; the court 
 knows it to be impossible for stones to fall gently, 
 although admitted by the demurrer. 1 
 
 A v. X. Action for Account for 120 received by 
 X, belonging to A. Plea that X never received the 
 money on A's account. Upon the issue being tried 
 by the jury it is found that X did receive the money. 
 In the old action of account the practice was for the 
 defendant to plead anew before the auditory, as it 
 was called. The proceeding before the auditory or 
 auditors was practically a second stage of the same 
 action. X, in his plea before the auditory, again 
 pleaded that he did not receive the money on A's ac- 
 count. A demurred generally. Plea bad; the de- 
 murrer does not confess the facts stated in the plea, 
 
 1 Cole v. Maunder, 2 Rolles' Abridgment, 548 ; Ames' Cases, 2.
 
 80 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 for the court know them to be untrue, the jury having 
 found them such by its verdict. 1 
 
 112. A distinction, however, is made between 
 what the court as a judicial tribunal have knowledge 
 of, and what the judge or judges may know in their 
 private capacity. Although the judges, in their ca- 
 pacity as private citizens, may know certain facts stated 
 in the pleadings to be untrue, still if the subject is one 
 of which they cannot in their judicial capacity take 
 notice, on a demurrer they will have to regard them 
 as true. 
 
 A v. X. Action of Assumpsit on a bill of exchange. 
 A, in his declaration, bases his right to recover upon 
 an alleged special custom in London, which custom, 
 in fact, does not exist, and the court happens to know 
 it. X demurs to the declaration. Declaration held 
 good on the ground that the custom is admitted by the 
 demurrer. To understand this case, it should be noted 
 that a court cannot take judicial notice of a special local 
 custom; if it had been a general custom upon which 
 A based his right to recovery, the court could have taken 
 judicial notice of its existence. 2 
 
 113. (2). A general demurrer does not admit a 
 conclusion of law. It is not proper to allege in a 
 pleading a conclusion of law. It is for the court to 
 draw the necessary conclusions of law from the facts 
 stated in the pleading and proved at the trial, nor can 
 
 1 Tresham v. Ford, Croke's Eliz. 830 ; Ames' Cases, 2. 
 
 2 Hodges f. Steward, 3 Salkeld, 68; Ames' Cases, 3.
 
 DEMURRERS. 81 
 
 conclusions of law be denied by the other party. 1 As 
 it is improper, or at least superfluous, to allege a con- 
 clusion of law, and as it is no part of the cause of action 
 or defense, it will not be deemed admitted upon 
 demurrer. 
 
 A v. X. Action of Assumpsit. A alleges an agree- 
 ment between X and Y, to submit certain matters 
 between them relating to a partnership to arbitrators, 
 in which agreement it was provided that X should 
 pay such debts of the copartnership as the arbitrators 
 should find to be due, but A shows no consideration 
 between himself and X. He alleges an award by the 
 arbitrators whereby X was ordered to pay him, A, 
 $125, and that X " owes him $125, the sum so awarded 
 by said arbitrators." X demurs. Declaration held 
 bad, as it shows no valid contract between A and X. 
 The allegation that X owes A the money is a con- 
 clusion of law, and is not admitted by the demurrer. 2 
 
 Indictment v. X as X, Esquire. X pleads a mis- 
 nomer in abatement ; i. e., that he has been indicted 
 by a wrong title; that he is a lord. Replication that 
 B petitioned the House of Lords to be tried by it as a 
 lord, and that the petition was dismissed according to 
 the law of Parliament. X demurs. Replication held 
 bad. Whether or not the petition was dismissed ac- 
 cording to the law of Parliament is a conclusion of law, 
 and it is not admitted by the demurrer. 3 
 
 114. (3). A general demurrer does not admit an 
 immaterial allegation. If either party in his pleadings 
 inserts allegations which are immaterial, that is, are 
 
 1 Post, p. 127. 
 
 2 Millard v. Baldwin, 3 Gray, 484 ; Ames' Cases, 10. 
 
 3 Rex v. Knollys, 1 Ld. Raymond, 10; Aines' Cases, 4. 
 
 n
 
 82 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 not essential parts of the cause of action, or the defense, 
 as the case may be, he ca^i have no benefit from such 
 allegations, nor are they prejudicial to his adversary. 
 He does not have to prove them, nor can his adversary 
 deny them. It is held, therefore, that such allegations 
 will not be admitted by a demurrer. The question can 
 seldom become material, as there are few instances 
 where it would make any difference whether or not 
 they were deemed admitted. 
 
 There is one case, however, in which the matter has 
 become important, and that is where the immaterial 
 allegation is of some matter which may involve the 
 application of a statute. 
 
 A v. X. Action of Trespass, quare clausum fregit, 
 for $70 damages. A alleged in his declaration both 
 possession and ownership of the land. X demurred. 
 The declaration, for some reason which is not mate- 
 rial to the point in question, was held insufficient and 
 judgment given for X for $70. A appealed. X then 
 moved to remand the case to the lower court, under 
 a statute providing that actions were not appealable 
 where the demand for damages did not exceed seventy 
 dollars, and where no title was involved. It was con- 
 tended on behalf of A that as ownership was alleged in 
 the declaration and was admitted by the demurrer, title 
 was involved. Motion granted, as the allegation of 
 ownership was immaterial and was not admitted by 
 the demurrer. 1 
 
 115. (4). A general demurrer is not such an 
 admission of the facts as to make them evidence against 
 
 i Scovill v. Seeley, 14 Conn. 238; Ames' Cases, 9.
 
 DEMURRERS. 83 
 
 the party demurring, in the same or in another action 
 or proceeding. 
 
 A v. X. Action of Assumpsit for money had and 
 received. Plea, that X had used the money for a 
 particular purpose authorized by A. Formerly X had 
 brought an action against A, in which he had alleged 
 the fact of the application of the money for the same 
 purpose. In the former action A had demurred. 
 Upon the trial of the present action on behalf of X, 
 it was proposed to read the proceedings in the former 
 action as amounting to an admission by A of the facts 
 relating to the application of the moneys. The evidence 
 was excluded. Held, the demurrer did not admit the 
 facts for any purpose except to test the sufficiency of 
 the pleading demurred to. 1 
 
 A v. X. Action brought on a covenant to keep a 
 dam at a certain height. X pleads two pleas. On the 
 first plea issue is joined, and upon the trial found for 
 the plaintiff and damages given. To the second plea, 
 which claimed a prescriptive right to overflow the lands 
 of A, A demurs. X moves for a new trial on the 
 ground that the facts in the second plea having been 
 admitted by the demurrer, should have been considered 
 by the jury in giving damages. The motion was 
 denied. 2 
 
 SECTION II. SPECIAL DEMURRERS. 
 
 116. It has already been seen that as a result 
 of the statute of 27 Elizabeth, Ch. V., S. 1, a new 
 class of demurrers grew up known as Special Demur- 
 rers, and that after the statute formal defects in the 
 
 iTompkins r. Ashby, Moody & Malkin, 32; Ames' Cases, 6. 
 2 Stinson v. Gardiner, 33 Me. 94.
 
 84 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 pleadings could only be taken advantage of by this 
 kind of a demurrer. There is a statement by Holt, to 
 the effect that there were special demurrers at com- 
 mon law, though the kind of special demurrer to which 
 he seems to refer was one upon which " the party 
 could take advantage of no other defect in the plead- 
 ing but that which was specially assigned for cause 
 of his demurring." ! Since at common law, upon a 
 general demurrer, a party could take advantage of all 
 defects both in form and substance, it is not surprising 
 that no cases of the use of the special demurrer are 
 found. 
 
 117. The following cases illustrate the nature 
 of a special demurrer as fixed by the statute referred 
 to, and by the later statute of 4 Anrie, Ch. XVI., S. 
 1, in respect to its calling in question only those mat- 
 ters of form which are definitely stated in the 
 demurrer. 
 
 A v. X. Action of Trespass, quare clausum fregit. 
 The declaration alleges a trespass upon a certain day 
 in a certain close. X pleads that the trespass was com- 
 mitted at another day in another close. A demurs 
 generally. The plea is bad in form, as it amounts to 
 a denial of the trespass alleged, and should have been 
 not guilty, but in order to take advantage of this 
 defect A should have specially assigned it as the cause 
 for his demurrer, i. e., should have put in a special 
 demurrer. 2 
 
 A v. X. Action of Keplevin. X in his cognizance 3 
 
 1 Anonymous, 3 Salkeld, 122; Ames' Cases, 17. 
 
 2 King v. Eotliam, Freeman, 38; Ames' Cases, 16. 
 
 3 For explanation of this pleading in Replevin, see ante, p. 53.
 
 DEMURKEBS. 85 
 
 says that he seized the goods for rent as bailiff of I); 
 that the rent had been granted to one M, and, on his 
 death, descended to another M, " as his cousin and 
 heir, without showing how his cousin," and then traces 
 it by grant and otherwise to D. A demurs generally. 
 The question was whether the omission to show how 
 the rent descended from one M to another M was a 
 matter of form, which could only be taken advantage 
 of by special demurrer, or a matter of substance. It 
 was held that the cognizance was good, as the omis- 
 sion was a formal defect and could not be taken ad- 
 vantage of on a general demurrer. 1 
 
 118. A special demurrer, in addition to calling in 
 question such matters of form as are particularly 
 stated, has also all of the advantages of a general 
 demurrer. 2 It is held that " every special demurrer 
 includes a general one." 
 
 A v. X. Action of Debt 011 a bond. X pleads full 
 performance of the condition of the bond. A replies 
 that X was treasurer of the State for a certain period, 
 specifying it, and on certain days during said period 
 X as treasurer received sums of money belonging to 
 the State and did not account for any part of them. 
 X put in a special demurrer to the replication. The 
 court held that the special demurrer included a gen- 
 eral demurrer, and that as the replication was good 
 both in substance and form, final judgment could be 
 entered for the plaintiff, 3 in the usual way as upon a 
 general demurrer. 
 
 A v. X. Action of Trespass, quare clausum fregit. 
 A alleges in his declaration both possession and own- 
 
 i Heard v. Baskerville, Hobart, 232 ; Ames' Cases, 13. 
 
 zRegula Placitandi (2d Ed., 1694), 137. 
 
 s State of Maine v. Peck, 60 Me. 498 ; Ames' Cases, 19.
 
 86 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 ership. X as a plea puts in a denial of the ownership, 
 which is good in form. A demurs, specially assign- 
 ing as a cause some defect in form which does not in 
 fact exist. Though the demurrer would be overruled 
 as a special demurrer, nevertheless the demurrer is 
 sustained and judgment given for A. This is because 
 the special demurrer includes a general demurrer, and 
 the plea being a denial of an immaterial allegation, 
 is bad in substance. 
 
 119. The special demurrer at the present time 
 plays very little part in the proceedings in an action, 
 as it has almost everywhere been superseded by some 
 other method of taking exception to formal defects 
 in a pleading. It is customary, too, at the present 
 time for the court to allow either party to amend any 
 informality or technical defect in the pleading. 
 
 Statutory enactments provide various remedies in 
 case of pleadings which are improperly drawn or which 
 in any formal respect are objectionable. The most 
 common of these are motions which may be made by 
 the objecting party on notice to his adversary such 
 as a motion to strike out " irrelevant, redundant or 
 scandalous matter ; " ! a motion to require a pleading 
 to be made more definite and certain ; 2 a motion to 
 strike out a defense as sham 3 and the like. 
 
 1 N. Y. Code of Civil Proc., 545. 
 
 2 Id., 546. 
 
 3 Id., 538.
 
 DEMUEEEES. 87 
 
 SECTION III. EFFECT OF DEMUEBEK IN OPENING 
 THE RECOED. 
 
 120. There was a peculiarity about the demur- 
 rer which made it somewhat dangerous for a party to 
 use unless he was perfectly sure that his own plead- 
 ings were properly drawn. This peculiarity was the 
 effect which a demurrer had in opening the whole 
 record, so that the court began with an examination 
 of the declaration and took up successively eax;h. plead- 
 ing with respect to its sufficiency, and then gave judg- 
 ment against the party who had made the first mistake 
 without regard to which one had put in the demurrer. 1 
 
 A v. X. A brings an action of Debt on a bond as 
 temporary administrator of L during the minority of 
 the executor appointed by will, and alleges that such 
 executor is not yet twenty-one. X pleads a plea which 
 is insufficient in substance (the nature of the plea is 
 not shown). A demurs. Judgment is given for the 
 defendant, although his plea is bad, for the reason 
 that A's declaration is also bad, and the demurrer 
 opens the whole record. To understand why the 
 declaration is bad in substance, it is necessary to know 
 that the law, at the time of this case, was that tempo- 
 rary administration during minority of the regular 
 executor ceased when the executor became seventeen. 
 The plaintiff, therefore, by alleging that the executor 
 was under twenty-one, did not show a right to bring 
 the action. He should have alleged that the executor 
 was under seventeen. 2 
 
 i This principle is applicable today where the demurrer is- used 
 in systems of code pleading. Hasselbach f. Mount Sinai Hos- 
 pital, 173 App. Div. (N. Y.) 89. 
 
 zPiggot's Case, 5 Reports, 29 a; Ames' Cases, 22.
 
 88 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 A v. X. The action was in Debt on a bond, the 
 condition of which was the payment of money on a 
 certain day. X pleads payment of the money before 
 the day. A replies that X did not pay before the 
 day. X demurs. Judgment is given for the plain- 
 tiff. The first pleading which is insufficient is the 
 plea, and although the replication is insufficient also, 
 the judgment must be against the defendant on ac- 
 count of his bad plea. This case illustrates the tech- 
 nicality of the old law, which held that an allegation 
 of the payment of money before a certain day, where 
 the condition of the bond was payment upon such day, 
 was not an allegation of performance of the condition. 
 If X had pleaded payment on the day, and had shown 
 in evidence payment before the day, it would have 
 been held sufficient proof of the allegation. 1 
 
 121. Where the record is opened by a demurrer, 
 the court examines the pleading only for defects in 
 substance. As defects in form could only be taken 
 advantage of by means of a special demurrer, a party 
 who did not demur specially to the pleading of his 
 adversary was considered to have waived any infor- 
 malities in the pleading, and had no further chance 
 to take exception to such defects. 
 
 A 17. X. Action of Trespass, quare clausum fregit. 
 X pleads matters which amount to a denial of A's 
 possession, and which should, therefore, have been 
 pleaded under a specific denial of the possession. A 
 replies by denying an immaterial allegation in the 
 plea. X demurs specially. The first defect is on the 
 part of the defendant in not pleading a specific denial 
 of the possession, but this is only a formal defect, and, 
 
 i Anonymous, 2 Wilson, 150; Ames' Cases, 24.
 
 DEMURRERS. 89 
 
 therefore, cannot be noticed. The first defect in sub- 
 stance is in the replication. Judgment is, therefore, 
 given for the defendant. 
 
 122. It has been said that a demurrer opens the 
 whole record. This does not mean the whole record 
 of the case, but only that portion which the demurrer 
 terminates, and which, in reality, constitutes a sepa- 
 rate and complete record by itself. 
 
 It often happens that there are several records in 
 the same suit, one of which may terminate in an issue 
 of fact to be tried by a jury; another in an issue of 
 law to be decided by the court. The latter is the 
 case where there is a demurrer. 
 
 To give a specific instance of this, there may, for 
 example, be two pleas to a declaration ; 1 to one of 
 them the plaintiff may demur, and upon the other he 
 may join issue; there are, then, two records for the 
 court to determine the case upon. That they are en- 
 tirely separate is shown by the fact that what is stated 
 in the pleadings of one record cannot be introduced 
 to affect judgment on the other. 
 
 A v. X. X sold out his business to A and agreed 
 not to carry on the same business within a certain 
 limit. A brings an action of Assumpsit for breach of 
 the agreement by X in carrying on the same business 
 within the prohibited locality. X pleads (1) that A 
 did not perform his part of the agreement, but in 
 such a manner as to make the plea bad in substance; 
 
 i Although at common law the defendant could put in but one 
 plea, this rule was subsequently changed by statute. See ante, 
 p. 75, note 4.
 
 90 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 (2) as a set-off against anything A might recover, 
 that A was indebted to the defendant in the sum 
 of $500. A demurs to the first plea, and replies to 
 the second that he became a bankrupt and had pro- 
 cured his discharge from his debts. Upon the argu- 
 ment upon the demurrer, X claims that the replica- 
 tion of bankruptcy made to the second plea shows 
 that A had no right to bring the action, but that it 
 should have been brought by his assignee; that as this 
 appeared from the record, judgment on the demurrer 
 must go against A. It was held, however, that the 
 declaration, plea number one, and the demurrer con- 
 stituted a separate record from the declaration, plea 
 number two, and the replication, and that as the mat- 
 ter of bankruptcy appeared only in the second record, 
 it would not affect the questions raised on demurrer. 
 Littledale, J., says: "We must treat the count, plea, 
 and replication, and the count, plea, and demurrer, 
 as distinct records, and give judgment upon each with- 
 out reference to the other." Judgment was given for 
 the plaintiff on the demurrer. 1 
 
 123. It is to be observed, however, that the fact 
 of there being two separate records will not prevent 
 the court from holding the declaration to be bad, if it 
 appears upon the face of the declaration that it does 
 not state a sufficient cause of action, and if one of the 
 records terminates in a demurrer so that the record is 
 opened. This is so even though the other record start- 
 ing with the same declaration may have terminated 
 with an issue of fact to be tried by the jury. 
 
 A v. X. Action of Assumpsit for certain instal- 
 ments due upon stock subscribed for by X. The facts 
 
 iDavies v. Penton, 6 B. & C. 216; Ames' Casee, 28.
 
 DEMUEEEES. 91 
 
 as alleged in the declaration were insufficient to con- 
 stitute a cause of action. X pleads (1) non-assumpsit, 
 upon which issue is joined; (2) that there is no such 
 corporation as A. To the second plea A puts in a 
 replication setting forth the act incorporating itself. 
 X demurred to the replication. Judgment was given 
 for X upon the ground that the declaration was bad 
 in substance. 1 
 
 124. There is one exception to the rule that a 
 demurrer opens the whole record. This is in the case 
 of a plea in abatement. Upon a demurrer to this 
 kind of plea the sufficiency of the plea alone is con- 
 sidered. . This exception may have resulted from the 
 fact that the defendant, in case judgment went against 
 him upon a demurrer to his plea in abatement, had a 
 chance to answer the declaration a second time either 
 by way of plea or demurrer, and was, therefore, de- 
 prived of no privilege by the demurrer being confined 
 to his plea. 
 
 A v. X. Action upon the case for beer and wages. 
 The cause of action was insufficiently set forth. X 
 put in a plea in abatement which was insufficient in 
 substance. A demurred. X insisted that the first 
 fault or defect was in A's declaration, and that judg- 
 ment should be given for him (X) ; but it was held 
 that " The defendant shall not take advantage of mis- 
 takes in the declaration upon a plea in abatement; 
 but if he would do that he must demur to the decla- 
 ration. Per quod a respondeas ouster was awarded." 2 
 
 1 Auburn & Owasco Canal Co. v. Leitch, 4 Denio, 65 ; Ames* 
 Cases, 31. 
 
 2 Hastrop v. Hastings, 1 Salkeld, 212 ; Ames' Cases, 24.
 
 92 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 125. Although a demurrer opens up the whole 
 record, and the court examines all of the pleadings 
 with a view to giving judgment in favor of the party 
 who appears upon the allegations in the pleadings to 
 be in the right, yet it will not give judgment for a 
 plaintiff upon any claim or cause of action which does 
 not appear in the plaintiff's declaration, even though 
 it may appear in the subsequent pleading. The plain- 
 tiff is supposed to know his own cause of action and to 
 allege that upon which he seeks a recovery. 
 
 A v. X. The action was upon a covenant to abide 
 by an award and not to hinder its being made, but the 
 breach alleged was simply non-performance of the 
 award. X pleads that before the arbitrators made 
 the award he revoked their authority (which, if true, 
 would render the award void). A demurs, and claims 
 judgment on the ground that X admits in his plea a 
 breach of the covenant not to hinder the award being 
 made. Judgment was given for X on the ground that 
 A had not alleged as a cause of action the breach of 
 the covenant not to hinder the award, but only of the 
 covenant to abide by the award, and the plea was a 
 good defense to the breach alleged. 1 
 
 126. There is another seeming exception to the 
 rule that a demurrer opens up the whole record. 
 
 The plaintiff might by a failure to take advantage 
 of a defect in the defendant's pleadings put himself 
 in a position where he could not claim the benefits of 
 the rule that a demurrer opens the whole record. This 
 was the case where an action was brought against 
 several defendants and one of them failed to appear. 
 
 i Marsh v. Bulteel, 5 B. & Aid. 507 ; Ames' Cases, 26.
 
 DEMUEBEBS. 93 
 
 The proper course for the plaintiff in such a contin- 
 gency was to apply for judgment against the party in 
 default, and proceed with the action against those who 
 appeared and pleaded. If the plaintiff did not do this 
 he was said to have made a discontinuance, and could 
 not demand judgment in case of any subsequent 
 demurrer. 
 
 A v. X, Y, and Z. Action of Assumpsit. X and 
 Y plead a debt of record due to them from A by way 
 of set-off. Z does not appear. A replies, no such 
 record, but fails to ask judgment by default against 
 Z. X and Y demur. A insists that the first fault is 
 in the plea, which is no answer to his demand against 
 the three defendants, X, Y, and Z. Judgment, how- 
 ever, is given for the defendants X and Y, on the 
 ground that A, having made a discontinuance, is prac- 
 tically out of court and cannot demand judgment. 1 
 
 i Tippet v. May, 1 Bos. & P. 411; Ames' Cases, 25.
 
 94: PRINCIPLES OF COMMON-LAW PLEADING. 
 
 CHAPTER II. 
 
 DILATORY PLEAS. 
 
 127. The demurrer, it has been seen, was a 
 method by which the defendant could avoid putting 
 in an answer to the merits of the cause of action alleged 
 against him, and obtain a determination of the suit 
 solely upon the plaintiff's statement of the case. The 
 real facts may or may not have constituted a good cause 
 of action, and the defendant may or may not have had 
 a good defense. These questions were immaterial. If 
 the plaintiff had failed to make his cause of action 
 appear upon the face of his declaration, or had drawn 
 such declaration in an informal manner, the defendant, 
 without going into the question of the real facts of the 
 matter, could, by general or special demurrer, defeat 
 the plaintiff's suit. But it was only for a fault which 
 appeared upon the face of the declaration that the 
 defendant could demur. If there were other mistakes 
 which the plaintiff had made in the bringing of his 
 action, or in his declaration, which did not appear upon 
 the face of the declaration, the defendant could not 
 take advantage of them by a demurrer. 
 
 128. There was a method, however, by which he 
 could bring them to the attention of the court, namely, 
 by the use of a dilatory plea. 
 
 The object of this plea was to put a stop to the par- 
 ticular action brought, either temporarily by having it
 
 DILATORY PLEAS. 95 
 
 adjourned or suspended indefinitely, or permanently by 
 having the declaration abated. 
 
 The effect from the plaintiff's standpoint was, in 
 the case of a suspension of the action, that he could 
 proceed with the suit at some future time, when the 
 reason which constituted the ground of the dilatory plea 
 had ceased to exist ; in the case of the abatement of the 
 action, that he could commence anew in the same court, 
 or, if the ground of the plea was lack of jurisdiction, 
 in another court which had jurisdiction. 
 
 129. It was characteristic of the dilatory plea 
 that to have the benefit of it the defendant must use it 
 at once. He could not put in a regular plea and then, 
 discovering there existed ground for a dilatory plea, 
 seek to take advantage of it at a later stage in the action. 
 Where, for example, a plaintiff in his declaration de- 
 scribed his name as James, and on the trial it appeared 
 his name was Jacob, it was held that defendant was 
 precluded from taking advantage of the misnomer on 
 a motion in arrest of judgment. 1 
 
 130. Dilatory pleas may be divided into three 
 general classes, in respect to the effect which they have 
 upon the disposition of the action: (1). Pleas to the 
 jurisdiction of the court. (2). Pleas in suspension of 
 the action. (3). Pleas in abatement. 
 
