The above form of precludi non is still admissible and sometimes useful; but the Reg. Gen. Hil. T. 4 W. 4,† expressly declares, "nor shall it be necessary, in any replication or subsequent pleading intended to be pleaded in maintenance of the whole action, to use any allegation of precludi non, or to the like effect, or any prayer of judgment; and all pleas, replications, and subsequent pleadings, pleaded without such formal parts as aforesaid, shall be taken, unless otherwise expressed, as pleaded respectively in bar of the whole action; provided that nothing herein contained shall extend to cases where an estoppel is pleaded." 1. THE COM MENCE- It is first to be observed, that the Reg. Gen. Hil. T. 4 W. 4,† reg. 8, directs that no venue shall be stated in the body of the declaration, or in any subsequent pleading; but provides, that in cases where local description is now required, such local description shall be given. With respect to the body of the replication, we have seen that it contains, either, 1st, matter of estoppel; 2dly, a traverse or denial of the plea; 3dly, a confession and avoidance of it; or, 4thly, in the case of an evasive plea, a new assignment. We will consider each of these in the above order. 11. THE BODY. No venue to be sta ted. When the matter which operates as an estoppel (e) appears on the face of 1st. Estopthe declaration, the plaintiff may demur to a plea by which the defendant at- pel (d). tempts to set up such matter as a defence (ƒ). Thus, if in covenant on a lease by the lessor, the defendant plead nil habuit in tenementis, that is, in effect, that the lessor had no title to or interest in the land, the plea will be defective, because the matter of estoppel, viz. the demise by deed and holding thereby, appears in the declaration (g). But where an action upon a lease *is brought by a party who claims derivatively from the lessor, in which case [*635] the declaration must show the lessor's title and the derivative title of the plaintiff, it is competent to the defendant to deny that the lessor had the particular title alleged in the declaration (h). If the matter of estoppel do not appear from the anterior pleading, the replication must expressly show such matter and rely thereon, and there must be an appropriate commencement and conclusion to the replication; for by replying an estoppel without relying upon it, the advantage of the estoppel as such may often be lost (i). As where in debt for rent on a demise by indenture by one who has nothing in the land, (the declaration not showing the (h) 1 Saund. 418, n. 1; ante, 523; see Steph. 2d ed. 217. In covenant by the assignee of a lessor, if the declaration allege that the lessor was seised in fee, and conveyed by Icase and release, the defendant may traverse the seisin in fee. Seymour . Franco, after Trinity Term, 1828, 7 Law Journal, 18, K. B.; and Whitton v. Peacock, in C. P., 3d June, 1835, Shearman attorney; ante, 397; 4 Bing. 403; 4 Moore, 5. (i) 1 Saund. 325 a, n. 4; and see Jervis, Reg. Gen. Hil. T. 4 W. 4, reg. 9. See American Editor's Preface. BODY. 1st. Estop pel. II. THE deed (k),) the defendant pleads nil habuit in tenementis, if the plaintiff reply that he had a sufficient estate to make the demise, he loses the benefit of the estoppel; but if he reply that the lease was made by indenture, and conclude unde petit judicium, if the defendant shall be admitted to plead the plea against his own acceptance of the lease by indenture, the defendant shall be estopped (1). Where the demise is not by deed there can be no pleading by way of estoppel, especially as the declaration may by virtue of the statute 11 Geo. 2, c. 19, be in the general form for use and occupation: but it must be remembered that in general, even in such case, the party to whom the premises were let, or his assignee, shall not be permitted to dispute the title of the landlord by whom the former was let into possession, or the title of the assignee of such lessor (m) (1031). So, if in a declaration in debt on bond, not showing the condition, it be recited in the condition that a fact exists, and the obligor attempt to dispute such fact, the plaintiff may reply, setting out the [*636] condition and relying on the estoppel (n). Where the matter *in question Exception in Reg. Gen. Hil. T. 4 W. 4, reg. 9, as to estoppel. has been tried upon a particular issue between the same parties in a former suit, and there has been a finding thereon by the jury, such finding operates as an estoppel by matter of record, provided it be specially pleaded and relied upon as such (o) (1032). As a species of estoppel it may be proper here to notice, that if in debt on a bond, conditioned for the performance of covenants, the defendant falsely plead that there were no covenants in the indenture on his part, the plaintiff may reply, setting out the indenture containing such covenants, and demur (p). A party who has executed a deed is not estopped from denying that fact, and may plead non est factum; but he cannot, (admitting his deed,) deny its operation or effect by a plea of non concessit, &c. (1033); as a stranger to the decd is permitted to do (q). The Reg. Gen. Hil. T. 4 W. 4, reg. 9, expressly provides "that nothing herein contained shall extend to cases where an estoppel is pleaded;" so that the above regulations in pleading estoppel still continue in force. (k) See ante, 396. (1) Saund. 325 a, note 4; Ld. Raym. (m) See 5 T. R. 4; 1 B. & Ald. 50; 4 (n) | Saund. 325 a, note 4, and 215, note 2; (0) 3 East, 346; M'Clel. & Y. 509; 2 B. & Ald. 662. And see the precedents in trespass for mesne profits, where to a plea of title the recovery in ejectment was replied, 2 Rich. C. P. 444. Any confession or admission, express or implied, upon the pleadings, operates as an estoppel in a subse quent suit between the same parties as to the matter admitted, Steph. 238. As to the effect of a protestation to prevent this, see post. (p) 1 Saund. 316, 317, 316, and 319. (4) See Steph. 2d ed. 239, 237; 2 Taunt. 278; 2 Bulstr. 