 131. '(1). The plea to the jurisdiction of the 
 court was in substance a statement that the plaintiff 
 
 lAldredge v. Wood, Pract. Reg., p. 7.
 
 96 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 had commenced his action in the wrong court, either 
 because the court had no jurisdiction of the subject- 
 matter of the action or of the parties thereto, and that 
 on that account the defendant ought not to be com- 
 pelled to plead. A judgment for the defendant upon 
 a plea to the jurisdiction was a virtual ending of the 
 suit, as far as the particular court in which it was 
 brought was concerned. 
 
 132. (2). The plea in suspension was a plea 
 which showed matter, such as the excommunication or 
 outlawry of the plaintiff, by reason of which he was not 
 entitled to prosecute the action at the time. A judg- 
 ment for the defendant upon such a plea amounted 
 practically to an adjournment of the case indefinitely. 
 In the language of the time, it was that he " go quit 
 without day," but the action was not abated, and upon 
 an ending of the disability by pardon, the plaintiff 
 could proceed with the action. 1 
 
 133. (3). The term plea in abatement has been 
 quite generally used as synonymous with the term 
 dilatory pica. 2 This use of the term is inaccurate, as 
 there is a very substantial difference between the plea 
 in abatement and the other dilatory pleas. While the 
 plea to the jurisdiction, if successful, disposes of the 
 case entirely as far as the particular court is concerned, 
 and the pica in suspension merely suspends the progress 
 of the suit temporarily, the plea in abatement occupies 
 a middle ground between the two. Its effect, if suc- 
 
 1 ComynS' Digest, title Abatement, E. 7, 6. 
 
 2 Ibid., B. 1.
 
 DILATORY PLEAS. 97 
 
 cessful, is to dispose of the particular suit, but the 
 plaintiff may commence anew upon the same cause of 
 action in the same court, only being careful to avoid 
 the mistake which caused the abating of his former suit. 
 
 134. The dilatory plea, it has been said above, 
 set up new affirmative matter. It was held that to 
 justify the court in acting upon such matter there must 
 be some guarantee of its truth. Hence an affidavit of 
 truth was required to be submitted with the dilatory 
 plea, and if the defendant failed to accompany his plea 
 with such affidavit of truth the plaintiff could disregard 
 the plea and enter his judgment. 1 
 
 135. Neither the plea to the jurisdiction nor the 
 plea in suspension were so generally used as the plea 
 in abatement. The last was at common law a very 
 important plea. 
 
 The dilatory plea, while it provided a means, like 
 the demurrer, by which the defendant could avoid 
 answering to the cause of action set forth in the decla- 
 ration, differed from the demurrer in several important 
 features. 
 
 (a). It could be demurred to or pleaded to by the 
 plaintiff. In itself it was a plea which set up new 
 affirmative matter; and, though that matter did not 
 relate to the merits of plaintiff's cause of action, it was 
 material upon the question of whether or not the plain- 
 tiff's suit should be thrown out entirely from the 
 
 i Wilson v. Palmer, Practical Register of the Common Pleas, 
 p. 4. 
 
 7
 
 98 PRINCIPLES OP COMMON-LAW PLEADING. 
 
 particular court in which the plaintiff had begun it, or 
 suspended, or abated. Such matter could, therefore, 
 be denied or answered by new matter on the plaintiff's 
 part, or it could be demurred to. 
 
 (6). Judgment upon the dilatory plea was not final, 
 as in the case of judgment upon a demurrer; it did 
 not determine the case upon the merits. Mention has 
 already been made of the fact that the plaintiff could, 
 upon judgment against him upon a dilatory plea, 
 either begin the action again in another court, proceed 
 with it in the same court at a later date, or begin anew 
 in the same court. 1 In the case of the demurrer he 
 could do no one of these things, as judgment ended the 
 case once for all. 
 
 136. Dilatory pleas, and more especially the class 
 properly called pleas in abatement, seem to have been 
 very widely used at common law. They must have 
 been looked upon with great favor by the lawyers and 
 with no very marked disfavor by the courts. It is 
 often said that the rules respecting demurrers to dila- 
 tory pleas show that the courts sought to discourage the 
 use of them, 2 but the manner in which the pleas were 
 
 1 Ante, p. ffs. 
 
 2 The fact that the courts did not give final judgment against 
 the defendant in case a demurrer to his plea in abatement was 
 sustained, as they might have done if they had wished to discour- 
 age the plea, seems a stronger piece of evidence that the plea 
 was looked upon with favor, than the fact that a general de- 
 murrer to a plea in abatement tested matters of form as well as 
 of substance, is of the contrary assertion. In fact, since the courts 
 allowed the defendant to plead again if his plea in abatement was 
 held bad, there was no hardship at all in holding that a general
 
 DILATORY PLEAS. 99 
 
 used, and abused, seems hardly to bear out this state- 
 ment. It was not the courts, but the legislature, which 
 was finally compelled to step in and limit their effect 
 by statutory provision. 1 The modern attitude of 
 courts is unfriendly to the use of this class of pleas. 2 
 
 137. Besides the division of dilatory pleas into 
 the three general classes above mentioned, each class 
 may be subdivided with respect to the matter which 
 is alleged as the ground of the plea, so that the whole 
 classification will be as follows: 
 
 demurrer should cover both matters of substance and form. The 
 statutory provision that a party demurring because of matters 
 of form should specify the defects he relied upon, was enacted to 
 relieve the hardship which often resulted from a final judgment 
 being given against a party upon some technical point which he 
 waa not prepared to meet. As no final judgment was given 
 against the defendant upon a plea in abatement there was no 
 need for the application of the statutory provision. 
 
 iThe statute of 3 & 4 William IV., c. 42, s. 11, abolished a 
 Very large class of pleas in abatement, to wit, those of misnomer 
 in abatement; section 8 of the same statute greatly limited the 
 use of the plea in abatement for non-joinder of parties defendant. 
 
 2Scheeline v. Mosher, 158 Pac. 222.
 
 100 
 
 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 Dilatory 
 Pleas. 
 
 
 ( A) . On account of the subject mat- 
 ter of the action. 
 
 (1). Pleas to the 
 jurisdiction 
 of the court "* 
 
 (B).On account ( (a) Plaintiff, 
 of the par- -j 
 ties to the [ ( 6 ) . Defendant, 
 suit. 
 
 (2). Pleas in 
 
 (A). On account of temporary dis- 
 ability of the plaintiff. 
 
 suspension 
 of the ac- 
 tion. 
 
 ( B ) . On account of temporary dis- 
 ability of defendant. 
 
 
 r (A). On account f (a) Plaintiff, 
 of disabil- -j 
 
 
 ity of the [ (6) . Defendant, 
 parties. 
 
 
 (B).On account of defects in the 
 count or declaration. 
 
 (3). Pleas in< 
 abatement. 
 
 
 (a) . In the form 
 of the 
 
 
 (C) . On account 
 of defects 
 
 writ. 
 
 
 in the 
 writ. 
 
 ( 5 ) . In the ac- 
 tion of the 
 
 
 ; 
 
 writ. 
 
 138. Some of the more common matters which 
 were made the ground of pleas in abatement were: 
 (1) the non-existence of the plaintiff, as where ho was a 
 fictitious person; (2) the death of the plaintiff; (3) 
 the non-joinder of a necessary party; (4) a misnomer 
 of the plaintiff or the defendant in the writ or decla- 
 ration; (5) the pendency of another action for the 
 same cause. 1 
 
 1 Acts required by statutes as conditions of maintaining actions 
 are often the grounds of the modern pleas in abatement, e. g., the 
 filing of a opy of its certificate by a corporation. Cal. Savings 
 & Loan Soc. v. Harris, 111 Cal. 133. It is to be noted that the prin- 
 ciples established by the Common-Law System of pleading are
 
 DILATORY PLEAS. 101 
 
 139. There was one rule which was applied to 
 all pleas in abatement, and that was that the plea 
 must furnish the plaintiff with materials for avoiding in 
 another action the mistake which was made the ground 
 of the plea. Thus, if the plea was for the reason that 
 the plaintiff had not joined a necessary party, it was 
 essential for the plea to name such party; if for a 
 misnomer, it was necessary for the plea to give the 
 correct name. 
 
 14O. The following is an example of a plea in 
 abatement for a misnomer: 
 
 In the Common Pleas, 
 
 - Term, 5 George IV. 
 John Smith, sued by the 
 
 name of Henry Smith, 
 
 ats. 
 James Jones. 
 
 And John Smith, against whom the said James 
 Jones hath issued his said writ, and declared thereon, 
 by the name of Henry Smith, comes and says that he 
 is named and called by the name of John Smith, and 
 by that name and surname hath always since the time 
 of his nativity hitherto been named and called; with- 
 out this that he the said John Smith now is or ever was 
 named or called by the name of Henry, as by the said 
 writ and declaration thereon founded is supposed. 
 And this he the said John Smith is ready to verify, 
 wherefore he prays judgment of the said writ and 
 declaration thereon founded, and that the same may be 
 quashed, etc. 
 
 still enforced wherever the courts have to deal with this sort of 
 plea.
 
 102 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 CHAPTER III. 
 
 PLEAS BY WAY OF CONFESSION AND AVOIDANCE 
 
 141. If a defendant decided that there were no 
 defects in the declaration which would be ground for 
 a demurrer, and if he knew of no reason which would 
 be good cause for a dilatory plea, or if, having put in 
 such a plea, he had been unsuccessful, then it was 
 necessary for him to put in a plea which would answer 
 the cause of action alleged against him. Such a plea 
 was known as a plea in bar. 
 
 There were two classes of pleas in bar which were 
 open to him : ( 1 ) pleas by way of confession and avoid- 
 ance; (2) pleas by way of traverse. 
 
 142. The plea by way of confession and avoid- 
 ance is what its name implies i. e., a plea which con- 
 fesses the truth of the facts alleged in the declaration 
 and seeks to avoid the consequences of them by alleging 
 other facts which show that the defendant should not 
 be held liable. These new facts constituted what was 
 known as affirmative matter, and hence the pleas of this 
 sort are frequently called affirmative pleas. 
 
 143. A plea by way of traverse was in its nature 
 a denial of some one fact or of all the facts set up in 
 the plaintiff's declaration. The word traverse is syn- 
 onymous with the word denial. This class of pleas 
 will be noticed more fully in the fourth chapter. A
 
 PLEAS BY WAY OF CONFESSION AND AVOIDANCE. 103 
 
 good illustration of the form of a plea by way of con- 
 fession and avoidance is shown by the following: 
 
 (Plea of infancy to an action of debt.) 
 
 "And the said X, by , his attorney, comes and 
 
 defends the wrong and injury, when, etc., and says 
 that he ought not to be charged with the said debt by 
 virtue of the said supposed contract. Because, he says, 
 that he, the said X, at the time of the making of the 
 said supposed contract in the said declaration men- 
 tioned, was an infant within the age of twenty-one 
 
 years, to wit, of the age of years, to wit, at, etc., 
 
 aforesaid; and this he the said X is ready to verify: 
 wherefore he prays judgment if he ought to be charged 
 w r ith the said debt, by virtue of the said supposed 
 contract, etc." 
 
 144. It will be noticed that the plea concludes 
 with the words, " and this he the said X is ready to 
 verify." This conclusion was known as a verification. 
 
 All pleas by way of confession and avoidance must 
 conclude in this manner. 1 An omission of this verifi- 
 cation would be a defect in form which could be taken 
 advantage of by a special demurrer. 
 
 145. It was in early times the practice for the 
 defendant to confess the facts alleged in the declaration 
 by a formal admission of them at the beginning of his 
 plea. Later it was held that an implied confession 
 was sufficient. It is doubtful if a formal confession 
 was ever necessary to the substantial validity of the 
 
 iGoodchild v. Pledge, 1 M. & W. 363; Ames' Cases, 37.
 
 104 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 plea. In the following case it was treated as a formal 
 defect only : 
 
 A v. X. Action of Debt upon a simple contract. 
 X pleads that he was discharged under the Insolvent 
 Debtors' Act " from the debts and causes of action 
 if any, and each and every of them." A demurs, 
 specially assigning for a cause that the plea does not 
 confess the cause of action. The plea was held to be 
 bad in form, and judgment given for the plaintiff. 1 
 
 146. It was, however, finally established that no 
 confession of the facts, direct or indirect, is necessary 
 in a plea by way of confession and avoidance, upon 
 the theory that whatever a party does not deny, he 
 admits, for the purposes of the action at least. 
 
 A v. X. Action of Trespass for assault and battery. 
 X pleads that " if any hurt or damage happened or 
 was occasioned " to A, it was by reason of X necessarily 
 defending himself. Special demurrer, assigning for 
 a cause that the plea does not sufficiently confess the 
 assault and battery. It was held that the plea was a 
 sufficient confession, and judgment given for defendant. 2 
 
 147. At the present time it is customary, in a 
 plea by way of confession and avoidance, to state simply 
 the facts which the defendant relies upon to relieve 
 him from responsibility for the act alleged in the decla- 
 ration as the plaintiff's cause of action. The form of 
 the plea is therefore a statement of the facts, with an 
 offer to verify them. If the plea is demurred to, the 
 
 1 Gould r. Lasbury, 1 C. M. & E. 254; Ames' Cases, 34. 
 
 2 Wise r. Hodsall, 11 A. & E. 816; Ames' Cases, 59.
 
 PLEAS BY WAY OF CONFESSION AND AVOIDANCE. 105 
 
 court will assume that the facts stated in the declaration 
 are true, as they are not denied by the plea, and will 
 determine whether the facts stated in the plea constitute 
 a good defense. 
 
 148. Pleas by way of confession and avoidance 
 are of two kinds : 
 
 ( 1 ) . Pleas in discharge. 
 
 (2). Pleas in excuse. 
 
 The distinction between the two kinds is expressed 
 in their names. 
 
 SECTION I. PLEAS IN DISCHARGE. 
 
 149. A plea in discharge is one which not only 
 admits the facts stated in the declaration to be true, 
 but also that the plaintiff at one time had a good cause 
 of action against the defendant upon such facts, and 
 then alleges new matter which shows that the cause of 
 action no longer exists. This new matter is called 
 matter in discharge. 
 
 15O. The most common forms of pleas in dis- 
 charge are the following: 
 
 (1). Pleas of payment, 1 i. e., that the defendant 
 has paid the debt or sum of money sued for. 
 
 (2). Pleas of release. 2 Founded upon a release 
 claimed to have been given by the plaintiff to the 
 defendant. 
 
 1 Goodchild r. Pledge, 1 M. & W. 363 ; Ames' Cases, 37. 
 
 2 Brooks v. Stewart, 9 A. & E. 854.
 
 106 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 (3). Plea of bankruptcy. 1 A special plea founded 
 upon the provision for the discharge of the debtor, 
 usually contained in bankruptcy or insolvency statutes. 
 
 (4). Plea of statute of limitations. 2 A plea founded 
 upon the statute requiring actions to be brought within 
 a certain time. 
 
 SECTION II. PLEAS IN EXCUSE. 
 
 151. A plea in excuse confesses the facts stated 
 in the declaration to be true, and then alleges other 
 facts which, together with the facts stated in the decla- 
 ration, show that the cause of action, which the plaintiff 
 has alleged, does not exist. 
 
 152. Pleas in excuse cannot be divided into 
 regular classes, as the matter set up necessarily varies 
 according to the state of facts in each case. The use 
 of this plea, however, differs somewhat in the different 
 forms of actions, and it will be well to examine it with 
 respect to each. 
 
 153. In general it may be said that the plea in 
 excuse, in each form of action in which it is used, 
 admits such statements of fact as form the substance of 
 the declaration. 
 
 (a). Special Assumpsit. 
 
 154. In special assumpsit a plea in excuse admits 
 the contract, i. e,., the promise and consideration, and 
 
 i Gould v. Laubury, 1 C. M. & R. 254 ; Ames' Cases, 34. 
 zEavestaff v. Russell, 10 M. & W. 365; Ames' Cases, 38.
 
 PLEAS BY WAY OF CONFESSION AND AVOIDANCE. 107 
 
 also the breach, in the form in which these matters are 
 alleged in the declaration, and then sets up facts which 
 show that the breach was not wrongful, and that there 
 is no cause of action in favor of the plaintiff and no 
 liability on the part of the defendant therefor. 
 
 155. For example, a collateral agreement or stip- 
 ulation bj which the defendant limited his liability for 
 breach of a contract to a certain time or to a certain 
 amount may be set up by a plea in excuse. 
 
 A v. X. Action of assumpsit on a warranty of the 
 soundness of a horse sold by X to A. A in his declara- 
 tion alleges the warranty and the breach thereof, in 
 that the horse was not sound. X pleads that the horse 
 was sold at auction subject to certain rules, one of 
 which was that the seller should be relieved of all 
 liability on a warranty unless notice of unsoundness 
 was given before noon of the day after the sale. 
 Special demurrer, assigning for cause that the plea 
 amounts to a general denial of the contract, since it 
 shows that the contract was not as stated in the declara- 
 tion, and should have been pleaded under non assump- 
 sit. The plea is held good, for the reason that it states 
 a collateral agreement or stipulation. 1 
 
 156. It is sometimes difficult to distinguish be- 
 tween a collateral agreement and matter which consti- 
 tutes a part of the principal agreement. This does not, 
 however, belong strictly to the subject of pleading. 
 When the pleader has determined whether certain 
 matter is a collateral stipulation or is a part of the 
 
 i Smart v. Hyde, 8 M. 4 W. 723 ; Ames' Cases, 42.
 
 108 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 principal agreement, he may then, in drawing his plea, 
 apply the rule that, if it is a collateral stipulation, it 
 may be pleaded in excuse, as shown by the above illus- 
 tration, while if it is a part of the principal agreement, 
 it cannot be pleaded in excuse. The following is an 
 illustration of the latter proposition : 
 
 A v. X. Action of assumpsit, upon an agreement by 
 X to carry goods safely. X pleads in excuse an ex- 
 press condition in the contract to the effect that A was 
 to walk behind the cart and watch the goods, and that 
 A refused to do so. Special demurrer, assigning for 
 cause that the plea amounts to a general denial of the 
 contract alleged in the declaration, and that non assump- 
 sit should have been pleaded. The plea is held bad 
 upon the ground assigned. 1 
 
 157. Where a defendant wishes to show that 
 some part of the contract affecting his liability, for 
 example, a condition precedent, has been omitted in 
 the statement of the contract in the declaration, or that 
 the real contract between himself and the plaintiff is 
 different in any other respect from that stated in the 
 declaration, he cannot set it up as matter in excuse. 
 
 A v. X. Action of assumpsit. A alleges in his 
 declaration that X agreed to buy from him a certain 
 lease of a farm and to pay for the fixtures, manure, 
 etc., left on the farm; that same were worth 1000, 
 and that X refused to pay. X pleads that the actual 
 agreement was that A, on receipt of the payment for 
 the lease, was to execute and deliver an assignment of 
 same and put plaintiff in possession, which he failed 
 
 i Brind v. Dale, 2 M. & W. 775 ; Ames' Cases, 40.
 
 PLEAS BY WAY OF CONFESSION AND AVOIDANCE. 109 
 
 to do. Special demurrer on the ground plea amounts 
 to non assumpsit. The plea is bad for the cause 
 assigned. 1 
 
 158. If the defendant wishes to show that there 
 was no consideration for the contract alleged in the 
 declaration, it is clear that he cannot set it up by a 
 plea in excuse; for a statement that there was no con- 
 sideration is practically a denial of the existence of a 
 contract. 
 
 A v. X. Action of assumpsit. A alleges in his 
 declaration that X, in consideration that A would em- 
 ploy C as a collecting clerk, guaranteed the honesty 
 of C to the extent of 500 ; that A employed C, who 
 stole a large amount of money; that X had notice 
 thereof, but had refused to pay A. X pleads that A 
 had already hired C before X guaranteed C's honesty. 
 Special demurrer. The plea is bad, as it amounts to 
 non assumpsit. If A had hired C before X promised, 
 there was no consideration for the promise, and hence 
 no contract. 2 
 
 (&). General Assumpsit. 
 
 159. In the action of general assumpsit a plea 
 in excuse admits the facts which show the existence of 
 a debt, the implied promise based on such debt, and 
 the breach or non-payment of the debt, and then sets 
 
 iNash v. Breeze, 11 M. & W. 352. In this case, Parke, B., 
 says : " I think the plea ig bad ; for it certainly qualifies the 
 contract stated in the declaration, and introduces a new condi- 
 tion into it, and therefore amounts to the general issue." See, 
 also, Sieveking v. Button, 3 C. B. 331. 
 
 aLyall v. Higgins, 4 Q. B. 528; Ames' Cases, 46.
 
 110 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 up other facts which show that the non-payment of the 
 debt was justifiable, and that the defendant is not liable 
 therefor. 
 
 160. If the defendant wishes to set up as a de- 
 fense that the facts alleged in the declaration to con- 
 stitute the debt are not true, for example, where the 
 work done by the plaintiff was not what the defendant 
 requested, he cannot plead this in excuse. 
 
 A v. X. Action of indebitatus assumpsit for work 
 done by A for X in fixing a chimney. X pleads that 
 the understanding was that A was to do the work in 
 such a manner as to prevent the chimney from smoking, 
 which he has not done. Special demurrer, assigning 
 for cause that the plea amounts to a denial of the debt. 
 The plea is bad for the cause assigned. It is in effect 
 a denial that A did the work requested, and if this were 
 so no debt arose. 1 
 
 161. It has been seen 2 that, in the form of action 
 known as general assumpsit, the plaintiff recovers upon 
 a promise, which the law implies, to pay a debt which 
 is shown by the facts alleged in the declaration to exist. 
 It is laid down as a rule that the law will not imply a 
 promise until it is needed, and that as a result of this 
 rule, in a case where credit is given, there is no implied 
 promise until the credit expires. Hence, where the 
 defendant wishes to set up, for example, that the goods, 
 for the price of which the suit is brought, were sold to 
 him upon credit, and that the credit has not expired, 
 
 iHayselden v. Staff, 5 A. & E. 153; Ames' Cases, 50. 
 2 Ante, p. 27.
 
 PLEAS BY WAY OF CONFESSION AND AVOIDANCE. Ill 
 
 he cannot do it by a plea in excuse, as it amounts to a 
 denial of the implied promise. 
 
 A v. X. For goods sold and delivered. X alleges 
 as a defense " that the goods were sold on a credit of 
 four months, which term had not expired at the time 
 the action was commenced." This plea is equivalent 
 to a general denial and would be bad on special de- 
 murrer. 1 
 
 162. Where the defendant wishes to show that 
 the contract was not as alleged by plaintiff, but was a 
 special one, he should not plead in excuse, for he is in 
 effect denying the implied promise and may show the 
 special contract under the general issue. 
 
 A v. X. For money paid out to the use of the de- 
 fendant. X pleads that he entered into a contract with 
 A by which the money paid out was to be paid under 
 certain conditions which had not been complied with. 
 The plea is bad as amounting to the general issue. 2 
 
 (c). Debt. 
 
 163. In the action of debt, a plea in excuse ad- 
 mits the subject-matter of the debt, whether it be the 
 sale of goods or the performance of work at the request 
 of the defendant, a bond, a statute, or a judgment, and 
 then sets up matter which shows that the defendant's 
 failure to pay the debt is justifiable. 
 
 1 Claflin v. Baere, 28 Hun, 204. 
 
 2 Morgan v. Pebrer, 4 Scott, 230. Tindal, C. J., at p. 243: 
 " What is that in effect but saying that the parties had entered 
 into a special contract at variance with the implied contract 
 declared upon; non-assumpsit would put in issue all the facts 
 from which the promise alleged might be implied by law."
 
 112 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 164. A debt being a sum of money owing from 
 the defendant to the plaintiff, it exists as soon as that 
 is given or done upon which it is founded. Thus, if 
 goods are delivered to the defendant by the plaintiff 
 at the defendant's request, a debt exists immediately 
 upon the delivery, although a credit is given for their 
 payment. So, if a bond is executed by the defendant, 
 conditioned for the performance of work or the pay- 
 ment of a sum of money upon a certain day, a debt 
 exists immediately upon the execution and delivery of 
 the bond. In the former case the plaintiff cannot bring 
 an action upon the debt at once because of the agree- 
 ment as to credit, and in the latter case the defendant 
 will not be liable, in an action in debt, until the time is 
 up for the performance of the condition. In both cases, 
 if an action is begun by the plaintiff, the defendant will 
 have a good defense, not in the denial of the debt, but 
 in justifying its non-payment by pleading in excuse 
 that credit has not expired, or that the time for per- 
 formance of the condition has not expired. 
 
 165. It will be noticed that in respect to the 
 
 pleading of credit not expired as a defense to the 
 
 plaintiff's claim, the action of debt differs from the 
 action of general assumpsit. 
 
 (d). Trespass. 
 
 166. In the action of trespass for injury to the 
 person, a plea in excuse admits the commission of the 
 act alleged, and sets up matter to show that the defend- 
 ant was justified in committing the act; for example,
 
 PLEAS BY WAY OF CONFESSION AND AVOIDANCE. 113 
 
 in trespass for assault and battery, that he did it in 
 self-defense. 1 
 
 167. In the action of trespass for injury to prop- 
 erty, personal or real, a plea in excuse admits the posses- 
 sion of the property to be in the plaintiff as alleged in 
 the declaration, and the commission of the act of inter- 
 ference upon which the plaintiff bases his cause of 
 action, and then sets up matter to show that the defend- 
 ant's act was rightful. 
 
 This matter is usually something which shows that 
 the defendant had an interest in the property, to which 
 the plaintiff's possession was subject, so that the defend- 
 ant had the right to deal with the property as he 
 pleased ; or something which shows that, although the 
 plaintiff's possession of the property was rightful, still 
 the defendant's act of interference was justified by the 
 circumstances which attended it. 
 
 168. The most common plea in excuse where the 
 injury complained of is to the person, is that of self- 
 defense, known technically as son assault demesne (his 
 own assault first). 
 
 A v. X. Action of trespass for assault and battery. 
 X pleads that at the time of the injury complained of 
 in the declaration, the plaintiff A assaulted the defend- 
 ant X, wherefore X defended himself as he lawfully 
 might, and that if A suffered any injury, the same was 
 occasioned by reason of A's assault upon X. Special 
 demurrer, assigning for cause that the plea amounts to 
 
 iWise v. Hodsall, 11 A. & E. 816; Ames' Cases, 59. 
 8
 
 114 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 a denial of the commission of the act by X. The matter 
 is correctly pleaded in excuse. 1 
 
 169. Where the injury complained of is to per- 
 sonal property, perhaps the most common plea in ex- 
 cuse is oivnersliip in the defendant. If the defendant 
 is the absolute owner of the goods, he has the right 
 to the immediate possession of them, and any act of 
 interference with them, although they may be in the 
 actual possession of the plaintiff, is rightful. 
 
 17O. Where the injury complained of is to real 
 property, a common plea in excuse is that technically 
 known as the plea of 1'iberum tenemerilum, i. e., that 
 the property is the defendant's own freehold. 
 
 171. It sometimes happens that the defendant 
 wishes to show, as matter of defense, that the alleged 
 trespass was committed by him involuntarily. In such 
 case he is virtually in the position of denying the com- 
 mission of the act by himself as a responsible being. 
 He is only the instrument used by some one else in the 
 commission of the wrongful act. Where the defendant 
 relies upon such a defense as this, he cannot set it up 
 in excuse. 
 
 In the case, of which the next illustration is a synop- 
 sis, it is said : " If A takes the hand of B and with it 
 strikes C, A is the trespasser and not B," and the court, 
 by its decision upon the facts before it, evidently ap- 
 proved this statement. If B had been sued in trespass, 
 he should have pleaded not guilty. 
 
 iWisc v. Hodsall, 11 A. & E. 816; Ames' Cases, 59.
 
 PLEAS BY WAY OF CONFESSION AND AVOIDANCE. 115 
 
 172. If the defendant wishes to show that the 
 act, alleged as a trespass committed by him, was some 
 act over which he had no control and could not have 
 prevented, he cannot plead in excuse, for an act, which 
 he cannot control or prevent, is not his act. 
 
 A v. X. Action of trespass for assault and battery. 
 X pleads that his horse ran away without any fault of 
 his, that he was unable to stop him, and that he ran 
 into the plaintiff against his will. Special demurrer. 
 The plea is bad, as it amounts to a denial of the com- 
 mission of the trespass, and not guilty should have been 
 pleaded. 1 
 
 173, Sometimes several acts of trespass are al- 
 leged in a declaration as the ground of the action. In 
 such a case a plea in excuse must justify all of the acts 
 or it will be bad upon demurrer. This is upon the 
 principle that, as a plea in excuse is a confession of such 
 acts as it does not justify, the plaintiff's cause of action 
 is admitted, and he is entitled to judgment. 
 
 A v. X. Action of trespass quare clausum fregit. 
 A alleges in his declaration that X, together with cer- 
 tain cattle, broke into A's close and trod down the grass, 
 etc. X pleads in excuse that he went upon the land to 
 look after the cattle by command of his master, who 
 had a right of common in said land. General demurrer. 
 The plea is bad, for, while it admits the trespass by 
 means of the cattle as well as that committed by X, it 
 justifies only the trespass committed by X. 2 
 
 1 Gibbons v. Pepper, 1 Ld. Raymond, 387 ; Ames' Cases, 58. 
 
 2 Earl of Manchester v. Vale, 1 Saunders, 27 ; Ames' Cases, 56.
 
 116 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 (e). Trover. 
 
 174. The nature of ike action of Trover has 
 already been explained. 1 It has been seen that an 
 essential part of the cause of action alleged in the 
 declaration is the wrongfulness of the defendant's act, 
 and that, unless the plaintiff can prove the act to be 
 wrongful, it does not amount to a conversion. It results 
 from this that, in this action, there is no room for a 
 plea in excuse. To admit the conversion would be to 
 admit the wrongfulness of the act, and the defendant 
 cannot consistently admit the act to be wrongful and 
 then go on to excuse it. 
 
 A v. X. Action of Trover brought by A, as assignee 
 of Y, a bankrupt, for the conversion of goods possessed 
 by Y before his bankruptcy. X pleads that he recov- 
 ered a judgment against Y, and the goods were seized 
 by the sheriff under his judgment at his request. Spe- 
 cial demurrer. The plea is bad, as it sets up matter 
 which tends to show that the act of X was not wrongful. 
 This amounts to a denial of the conversion, and X 
 should have pleaded not guilty. 2 
 
 175. The matters of defense which can be set 
 up by the defendant in an action of trover can really 
 consist of but two classes those which show that the 
 defendant's act was not wrongful, and those which show 
 that the plaintiff had no possession, or right of posses- 
 sion, of the goods. It will sometimes happen that the 
 same facts may show that the act of the defendant was 
 
 i Ante, page 38. 
 
 * Young v. Cooper, 6 Exchequer, 259 ; Ames' Cases, 63.
 
 PLEAS BY WAY OF CONFESSION AND AVOIDANCE. 117 
 
 not wrongful, and also that the plaintiff had no posses- 
 sion, or right of possession, in the goods. 1 The last 
 illustration shows that matters of the former class can- 
 not be pleaded in excuse, and it is equally true that 
 matters which show that the plaintiff has no possession, 
 or right of possession, cannot be pleaded in excuse. 
 
 A v. X. Action of Trover for certain goods. X 
 pleads in excuse that the goods were left with him to 
 secure the payment of a sum of money for board fur- 
 nished by him to A. Special demurrer. The plea is 
 bad, as it amounts to a denial of A's right of possession, 
 and X should have pleaded a specific traverse of the 
 possession or right of possession. 2 
 
 176. The plea in discharge is as available in the 
 action of Trover as in any other action, for this plea 
 always admits the wrongful acts alleged and the 
 plaintiff's cause of action thereon, but shows that the 
 action no longer exists. 
 
 (/). Detinue. 
 
 177. In the action of detinue a plea in excuse 
 would admit the plaintiff's right of possession and the 
 detaining of the goods by the defendant. By detain- 
 ing is meant, not the passive act of keeping the goods 
 where no right to their possession has been asserted by 
 the plaintiff, but a positive act of detention where the 
 circumstances are such that there 'is an obligation on 
 the part of the defendant to deliver them up. 3 
 
 iPost, page 143-144. 
 
 zDorrington v. Carter, 1 Exchequer, 566; Ames' Cases, 61. 
 
 3 Clements v. Flight, 16 M. & W. 42; Ames' Cases, 66. Pol-
 
 118 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 It would therefore seem that there was little room 
 in the action of detinue for a plea in excuse. 
 
 178. The right of possession on the part of the 
 plaintiff is the basis of the action. Matter which shows 
 a right to detain the goods on the part of the defendant 
 is practically a denial of the plaintiff's right of posses- 
 sion, and in such case a plea of not possessed should be 
 used. The authorities, however, hold that where the 
 defendant claims a lien on the goods he must plead it 
 in excuse. 1 
 
 179. Where the defendant relies for his defense 
 upon the fact that he offered to give the goods up to 
 the plaintiff, he cannot plead it in excuse. If he 
 offered to give the goods up when the plaintiff demanded 
 them, he did not detain them. The matter, therefore, 
 is in no sense an excuse for a detention on the defend- 
 ant's part. 
 
 lock, C. B., in the opinion, says, referring to several definitions of 
 the word detention : " We are satisfied that the last ( that the 
 defendant holds the goods and prevents the plaintiff from having 
 the possession of them) is the true meaning of the word detain; 
 if it meant the mere keeping possession, not adverse, how could 
 such a possession form the ground of an action? If it meant 
 that the defendant had omitted, and still omitted, to be active in 
 bringing the goods to the plaintiff, the action could not be main- 
 tained without showing an obligation by contract to do so. We 
 have no doubt, therefore, that the detention complained of is an, 
 adverse detention." 
 
 i Mason v. Farnell, 12 M. & W. 674. The case of Lane V. 
 Tewson, 1 Gale & D. 584; Ames' Cases, 112, which held that a 
 lien could be given in evidence under a plea that the goods were 
 not the goods of the plaintiff, although correct in principle, does 
 not represent the law.
 
 PLEAS BY WAY OF CONFESSION AND AVOIDANCE. 119 
 
 A v. X. Action of Detinue. A alleges in his 
 declaration that X detained certain papers belonging 
 to A. X pleads that he tendered the papers to A. A 
 demurs specially, assigning for a cause that the plea 
 amounts to a denial of the detention. The plea is bad 
 for the cause assigned. X should have pleaded that he 
 did not detain the goods, the technical plea for which is 
 non detinet. 1 
 
 ((/). Replevin. 
 
 180. In the action of Replevin there is strictly 
 no plea by way of confession and avoidance in excuse. 
 The avowry or cognizance has some of the character- 
 istics of this plea ; it confesses the taking, and justifies 
 it by showing the defendant's right to the chattels ; but 
 it is more like a declaration than a plea, and, upon the 
 facts showing the defendant's right, prays for affirm- 
 ative relief. There was one case, however, where the 
 plea in excuse was said to be allowable: when the 
 defendant relied upon the fact that the property in the 
 chattels was in himself or in a stranger at the time of 
 the seizure, he was permitted to plead this fact in a 
 plea by way of confession and avoidance. 2 It was 
 usual, however, to plead this matter by a plea in abate- 
 ment. This defense really formed the ground of a 
 claim for the return of the chattels, and a prayer for 
 such relief was added, 3 so that it appears to have been 
 more like the avowry in its similarity to a declaration, 
 than like a plea. 
 
 iPost, page 136. 
 
 2 Bullet's Nisi Prius, 54. 
 
 s Chitty, Pleading, 1044.
 
 120 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 (7i). Case. 
 
 181. In the action on the case, for the same 
 reason as in the action of trover and that of detinue, 
 the plea in excuse plays an unimportant part. As has 
 been shown, the substance of the declaration consists of 
 a statement of such facts as are sufficient to show the 
 plaintiff's right in respect to the subject of the action, 
 sometimes called the inducement, and a statement of 
 the wrongful acts committed by the defendant. A plea 
 in excuse, if used, would admit the substance of the 
 declaration ; if that is admitted the defendant has prac- 
 tically confessed the wrong and precluded himself from 
 any defense, except matter in discharge. 
 
 182. Most of the facts which, generally speaking, 
 may be regarded as excusing or justifying the alleged 
 wrongful acts are really matters which show that the 
 acts are not wrongful and may be shown in evidence, 
 as will be seen later, under the plea of not guilty. 
 
 183. There is one case, however, where the plea 
 in excuse is available to the defendant. This is in 
 an action upon a case for slander or libel. Where the 
 defendant proposes to defend the action by proving the 
 truth of the slanderous or libellous words, he may set 
 it up by plea in excuse. In fact, to avail himself of 
 this defense it is the generally accepted rule that he 
 must set it up by plea in excuse. 1 
 
 i If the action for libel or slander is an action upon the case 
 and the rule be applied that the general issue is a denial of all 
 material allegations which make up the statement of the wrong,
 
 PLEAS BY WAY OF CONFESSION AND AVOIDANCE. 121 
 
 184. A notion formerly prevailed that it was a 
 good justification or plea in excuse to an action of 
 slander or libel, that the defendant had spoken or 
 written the words complained of as the words of an- 
 other. This, however, is not good law, and a plea in 
 excuse, alleging such matter as a justification, will be 
 held bad in substance upon a general demurrer. 
 
 A v. X. Action upon the case for slander. A al- 
 leges in his declaration that X maliciously said and 
 published concerning A that A had been arrested. X 
 pleads that the same time that he said that A had been 
 arrested, he also said he had been told so by W. A 
 demurs generally. The plea is bad in substance, as it 
 contains no proper excuse. 1 
 
 185. In an action upon the case for malicious 
 prosecution, the fact that the defendant had reasonable 
 and probable cause for the prosecution of the plaintiff 
 
 then there would seem to be no logical reason why the Courts 
 should have excepted from the denial the allegation of falsity. 
 Yet the actions of libel and slander are two of the earliest forms 
 of case, and it may well be there had begun to crystallize about 
 them technical rules 1 which had their origin not in the logic of 
 the situation but in the convenience of the pleader, the Court 
 or the Jury in trying the issues. Perhaps there were deemed to 
 be enough separate issues which could be availed of under the 
 plea of not guilty (the defendant under it might show not only 
 that he did not make the libellous statement, but any excuse 
 euch as that it was a privileged communication) and that it 
 would simplify the trial if the parties and the court might know 
 by the pleadings in case the defendant proposed to prove the 
 truth of the words. Thus we see a rule of convenience grafted 
 upon the system of pleading at the expense of consistency. Yet 
 the results in this case cannot be said to be bad. 
 
 i McPherson v. Daniels, 10 B. & C. 263 ; Ames' Cases, 69.
 
 122 PKINCIPLES OF COMMON-LAW PLEADING. 
 
 cannot be pleaded in excuse. In this action, the gist 
 of the wrongful act alleged is its maliciousness; and 
 maliciousness, in legal contemplation, is lack of reason- 
 able and probable cause. Therefore to allege reasonable 
 and probable cause is to deny the wrongful act which 
 is the basis of the action, and it is in no sense matter 
 in excuse. 
 
 A v. X. Action upon the case for malicious prose- 
 cution. X pleads two pleas : ( 1 ) not guilty ; (2) that 
 it is true that he caused the indictment to be brought 
 against A, but that he had reasonable and probable 
 cause. A moves to strike out the second plea. The 
 motion is granted, as the second plea amounts to the 
 same as the first, and the existence of reasonable and 
 probable cause can be shown in evidence under the first 
 plea. 1 
 
 186. In an action upon the case for damages 
 occasioned by negligence, the defendant cannot set up 
 contributory negligence upon the part of the plaintiff 
 by a plea in excuse. If the plaintiff was guilty of 
 contributory negligence, the defendant's negligence is 
 not in contemplation of law the cause of the injury to 
 the plaintiff, and therefore not a wrongful act as far as 
 the plaintiff is concerned. It does not, therefore, in 
 any sense excuse or justify the wrongful act alleged as 
 the basis of the action. 
 
 A v. X. Action upon the case. A alleges in his 
 declaration that X negligently ran its train into the 
 train upon which A was travelling, whereby A was 
 injured. X pleads that A's injury was caused by neg- 
 
 i Cotton v. Browne, 3 A. & E. 312; Ames' Cases, 71.
 
 PLEAS BY WAY OF CONFESSION AND AVOIDANCE. 123 
 
 ligence on the part of the managers of A's train. Spe- 
 cial demurrer, assigning for cause that the plea is an 
 argumentative denial of the wrongful act. The plea 
 is held bad for the cause assigned. X should have 
 pleaded not guilty. 1 
 
 187. In an action upon the case against a com- 
 mon carrier for the loss of goods entrusted to his care, 
 if the defendant wishes to show, as a defense, that the 
 goods were accepted by him subject to certain conditions 
 which were not complied with, he is virtually denying 
 the bailment as it is alleged in the declaration. Now 
 the bailment is the basis of the plaintiff's right to sue 
 the defendant for the wrongful act or omission which 
 has resulted in injury to, or loss of, the goods. It 
 connects the plaintiff with the goods of which the de- 
 fendant has actual and rightful possession, in such a 
 way as to show that he has an interest which can be 
 the subject of injury, and concerning which he can 
 assert his general right to the undisturbed enjoyment 
 of his property. Such matter as this, or any matter 
 which tends to show that the plaintiff is not connected 
 with the property in such a way as to bring an action 
 concerning it, must be given in evidence under a plea 
 denying the bailment, and cannot be pleaded in excuse. 
 
 A v. X. Action upon the case. A alleges in his 
 declaration that he delivered to X, a common carrier, 
 certain goods to be carried to Dublin, and alleges that 
 X did not safely carry the goods, but by its negligence 
 lost them. X pleads that it gave notice to A that it 
 
 i Bridge v. Grand Junction Ry. Co., 3 M. & W. 244; Ames' 
 Cases, 73.
 
 124 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 would not be responsible for the loss of goods unless the 
 contents were declared at the time of delivery; that A 
 failed to declare the contents, and that X therefore 
 never became responsible for the safety of the goods. 
 Special demurrer, assigning for cause that the plea was 
 an argumentative denial of the bailment. Judgment is 
 given for the plaintiff. The plea should have been a 
 traverse of the bailment and not, as it was, in the form 
 of a plea in excuse. 1 
 
 (i). Ejectment. 
 
 188. It has already been explained 2 that in the 
 action of ejectment, the real defendant was only per- 
 mitted to come in and defend the action upon certain 
 conditions, one of which was that he should plead the 
 general issue i. e., not guilty and on the trial 
 admit everything except the plaintiff's title. It re- 
 sulted from this that there was no room in this action 
 for any plea in excuse. 3 
 
 1 Crouch v. London & N. W. Ry. Co., 7 Exchequer, 705 ; Ames' 
 Cases, 75. 
 
 2 Ante, page 67. 
 
 3 By leave of the court, the defendant was sometimes permitted 
 to put in a dilatory plea to the jurisdiction of the court. Adams 
 on Ejectment, 241.
 
 PLEAS BY WAY OF TRAVERSE. 125 
 
 CHAPTEK IV. 
 
 PLEAS BY WAY OF TRAVERSE 
 
 SECTION I. GENERAL REQUISITES. 
 
 189. The word traverse has been used heretofore, 
 although no explanation has been given of its meaning. 
 It is synonymous with the word denial. Where the 
 defendant intends to rely for his defense upon the fact 
 that the allegations contained in the declaration as to 
 the subject-matter of the action are untrue, he must put 
 in the plea known as a traverse. The traverse must 
 meet the particular allegations which the pleader 
 expects to prove untrue. 
 
 190. Before taking up in detail the different 
 kinds of traverses, of which there are many, several 
 general principles applicable to all traverses should be 
 noticed. 
 
 (1). Traverses are usually negative in form, though 
 they may be expressed in affirmative terms, as when 
 opposed to preceding negative allegations, e. g., ^repli- 
 cation by way of traverse to a plea of the statute of 
 limitations. 
 
 191. (2). It may be laid down as a rule that 
 traverses must be expressed in terms of direct denial, 
 and not be indirect or argumentative in character. 
 The statement of facts, which are inconsistent with 
 the truth of an allegation in the preceding pleading, is
 
 126 PKINCIPLES OF COMMON-LAW PLEADING. 
 
 an indirect denial of such, allegation. This is what is 
 known as an argumentative denial. A traverse framed 
 in this way will be bad on special demurrer. There is 
 one exception to this rule, in the special traverse, which 
 will be explained later. 
 
 192. (3). Traverses must always end with what 
 is known as a tender of issue ; that is, an expression in 
 formal terms of the traversing party's willingness for 
 a trial by the jury of the matter denied. This is called 
 concluding " to the country." The following form 
 illustrates the manner in which, a traverse is drawn : 
 
 In the King's Bench, 
 
 Term, 5th George IV. 
 
 John Doe ] 
 
 ads. } 
 
 Richard Roe. J 
 
 And the said John Doe, by , his attorney, 
 
 comes and defends the force and injury when, etc., 
 and saith that he is not guilty of the said supposed 
 trespasses above laid to his charge, or any part thereof, 
 in manner and form as the said Richard Roe hath 
 above thereof complained against him. And of this he, 
 the said John Doe, puts himself upon the country, 
 etc. 
 
 193. (4). When a traverse, in a proper form, is 
 put in by either party, the other, if he does not demur, 
 must join issue, i. e., he must state his willingness 
 also to go before the jury with the matter. This is 
 spoken of technically as a joinder of issue. Neither 
 another traverse, nor matter by way of confession and 
 avoidance, can be pleaded to a traverse.
 
 PLEAS BY WAY OF TEA VERSE. 127 
 
 194. (5). A traverse must always be confined to 
 allegations of fact contained in the pleading of the 
 opposite party. A conclusion of law, or as it is some- 
 times known, matter of law, cannot be traversed. 
 
 A v. X. Action of case for slander. A alleges in 
 his declaration that X called A a " false thief," to his 
 great damage. X traverses that A was " damnified " 
 by the words spoken. General demurrer. The plea 
 is bad. It is a conclusion of law that one is injured 
 by being charged with a crime. It is a principle in 
 the law of slander and libel, that words charging an- 
 other with a crime are actionable per se f and no dam> 
 ages need be proved. 1 
 
 A v. X. Action of replevin for taking cattle. X 
 avows the taking, and says that she leased and re-leased 
 certain land to A (an old method of conveying land), 
 reserving rent and power of distress, by virtue of 
 which said lease and re-lease A became seised in fee, 
 and that X distrained for rent in arrear. A denies 
 that he entered and was seised in fee by virtue of the 
 lease and re-lease. General demurrer. The plea is 
 bad ; the seisin resulting from a lease and re-lease is a 
 conclusion of law. 2 
 
 A v. X. Action of replevin for taking goods. X 
 avows the taking of the goods as the property of M. 
 A in his plea 3 alleges a prior taking, by himself as 
 sheriff, by virtue of a writ issued against M. X in his 
 replication denies that A lawfully held the goods by 
 virtue of the writ. General demurrer. The replica- 
 is bad, as it denies a conclusion of law. 4 
 
 1 Russell's Case, Dyer, 26 b, pi. 171; Ames' Cases, 77. 
 
 2 Grills v. Mannell, Willes, 378 ; Ames 3 Cases, 86. 
 
 3 Note the usual names of the pleadings postponed one stage. 
 < Foshay v. Riche, 2 Hill, 247 ; Ames' Cases, 89.
 
 128 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 195. (6). Matters of fact which are immaterial 
 to the substance of a pleading cannot be traversed. 
 
 A v. X. Action of ejectment. X claims under 
 copy granted in 1602. A replies that his title is un- 
 der copy granted June 1, 1601. X for rejoinder 
 traverses that the Queen granted to A on June 1, 1601, 
 General demurrer. Rejoinder held bad, as putting in 
 issue an immaterial point, namely, the exact day when 
 the copy was granted. 1 
 
 A v. X. Action of trespass for assault and battery. 
 X pleads he, at the command of the sheriff, helped him 
 to defend himself against A. A traverses the command. 
 General demurrer. The plea is bad, as a traverse of an 
 immaterial point. X had a right to help the sheriff 
 without his command. 2 
 
 A v. X. Action of detinue. X traverses the deliv- 
 ery of the goods to him. General demurrer. The plea 
 is bad ; the delivery is immaterial. 3 
 
 196. (7). It sometimes happened that matter, 
 which constituted a good plea in excuse, apparently 
 formed a traverse, because of the fact that the plaintiff 
 alleged in his declaration immaterial facts which were 
 contradictory to the facts contained in the plea. The 
 ingenious point was then raised that the plea was a 
 traverse of immaterial matter, and therefore bad, but 
 the courts were prompt to hold that a party could not, 
 by inserting in his pleadings allegations which were not 
 
 1 Lane v. Alexander, Cro. Jac. 202 ; Ames' Cases, 79. 
 
 2 Bridgewater v. Bythway, 3 Lev. 113; Ames' Cases, 82. 
 Walker v, Jones, 2 Cr. & M. 672 ; Ames' Cases, 89.
 
 PLEAS BY WAY OF TRAVERSE. 129 
 
 necessary, turn a plea otherwise good into one that was 
 bad on demurrer. 4 
 
 A v. X. Action of debt against X as sheriff for 
 allowing debtor to escape (a sheriff was prima, facie 
 
 * A recent example of the application of this principle, but on 
 a motion to strike out instead of on demurrer, may be found in 
 the case of De St. Aubin v. Guenther, 232 Fed. 411 (U. S. Dist. 
 Court). The motion was to strike out a traverse contained in a 
 reply to a counterclaim set up in the defendant's answer. The 
 traverse was of an allegation that the defendant had no knowl- 
 edge and gave no consent to the plaintiff's conduct which was 
 made the basis of the counterclaim. As it was an allegation 
 which negatived a defense which the reply set up, or as the 
 court called it, an " anticipatory traverse," it was out of place 
 and immaterial so far as the declaration was concerned. The 
 reply in excuse was a good reply in excuse and the addition 
 of a specific traverse of this immaterial allegation, it was held, 
 did not make the reply objectionable; the court therefore re- 
 fused to strike out the specific traverse of this immaterial alle- 
 gation. 
 
 The court, per Learned Hand, J., says : A difficulty faces a pleader, 
 however, when the opposite party has already incorporated a 
 traverse of a possible plea in avoidance in his own pleading 
 " leapt before he came to the stile." If he leaves unanswered 
 such an assertion, though it is not really an allegation at all 
 (i. e., a material allegation?), he hazards it being taken as 
 such; indeed, he might strike it out, for it has no proper place 
 in the first pleading. However, being placed in this position 
 through the fault of the first pleader it surely serves to con- 
 venience if he be allowed to couple a traverse of this antici- 
 patory traverse along with the plea which the anticipatory 
 traverse has denied. Pullen r. Seaboard Trading Co., 165 App. 
 Div. 117. The result is indeed amorphous and racks the soul of 
 a conscientious pleader, because there is strictly no place for a 
 traverse in a plea (in excuse?) at law at all, at least where the 
 original pleading is not alternative or double. Courts do not, 
 however, value so much as formerly their logical integrity, and 
 if the result be convenient, no harm is done." 
 
 9
 
 130 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 liable on the escape of a debtor). A alleges in his 
 declaration that X let him escape voluntarily. X 
 pleads that he re-took him upon fresh pursuit. Special 
 demurrer, because the plea amounts to a traverse of the 
 voluntary escape. The plea is a good plea in excuse; 
 the allegation of voluntary escape was immaterial, and 
 the fact that A alleged it in his declaration, and that 
 it was contradictory to the matter in plea, will not turn 
 a good plea in excuse into a bad traverse. 1 
 
 A v. X. Action of assumpsit. A alleges X was of 
 full age. X pleads he was an infant. Special demur- 
 rer, assigning for cause that the plea is a traverse of 
 immaterial matter. The plea is good ; it is no traverse, 
 for reasons stated above. 
 
 197. (8). In the statement of the facts consti- 
 tuting his cause of action or defense, a party sometimes 
 so mingles material with immaterial matter that it is im- 
 possible to separate them. In such case a traverse may 
 of necessity cover both, and will not on this account be 
 bad on demurrer. 
 
 A v. X. Action of replevin for taking cattle. X, 
 as bailiff, acknowledges the taking, and says he took 
 them damage-feasant in the freehold of L. A pleads he 
 was seized in fee of a close adjoining L's close, and had 
 right of common in L's close. X denies that A was 
 seised in fee of the adjoining close. General demurrer. 
 The replication is good. Seisin in fee is immaterial, 
 but since A has not alleged possession, except by the 
 allegation of seisin in fee, the whole may be traversed. 2 
 
 198. (9). A party traversing, must not by his 
 traverse compel his opponent to prove more than would 
 
 1 Sir Ralph Bovy's Cae, 1 Vent. 217; Ames' Cases, 81. 
 
 2 Sir Francis Leke's Case, Dyer, 365, pi. 32 ; Ames' Cases, 78.
 
 PLEAS BY WAY OF TRAVERSE. 131 
 
 otherwise be necessary in order to sustain his case. A 
 traverse of an exact sum where proof of a part is suf- 
 ficient to sustain the cause of action or defense, is an 
 illustration of this. 
 
 A v. X. Action of debt on a bond ; conditioned for 
 the payment of 1,550. X pleads part of the sum, to 
 wit, 1,500, was won in gaming. (If any part was 
 won in this way the bond would be void.) A traverses 
 that 1,500 was won in gaming. General demurrer. 
 The replication is bad; X cannot join issue without 
 proving more than is necessary to defend himself. 1 
 
 The same principle is applicable where one trav- 
 erses in the conjunctive instead of the disjunctive. 
 
 A v. X. Action of Assumpsit on a policy of insur- 
 ance. A alleges that certain property insured by X, 
 consisting of ship and tackle and other furniture, were 
 lost. X traverses that the ship and tackle and other 
 furniture were lost. General demurrer. The plea is 
 bad. A cannot join issue without proving that every- 
 thing was lost ; whereas, if he proves part he is entitled 
 to recover. 2 
 
 In an action upon a covenant for quiet enjoyment, 
 it has been sought to apply this rule to a traverse of 
 the " ouster de praemissis." But such a traverse is 
 good, because it does not compel the plaintiff to prove 
 an ouster from the whole premises. 
 
 A v. X. Action of covenant upon a covenant for 
 quiet enjoyment, contained in a deed. A alleges X 
 ousted him from the premises. X denies that he 
 ousted him from the premises. General demurrer. 
 
 1 Colburne r. Stockdale, 1 Strange, 493; Ames' Cases, 85. 
 
 2 Goram v. Sweeting, 2 Saunders, 205 ; Ames' Cases, 79.
 
 132 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 The plea is good, as A may join issue and support his 
 case by proving an ouster from any part. 1 
 
 199. (10). A traverse must not be taken to mat- 
 ter not in the other party's pleading, but may to what is 
 necessarily implied in it. 
 
 A v. X. Action of replevin for taking cattle. X 
 avows he was seised of the locus in quo and took the 
 cattle damage-feasant. A traverses that X was sole 
 seised, i. e., seised alone. General demurrer. A's 
 plea is good, for the seisin claimed in the avowry, as 
 no one else is mentioned as jointly seised with A, 
 necessarily means sole seisin. 2 
 
 SECTION II. CLASSIFICATION OF TKAVEKSES. 
 
 200. Pleadings by way of traverse are divided 
 into several classes, according to their scope and the 
 manner in which they are framed. 
 
 As there are pleas by way of traverse (or denial), 
 so there are replications by way of traverse, rejoinders 
 by way of traverse, etc. Traverses include all plead- 
 ings by way of denial, whether made by the defendant 
 or the plaintiff. There are, however, particular forms 
 of traverses designated by different names, some of 
 which may be used only as pleas, and one which is 
 available only as a replication. The following classi- 
 fication will exhibit the principal forms of traverses and 
 those in most common use, and also by which party 
 to the action each may be used : 
 
 1 White v. Bodinam, 2 Salk. 629 ; Ames' Cases, 84. 
 
 2 Gilbert v. Parker, 2 Salk. 629; Ames' Cases, 85.
 
 PLEAS BY WAY OF TRAVERSE. 
 
 133 
 
 Traverses 
 
 'Non assump- 
 
 sit 
 Nil debet or 
 
 Nunquam 
 
 General Issue { indebitatus 
 Non detinet 
 
 Non cepit 
 Not guilty 
 
 Pleas. 
 
 Available only for de- 
 fendant. 
 
 Specific Traverse Available to either party at any 
 stage of the pleadings. 
 
 Special Traverse Available to either party at any 
 stage of the pleadings. 
 
 Replication de Injuria Available to the plaintiff 
 
 only as a replication. 
 
 SECTION III. GENERAL ISSUE AND SPECIFIC 
 TRAVERSES. 
 
 2O1. The general issue is the term applied to 
 the most general form of traverse used as a plea in the 
 different forms of actions. It is known by different 
 names in the various forms of actions in which it is 
 used, as non assumpsit in contract, not guilty in trespass. 
 
 A specific traverse is one which denies specifically 
 some one particular allegation in the pleading of the 
 opposite party. Specific traverses, of course, differ 
 according to the nature of the actions in which they 
 are used, and the allegations which are denied by them. 
 
 While the general issue is used only as a plea, spe- 
 cific traverses are available to either party, in answer 
 to any affirmative pleading of the opposite party. It 
 will be convenient to take up the general issue and spe-
 
 134 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 cific traverses together, in connection with each different 
 form of action. 
 
 (a). Action of Special Assumpsit. 
 
 202. In special assumpsit the general issue takes 
 the form of non assumpsit. 
 
 It is rather curious that the traverse non assumpsit 
 should ever have acquired the name of general issue. 
 Since the action of assumpsit was originally an action 
 on the case, the stating of the contract seems simply 
 to have been the statement of the plaintiff's right, 
 i. e. f the inducement; while the statement of the breach 
 was a statement of the wrongful act by the defendant. 
 One would expect, then, on the analogy of other actions, 
 to find the term general issue applied to a traverse of 
 the breach, while the traverse of anything in the induce- 
 ment the consideration or promise would assume 
 the form of a regular specific traverse. 
 
 203. The effect of non assumpsit is to deny the 
 contract as set forth in the declaration. 
 
 Hence, when the defendant relies upon the fact that 
 he made no promise at all, that he did not make the 
 promise alleged in the declaration, that there was no 
 consideration for his promise, or that the consideration 
 was different from that alleged, he must plead non 
 assumpsit. 1 
 
 204. The plea of non assumpsit puts in issue 
 only the material allegations of the inducement and 
 
 iLyall v. Higgins, 4 Q. B. 528; Ames' Cases, 46, ante, p. 109; 
 Sieveking v Button, 3 C. B. 331; Ames' Cases, 48; ante, p. 109.
 
 PLEAS BY WAY OF TRAVERSE. 135 
 
 will not raise any issue upon averments which are not 
 necessary. 1 
 
 A v. X. Declaration alleges X held a certain farm 
 under an agreement, made with A's father, to leave the 
 farm in as good condition as he found it, that on the 
 death of A's father the farm descended to A in fee, 
 that X did not leave the farm in as good condition as 
 he found it. Plea General Issue. After verdict for 
 A, X moved to set it aside on the ground A failed to 
 prove the farm descended to him in fee, the evidence 
 showing it descended in tail. Motion denied as the 
 allegation as to the fee was immaterial. 2 
 
 205. It is well settled that, under the plea of 
 non assumpsit, the defendant may take advantage of an 
 omission by the plaintiff to state conditions precedent. 3 
 
 The reason for this is that the defendant can truly 
 deny the contract; can say that the contract alleged is 
 not the contract which he made ; that he made a con- 
 tract with conditions, whereas the one alleged is abso- 
 lute. It would seem, on principle, that this reason is 
 as strong in the case of conditions subsequent as con- 
 ditions precedent, and it is submitted that the weight 
 of authority decidedly supports this view. 4 
 
 1 Lawes, Pleading in Assumpsit, p. 35. 
 
 2 Winn v. White, 2 Blac, 840. 
 
 s Brind v. Dale, 2 M. & W. 775 ; Ames' Cases, 40 ; ante, p. 108. 
 
 4 Conditions subsequent in the. contract must be distinguished 
 from stipulations collateral to it, such as that in Smart v. Hyde, 
 ante, p. 107. The former are meant here, and have been more 
 appropriately called "conditions subsequent in form, precedent in 
 effect." They are subsequent, in that the burden is on the de- 
 fendant to prove them, to relieve himself from a prima facie lia- 
 bility. They are precedent, however, to the existence in fact of 
 the liability.
 
 136 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 A v. X. Action of Assumpsit. A in his declara- 
 tion alleges an agreement by which A was to serve X, 
 and X to employ A, as a commercial traveler for one 
 year. Plea, non asswnpsit. Under this plea X can 
 show that there was a special custom understood to be 
 attached to all such contracts, by which either party 
 could determine it by giving three months' notice. 1 
 
 A v. X. Action of Assumpsit on an agreement by 
 X to carry certain goods safely. Plea, non assumpsit. 
 Evidence that there was a special condition in the 
 agreement, " fire and robbery excepted," is admissible, 
 and will support this plea. 2 
 
 206. The plea of non assumpsit does not deny 
 the breach. 
 
 A v. X. Action of Assumpsit. A alleges a war- 
 ranty of soundness of a horse sold by X to A, and 
 alleges as a breach the unsoundness of the horse. Plea, 
 non assumpsit. X, under the plea, cannot show that 
 the horse was, in fact, sound. He should have denied 
 the breach specifically. 3 
 
 207. In special assumpsit the specific traverses 
 which may be used as pleas are : 
 
 (a). A denial of performance on the plaintiff's part 
 of his side of the contract, or of the performance, exist- 
 ence, or happening of conditions precedent. 
 
 A v. X. Action of Assumpsit. A alleges in his 
 declaration an agreement by X to buy, and by A to 
 
 i Metzner v. Bolton, 9 Exchequer, 518; Ames' Cases, 93. 
 2Lathair: a Rutley, 3 D. & R. 211. See also 4 Campbell, 20; 
 12 A. & E. 668; 11 C. B. N. S. 369. 
 
 a Smith v. Parsons, 8 C. & P. 199; Ames' Cases, 91.
 
 PLEAS BY WAY OF TRAVERSE. 187 
 
 sell, the right to certain music which A, as composer, 
 had composed. Plea, non assumpsit. Under his plea X 
 cannot show that A did not compose and had no right 
 to the music. He should have traversed specifically that 
 A had any right in the music as composer. The pos- 
 session by A of such right was a condition precedent to 
 A's ability to perform and to X's liability. 1 
 
 (6). A denial of the breach on the defendant's part. 2 
 
 (&). Action of General Assumpsit. 
 
 208. The general issue in this form of assumpsit, 
 as in special assumpsit, is non assumpsit. 
 
 The theory of the action of general assumpsit is the 
 same as that of special assumpsit, namely, recovery on 
 a promise contained in a contract. The scope of the 
 plea is, therefore, the same, i. e., it denies the con- 
 tract. And, since the contract in this form of action 
 is made up of a debt, which is deemed the considera- 
 tion, and an implied promise, the effect of non assump- 
 sit is to deny both the debt and the implied promise. 
 
 209. Hence, under the general issue, the defend- 
 ant may show that the facts were not such as to con- 
 stitute a debt, or that the law has never raised an im- 
 plied promise. The latter is the case where goods were 
 sold, or work done, on a credit which has not expired, 
 and also where there has been a special contract with 
 certain conditions, which have not been complied with 
 by the plaintiff. 
 
 1 De Pinna v. Polhill, 8 C. & P. 78 ; Ames* Cases, 92. 
 
 2 Smith f. Parsons, 8 C. & P. 199 ; Ames' Cases, 91.
 
 138 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 A v. X. Action of general assumpsit for goods sold 
 and delivered. X wishes to show that the goods were 
 paid for immediately on delivery. He must plead non 
 assumpsit. The facts were not such as to constitute a 
 debt. 1 
 
 A v. X. Action of general assumpsit for goods sold 
 and delivered. X wishes to show that the goods were 
 sold upon credit, which has not expired. He must 
 plead non assumpsit, as the law will not raise an implied 
 promise until it is needed; hence, not until credit 
 expires. 2 
 
 A v. X. Action of general assumpsit for goods bar- 
 gained and sold. X wishes to set up that the goods 
 were sold under a special written contract, with con- 
 ditions which have not been complied with by A. X 
 may show this under non assumpsit, for the law will 
 raise no implied promise under such circumstances. 3 
 
 210. The only occasion for the use of a specific 
 traverse as a plea to a declaration in general assumpsit 
 is in denial of the breach, and in such case, it is con- 
 ceived, a denial of the breach would amount to a plea 
 of payment. This results from the fact that the only 
 promise which the law will imply is one for the pay- 
 ment of money, and it is upon such a promise that the 
 action is always based. 
 
 i Bussey v. Barnett, 9 M. & W. 312; Ames' Cases, 98. The case 
 has been treated as indebitatus assumpsit for the purposes of 
 the illustration, though in fact it was in debt. 
 
 Hayselden v. Staff, 5 A. & E. 153 ; Ames' Cases', 50. See ante, 
 p. 110. 
 
 zBroomfield v. Smith, 3 M. & W. 542; Ames' Cases, 97. 
 Treated as indebitatus assumpsit for purpose of illustration. 
 
 s Gardner v. Alexander, 3 Bowling, 146; Ames' Cases, 97.
 
 PLEAS BY WAY OF TEAVEESE. 139 
 
 (c). Action of Debt. 
 
 211. The general issue in the action of debt 
 was originally nil debet, but after the Hilary Rules was 
 nunquam indebitatus. Its effect is simply to deny the 
 debt. 
 
 Under the general issue the defendant may show 
 payment made on delivery, for, in that case, it is held 
 no debt ever arises. 1 
 
 But where the defendant relies on credit not expired, 
 or conditions not performed by the plaintiff, he cannot 
 show them under nunquam indebitatus, but must plead 
 in excuse. 
 
 A v. X. Action of Debt for goods sold. Plea, nun- 
 quam indebitatus. X wishes to show that the goods 
 were sold on credit and that the credit has not expired. 
 He should have pleaded it affirmatively, i. e., in excuse; 
 for a debt arises the moment the goods are delivered. 
 
 212. Though the breach is a necessary allega- 
 tion in a declaration in debt on simple contract, it is 
 a point of form only and cannot be traversed by the 
 defendant. It would seem, therefore, that in this action 
 no room is left for a specific traverse to the declaration. 2 
 
 iBussey v. Barnett, 9 M. & W. 312; Ames' Cases, 98. While 
 this action was brought in the form of general assumpsit, it is 
 authority for the point, that where goods are paid for on deliv- 
 ery no debt arises, hence, if the action had been in debt, and the 
 defense was payment on delivery, the general issue, i. e., nun- 
 quam indebitatus, would have been the proper plea. 
 
 2 Goodchild v. Pledge, 1 M. & W. 363 ; Ames' Cases, 37 ; ante, 
 pp. 18-19.
 
 14:0 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 (d). Action of Trespass. 
 
 213. The general issue in trespass takes the 
 form of not guilty. Its effect is to deny merely the 
 act of trespass alleged in the declaration. It does not 
 deny the wrongfulness of the act, as a direct act of 
 interference with property or person is a technical tres- 
 pass even though justifiable. 
 
 214. The defendant may show under not guilty 
 that the act alleged was not committed, or that he, the 
 defendant, did not commit it. 
 
 A v. X. Action of trespass, assault and battery. 
 Plea, not guilty. Under this plea X may show that 
 his horse ran away with him, so that he could not con- 
 trol it, and ran into the plaintiff, for in such case it 
 was not his act. 1 
 
 A v. X. Action of trespass quare clausum fregit. 
 X pleads that C pushed him by force across A's close. 
 Special demurrer. The plea is bad as it amounts to 
 not guilty. 
 
 215. Other matters, such as contributory negli- 
 gence, self-defense, defendant's own close, etc., cannot 
 be shown under not guilty, but must be pleaded in 
 excuse. 
 
 A v. X. Action of trespass for running into A's 
 carriage and killing one of his horses. Plea, not guilty. 
 X cannot show, under this plea, that the collision be- 
 tween them was the result of A's negligence. 2 
 
 i Gibbons v. Pepper, 1 Ld. R'm'd, 387. 
 
 -Knapp v. Salsbury, 2 Campbell, 500; Ames' Cases, 100.
 
 PLEAS BY WAY OP TRAVERSE. 141 
 
 216. It has been seen that the action of trespass 
 may be brought either for injury to the plaintiff's per- 
 son or his property. 1 
 
 If brought for injury to the plaintiff's person, there 
 seems to be no room for a specific traverse to the decla- 
 ration. The acts of the defendant are the only neces- 
 sary allegations in point of substance, and the general 
 issue covers them. 
 
 217. Where the action is for injury to the plain- 
 tiff's property, personal or real, the allegation of pos- 
 session is necessary, and the specific traverse is used to 
 deny the plaintiff's possession of the goods or close, as 
 the case may be ; being usually called ff not possessed " 
 in the former case and " not the close of the plaintiff " 
 in the latter. These traverses deny simply the pos- 
 session of the plaintiff, not his right of possession. This 
 is so because actual possession is sufficient to maintain 
 the action. 
 
 A v. X. Action of trespass for injury to A's horse. 
 Plea, that A was not possessed of the horse. X cannot 
 show, under this plea, that the horse was a borrowed 
 horse at the time of the injury to it. 
 
 A v. X. Action of trespass quare clausum fregit. 
 Plea, the close in the declaration mentioned is not A's 
 close. X cannot show that M had a right to the pos- 
 session of the close and commanded him to enter. 2 
 
 lAnte, p. 34. 
 
 2 Jones v. Chapman, 18 L. J. Exch. 456 ; Ames' Cases, 103, 
 contra; but see Slocombe v. Lyall, 6 Exch. 119; Heath v. Mil- 
 ward, 2 Bing. N. C. 98, and dicta Squires v. Seward, 16 How. 
 Pr. 478; Patterson v. Clark, 20 Iowa, 42?. The reasoning
 
 142 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 218. In an action of trespass for loss of service 
 (see anie, p. 36), since the allegation of the relation of 
 master and servant corresponded to that of possession 
 where the injury complained of was to the plaintiff's 
 goods, i. e., since it was matter of inducement, if the 
 defendant wished to show that the relation did not 
 exist, it was necessary for him to traverse it specifically. 
 
 A v. X. Action of trespass for injury to A's servant, 
 M, whereby he lost her service. Plea, that M was not 
 the servant of A. Special demurrer, assigning for 
 cause that the plea amounts to not guilty. The plea is 
 good ; the matter could not be shown under not guilty, 
 which denies merely the act of injury. 1 
 
 upon which Jones v. Chapman and similar cases may be sup- 
 ported is as follows: the moment the rightful owner, in person 
 or by a servant, enters upon the land, the actual possession 
 revests, and the plaintiff becomes a mere trespasser. Hence 
 the defendant, in showing his right of possession or that of his 
 master, is virtually denying the plaintiff's actual possession. The 
 fallacy of this reasoning is that it proceeds upon the idea that 
 any act, however trifling, will amount to an entry and revest the 
 possession in the defendant. But an entry is an act of some 
 magnitude, and while any act, be it the stretching of an arm 
 over, or the stepping of one foot on the land, is a trespass, such 
 act will not amount to a common-law entry. Until, therefore, 
 the act is of sufficient magnitude to constitute an entry, posses- 
 sion will not revest, and showing that the defendant entered as 
 rightful owner does not deny the plaintiff's possession at the time 
 of the trespass. Hence, while a good defense under liberum 
 tenementum, it cannot be shown under not possessed. The only 
 way to avoid this conclusion is to adopt the doctrine of relation 
 and say that the entry, and hence the revesting, relates back to 
 the time of the first act. But will the court adopt a fiction for 
 the mere purpose of allowing the defendant to plead a certain 
 sort of plea? 
 
 i Torrence r. Gibbons, 5 Q. B. 297 ; Ames' Cases*, 100.
 
 PLEAS BY WAY OF TRAVERSE. 143 
 
 (e). Action of Trover. 
 
 219. The general issue in the action of trover 
 takes the form, of not guilty. 
 
 Its effect is to deny the wrongful act alleged as a 
 conversion; i. e., it not only denies the act, but also 
 that it was wrongful. It will be observed that all mat- 
 ters which, if the form of action were trespass, would 
 be properly pleaded by a plea in excuse, may in the 
 action of trover be shown as evidence under the plea 
 not guilty. 
 
 A v. X. Action of trover. Plea, not guilty. X 
 may show that he took the goods, as sheriff, under a 
 writ. 1 
 
 A v. X. Action of trover against X as bailee of A's 
 goods. X pleads that before the demand and refusal 
 the goods were accidentally destroyed by fire. Special 
 demurrer. The plea is bad ; the matter shows the con- 
 version was not wrongful, and should have been pleaded 
 under the plea not guilty. 
 
 A v. X. Action of trover. Plea, not guilty. X 
 may show that A gave the goods to M as bailee, with 
 power to lend them; that X borrowed them from M 
 and returned them to M before the demand. 
 
 220. Matters in excuse, which show the act was 
 not wrongful, must be carefully distinguished from mat- 
 ters which affect the plaintiff's possession or right of 
 possession. The allegation of possession or right of 
 possession connects the plaintiff with the goods in such 
 a manner as to show that the act of conversion is a 
 
 i Young f. Cooper, 6 Exchequer, 259 ; Ames' Cases, 63.
 
 144: PRINCIPLES OF COMMON-LAW PLEADING. 
 
 violation of a right belonging to the plaintiff, and forms 
 what is called matter of inducement. 
 
 The plea of not guilty does not deny (and, not deny- 
 ing, impliedly admits) the allegation of actual pos- 
 session or right of possession, whichever the plaintiff 
 may have seen fit to rely upon in his declaration. 
 
 A v. X. Action of trover. Plea, not guilty. X 
 cannot show a lien upon the goods, nor that A stole the 
 goods from M, nor that A held the goods as bailee for 
 X. These are all matters affecting possession or right 
 of possession. 
 
 221. The important specific traverse to the dela- 
 ration in trover is not possessed, which has the double 
 effect of denying either the posession or right of pos- 
 session, accordingly as the plaintiff relies on the one or 
 the other. 
 
 This is obviously just, since the defendant cannot 
 tell upon which the plaintiff intends to rely until evi- 
 dence is introduced. The allegation of the possession 
 in the declaration is usually in such terms that either 
 actual possession or right of possession, if proved, will 
 support it. 
 
 222. Anything affecting the plaintiff's possession 
 or right of possession must be shown under not pos- 
 sessed, as, for example, a lien. 
 
 A v. X. Action of trover for a certain deed. Plea, 
 not possessed. X may show that A deposited the deed 
 with him as security for money advanced, and that the 
 money has not been paid back. 1 
 
 iQwen v. Knight, 4 Bing. N. C. 54; Ames' Cases, 105; White 
 . Tealc, 9 L. J. R. Q. B. 377; Ames' Cases, 108; Dorrington v. 
 Carter, 1 Exch. 566; Ames' Cass, 61.
 
 PLEAS BY WAY OF TEAVERSE. 145 
 
 223. The plea not possessed does not deny (and, 
 not denying, impliedly admits) the act of conversion 
 alleged. Hence, under it nothing with regard to the 
 wrongful act can be shown. 
 
 A v. X. Action of trover, alleging that X, as bailee, 
 refused to give the goods up. Plea, not possessed. X 
 may show that A never bailed the goods to him or that 
 A has no right over them, but cannot show that he, X, 
 did not refuse to give the goods up. 
 
 224. In those cases where the plaintiff can prove 
 actual possession., and the defendant has some good ex- 
 cuse for the taking of the goods, it would seem to be 
 necessary for him to plead both not possessed and not 
 guilty in order to protect himself fully, as the following 
 illustration will show. 
 
 A v. X. Action of trover. X wishes to show that 
 M stole the goods from him and gave them to A, and 
 he, X, took them from A. A may rely upon his actual 
 possession. If he does, X could not support a plea of 
 not possessed, and he would have no other defense, since 
 not possessed admits the wrongful act alleged as a con- 
 version. Not guilty would be necessary then, in order 
 that X might show that the taking was not wrongful, 
 if A relies upon actual possession. But if X pleads 
 not guilty alone, A would immediately conclude to rely 
 upon his right of possession, which X could not dispiite, 
 since not guilty admits the plaintiff's possession or right 
 of possession, as he chooses to rely upon the one or the 
 other. 
 
 225. In those cases where the plaintiff can rely 
 only upon his right of possession, as where the defend- 
 ant holds the goods as a bailee, and refuses to give them 
 10
 
 146 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 up to the plaintiff, who is the rightful owner, a single 
 plea is sufficient to protect the defendant. 
 
 (/). Action of Detinue. 
 
 226. The general issue in the action of detinue 
 takes the form of non detinet. Its effect is to deny 
 the positive act of detention alleged in the declaration. 
 Tinder it matters which excuse such detention cannot 
 be shown. 
 
 If the defendant has offered to give the goods up, 
 though they still remain in his possession, he cannot 
 be said to detain them. 
 
 A v. X. Action of detinue. X pleads that the 
 goods came into his possession as a pledge for money 
 advanced, that the money was paid, and that he offered 
 to give the goods up. Special demurrer. The plea is 
 bad, as it amounts to non detinet. 1 
 
 227. The only important specific traverse to the 
 declaration in detinue is not possessed. Its effect is to 
 deny the plaintiff's right of possession, i. e., the induce- 
 ment. Under it anything affecting that right may be 
 shown, except a, lien, which must be pleaded in excuse, 
 though on principle it ought to be allowed to be shown 
 under not possessed. 2 
 
 A v. X. Action of detinue for a promissory note. 
 Plea, non detinet. X cannot show that A assigned the 
 note to M, and that X, as servant of M, holds the note. 
 He can show this under not possessed. 3 
 
 1 Clements v. Flight, 8 L. T. 166; Ames' Cases, 66. 
 
 2 Ante, p. 118. 
 
 Richards v. Frankum, 6 M. & W. 420; Ames' Cases, 110.
 
 PLEAS BY WAY OF TKAVERSE. 147 
 
 (#). Action of Replevin. 
 
 228. It has already been seen 1 that in the action 
 of Replevin, if the defendant claims that the seizure 
 of the chattels was a rightful one, his answer to the 
 declaration is in the nature of a cross-declaration, and 
 is called an avowry or cognizance. 
 
 If, however, he does not wish to justify the seizure, 
 but to deny it, his answer to the declaration takes the 
 ordinary form of a plea. In Replevin, as in the other 
 forms of action, there is what is known as the general 
 issue. It is called non cepit, and its effect is to deny 
 the actual taking in the place alleged, and to construc- 
 tively admit the plaintiff's possession. 
 
 A v. X. Action of replevin. Plea, non cepii. X 
 cannot show that the goods did not belong to A, for 
 non cepii does not put the ownership of the property 
 in issue. If A proves an actual seizure of the goods 
 by X, it is sufficient, and no proof of property or pos- 
 session need be given. 2 
 
 229. Under the plea of non cepil, the defendant 
 may show, not only that he did not take the goods, but 
 also that he did not take them in the place alleged. 
 This is because the allegation of the place of the seizure 
 is an essential part of the wrongful act which is the 
 basis of the action. 3 
 
 230. If the defendant puts in an avowry or cog- 
 nizance, as it is in form like a declaration, it is so 
 
 1 Ante, p. 53. 
 
 2 Dover v. Rawlings, 2 Moo. & R. 544; Ames* Cases, 113. 
 a Ante, p. 56.
 
 148 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 treated with relation to the subsequent pleadings. The 
 pleading by which the plaintiff answers the avowry or 
 cognizance is called a plea. This he must frame, of 
 course, according to the nature of his case. When the 
 defendant has distrained for rent, and, in his avowry, 
 has alleged the lease to the plaintiff and rent in arrear, 
 the traverse rien en arrere (nothing in arrear) denies 
 simply that rent is due, admitting the lease to be as the 
 defendant has alleged. Hence, if the defendant has 
 alleged rent payable quarterly, the plaintiff cannot, 
 under this traverse, show that it was payable half- 
 yearly. 
 
 A v. X. Action of replevin. X, in his avowry, 
 alleges a lease to A, in which rent is payable quarterly, 
 and alleges rent in arrear. Plea, no rent in arrear. 
 A cannot show that the rent was payable half-yearly; 
 the traverse impliedly admits the lease in the terms 
 stated. 1 
 
 231. Specific traverses to the declaration are un- 
 usual, though not impossible, in the action of replevin ; 
 the reason is, that the defendant usually not only wishes 
 to defend himself, but also to get a return of the goods, 
 and to do the latter he must put in an avowry or cog- 
 nizance. 
 
 232. To the avowry or cognizance specific trav- 
 erses are common, and tako their usual place among 
 other picas, being used wherever the plaintiff wishes to 
 deny some single material allegation. The plea rien 
 en arrere, above mentioned, though sometimes regarded 
 
 iHill v. Wright, 2 Esp. 669; Ames' Cases, 113.
 
 PLEAS BY WAY OF TKAVEKSE. 149 
 
 as in the nature of the general issue, seems to be merely 
 a specific traverse of a fact in the avowrj which forms 
 part of the matter showing the defendant's right to the 
 chattels. 
 
 (/i). Action of Case. 
 
 233. The general issue, in actions on the case, 
 takes the form of not guilty. It operates " as a denial 
 only of the breach of duty or wrongful act alleged to 
 have been committed by the defendant, and not of the 
 facts stated in the inducement." The matters which 
 form the inducement are those which show the plaintiff's 
 right with respect to the subject of the action, the right 
 of which he claims the defendant's act is a violation. 
 Such matter is not denied by the plea not guilty. 
 
 A v. X. Action of case. Declaration alleges A was 
 entitled to be taxed, and that X wrongfully omitted to 
 insert her name in the tax list, which prevented her 
 from getting a license to sell beer. Plea, that A was 
 not entitled to be assessed. Under this plea A does not 
 have to show that she was prevented from obtaining 
 a license by X's act, i. e., that it was wrongful, in 
 order to recover. In order to put this in issue, X 
 should have pleaded not guilty. 1 
 
 234. In the action of Case, as in that of trover, 
 since wrongfulness is the essence of the act complained 
 of, matters which show that the act is justifiable may 
 be shown under not guilty; but matters in excuse which 
 may be shown under not guilty are only such as tend to 
 
 i Perring v. Harris, 2 Moo. & R. 5; Ames' Cases, 120.
 
 150 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 show that the act was not wrongful, admitting the in- 
 ducement to be true. Hence, here, as in trover, matters 
 in excuse must be carefully distinguished from matters 
 denying the plaintiff's right as it is set forth in the 
 inducement. 
 
 235. ( 1 ) . Thus in case for wrongfully diverting 
 water, not guilty does not put in issue the plaintiff's 
 right to have the water flow to his mill. 
 
 A v. X. Action of case. Declaration alleges A is 
 possessed of a mill and has a right to the water of a cer- 
 tain stream; that X wrongfully diverted the water 
 away from the mill. Plea, not guilty. A proves the 
 act of diverting the water, but does not show a right to 
 use it. A need not prove his right. It is a part of the 
 inducement and not guilty admits it. 1 
 
 236. (2). In case for the defendant's dogs injur- 
 ing the plaintiff's cattle, the scientet knowledge on 
 
 the defendant's part of the ferocious character of his 
 dogs is put in issue by not guilty, since it is no part 
 of the inducement, but one of the elements of the 
 wrongful act on the defendant's part. 
 
 A v. X. Action of case. Declaration alleges X 
 wrongfully kept dogs, knowing them to be ferocious ; 
 which dogs killed A's cattle. Plea, not guilty. A 
 must prove the scienter in order to recover. 2 
 
 237. (3). In case for deceit, no inducement is 
 necessary (for every one has a right not to be deceived), 
 
 iFrankum v. Earl of Falmouth, 2 A. & E. 452; Ames* Cases, 
 114. 
 
 2 Thomas v. Morgan, 2 C. M. & R. 496; Ames' Cases, 116.
 
 PLEAS BY WAY OF TKAVEKSE. 151 
 
 and not guilty denies all the material allegations in the 
 declaration. 
 
 A v. X. Action of case for deceit in the warranty 
 of a horse. Plea, not guilty. X may show that he 
 made no such warranty, or that the horse was in fact 
 sound. 1 
 
 238. (-i). In case for libel, not guilty seems to 
 deny not only all material allegations in the declara- 
 tion, but to go even further, and, upon the theory that 
 the declaration negatives every excuse, it is allowable, 
 under this plea, to show that the defendant had some 
 excuse for the act, as that it was a privileged commu- 
 nication. But there is one material allegation, that of 
 falsity, which, under the rule which has grown up, is 
 admitted, and cannot be negatived by the plea of not 
 guilty. To justify on the ground of truth of the words 
 alleged to be libellous, defendant must plead by way of 
 
 A v. X. Action of case for libel contained in a letter. 
 Plea, not guilty. X may show that the letter was a 
 privileged communication. 3 
 
 239. (5). In case for erecting something which 
 results in some injury to the plaintiff's premises, as, 
 for example, a nuisance, not guilty denies both the act 
 of erecting and the injurious consequences; for the 
 injurious consequences are what make the act wrongful. 
 
 1 Spencer v. Dawson, 1 Moo. & R. 552; Ames' Cases, 118. 
 
 2 O'Malley v. 111. Publishing & Printing Co., 194 111. App. 544, 
 at p. 556. See ante, p. 120. 
 
 3 Lillie v. Price, 5 A. & E. 645; Ames* Cases, 119.
 
 152 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 A v. X. Action of case. Declaration alleges M is 
 in possession of premises as tenant of A, that X owns 
 land adjoining, and wrongfully erected a cesspool 
 which polluted the water in A's well. Plea, not guilty. 
 X may show that the water in the well was not polluted 
 by the cesspool. 1 
 
 240. In case, specific traverses are used to deny 
 such allegations in the inducement as are material. 
 Wherever the plaintiff is required to expressly state 
 facts to show his right, for the violation of which he 
 claims to bring the action, the defendant can deny only 
 the material allegations in the statement of that right 
 by means of specific traverses. 
 
 A v. X Action of case. Declaration alleges a 
 judgment was recovered against one M; a writ issued 
 to X, as sheriff, to levy on M's goods ; that M had 
 goods subject to the writ ; that X falsely made return 
 that M had no goods subject to the writ. Plea, not 
 guilty. X cannot show that M had no goods. He 
 should have traversed specifically that M had goods 
 subject to the writ, for it is part of the inducement, 
 one of the facts tending to show a duty on X's part 
 toward A, for the violation of which duty the action 
 is brought. 2 
 
 241. Where the plaintiff alleges, in his induce- 
 ment, matter which is immaterial, but which negatives 
 matter which the defendant wishes to show to prove 
 the act was not done by him, the defendant, under a 
 plea of not guilty, may still show this, and need not 
 
 1 Norton v. Scholefield, 9 M. & W. 665 ; Ames' Cases, 128. 
 
 2 Lewis v. Alcock, 3 M. & W. 188; Ames' Cases, 121.
 
 PLEAS BY WAY OF TKA VERSE. 153 
 
 traverse specifically the allegation in the inducement; 
 since, as a part of the inducement, it was entirely 
 immaterial. 
 
 A v. X. Action of case. Declaration alleges that 
 A was possessed of a horse which his servant was 
 riding ; that X was possessed of a horse and cart which 
 were under his direction; that X so carelessly drove 
 his horse and cart that the cart ran into A's horse and 
 injured it. Plea, not guilty. X may show that he 
 was not driving the horse and cart at the time of the 
 accident, and need not traverse specifically that the 
 horse and cart were under his direction. 1 
 
 242. In case for malicious prosecution, since the 
 plaintiff, by the law as it stands, is required to allege 
 the conclusion of the prosecution which he claims to 
 have been malicious, as a part of the inducement, the 
 defendant, in order to deny it, must traverse spe- 
 cifically. 2 
 
 On principle, it would seem that this allegation of 
 the conclusion of the previous suit forms no part of 
 the inducement or statement of the plaintiff's right, 
 since every one has a right not to be prosecuted 
 maliciously. 
 
 It seems rather to be a sort of a condition to the 
 maintenance of the action for malicious prosecution, 
 but it is a condition which the defendant should have 
 the burden of proving unfulfilled. He should plead 
 affirmatively the non-fulfilment of it. The plea would 
 
 i The case of Tavernour v. Little, 5 B. N. C. 678 ; Ames' Cases, 
 125, is contra, but does not represent the weight of authority. 
 zWatkins v. Lee, 5 M. & W. 270; Ames' Cases, 123.
 
 154 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 then be a peculiar sort of a plea, something akin to a 
 plea in abatement, merely going to the prevention of 
 the present maintenance of the suit. 
 
 SECTION IV. SPECIAL TRAVERSES. 
 
 243. The object of the special traverse was to 
 enable the party putting it in to place upon the record, 
 and thus bring directly before the court, facts which 
 otherwise he could not have brought in at all, or, at 
 least, not until he introduced them as evidence. 1 
 
 To accomplish this object the special traverse con- 
 sists of two parts: (1) What is known as the induce- 
 ment; (2) what is commonly called the absque hoc 
 clause. 
 
 244. (1). Heretofore the word inducement has 
 been used as designating a part of the declaration. 
 What is known as the inducement of the special traverse 
 is a different thing. As a part of the special traverse, 
 the inducement is the means by which the object of 
 the traverse is accomplished. It is in its nature an 
 indirect denial ; i. e., a denial by means of introducing 
 new facts which necessarily contradict the allegations 
 in the pleading of the opposite party. This, however, 
 by itself would violate the rule that a traverse must be 
 direct in its terms. To remedy this, or, as it is some- 
 times expressed, " to cure the argumentativeness of the 
 inducement," it is necessary to add the second part of 
 the special traverse, namely: 
 
 i For a good illustration of the proper use of a special traverse, 
 eee Beckham v. Knight, 4 Bing. N. C. 243.
 
 PLEAS BY WAY OF TRAVERSE. 155 
 
 245. (2). " That peculiar and barbanms form- 
 ula," the absque hoc clause, which, in its nature, is a 
 direct denial of the same allegation that the inducement 
 denies indirectly. 
 
 A v. X, as administrator of J. S. A brings a writ 
 of scire facias against X. X pleads that before admin- 
 istration granted to A, administration was granted to 
 J. !N"., who is still alive. A replies that J. N. died. 
 Special demurrer. Plea, argumentative as it stands. 
 An absque hoc clause, namely, " absque hoc that J. 1ST. 
 is still alive," would have cured it. Illustrates well 
 the subtle niceness of the old pleading. 1 
 
 The words absque hoc quod, however, are not abso- 
 lutely necessary to a special traverse; et non will do. 2 
 
 246. The special traverse, it seems, originally 
 concluded with a verification on account of the new 
 affirmative matter which it contained ; but since the 
 Hilary Rules (1834) 3 it must conclude to the country, 
 i. e., tender issue. 
 
 247. If, then, the special traverse is good in all 
 its parts, and tenders issue properly, or though the 
 inducement is bad in substance or form, if the absque 
 hoc clause is good, it cannot be pleaded to; the oppos- 
 ing party must either join issue or demur. 
 
 A v. X. Action of trespass quare clausum fregit. 
 X pleads liberum tenementum, that the freehold was 
 
 iFortescue v. Holt, 1 Vent. 213; Ames' Cases, 134. 
 2 Bennett v. Filkins, 1 Saunders' 20; Ames* Cases, 131. 
 s These rules considerably changed the form and scope of a 
 number of the old common-law pleadings, in England.
 
 156 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 in J. S., who commanded him to enter. A replies, a 
 lease at will from J. S., absque hoc that J. S. com- 
 manded X to enter. X rejoins that J. S. did com- 
 mand him to enter, absque hoc that J. S. leased to A 
 at will. Demurrer. A's replication would have been 
 bad on special demurrer, because the inducement con- 
 tains matter entirely irrelevant, and does not deny, 
 indirectly, the same thing which the absque hoc clause 
 denies directly ; (matter in the inducement immaterial, 
 because the entry of another, by command of the land- 
 lord, terminates a lease at will). Instead of joining- 
 issue or demurring, X pleads in his turn a special 
 traverse, thus violating the rule that there can be no 
 traverse upon a traverse. Hence, on demurrer, A will 
 have judgment. 1 
 
 248. But if the absque hoc clause is bad in sub- 
 stance, if it denies immaterial matter for example, 
 then it may be passed by without notice, and the 
 inducement, since it tenders no issue, may be pleaded 
 to, traversed or confessed and avoided. 
 
 A v. X. Action of trespass for fishing in A's fishery 
 in Orford Haven. Plea, that Orford Haven is an arm 
 of the sea (if so, prima facie subjects would have the 
 right of free fishing, and what follows is immaterial), 
 in which every subject has the right of free fishing. 
 Replication. Confesses it is an arm of the sea, but 
 alleges an exclusive right in A by prescription, to fish 
 there; absque hoc that every subject has the right of 
 free fishing. Rejoinder, that Orford Haven hath been 
 immemorially an arm of the sea, in which every subject 
 has a right of free fishing; absque hoc that A has 
 a prescriptive right. Demurrer. The replication, 
 framed as a special traverse, would have been bad on 
 
 i Thorn v. Shering, Cro. Car. 586 ; Ames' Cases, 130. .
 
 PLEAS BY WAY OF TKAVEKSE. 157 
 
 special demurrer, because the inducement is matter in 
 confession and avoidance. The inducement, however, 
 being good in substance, though the absque hoc clause 
 is bad, the whole traverse is good on general demurrer. 
 Since the absque hoc clause denies immaterial matter, 
 the inducement could be pleaded to. The rejoinder is 
 a good special traverse, denying, both directly and 
 indirectly, A's prescriptive right. Judgment for X. 1 
 
 249. The inducement must always be of the 
 nature of an indirect denial. If direct, there is no 
 room left for the absque hoc clause. Hence, if the 
 inducement is a direct denial, or sets forth matter in 
 confession and avoidance, the special traverse will be 
 bad in form. 
 
 A v. X. Action of audita querela (a common-law 
 writ). A alleges he is under bond to X to pay certain 
 sums on certain days to M, that he was prepared to 
 pay it at the proper place, and offered, but that M was 
 not there. Plea, that M was there and A was not; 
 absque hoc that A offered the sum. Special demurrer. 
 The plea is bad; it contains a direct denial as an 
 inducement ; the absque hoc clause is a traverse of 
 immaterial matter. The plea would have been good 
 without the absque hoc clause. 2 
 
 A v. X. Action of replevin. Avowry, that M was 
 seised and made a lease to X for a year, and that X 
 took A's cattle damage feasant. Plea, that before the 
 lease to X, M made a lease to A, which had not termin- 
 ated; absque hoc that M made a lease to X. Special 
 demurer. The plea is bad; the inducement contains 
 matter in confession and avoidance. 3 
 
 i Mayor, etc., v. Richardson, 2 H. Bl. 182; Ames' Cases, 138. 
 aHuish v. Phillips, Cro. Eliz. 754; Ames' Cases, 130. 
 3 Anon., 3 Salk. 353; Ames' Cases, 135.
 
 158 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 250. The matter contained in the inducement 
 which is in contradiction of the allegation which it 
 is wished to deny, must not be coupled with matter 
 which is in avoidance of it. In such case the induce- 
 ment would be regarded as a plea in confession and 
 avoidance and the whole pleading would be bad as a 
 special traverse. 
 
 A v. X. Action of covenant for non-payment of 
 rent. The declaration alleges that M was seised in 
 fee of the land in 1716, and then leased to X with 
 covenant to pay rent; that X entered and continued 
 possessed; that M assigned the reversion to A; that 
 rent is due. Plea, that one J. S. was seised in fee, 
 and conveyed the land to M for life; that M made 
 a lease to X; that M afterward conveyed the rever- 
 sion to A ; and that M died soon after, absque hoc that 
 A was seised of the reversion, as A declares. Special 
 demurrer. The plea is bad, because the inducement 
 contains matter in confession and avoidance; namely, 
 that M's (the landlord's) estate had determined, as well 
 as an indirect denial of the title. 1 
 
 251. The second part of the special traverse, 
 namely, the absque hoc clause, must always be in the 
 form of a direct denial, for it is this clause which is 
 supposed to cure the indirectness of the first part. In 
 addition to this it must deny directly the same matter 
 denied indirectly by the inducement. 
 
 i Palmer v. Ekins, 2 Ld. R'm'd, 1550; Amos' Cases, 136. 
 The illustration is put by the court in this case, and it is said 
 that the plea would be good as a special traverse. The point, 
 however, does not seem to be well considered, as the plea ap- 
 parently contains both matter in confession and avoidance and 
 in denial.
 
 PLEAS BY WAY OF TRAVERSE. 159 
 
 If it fails in either of these two requirements, the 
 special traverse will be bad in form. 
 
 The following two rules may be laid down with 
 respect to the sufficiency of special traverses on 
 demurrer. 
 
 252. ( 1 ) . If either the inducement or the absque 
 hoc clause is bad in form, the whole special traverse 
 will be held bad on special demurrer. 1 
 
 (2). If either the inducement or absque hoc clause 
 is good in substance, on general demurrer, the whole 
 special traverse will be held good. 
 
 253. x \ special traverse cannot be used as a sub- 
 stitute for the general issue, and if so used will be 
 held bad on demurrer. 
 
 A v. X. A alleges a contract by X to pay A 10 
 per annum if he, A, married the daughter of J. S., and 
 that he married her. X pleads he promised on con- 
 dition that if J. S. gave to his daughter 1000 as a 
 marriage portion then he, X, would pay the annuity 
 " without this that the defendant promised as stated in 
 the declaration." Plea bad on demurrer as amounting 
 to the general issue. 2 
 
 254. Similarly the special traverse cannot be 
 used in place of the traverse rien en arrere, which is 
 sometimes spoken of as the general issue to the avowry 
 in the action of replevin. 
 
 lAnon., 3 Salk. 353; Ames' Casefe, 135. 
 2 Barrett v. Barrett, 2 Rol. 350.
 
 160 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 A v. X. Action of replevin. X makes conusance 
 that the seizure was for rent in arrear. A pleads that 
 the taking was of X's own wrong; absque hoc that 
 rent was in arrear. Special demurrer. The plea is 
 bad; it amounts to the traverse rien en arrere, which 
 is the regular traverse to an avowry or conusance where 
 the plaintiff wishes to deny that rent was in arrear. 1 
 
 SECTION V. REPLICATION DE INJUEIA. 
 
 255. The replication de injuria is a traverse of 
 more general nature than the specific traverse, being 
 used to deny, in general terms, the defendant's plea. 
 Its fuller form is de injuria sua propria absque tali 
 causa (of his own wrong without such cause). As its 
 name indicates, this traverse can only be used by the 
 plaintiff as a replication. 2 
 
 Under the common-law system of pleading, a defend- 
 ant could put in but one plea to the declaration of the 
 plaintiff. A statute passed in the time of Anne (-4 
 Anne, c. xvi., 1) provided that the defendant might, 
 " with the leave of the same court, plead as many sev- 
 eral matters thereto as he shall think necessary for his 
 defense." To meet this added advantage given to the 
 defendant, the replication de injuria was originated, 
 by which the plaintiff, in certain forms of action and in 
 certain cases, was allowed to put in issue several mate- 
 rial allegations in the defendant's plea. 
 
 256. The forms of action to which this replica- 
 tion was confined were trespass, trespass on the case, 
 
 1 Horn v. Lewin, 2 Salk. 583 ; Ames' Cases, 135. 
 
 2 Except in replevin, where, if used, it was called a plea.
 
 PLEAS BY WAY OF TRAVERSE. 161 
 
 replevin, and assumpsit. Again, the use of the repli- 
 cation in these forms of action was limited to cases 
 where the plea consisted of a plea by way of confession 
 and avoidance in excuse. Where the plea was the gen- 
 eral issue, a specific traverse, or a plea by way of 
 confession and avoidance in discharge,, the replication 
 could not be used. 
 
 A v. X. Action of trespass for seizing salt. X in 
 his plea sets forth an act laying a duty on salt, and 
 alleges that the salt was about to be exported without 
 being weighed, and he (X) seized it, as an officer. 
 .Replication de injuria. A proper replication, as the 
 plea is in excuse. This case shows that the statement 
 in Crogate's Case, 1 that de injuria cannot be pleaded 
 where the defendant justifies by authority of law, is 
 erroneous. 2 
 
 A v. X. Action of replevin for taking goods. 
 Avowry, that X, as collector, seized the goods for non- 
 payment of taxes. Plea, traverse de injuria,. Special 
 demurrer. The plea is good. This case established 
 that the traverse de injuria could be used in replevin 
 as a plea to an avowry or cognizance. 3 
 
 A v. X. Action of assumpsit on a promissory note, 
 Plea, that the note was obtained by fraud, of which A 
 was aware. Replication, de injuria. Special demur- 
 rer. The replication is good. This case established 
 that de injuria could be used in assumpsit. 4 
 
 257. This traverse de injuria cannot be used 
 where the plea consists of 
 
 1 8 Reports, 66 ; Ames' Cases, 143. 
 
 2 Chance v. Weeden, 2 Salk. 628 ; Ames' Cases, 146. 
 
 3 Selby f. Bardons, 3 B. & Ad. 2 ; Ames' Cases, 155. 
 * Isaac v. Farrar, 1 M. & W. 65 ; Ames' Cases, 173. 
 
 11
 
 162 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 (a). Matter of title or interest in land, as where, to 
 an action of trespass quare clausum, the defendant 
 pleads, in justification, that the land was his freehold ; 
 i. e., liberum tenementum. The great importance at- 
 tached to a trial of title to land accounts for this. A 
 specific traverse was regarded as necessary to put it in 
 issue. 
 
 A v. X. Action of trespass for driving A's cattle. 
 Plea, that M, the lord of the manor, granted a parcel 
 of land in fee to D, that the right of common in ad- 
 joining land went with the said parcel ; that A's cattle 
 came upon the adjoining land ; that X, by the command 
 of D, drove them out. Replication, de injuria. The 
 replication is bad; it extends to the whole plea, and 
 thus puts in issue title. 1 
 
 (&). Matters of record. 
 
 A v. X. Action of trespass for false imprisonment. 
 X justifies by virtue of a writ, issued out of a court of 
 record. Replication, de injuria. Held, bad on de- 
 murrer. 2 
 
 (c). Where the defendant derives authority for the 
 act alleged, either directly or indirectly, from the 
 plaintiff. 
 
 A v. X. Action of trespass quare clausum fregit. 
 Plea that X entered by the invitation of A. Replica- 
 tion, de injuria. Special demurrer. Replication im- 
 proper. 3 
 
 258* The replication de injuria will not put in 
 issue immaterial matter. If there is immaterial mat- 
 ter contained in the plea, and a replication de injuria 
 
 1 Crogate's Case, 8 Reports, 66 ; Ames' Cases, 143. 
 
 2 Fursden v. Weeks, 3 Lev. 65 ; Ames' Cases, 145. 
 8 Comyns' Dig. Pleader, F. 22.
 
 PLEAS BY WAY OF TRAVERSE. 163 
 
 is put in, it will extend only to the material allegations 
 in the plea. 
 
 A v. X. Action of trespass, assault and battery. 
 Plea, that X was seised of the rectory of D in fee; 
 that X injured A in defense of his tithe of corn, which 
 A was about to carry away. Replication, de injuria. 
 Special demurrer. Replication good, for it will not 
 put in issue title, since the allegation of title was im- 
 material. 1 
 
 A v. X. Action of trespass for assault and battery. 
 Plea, that A was the apprentice of X and conducted 
 himself improperly, wherefore X moderately chastised 
 him. Replication, de injuria. Issue joined. A can- 
 not show, under this replication, that X used excessive 
 violence. Prima facie X had the right to chastise A, 
 and the excess should have been replied affirmatively 
 by A. The allegation of moderateness in the plea was 
 immaterial. 2 
 
 259. Nor can the replication de injuria be used 
 where the plea of the defendant amounts to a traverse. 
 
 A v. X. Action of case for malicious prosecution. 
 Plea, that A was indebted to X, and became a bank- 
 rupt, wherefore X sued out a commission of bank- 
 ruptcy. Replication, de injuria. Special demurrer. 
 The plea amounts to not guilty, as it is a denial of the 
 wrongful prosecution ; de injuria should not have been 
 used. 3 
 
 A v. X. Action of assumpsit on a bill of exchange. 
 Plea, that X accepted in blank, and consented that A 
 should draw the bill, payable at two months, yet A made 
 it payable one month after date. Replication, de in- 
 
 1 Taylor v, Markham, Cro. Jac. 224; Ames' Cases, 145. 
 
 2 Penn v. Ward, 2 C. M. & R. 338 ; Ames' Cases, 170. 
 80'brien v. Saxon, 2 B. & C. 908; Ames' Cases, 153.
 
 164 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 juria. Special demurrer. Replication improperly 
 used. The plea amounts to non assumpsit. 1 
 
 260. Nor can the replication de injuria be used 
 where the defendant puts in a plea of set-off, for a 
 set-off is not matter in excuse, but is a cross-demand 
 made by the defendant. 
 
 A v. X. Action of debt, goods sold and delivered. 
 Plea, that A was an undisclosed principal, and sold 
 the goods through M, and that a debt was due from M 
 to X. Replication, de injuria. Special demurrer. 
 Replication improperly used. Plea, not in excuse. 2 
 
 261. The replication de injuria extends, when 
 used, to the whole of the defendant's plea, and puts 
 in issue all the material allegations in it. 3 But the 
 plaintiff may expressly except and admit those parts 
 to which he does not 'wish the traverse to apply, and 
 then it will apply only to the remainder. This the 
 plaintiff usually does when part of the plea is matter 
 to which de injuria is inadmissible. 
 
 A v. X. Action of assumpsit on a contract by which 
 X, the owner of the ship, agreed to allow A to perform 
 the duties of second mate, and pay him therefor, alleg- 
 ing a refusal by X to allow him to perform his duties. 
 Plea, that on the voyage M, the captain, died, and S, 
 by his right as first mate, assumed the duties of captain, 
 and that A was guilty of mutiny. Replication. True 
 it is that S exercised the duties of captain, as in the 
 plea mentioned, but de injuria as to the residue of the 
 plea. A, having admitted S's capacity as captain, can- 
 not show that it was limited; de injuria applies only 
 to the mutiny. 4 
 
 1 Fisher v. Wood, 4 Dowl. N. S. 54; Ames' Cases, 177. 
 
 2 Salter v. Purchell, 1 Q. B. 197 ; Ames' Cases, 178. 
 s Crogate's Case, 8 Rep. 66; Ames' Cases, 143. 
 
 * Penno v. Bennett, 3 Gale & Dav. 54.
 
 DUPLICITY. 165 
 
 CHAPTER V. 
 
 DUPLICITY. 
 
 262. One of the main objects of the system of 
 pleading which prevailed at common law was to pre- 
 sent the case to the jury in as simple a form as possible. 
 The idea was that the minds of the jury must not be 
 perplexed by numerous issues, but that the case must 
 go before them upon a single question of fact. The 
 rule against duplicity was one of the means by which 
 this end was accomplished. It was held that a pleading 
 was defective which was double i. e., which con- 
 tained more than a single cause of action or defense. 1 
 
 Where a declaration stated two or more distinct 
 grounds to support the same claim, or where a plea, 
 replication, or rejoinder contained two or more distinct 
 answers to the matter alleged in the preceding pleading, 
 the rule against duplicity was violated. The defect 
 could be taken advantage of by a special demurrer. 
 
 A v. X. Action of assumpsit. The declaration 
 alleges an agreement by X to pay one hundred dollars 
 for a horse, in consideration of A's agreement to sell 
 it to him, with alternative conditions, either that the 
 horse should be delivered by such a day, or that A 
 should break him to harness. A alleges that he broke 
 
 i While several causes of action may, under the modern systems 
 of pleading, be joined, each must be in a separate count. If 
 in a single count two causes of action are alleged, a declaration 
 is bad on special demurrer. Cohen v. Home Ins. Co., 95 AtL 
 912 (Del.).
 
 166 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 the horse to harness, and delivered him by the required 
 day, and alleges as a breach that X refused to pay him 
 the $100. Special demurrer. The declaration is 
 double; the performance of either condition precedent 
 would have given him a right of action. 
 
 A v. X. Action of debt upon a bond, with condition 
 to abide by an award if the award was made and 
 delivered by such a day. Plea, no award made or 
 delivered by the day. Special demurrer. Plea, 
 double; a single denial, either of the making or of 
 the delivering of the award, would have sufficed to 
 defeat the declaration. 1 
 
 A v. X. Action of debt on a bond. Condition, the 
 payment by X of a certain sum at two fixed days. 
 Plea, that X paid accordingly. Replication, that X 
 has not paid accordingly. Replication, double ; a denial 
 of payment at one day would have sustained A's case. 2 
 
 A v. X. Action of indebitatus assumpsit. The 
 declaration alleges X was the drawer of a bill of ex- 
 change on M ; that A was the holder ; that the bill 
 was presented for acceptance, and dishonored ; that 
 the bill was presented later for payment, and dishon- 
 ored ; of all of which X had notice ; and, in consider- 
 ation of the premises, promised to pay A the amount 
 of the bill on request. Special demurrer, for duplicity. 
 The declaration was held good. On the view that the 
 liability of the drawer arises absolutely upon the first 
 dishonor, it would seem that the declaration is double ; 
 for, then, either dishonor without the other would 
 furnish a ground for the implied promise. 3 
 
 lAnon., Brooke's Abr., Title, Double Plea, pi. 90; Ames' Cases, 
 185. 
 
 zSaunders r. Crawley, 1 Rolle, 112; Ames' Cases, 186. 
 8 Galway r. Rose, 6 M. & W. 291 ; Ames' Cases, 204.
 
 DUPLICITY. 167 
 
 A v. X. Action of assumpsit on a bill of exchange. 
 Plea, that X accepted the bill while he was an infant, 
 and left it blank as to date; that A altered the bill 
 by inserting a date as if given after X became of age ; 
 that X never assented to it. Special demurrer, for 
 duplicity. The plea is good. It amounts simply to a 
 plea of infancy. 1 
 
 263. As a rule of common-law pleading this rule 
 against duplicity, it is conceived, is without exception. 
 
 It has been said 2 that a defense pleaded as a 
 " necessary inducement " to another defense will not 
 operate to make a pleading double. There is no 
 foundation for this alleged exception. Dame Audley's 
 case, 3 which is cited as the authority for it, does not 
 support it. The case was one of detinue brought by 
 Dame Audley, a married woman; the defendant 
 pleaded the marriage of the plaintiff to Lord Audley 
 after the bailment, and a release by him. In no case 
 could this matter constitute more than a single defense ; 
 for 
 
 (a). If the detainer took place after the marriage, 
 the marriage was a complete and the only defense ; 
 the allegation of release was immaterial as against the 
 plaintiff ; for, upon marriage, the property in the goods 
 passed to the husband, and no right of action ever 
 vested in the plaintiff. 
 
 (&). If the detainer took place before marriage, the 
 marriage itself was no defense, since, at the time of 
 the marriage, Dame Audley possessed simply a chose 
 
 1 Harrison v. Cotgreave, 5 D. & L. 169; Ames' Cases, 204. 
 
 2 Stephens, Pleading, 260. 
 
 s Moore, 25 ; Ames' Cases, 185.
 
 168 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 in action, and if the husband had not reduced the chose 
 in action into possession, or released it, it would still 
 remain in the plaintiff. The release, therefore, was the 
 only defense. 
 
 It will be seen, therefore, that in no case can the plea 
 amount to more than a single defense, and there is no 
 ground for the alleged exception. 
 
 264. It is sometimes stated that a replication 
 containing two distinct averments will not be bad for 
 duplicity if the defendant cannot tender issue upon 
 both without departing from his plea, thus seemingly 
 presenting an exception to the general rule. The fact 
 is, however, that in such a case one of the averments 
 will always be mere surplusage, and the replication 
 could thus in no way be double. 
 
 A v. X. Action of debt on a bond. The condition 
 of the bond was that X should pay A forty pounds a 
 year as long as X should enjoy a certain office. Plea, 
 that the office was granted for three lives, and so long 
 X enjoyed it, and paid the forty pounds yearly so long. 
 Replication, that X enjoyed the office longer, and that 
 he had not paid the money for that longer time. Spe- 
 cial demurrer, for duplicity. Replication not double. 
 The second allegation is surplusage. 1 
 
 265. Duplicity is a formal defect, and must be 
 taken advantage of by special demurrer. 2 Hence, a 
 pleading bad for duplicity, once pleaded to, cannot be 
 
 iGaile v. Betts, 3 Salk. 142; Ames' Cases, 186. 
 2 Euer, Doctrina Placitandi (1667), 118; Saunders v. Crawley, 
 1 Rollos, 112.
 
 DUPLICITY. 
 
 afterward challenged on that ground, and is said to be 
 cured. 
 
 A v. X. Action of debt on a penal bill (an obliga- 
 tion similar to a bond, but differing from it in that 
 plaintiff was required to allege the non-performance 
 of conditions, instead of defendant alleging their per- 
 formance). The condition was that X should pay ten 
 shillings on June 11, ten shillings on July 10, etc. A 
 alleges that X did not pay the sums upon the several 
 days. Plea, that X paid ten shillings on June 11. 
 Replication, that X did not pay it. Demurrer. The 
 declaration is double ; the allegation of a single default 
 in payment would have been sufficient, but it is too 
 late for X to take advantage of this, and, as the plea 
 is bad in substance, A has judgment. 1 
 
 266. Mere surplusage will not make a pleading 
 double. 
 
 A v. X. Action of trespass quare clausum fregit. 
 Plea, that X has right of common in the close for his 
 cattle, and that the trespassing cattle were commonable 
 cattle. Replication denies (1) that the cattle were X's 
 own cattle; (2) that they were levant and couchant; 
 (3) that they were commonable cattle. Special de- 
 murrer, for duplicity. The replication is good; the 
 allegations that the cattle were X's cattle, levant and 
 couchant, etc., are unnecessary, as they are implied in 
 the allegation of commonability; hence the denials of 
 them in the replication are mere surplusage ; the denial 
 of commonability is sufficient. 2 
 
 A v. X. Action of debt on a promissory note. The 
 declaration alleges that X made his note to A payable 
 
 1 Humphreys v. Bethily, 2 Vent. 198, 222; Ames' Cases, 187. 
 
 2 Robinson v. Rayley, 1 Burrow. 316; Ames' Cases, 188.
 
 170 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 March 25, 1845, and, the note falling due, X promised 
 to pay A the amount on request. Special demurrer for 
 duplicity. The latter part of the declaration is mere 
 surplusage. A promise to do what one is already bound 
 to do is void. 1 
 
 A v. X. Action of debt. Plea in abatement, that 
 the writ " at the time it was put into the officer's hands 
 for service, and at the time when it was served, con- 
 tained no count or declaration." Special demurrer, for 
 duplicity. The plea is good; the first allegation is 
 surplusage; if the writ contained a count at the time 
 it was served, it was good. 2 
 
 267. Matter which is good in substance, although 
 pleaded in the wrong form, will render a pleading 
 double. 
 
 A v. X. An action of assumpsit on a bill of ex- 
 change. Plea, that X was imprisoned, and accepted 
 the bill under duress ; that he never received any con- 
 sideration for the acceptance. Special demurrer, for 
 duplicity. The plea is double; the second part is a 
 separate defense; it is ill-pleaded, as it amounts to 
 non assumpsit. (The court treated it thus, and the 
 principle, as far as the rule against duplicity is con- 
 cerned, is correct; in reality, the second part is no 
 defense, as a bill or note requires no consideration.) 3 
 
 268. Where a defense is made up of a number 
 of separate allegations, each material to the defense, a 
 traverse of a single allegation, if sustained by the proof, 
 will break down the whole defense ; hence, a replication 
 
 1 Shepherd v. Shepherd, 3 D. & L. 199 ; Ames' Cases, 202. 
 
 2 Rathbone v. Rathbone, 5 Pick. 221 ; Ames' Cases, 207. 
 
 3 Stephens v. Underwood, 4 Bing. N. C. 655; Ames' Cases-, 192.
 
 DUPLICITY. 171 
 
 traversing more than one will be bad for duplicity. 
 The case of Saunders v. Crawley 1 presents an illustra- 
 tion of this. 
 
 269. Where a replication de injuria is pleaded 
 to a plea which contains two distinct defenses, and 
 which would clearly be bad for duplicity, the replication 
 is not double; for it must be construed as a separate 
 traverse to each defense. 
 
 A v. X. Action of assumpsit against an acceptor 
 of a bill of exchange. Plea, that X accepted for the 
 accommodation of M, and that, when the bill became 
 due, M delivered to A another bill in payment (which 
 would be one complete defense) ; that A agreed with 
 M not to sue upon the bill which X had accepted. 
 (Such an agreement discharges an accommodation ac- 
 ceptor, and would be a second defense.) Replication, 
 de injuria. Special demurrer, assigning for cause that 
 the replication is double. The plea is clearly double; 
 but A replies instead of demurring, and the replication 
 must be considered as a separate traverse to each 
 defense, and hence not double. 2 
 
 1 1 Rolle, 112; Ames' Cases, 186; ante, p. 166. 
 
 2 Reynolds v. Blackburn, 7 A. & E. 161 j Ames' Cases, 161.
 
 172 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 CHAPTER VI. 
 
 DEPARTURE. 
 
 270. A departure is a shifting of position by 
 one of the parties to an action in his pleadings; an 
 abandonment of the ground first taken by the declara- 
 tion or plea for another in a subsequent pleading. 
 Neither party is permitted to depart in this way from 
 the ground which he first takes in his pleading, " for 
 this is to Say and Unsay which the law doth not allow 
 and Pleas must be plain and certain." 1 If he does, 
 the departure will be fatal to his pleading. 
 
 A v. X. Action of debt on a bond. The condition 
 of the bond was that X, the lessee, at every cutting 
 of wood, should make a fence. Plea, that X had not 
 felled any wood. Replication, that X felled two acres 
 of wood and did not make any fence. Rejoinder, that 
 X made a fence. Demurrer. The rejoinder is bad, 
 as it contains an entirely different defense from that 
 contained in the plea and is a departure from the plea. 2 
 
 A v. X. Action of debt on a bond. The condition 
 of the bond was that X should save A harmless from 
 the cost of bringing up a certain child. Plea, that A 
 
 1 Regula Placitandi, p. Ill, and at p. 112 the following suc- 
 cinct rule : " So such party must take heed of the ordering of 
 the matter of his pleading lest his Replication vary and differ 
 from his Count or his Rejoinder from his Bar: For this is not 
 sufferable, and is called a Departure in Pleading when the 
 Second Plea doth contain matter not pursuant to the former 
 and which does not fortifie the same." 
 
 2 Anon., Dyer, 253, pi. 101; Ames 5 Cases, 208.
 
 DEPARTURE. 173 
 
 was not burdened with such expense. Replication, that 
 A, for a month, provided maintenance for the child. 
 Rejoinder, that X offered to support it, but A refused 
 to let him. Demurrer. The rejoinder is a departure 
 from the plea, and bad on that account. 1 
 
 A v. X. Action of replevin for taking goods and 
 chattels, to wit, one lime-kiln. Avowry, that the tak- 
 ing was for rent in arrear. Plea, that the lime-kiln 
 was affixed to the freehold, and, by law, was exempt 
 from distress for rent. Demurrer. The plea is a 
 departure from the declaration, which treated the 
 lime-kiln as a chattel, and is bad on that account. 2 
 
 A v. X. Action of debt on a bond. The condition 
 of the bond was performance of certain covenants. 
 Plea, performance of the covenants. Replication, that 
 one covenant was for the payment of rent ; and that 
 10 was in arrear on a certain day. Rejoinder, that X 
 tendered the rent to A, and A refused it. Demurrer. 
 The rejoinder is a departure from the plea, and bad on 
 that account. 3 
 
 271. Departure is a fault which may be taken 
 advantage of on general demurrer. 
 
 Where the departure is from the declaration, i. e., 
 in the replication, it seems proper to regard it as a de- 
 fect in substance; for, if the plaintiff recovers at all, 
 he must always recover on the cause of action as stated 
 in the declaration. When, therefore, he abandons his 
 declaration and states a new cause of action in the 
 replication, it is evident judgment cannot be given for 
 
 1 Kichards v. Hodges, 2 Saunders' 83 ; Ames' Cases, 210. 
 
 2 Niblet v. Smith, 4 T. R. 504 ; Ames' Cases, 214. 
 
 3 Winchelsea v. Higden, 2 Barnardiston, 193; Ames' Cases, 213.
 
 174 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 him; on the face of the record, he has abandoned his 
 declaration, and cannot claim judgment; a general 
 demurrer opens up the whole record, hence departure 
 from the declaration is rightly held fatal on general 
 demurrer. 
 
 272. When, however, the departure is from the 
 plea, i. e., in the rejoinder, there seems to be no valid 
 reason for holding the defendant's pleadings bad on 
 general demurrer; no reason, in fact, why the defend- 
 ant should not answer the matter in the replication by 
 a new defense. However, the rule is well settled that, 
 if he does, the rejoinder will be bad on general de- 
 murrer, although, if a defect at all, it is obviously but 
 a fault in form. 
 
 273. Where the declaration is made up wholly 
 
 of irrelevant matter, and discloses no cause of action, 
 
 a replication stating a good cause of action will be a 
 departure. 
 
 A v. X. Action of assumpsit. The declaration 
 alleges that X promised to give A $100, and states as 
 a breach that he did not give it, but states no consid- 
 eration. Plea, that X was an infant when he made 
 the promise. Replication, that X made the promise 
 in consideration that A would furnish him with meat 
 and groceries, and that A had furnished them. De- 
 murrer. The replication is a departure from the dec- 
 laration, which showed no binding promise for want 
 of a consideration. 
 
 It is not, in cases like the above, necessary to apply 
 the rule against departure. In fact, it is scarcely ac-
 
 DEPASTURE. 175 
 
 curate to do so. There is really no departure in such 
 a case, for there is no abandoning of a previous ground. 
 The true reason why judgment goes against the plain- 
 tiff is that no cause of action has been stated in his 
 declaration, and it is, therefore, bad on general de- 
 murrer, whether that demurrer comes after the decla- 
 ration or after the replication. 
 
 274. Where the declaration is framed in con- 
 tract, and the replication sets forth matter which might 
 sustain an action of tort, there is a departure. 
 
 A v. X. Action of debt for goods sold and deliv- 
 ered. Plea, that X was an infant at the time of con- 
 tracting the debt. Eeplication, that X fraudulently 
 represented to A that he was of full age, and thereby 
 obtained the goods. Demurrer. The replication is a 
 departure from the declaration; it discloses matter for 
 an action of tort. 1 
 
 275 . Where the plaintiff relies upon a common- 
 law right, and the defendant sets up a prima facie de- 
 fense, e. g., act of Parliament, the plaintiff can, of 
 course, reply any matters which tend to remove the 
 defense, and support his claim on the ground taken in 
 the declaration. 
 
 A v. X. Action of case. The declaration alleges 
 that X built an embankment on his land, which caused 
 water to flow down against A's house and damaged it. 
 Plea, that the embankment was built by X under an 
 act of Parliament. Replication, that the flow of water 
 was caused by the negligent way in which the embank- 
 
 iBartlett v. Wells, 1 B. & S. 836; Ames Cases, 222.
 
 176 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 ment was built. Demurrer. Replication is no de- 
 parture. 1 
 
 276. In general, it may be said that where the 
 subsequent pleading merely supports and fortifies the 
 preceding pleading of the same party, there will be no 
 departure. 
 
 A v. X. Action of covenant on an agreement by 
 X to serve A as an apprentice. Plea, infancy. Rep- 
 lication, that by the custom of London infants can bind 
 themselves as apprentices. Demurrer. There is no 
 departure here, and the replication is good; it shows 
 that the agreement sued on is binding. 2 
 
 A v. X. Action of debt on a bond. The condition 
 of the bond was the performance of a covenant to ac- 
 count to A for all moneys received by X. Plea, cove- 
 nant performed. Replication, that on a certain day 
 26 came into X's possession, for which he has not 
 accounted. Rejoinder, that certain burglars broke in 
 the counting-house and stole it, and this X told A. 
 Demurrer. No departure; the rejoinder confirms the 
 statement in the plea that X performed his covenant 
 to account. 3 
 
 A v. X. Action of debt on a bond. The condition 
 of the bond was that X was to save A harmless from 
 liability to pay for any tonnage of coal due to M. Plea, 
 that A was not damnified. Replication, that M dis- 
 trained for tonnage due him. Rejoinder, that nothing 
 was due M for tonnage. Demurrer. ISTo departure ; 
 if nothing was in fact due M, A was under no liability 
 
 1 Brine v. Great Western Ry. Co., 2 B. & S. 402; Ames' Cases, 
 224. 
 
 2 Mole v. Wallis, 1 Lev. 81; Ames' Cases, 204. 
 sVere v. Smith, 2 Lev. 5; Ames' Cases, 211.
 
 DEPARTURE. 177 
 
 to pay him, and the condition of the bond was not 
 broken ; the rejoinder merely fortifies the plea. 1 
 
 277. Where a party in a subsequent pleading 
 changes a point, which was immaterial in his former 
 pleading, there will be no departure. In a somewhat 
 contradictory form, the rule has been stated thus: 
 Departure from an immaterial averment is no depart- 
 ure. The meaning is, that it is not such a departure 
 as will render the pleading bad. 
 
 A v. X. Action of indebitatus assumpsit, for goods 
 sold on Jan. 16, 1706. Plea, statute of limitations, 
 that the action did not accrue within six years. Rep- 
 lication, setting forth that the suit was commenced 
 on Jan. 23, 1713, and alleging that the cause of action 
 arose within six years before. Demurrer. There is 
 no departure, though the replication shows that goods 
 must have been sold on a different date from that 
 stated in the declaration ; the allegation of the exact 
 date is immaterial. 2 
 
 A v. X. Action of trover. The declaration alleges 
 that A was " lawfully possessed of the goods as of his 
 own property/' Plea, X, as sheriff, took the goods in 
 execution. Replication, that M deposited the goods 
 with A for repairs, and that A had a lien on them for 
 work and labor. Demurrer. No departure. Allega- 
 tion of property immaterial. 3 
 
 1 Owen v. Reynolds, Fortescue, 341 ; Ames' Cases, 213. 
 
 2 Cole v. Hawkins, 1 Strange, 21 ; Ames' Cases, 212. 
 sLegg v. Evans 6 M. & W. 36 ; Ames' Cases, 220. 
 
 12
 
 178 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 CHAPTER VII. 
 
 ASSIGNMENT. 
 
 278. The rule which required a new assignment 
 in certain cases was another of the rules of common- 
 law pleading directed to the simplification of the issues. 
 
 Where the plaintiff's declaration was framed in 
 terms so general, that the defendant might presumably 
 be in some doubt as to the plaintiff's cause of complaint, 
 he was permitted to misconceive (though in legal con- 
 templation unwittingly) the claim of the plaintiff, and 
 to apply his plea to a different matter from that which 
 the plaintiff had in view; the plaintiff was then com- 
 pelled to new assign i. e., state more definitely his 
 cause of complaint. An able treatment of new assign- 
 ment will be found in Justice Blackstone's opinion in 
 the case of Martin v. Kesterton. 1 
 
 279. A new assignment can be used only by the 
 plaintiff, and by him only in his replication. It is in 
 the nature of a new declaration, stating that the de- 
 fendant has not, in his plea, rightly understood, or 
 answered to, the cause of action which the plaintiff 
 meant to urge, and stating in more definite terms just 
 what that cause of action is. The pleadings then pro- 
 ceed as if there had been no such misunderstanding 
 between the parties 
 
 i 2 Bl. 1089 ; Ames' Cases, 234.
 
 NEW ASSIGNMENT. 179 
 
 280. A new assignment, being in the nature of 
 a declaration, does not in any sense admit the matter 
 stated in the defendant's plea to be true, but merely 
 passes it over in silence. 
 
 A v. X. Action of trespass for breaking and enter- 
 ing A's house. Plea, that M held a house under lease 
 from X; that a year's rent was in arrear; that, to 
 prevent X from distraining, M carried his goods to A's 
 house ; that X entered under a search warrant. Repli- 
 cation, new assignment that A declares for a trespass 
 upon another and different part of the day. X pleads 
 the same defense as before. Replication, de injuria. 
 X proves that he entered as stated in the plea, but gives 
 no proof of the lease to M, nor of rent in arrears, claim- 
 ing these facts are admitted by the new assignment. 
 X must prove these facts the same as if there had been 
 no new assignment. 1 
 
 281. If the declaration alleges but a single act 
 on the part of the defendant, the plaintiff cannot both 
 reply to the defendant's plea and also new assign. 
 
 A v. X. Action of trespass quare clausum fregit. 
 Plea, that X had a right of way over the close. Rep- 
 lication, traversing the right of way and new assign- 
 ment, that the trespass complained of was extra viam. 
 Special demurrer. The replication is bad. " Either 
 the plaintiff should not have traversed or not new 
 assigned. It was at his option which to do." 2 
 
 282. When the single act alleged is stated in 
 definite terms, so as to make it plain to the defendant 
 
 1 Norman v. Westcombe, 6 L. J. R. Ex. 164 ; Ames' Cases, 246. 
 
 2 Spencer v. Bemis, 46 Vermont, 29 : contra, Loweth r. Smith, 
 2 M. & W. 582, per Parke, B. ; Ames' Cases, 259.
 
 180 PBINCIPLES OF COMMON-LAW PLEADING. 
 
 just what is meant, the plaintiff cannot new assign, 
 unless he states another and a different cause of action, 
 and that would be a departure. 
 
 A v. X. Action of trespass for stopping A's cart 
 on Oct. 17, 1815. Plea, that A was wrongly taking 
 turf from M's close, and that X, as servant, stopped 
 him. Replication, de injuria and new assignment, that 
 the trespass complained of was on another day. New 
 assignment improper; the plea answers the single act 
 alleged. 1 
 
 283. Where the plaintiff has alleged several acts 
 on the part of the defendant, and the defendant in his 
 plea has answered some of them, but missed others, the 
 plaintiff may plead to those which the defendant has 
 answered, and new assign as to the rest. 
 
 A v. X. Action of trespass, alleging several differ- 
 ent trespasses. Plea, that the alleged trespasses were 
 committed in Crable House, Black Acre, and White 
 Acre, and that they are all X's freehold. Replication, 
 traversing that Crable House and Black Acre are X's 
 freehold, and new assignment that one of the trespasses 
 complained of was committed in another place and not 
 in White Acre. Demurrer. Replication good. 2 
 
 284. Where the act alleged is one divisible in 
 time, and the defendant has only answered to a part 
 of it, the plaintiff may reply to that part, and new 
 assign as to the remaining part. 
 
 A v. X. Action of trespass for breaking and enter- 
 ing A's house and staying four days. Plea, a justifi- 
 
 i Taylor v. Smith, 7 Taunton, 156; Ames' Cases, 238. 
 zPrettyman v. Lawrence, Cro. Eliz. 812; Ames' Cases, 233.
 
 NEW ASSIGNMENT. 181 
 
 cation by leave and license of A to take certain goods. 
 Replication, traversing leave and license and new as- 
 signment, that A declared for the staying in for three 
 days longer than was necessary to take said goods. 
 Special demurrer. Replication good. 1 
 
 285. Where the plaintiff has the opportunity to 
 both reply and new assign to the defendant's plea, if 
 he does not new assign, but simply takes issue on the 
 plea, he will be confined, in his proof, to those acts, 
 or that part of the act, to which the defendant has 
 correctly pleaded. 
 
 A v. X. Action of trespass for breaking and enter- 
 ing A's house, staying therein three weeks, and carrying 
 off goods. Plea, (1) not guilty; (2) as to breaking 
 and entering and staying in twenty-four hours, and 
 carrying off goods, a justification under a writ. Repli- 
 cation, de injuria. X proved his justification, but it 
 appeared he continued in the house more than twenty- 
 four hours ; and A claimed, on this proof, he was enti- 
 tled to judgment for the trespass beyond twenty-four 
 hours. A is not entitled to judgment; he should have 
 new assigned as to the excess. 2 
 
 A v. X. Action of debt for 73 for work, labor, 
 and materials. Plea, that the work was done and ma- 
 terials provided under a certain contract ; that A agreed 
 to accept a certain sum in payment; that X paid it. 
 Replication, traversing that A received the sum of 
 money in full payment, as in the plea mentioned. A 
 wishes to give evidence of extra work outside of the 
 contract. A cannot do it, he should have new assigned. 3 
 
 iLoweth v. Smith, 12 M. & W. 582; Ames' Cases, 257. 
 
 2 Monprivatt v. Smith, 2 Campbell, 175; Ames' Cases, 235. 
 
 3 Rogers v. distance, 1 Q. B. 77; Ames' Cases, 251.
 
 182 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 286. Wherever issue is taken upon the plea, if 
 the defendant can prove it as he meant it, even though 
 the plaintiff had an entirely different idea, the proof 
 will be sufficient to support the plea, and the plaintiff 
 will not be allowed to show that the plea is no answer 
 to what he meant in his declaration, for in such case 
 he should have new assigned. 
 
 A v. X. Action of trespass for breaking and enter- 
 ing A's close, called the Fold-yard. Plea, that said 
 close is X's freehold. Replication, traversing the plea. 
 It appeared that A had a close called Fold-yard, and 
 that a trespass had been committed therein, and that 
 X also had a close called Fold-yard in the same parish. 
 X should have judgment, for he has proved his plea. 
 Held contra, but decision seems wrong on principle. 1 
 
 A v. X. Action of debt for 10 for goods sold and 
 delivered, and 10 for work and labor. Plea, that X 
 paid A a large sum of money in full satisfaction of the 
 debt. Replication, traversing the plea. X proves a 
 payment of a sum larger than the debt claimed, but A 
 shows that the work amounted to more than was paid, 
 and there is a balance due. X is entitled to judgment ; 
 he has proved payment of the debt to which he applied 
 his plea. Decision contra,, but erroneous. 2 
 
 A v. X. Action of trespass for breaking and enter- 
 ing A's close and tearing down his fences. Plea, that 
 there was a public foot-path over the close; that A 
 obstructed it, and X pulled down the obstruction. 
 Replication, traversing the plea. X proves public way 
 
 1 Cocker v. Crompton, 1 B. & C. 489 ; Ames' Cases, 239. 
 
 2 Freeman v. Crafts, 4 M. & W. 4; Ames' Cases, 250; but see 
 Austin v. Morse, 8 Wend. 476; Ellet v. Pullen, 7 Halst. 357; 
 Collum v. Andrews, 6 Watts, 516; Palmer v. Tuttle, 39 N. H. 488.
 
 NEW ASSIGNMENT. 183 
 
 over the land from east to west. A admitted such foot- 
 path, but offered to prove X went over the land in a 
 different way: to do this A should have new assigned. 
 X has proved his plea and is entitled to judgment. 1 
 
 287. The case of Monkman v. Shepherdson 2 in- 
 volves a consideration of both the rule as to duplicity 
 and the rule as to new assignment. A declared in debt 
 against X for 10 for wages. X pleaded that A had 
 forfeited his wages, according to the agreement be- 
 tween them, by voluntarily becoming drunk. A replied 
 that X had discharged him from such forfeiture, and 
 new assigned that 7 of the 10 became due after said 
 drunkenness. There was a special demurrer for du- 
 plicity. Held, that the replication was good, the new 
 assignment being proper. It would seem, however, 
 that the new assignment amounts simply to a traverse, 
 as to 7, of the forfeiture mentioned in the plea, and 
 hence is bad in form; but since the replication of dis- 
 charge must be construed as applying only to the re- 
 maining 3, there is no duplicity in the replication. 
 
 iHuddart v. Rigby, 5 L. R. Q. B. 139; Ames' Cases, 260. 
 2 11 A. & E. 411; Ames' Cases, 255.
 
 184 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 CHAPAEK VIII. 
 
 MOTIONS BASED ON THE PLEADINGS. 
 
 SECTION I. ARREST OF JUDGMENT. 
 
 288. It often happens that a verdict is found 
 for the plaintiff on pleadings which the defendant 
 thinks insufficient in substance. It being too late to 
 bring the question of their validity before the court 
 by demurrer, the means adopted by the defendant to 
 accomplish the same object is what is known as a mo- 
 tion in arrest of judgment. Like a demurrer, such a 
 motion opens the whole record; and, if it appears on 
 its face that the pleadings of the plaintiff are bad in 
 substance, judgment will be arrested. 
 
 A v. X. A alleges in his declaration that X prom- 
 ised to sell and deliver to A 266 hogsheads of tobacco 
 at a certain price if A would agree to purchase them 
 and would give notice thereof to the defendant before 
 the hour of four in the afternoon; that A did agree to 
 purchase and gave notice before four o'clock. After 
 verdict for A, X moved in arrest of judgment on the 
 ground the declaration stated no consideration. The 
 declaration is bad in substance, as the promise alleged 
 as the consideration is subsequent in time to the promise 
 of X, and judgment will be arrested. 1 
 
 289. Where a defect in substance is cured by 
 allegations in the answering pleading, the action of the 
 
 i Cooke v. Oxley, 3 D. & E. 653 ; Livingston v. Rogers, 1 Caines, 
 583.
 
 MOTIONS BASED ON THE PLEADINGS. 185 
 
 court will be the same on motion in arrest of judgment 
 as it would be on demurrer i. e., it will refuse to 
 allow advantage to be taken of the defect, and judgment 
 will not be arrested. 
 
 A v. X. Action of trespass. The declaration al- 
 leges the taking of a hook, but does not say A's hook, 
 nor that it was in A's possession. Plea, that X had 
 a right of way over A's land ; that he was passing 
 there, and took the hook out of A's hands to prevent 
 A from injuring him. Replication, traverse of the 
 right of way. Issue joined, ^ r erdict for A. Judg- 
 ment will not be arrested, for the omission to allege 
 possession is cured by the allegation in the plea. 1 
 
 290. Formerly, it was customary to arrest judg- 
 ment on a merely formal defect ; but, since the various 
 statutes, known as statutes of jeofails, some error in 
 substance must appear. 
 
 When judgment is arrested, the case stops where it 
 is, each party pays his own costs, and the plaintiff, if 
 he wishes to prosecute the suit, must begin anew. 
 
 291. Where the declaration contains several 
 counts, some of which are bad in substance, while 
 others present a sufficient cause of action, and the jury 
 give a general verdict, with general damages, for the 
 plaintiff, a motion in arrest of judgment will not be 
 granted. In such case the plaintiff is entitled to judg- 
 ment on the good counts, and the error is one that the 
 jury have made in not specifying upon what counts 
 the verdict was given. It is not just, therefore, to 
 
 i Brooke v. Brooke, Siderfin, 184; Ames' Cases, 266.
 
 186 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 compel the plaintiff to begin his suit anew. A venire 
 de novo, which simply summons a new jury, will, 
 however, be awarded. 1 
 
 292. Where the plaintiff in his replication trav- 
 erses an immaterial point in the plea, and, upon issue 
 being taken thereon, obtains a verdict, judgment will 
 not be arrested, but a repleader will be awarded. 
 
 There is no reason, on principle, why, in such a 
 case, judgment should not be arrested. The reason 
 given is that the plaintiff may have a better answer 
 to the plea, and ought to have a chance to bring it 
 forward. But, if the traverse had been demurred to, 
 judgment would have been given for the defendant 
 without regard to any better answer which the plain- 
 tiff might have ; and why, in the case of arrest of judg- 
 ment, should such a consideration come in ? The fact 
 that the plaintiff did not bring forward a better answer 
 to the plea is, in the eyes of the law, a sufficient 
 acknowledgment that he has none. 
 
 A v. X. Action of assumpsit for money had and 
 received. Plea, that A and M were partners ; that 
 with A's consent M dealt with certain goods as his own 
 property ; that the goods were left with X to be sold ; 
 that it was agreed between M and X that X, out of the 
 proceeds, should reimburse himself for money lent to 
 M. Replication, traversing that A permitted M to deal 
 with the property as his own. Issue joined. Verdict 
 for A. Though the issue is immaterial, judgment will 
 not be arrested, but a repleader awarded. 2 
 
 1 Leach v. Thomas, 2 M. & W. 427; Amos' Cases, 266. 
 
 2 Gordon v. Ellis, 7 M. & G. 607; Ames' Cases, 268.
 
 MOTIONS BASED ON THE PLEADINGS. 187 
 
 293. In general, errors in form are no ground 
 for arresting judgment. There is one case, however, 
 which stands upon a peculiar footing. This is the 
 action of debt on a bond conditioned for the perform- 
 ' ance of an award. Where the plea is in excuse, " No 
 award made," and the replication sets forth an award, 
 but assigns no breach, the replication is defective. 1 
 It has been shown that the assignment of a breach is 
 necessary in the replication. Now, whether it be said 
 that its omission is a defect in substance, or merely in 
 form, it certainly can be taken advantage of on a motion 
 in arrest of judgment. If it be regarded as an error 
 in substance, it causes no exception to the rule that 
 judgment will be arrested only for an error in sub- 
 stance ; but it certainly is rather an anomalous state of 
 affairs to say that an allegation which cannot be trav- 
 ersed is matter of substance. If it be regarded as an 
 error in form, it causes a most striking exception to 
 the rule above stated. 
 
 SECTION II. NON-OBSTANTE VEREDICTO. 
 
 294. Where a party thinks that, on the plead- 
 ings, he is entitled to immediate judgment, though a 
 verdict has been given for his opponent, he moves for 
 judgment non-obstante veredicto (notwithstanding the 
 verdict). 
 
 295. The cases show the motion to have been 
 made almost universally by the plaintiff; but it is 
 
 i Barrett v. Fletcher, Cro. Jac. 220; Ames' Cases, 265.
 
 188 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 probable that either party may obtain judgment nonr 
 obstante. 1 There certainly seems to be no good reason 
 why, if the defendant has set forth a good defense, and 
 the plaintiff's replication confesses, but does not avoid 
 it, he should not have judgment non-obstante. If 
 either party may have judgment non-obstante, there 
 seems to be no occasion for the motion in arrest of 
 judgment; for the defendant has a much better 
 expedient in the motion for judgment non-obstante. 
 
 296. The idea which gave rise to this motion 
 was that, where the defendant confessed the plaintiff's 
 cause of action, and gave no sufficient avoidance, there, 
 whatever immaterial issue may have been joined and 
 found for the defendant, the plaintiff was entitled in 
 justice to the judgment. 
 
 A v. X. Action of case for slander. Plea, con- 
 fesses the speaking of the words, and alleges an insuf- 
 ficient excuse. Replication, traverses the excuse. 
 Verdict for A. X moves for an arrest of judgment. 
 Though the traverse is immaterial, judgment will not 
 be arrested, but will be for A on the confession in X's 
 plea. 2 
 
 297. The motion was originally granted only 
 where the defendant expressly confessed, in the plea 
 upon which the plaintiff sought judgment non-obstante, 
 the plaintiff's cause of action, and gave no good 
 avoidance. 
 
 1 14 Am. L. R. 494. 
 
 2 Lacy v. Reynolds, Cro. Eliz. 214; Ames' Cases, 275.
 
 MOTIONS BASED ON THE PLEADINGS. 189 
 
 A v. X. Action of assumpsit on a promissory note. 
 Declaration alleges X made the note, and delivered it 
 to M; that it was forfeited to the king; and that the 
 king gave it to A. Plea, that the said note became 
 due in M's hands, and the cause of action did not 
 accrue within the six years next before the bringing 
 of the action. Replication, traversing the plea. Ver- 
 dict for X. A is entitled to judgment non-obstante 
 veredicto. The king is not subject to the statute of 
 limitations, and X has not alleged that six years have 
 expired, exclusive of the time the king held the note. 1 
 
 298. The scope of the motion was gradually 
 extended to embrace those cases where the defendant, 
 in any one of his pleas, confessed the cause of action, 
 though there was no express confession in the plea upon 
 which verdict had been given for the defendant, and 
 upon which the plaintiff sought judgment non-obstante. 
 
 A v. X. Action of case for libel. X pleads several 
 pleas setting up the truth as a justification. Replica' 
 tion, de injuria. Verdict for A on one plea and for 
 X on the rest, but the issues on the latter were imma- 
 terial. Though some of the pleas did not confess the 
 cause of action, A is entitled to judgment non-obstante 
 upon these pleas, since the plea which raised a material 
 issue and upon which verdict was in his favor was a 
 sufficient confession. 2 
 
 299. Then to cases where the plaintiff had ob- 
 tained the verdict on some material traverse, while the 
 defendant had succeeded on the immaterial issue. 
 
 1 Lambert v. Taylor, 4 B. & C. 138; Ames' Cases, 276. See, 
 also, Filliene v. Armstrong, 7 A. & E. 557. 
 
 2 Goodburne v. Bowman, 9 Bing. 532; Ames' Cases, 278.
 
 190 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 A v. X. Action of case for disobedience to a sub' 
 poena, refusing to appear as a witness in A's behalf. 
 Plea, several traverses of material matter upon which 
 A had a verdict, and a traverse that A had a good cause 
 of action (conclusion of law), upon which X had a 
 verdict. A is entitled to judgment non-obstante. 1 
 
 300. On principle, the courts should have gone 
 one step farther, and given judgment non-obstante 
 veredicto, where there was a single immaterial traverse 
 to the declaration upon which the defendant had ob- 
 tained a verdict; for, what a party does not deny, he 
 admits; and therefore, on the face of the pleadings, 
 the action stands confessed, with no good avoidance. 
 But the courts refused to take this final step. 2 
 
 SECTION III. REPLEADER. 
 
 301. Where the parties proceeded to trial upon 
 some immaterial point raised by the form of the plead- 
 ings, and a verdict of the jury upon such point was had, 
 the court was unable to award judgment for either 
 party. The merits of the controversy were still unde- 
 termined. To remedy the situation the court awarded 
 what was called a repleader. 3 
 
 1 Couling v. Coxe, 6 D. & L. 399 ; Ames' Cases, 283. 
 
 2 Duke of Rutland v. Bagshawe, 19 L. J. E. Q. B. 284; Ames' 
 Cases, 286. 
 
 3 Euer, System of Pleading, 413. " For if by misconduct or 
 inadvertance of the pleaders the issue be joined on a fact totally 
 immaterial or insufficient to determine the right, so that the 
 court, upon finding, cannot know for whom judgment ought to 
 be given."
 
 MOTIONS BASED ON THE PLEADINGS. 191 
 
 A v. X, as executor. Assumpsit. A alleges the 
 testator promised, etc. X pleads that he (the executor) 
 made no such promise. On issue joined, the verdict is 
 for X. Repleader will be awarded, as the verdict is 
 upon an immaterial issue. 1 
 
 302. Either party may move that a repleader be 
 awarded, or the court may award it without motion. 
 If awarded, its effect is to compel the parties to begin 
 their pleadings anew at the stage where the first imma- 
 terial pleading was placed on the record, and each 
 party pays his own costs. 2 A repleader will be 
 awarded only after verdict, and then ony in certain 
 cases where the parties have gone to trial on an imma- 
 terial issue; i. e., not in all cases of immaterial issue. 
 Two further illustrations may be given where the relief 
 was considered proper. 
 
 A. v. X. Action of debt for rent. Plea, that before 
 the rent became due X assigned the term to M, of 
 which A had notice. Replication, traversing notice. 
 Verdict for X. Repleader awarded. The issue of 
 notice is immaterial. Nothing discharges X except an 
 agreement by A to the assignment. It would seem that 
 A was entitled to judgment non-obstante veredicto had 
 he moved it, unless the plea stated such agreement. 3 
 
 A v. X. Action in a bond conditioned for the pay- 
 ment of money on or before December 5th. X pleads 
 payment on December 5th. Replication traversing 
 that the money was " paid on that day." \ r erdict for 
 
 1 Anonymous, 2 Vent. 196. 
 
 2 Staple v. Heydon, Modern, 1 ; Ames' Cases, 293. 
 
 a Sergeant v. Fairfax, 1 Lev. 32; Ames' Cases, 290; Witts v. 
 Poleham-pton, 3 Salk. 305; Ames* Cases, 292.
 
 192 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 A. Repleader awarded because the issue was imma- 
 terial. Payment before the day would have been a 
 performance of the condition. 1 
 
 302. When it is said that repleader will not be 
 awarded in every case of immaterial issue, it is meant, 
 to quote from Lord Mansfield's opinion, " that when 
 the finding upon it does not determine the right the 
 court ought to award a repleader, unless it appears from 
 the whole record that no manner of pleading the matter 
 could have availed." 2 
 
 303. The courts will be very sure that the issue 
 is immaterial before awarding a repleader. 
 
 A v. X. Action of trespass quare elausum fregit, 
 and for taking three cows. Plea, that X leased the 
 close to M, and entered and took the cows as a distress 
 for rent in arrear. Replication, traversing that the 
 cows were levant and couchant. Verdict for A. A 
 repleader will not be granted, for levancy and cou- 
 chancy might be material if X chased the cows on to 
 the land liable to his distress, for then he could only 
 take them damage-feasant, and levancy and couchancy 
 would be material. 3 
 
 304. It is difficult to understand what occasion 
 either party had for moving for a repleader, since it 
 would seem (on principle, at least) that a better expe- 
 dient was always open to him. The following analysis 
 will illustrate what is meant : 
 
 1 Tryon v. Carter, 2 Strange, 994. 
 
 2 Rex v. Phillips, 1 Burrows, 293, at p. 301. 
 sKempe v. Crews, 1 Ld. Rind. 167; Ames' Cases, 291.
 
 MOTIONS BASED ON THE PLEADINGS. 193 
 
 Action of assumpsit by A v. X. 
 
 (I). Suppose the declaration states no valid cause 
 of action; that the plea is an immaterial traverse; 
 and that 
 
 (a). Verdict is for A. X may then have an arrest 
 of judgment, and there is certainly no occasion for a 
 repleader. 
 
 (6). Verdict is for X. X then is entitled to judg- 
 ment on the verdict. A can have nothing, for on the 
 face of the pleadings no cause of action appears. 
 
 (II.). Suppose the declaration states a valid cause 
 of action ; that 
 
 (1). The plea is an immaterial traverse, and that 
 *(a). Verdict is for A. Then, on principle, A 
 
 should have judgment on the verdict. 
 (6). Verdict is for X. Then, on principle, A 
 should have judgment non-obstante veredicto: 
 but such is not the law, and here seems to be 
 the first occasion for a repleader. 
 (2). The plea confesses but does not avoid the cause 
 of action; that the replication is an immaterial trav- 
 (a). Verdict is for A. Then A is entitled to judg- 
 ment on the verdict, for even if 
 erse ; and that 
 
 (&). Verdict is for X, A can have judgment non- 
 obstante veredicto. Hence, there is no occasion 
 for a repleader here. 
 
 (3). The plea confesses and avoids the cause of ac- 
 tion; that the replication is an immaterial traverse, 
 and that 
 13
 
 194 PRINCIPLES OF COMMON-LAW PLEADING. 
 
 (a). Verdict is for A. Then, on principle, X 
 should have judgment non-obstante veredicto, 
 and may, at least, have an arrest of judgment. 
 
 *(&). Verdict is for X. Then, certainly, X should 
 have judgment on the verdict. 
 
 There seems to be but one case, then, where a re- 
 pleader is appropriate, and that simply because the 
 courts have refused to go as far as they, on principle, 
 might have gone in the giving of judgment non-obstante 
 veredicto. If we adopt Chief Justice Tindal's view 
 that " a repleader is rather the act of the court, where 
 it sees that justice cannot be done without adopting 
 that course," 1 we can easily conceive of the courts, in 
 two other cases (see starred cases above), awarding a 
 repleader on the ground that the party may have a 
 better defense. 
 
 i Gordon v. Ellis, 7 M. & G. 607.
 
 INDEX. 
 
 [References are to pages.] 
 
 ABATEMENT, PLEA IN, 96. 
 ABSQUE HOC CLAUSE, 155. 
 ACQUIRED RIGHTS, as basia of recovery, 11. 
 
 ACTIONS, based on acquired rights, 6, 11. 
 based on natural rights, 6. 
 definition of, 6. 
 different forms of, 5. 
 
 distinction between personal and mixed, 7. 
 natural classification of, 6. 
 theory of recovery in, 6. 
 real, personal, and mixed, 6. 
 
 ACTION OF CASE. See CASE. 
 
 ARREST OF JUDGMENT granted only for defects in substance, 
 
 185. 
 
 object of motion in, 184. 
 when motion will not be granted, 186. 
 
 ASSUMPSIT, basis of recovery in, 13. 
 
 AVOWRY, like a declaration, 53. 
 necessary allegation in, 57. 
 
 BANKRUPTCY, PLEA OF, 106. 
 
 BREACH, statement of, in debt, 18. 
 
 statement of, in special assumpsit, 26. 
 
 CASE, basis of recovery in atcion of, 32. 
 common-law form of action, 5. 
 contributory negligence, how pleaded, 122. 
 
 (195)
 
 196 INDEX. 
 
 [References are to pages.] 
 
 CASE continued. 
 
 for injury to person, necessary allegations in declara- 
 tion, 62. 
 
 for injury to property, necessary allegations in declara- 
 tion, 63. 
 
 for what wrongful acts it is a remedy, 61. 
 
 general issue in, 149. 
 
 meaning of inducement in declaration in, 120. 
 
 nature of relief in, 33. 
 
 plea in excuse in, 120-124. 
 
 reasonable and probable cause, liow pleaded in action for 
 malicious prosecution, 122. 
 
 statutory origin of, 59. 
 
 truth, how pleaded, in action of libel, 121. 
 
 specific traverses in, 152. 
 
 what is put in issue by not guilty, 152, 153. 
 
 COGNIZANCE. See AVOWBY. 
 
 COMMON COUNTS. See GENERAL ASSUMPSIT. 
 
 CONFESSION AND AVOIDANCE, PLEAS BY WAY Ol 
 
 example of, 103. 
 in discharge, 105. 
 in excuse, 106. 
 nature of, 102. 
 
 nature of confession necessary, 103, 104. 
 verification of, 103. 
 
 CONSIDERATION, as the basis of recovery in actions, 21, 24 
 
 CONTRACT, action for breach of, 23. 
 bilateral, 25. 
 unilateral, 25. 
 
 CONVERSION. See TBOVEB. 
 acts of, what are, 41-43. 
 use of word, 40. 
 
 COVENANT, basis of recovery in, 11. 
 common-law form of action, 5. 
 nature and origin of action of, 21. 
 necessary allegations in declaration in, 22, 23.
 
 INDEX. 197 
 
 [References are to pages."] 
 
 DEBT, action in, for money lent, money paid, etc., 16. 
 basis of recovery in, 11, 14. 
 common-law form of action, 5. 
 credit, how pleaded, 112, 139. 
 demand for damages in, 15. 
 
 distinguishing feature of on simple contract, 16. 
 detention the essence of the action, 14. 
 general issue in, 139. 
 meaning of word, 14. 
 
 necessary allegation in declaration in, 15. 
 on simple contract, 16. 
 on records, 17. 
 on specialties, 17. 
 on statutes, 18. 
 
 payment on delivery, how pleaded, 139. 
 plea in excuse in, 111, 112. 
 specific traverses in, 139. 
 statement of breach in declaration, 18. 
 
 DECLARATION, bad for duplicity, example of, 165. 
 example of, 9. 
 first pleading, 2. 
 
 in case, necessary allegation in, 62, 63. 
 in covenant, necessary allegation in, 22. 
 in debt, necessary allegation in, 15. 
 in detinue, necessary allegation in, 20. 
 in ejectment, necessary allegation in, 68. 
 in general assumpsit, 29, 30. 
 in replevin, 56. 
 in special assumpsit, 24, 25. 
 in trespass, 34, 35. 
 in trover, 43. 
 office of, 7. 
 pledges in, 10. 
 profert in, 9. 
 
 statement of damages in, 9. 
 statement of right and wrong in, 7. 
 technical rules relating to, 8. 
 
 DEMAND AND REFUSAL, in trover, 44.
 
 198 INDEX. 
 
 [References are to pages.] 
 
 DEMURRER, a method of answering a pleading, 69. 
 distinguished from a plea, 75. 
 effect of, 71. 
 
 effect of, in opening the record, 87-93. 
 effect of, where there are two separate records, 89. 
 form of, 72. 
 general demurrer, 76. 
 how changed by statute, 73. 
 joinder in, 72. 
 judgment on final, 74. 
 
 pleadings examined for defects in substance only, 88. 
 special demurrer, 73, 83. 
 to plea in abatement, judgment on, 77. 
 to the evidence, 73. 
 when will not open record, 91. 
 
 DEPARTURE, change in immaterial matter not a, 177. 
 in rejoinder, from plea, 174. 
 in replication, from declaration, 175. 
 matters fortifying pleading not a, 176. 
 
 replication in tort a departure from declaration in con- 
 tract, 175. 
 
 statement of rule against, 172. 
 taken advantage of by general demurrer, 173. 
 
 DETINUE, basis of recovery in, 12. 
 brought upon a contract, 13. 
 common-law form of action, 5. 
 general issue in, 146. 
 lien, how pleaded, 118, 146. 
 nature of detention in, 12, 117. 
 nature of recovery in, 20. 
 necessary allegation in declaration in, 20. 
 objects of action of, 19. 
 offer to return goods, how pleaded, 118. 
 plea in excuse in, 117, 118. 
 specific traverses in, 146. 
 
 DILATORY PLEAS, classification of, 95, 100. 
 common grounds of, 100. 
 effect of, 95.
 
 199 
 
 [References are to pages.] 
 
 DILATORY PLEAS continued. 
 example of, 101. 
 
 nature of judgment upon demurrer to, 98. 
 use of, 98. 
 
 DISTRESS, meaning of word, 45. 
 
 replevin, the remedy for illegal, 45. 
 the successor of forfeiture, 45. 
 
 DUPLICITY, a defect in form, 168. 
 
 apparent exceptions to rule against, 158, 167, 168. 
 
 in the declaration 166. 
 
 in the plea, 166, 170. 
 
 in the replication, 166. 
 
 not caused by surplusage, 169. 
 
 not prevented because matter ill pleaded, 170. 
 
 replication de injuria not double because plea double, 171. 
 
 statement of rule against, 165. 
 
 EJECTMENT, use of, to redress what wrongs, 32. 
 common-law form of action, 5. 
 
 development of, for purpose of trial of title, 64-67. 
 how title called in question in, 65. 
 nature of relief in, 33. 
 
 necessary allegations in declaration in, 68. 
 nature of wrongful act complained of, 65. 
 origin of, 64. 
 plea in excuse in, 124. 
 
 EXCUSE, PLEAS IN, 106. 
 
 FORM OF ACTION, declaration determines, 2. 
 different forms, development of, 4. 
 treated in connection with declaration, 3. 
 
 GENERAL ASSUMPSIT, basis of recovery in, 13, 27. 
 common-law forms of action, 5. 
 credit, how pleaded, 110, 137. 
 denial of breach, how pleaded, 138. 
 different counts in, 28. 
 examples of declarations in, 30, 31. 
 general issue in, 133.
 
 200 INDEX. 
 
 [References a/re to pages.] 
 GENERAL ASSUMPSIT continued, 
 indebitatus assumpsit, 28. 
 money counts, 28. 
 
 necessary allegations in declaration in, 29. 
 pleas in excuse in, 109-111. 
 quantum meruit, 28, 29. 
 quantum valebant, 28, 29. 
 special contract, how pleaded, 137. 
 specific traverses in, 138. 
 
 GENERAL DEMURRER, as an admission of facts stated in 
 
 pleading, 78-83. 
 effect of in early times, 76. 
 effect of to plea in abatement, 77. 
 how changed by statute, 76, 77. 
 
 GENERAL ISSUE, in case, 149. 
 
 in debt, 139. 
 
 in detinue, 146. 
 
 in general assumpsit, 137. 
 
 in replevin, 147. 
 
 in special assumpsit, 134. 
 
 in trespass, 140. 
 
 in trover, 143. 
 
 meaning of term, 133. 
 
 INDEBITATUS ASSUMPSIT, 28. 
 
 INDUCEMENT, as part of declaration in case, 149. 
 as part of declaration in trespass, 142. 
 as part of declaration in trover, 144. 
 as part of special traverse, 154. 
 
 LIBERUM TENEMENTUM, 114. 
 
 MIXED ACTIONS, 7. 
 
 MONEY COUNTS, 28. 
 
 MOTIONS BASED ON PLEADINGS, 184. 
 
 NATURAL RIGHTS AS BASIS OF ACTIONS, 32.
 
 INDEX. 201 
 
 [References are to pages.} 
 
 NEW ASSIGNMENT, effect of failure to new assign, 181, 182. 
 not an admission of the plea, 179. 
 only available to plaintiff, 178. 
 statement of rule as to, 168, 178. 
 when plaintiff may both plead and new assign, 180. 
 when the plaintiff cannot new assign, 179, 180. 
 
 NIL DEBET, PLEA OF, 139. 
 
 NUNQUAM INDEBITATUS, PLEA OF, 139. 
 
 NOT GUILTY, PLEA OF, in case, 149. 
 in trespass, 140. 
 in trover, 143. 
 
 NON ASSUMPSIT, PLEA OF, in general assumpsit, 137. 
 in special assumpsit, 134. 
 
 NON DETINET, PLEA OF, 146. 
 NON CEPIT, PLEA OF, 147. 
 
 NON-OBSTANTE VEREDICTO, nature and use of motion, 187 
 when granted, 188, 189. 
 
 NOT POSSESSED, PLEA OF. in detinue, 146. 
 in trespass, 141. 
 in trover, 144. 
 
 OYER, 9. 
 
 PAYMENT, PLEA OF, 105. 
 
 PERSONAL ACTIONS, 6-7. 
 
 PLEA, a method of answering the declaration, 70. 
 by way of confession and avoidance, 102-124. 
 by way of traverse, 125-164. 
 in abatement, 96. 
 in bar, 102. 
 in discharge, 105. 
 in excuse, 106. 
 in suspension, 96. 
 to jurisdiction, 95.
 
 202 INDEX. 
 
 [References are to pages.] 
 
 PLEADINGS, definition, 1. 
 
 subsequent to the declaration, 69. 
 
 PLEDGES, 10. 
 
 POSSESSION, nature of the, to support trespass, 36. 
 
 PRINCIPLES OF PLEADING, definition, 1. 
 
 PROFERT, 9. 
 
 QUANTUM MERUIT, 28, 31. 
 
 QUANTUM VALEBANT, 28, 31. 
 
 REAL ACTIONS, 6. 
 
 most common forms of, 5. 
 
 RECORD AS BASIS OF ACTION OF DEBT, 17. 
 RECOVERY, theory of, in actions, C. 
 REJOINDER, 69. 
 RELEASE, PLEA OF, 105. 
 
 REPLEADER, in what cases granted, 190-192. 
 nature and effect of motion for, 191. 
 
 REPLEVIN, advantage of, over detinue, 55. 
 allegation of the place of seizure, 56. 
 avowry, 53. 
 
 common-law form of action, 5. 
 distinction between detinuit and dctinet, 49. 
 double proceeding in, 45, 46. 
 example of declaration in, 59. 
 extension of action, 54, 55. 
 general issue in, 147. 
 how chattels recovered in, 47, 48. 
 legality of seizure, how determined, 47, 48. 
 nature of relief, 33. 
 
 necessary allegations in declaration in, 56. 
 necessary allegations in avowry, 57-59. 
 object of action of, 45. 
 origin of action of, 45. 
 plea in excuse in, 119.
 
 INDEX. 203 
 
 [References are to pages.] 
 
 REPLEVIN continued. 
 
 plea to avowry, 148. 
 
 proceeding by plaint in, 49. 
 
 proceeding by writ in, 47. 
 
 property in defendant, how pleaded, 119.. 
 
 rien en arrere, effect of, 148. 
 
 Specific traverses in, 148. 
 
 REPLICATION, de injuria, 160. 
 
 example of, bad for duplicity, 166. 
 
 REPLICATION DE INJURIA, origin of, 160. 
 to what actions confined, 160-161. 
 to what it extends, 164. 
 where cannot be used, 161-163. 
 
 RIEN EN ARRERE, plea of, 148. 
 
 SIMPLE CONTRACT as basis of action of debt, 16. 
 
 SPECIAL ASSUMPSIT, basis of recovery in, 13, 24. 
 collateral agreement, how pleaded, 107. 
 common-law form of action, 5. 
 conditions, how pleaded, 108, 135. 
 denial of breach, how pleaded, 137. 
 early form of action of, 23. 
 general issue in, 134. 
 
 necessary allegations in declaration in, 24. 
 plea in excuse in, 106-199. 
 specific traverses in, 134. 
 want of consideration, how pleaded, 106, 134. 
 
 SON ASSAULT DEMESNE, PLEA OF, 113. 
 
 SPECIAL DEMURRER, at common law, 83. 
 includes a general demurrer, 85. 
 statutory, origin of, 72, 83. 
 what matters called in question by, 83, 85. 
 
 SPECIAL TRAVERSES, absque hoc clause, 154. 
 conclusion of, 155. 
 nature of inducement, 154. 
 not a substitute for general issue, 159. 
 object of, 154.
 
 204 INDEX. 
 
 [References are to pages.'] 
 SPECIAL TRAVERSES continued. 
 parts of, 154. 
 
 when may be pleaded to, 156. 
 when will be bad on demurrer, 157-159. 
 
 SPECIALTY as basis of action of debt, 17. 
 
 SPECIFIC TRAVERSES, in case, 152. 
 in debt, 139. 
 in detinue, 146. 
 in general assumpsit, 138. 
 meaning of term, 133. 
 in replevin, 148. 
 in special assumpsit, 136. 
 in trespass, 141. 
 in trover, 144. 
 
 STATUTE OF LIMITATIONS, PLEA OF. 106. 
 STATUTE OF MARLBRIDGE, c. 21, 4'J. 
 STATUTE OF WESTMINSTER, 2, 59. 
 STATUTES AS BASIS OF ACTION OF DEBT, 17. 
 STATUTE, 4 ANNE, C. XVI., 84. 
 STATUTE, 27 ELIZABETH, C. V., 72, 83. 
 STATUTE, 3 & 4 WILLIAM IV., C. 42, 99. 
 
 SUBSTANTIVE LAW, knowledge of, necessary to determine 
 sufficiency of pleadings, 3. 
 
 SUR-REJOINDER, 69. 
 
 THEORY OF RECOVERY IN ACTIONS, 6. 
 
 TRAVERSES, classification of, 132. 
 
 conclusion of, 126. 
 
 example of, 126. 
 
 general issue, 133. 
 
 joinder of issue, 126. 
 
 meaning of word, 125. 
 
 of conclusion of law, 127. 
 
 of immaterial matters, 128-130. 
 
 of matter implied in pleading, 129. 
 
 pleas by way ol, 125-164.
 
 INDEX. 205 
 
 [References are to pages.] 
 
 TRAVERSES continued. 
 
 special traverses, 154-160. 
 specific traverses, 133. 
 replication de injuria, 160-164. 
 tender of issue by, 126. 
 terms in \vhich expressed, 126. 
 when too broad, 130. 
 
 TRESPASS, basis of recovery in, 32, 34. 
 
 common-law form of action, 5. 
 
 denial of services, how pleaded, 142. 
 
 denial of possession, how pleaded, 141. 
 
 classes of, 34. 
 
 for injury to servant, 37. 
 
 general issue in, 140. 
 
 meaning of word, 34. 
 
 necessary allegation in declaration in, for injury to person, 
 34. 
 
 necessary allegation in declaration in, for injury to prop- 
 erty, 35. 
 
 nature of relief sought, 34. 
 
 ownership, how pleaded, 114, 141. 
 
 plea in excuse in, 112-115. 
 
 self-defense, how pleaded, 113, 140. 
 
 specific traverses in, 141. 
 
 that act involuntary, how pleaded, 114. 
 
 TROVER, basis of recovery in, 32. 
 
 common-law form of action, 5. 
 
 denial of possession, how pleaded, 110, 135. 
 
 early form of action of, 38. 
 
 extension of action of, 39. 
 
 general issue in, 143. 
 
 lien, how pleaded, 144. 
 
 necessary allegations in declaration in, 43. 
 
 nature of relief sought in, 33. 
 
 plea in excuse in, 116-117. 
 
 specific traverses in, 144. 
 
 VENIRE DE NOVO, 186. 
 
 [Whole number of pages, 227.]