55. (1031) { In an action of debt for rent reserved by indenture, the plaintiff may state in his declaration the substance of the demise, and is not bound to declare upon the deed; and if the defendant to such a declaration pleads, nil habuit in tenementis, actio non accre vit infra sex annos, or any plea which is prima facie a good plea, no estoppel appearing on the record, the plaintiff may reply, that the demise was by indenture, and such a replication will not be a departure. Davis v. Shoemaker, I Rawle, 135. } (1032) Where the tenant in a writ of entry, demanding a freehold, pleaded the general issue, it was held that he had thereby admitted in the record, that he was tenant of the freehold; and was therefore estopped from proving that he was tenant at will only. Kelieran v. Brown, 4 Mass. Rep. 443. (1033) { Stow v. Wise, 7 Conn. Rep. 214. } BODY. The second description of replication is that which neither concludes the 11. THE defendant by matter of estoppel, nor confesses and avoids the plea, but traverses or denies the truth thereof, either in part or in whole (r). proper to consider the nature of these replications under the heads : 1st. A denial of the whole plea, or de injuria, &c. 2dly. A denial of only part of the plea. 1st. Of what fact. 2dly. The mode of such special denial. 3dly. A denial, and stating a particular breach, &c. It will be 2dly. Defollowing nial of the plea. 1st. Of the whole plea. There is no real distinction between traverses and denials; they are the same in substance (s). Any pleading by which the truth of the opponent's allegation is disputed is termed a pleading by way of traverse or denial. Traverses are of two kinds, general or special. The general traverses or [*637] denials were the general issue (t), and the replication de injuria sua propria, and such pleadings as simply deny a particular fact pleaded by the adver sary; the special traverse in its strict legal sense imports the technical and now unusual formal traverse, with an inducement and absque hoc, which will be presently explained (u). It is the first object of pleading to bring the point in dispute between the parties, at as early a stage of the cause as possible, to an issue or point which is not multifarious or complex (v); and therefore the issue must in general be single (x)(1034). But this single point may consist of several facts if they be dependent and connected (y) (1035); and therefore where in trespass the defendant justified under a right of common, and the plaintiff in his replication traversed," that the cattle were the defendant's own cattle, and that they were levant and couchant upon the premises, and commonable cattle;" the replication was on a special demurrer, assigning for cause that it was multifarious, holden to be good (z). So, according to the first resolution in Crogate's case, to a justification under proceedings in the Admiralty Court, Hundred Court, or County Court, or any other Court which is not of record, de injuria sua propria is good; all being matter of fact and making but one cause or justificaton (a). And in a late case, where in an action for maliciously suing out a commission of bankruptcy against the plaintiff, the defendant pleaded that the plaintiff being a trader, and being indebted to the defendant in 11. THE BODY. nial of the the sum of £100 became bankrupt, whereupon the defendant sued out the commission; and the plaintiff replied de injuria sua propria, on demurrer, as20ly. De signing for cause that the plaintiff by his replication had attempted to put in plea. issue the distinct facts, the act of bankruptcy, the trading, and the petitioning 1st Of the creditor's debt; it was held that these three facts constituted but one entire whole plea. proposition, and that the replication was therefore good (b). Indeed, in some [*638] cases the traverse or denial *must consist of more than one fact, for it is another rule that in a traverse the plaintiff cannot narrow the title set up by the defendant (c). And the reason why the general replication de injuria, which will presently be fully explained, cannot in many instances be adopted, is not because it puts two or three things in issue (d). First, General denial as by In actions on contracts and in replevin, the replication usually denies the material facts, or one of the facts alleged in the plea, with particularity and in de injuria, express words (e). But we have seen that de injuria may be proper in assumpsit, case, covenant, or replevin (ƒ). If a replication deny the whole of a plea, not proper yet proof of so much as in justice entitles plaintiff to recover will suffice (g). or advisa- In trespass, and in actions on the case for slander, the replication containing a when al lowed or ble. As to de injuria. general denial of the whole plea sometimes occurs, and is termed a replication de injuria sua propria absque tali causa, or "de son tort demesne sans tiel cause ;” (h) or if a part of the plea be admitted, then it is termed de injuria absqe residuo cansa, thereby denying all but the admitted fact or facts. This replication tenders issue upon and compels the defendant to prove every material allegation in his plea (i), and therefore it is frequently advantageous to the plaintiff to adopt it, when by the rules of pleading it is permitted. In general, when the defendant's plea in trespass or case consists merely of matter of excuse, and not of matter of right or interest inconsistent with or affecting the right, the infringement of which is complained of in the declaration, whether it relate to the person, or to personal or real property, the general replication de injuria is sufficient (k). And in these cases, when a title is stated merely as inducement to the defence, the plaintiff need not answer, or particularly deny it, because it is merely collateral to the matter in dispute but there is a material difference between these cases and the instances in which the plaintiff makes title by his declaration to any thing, and the defendant in his plea denies the title, or claims an interest (b) 2 B. & C. 903; 4 D. & R. 579, S. C.; vide 4 B. & Cres. 353. (c) 4 T. R. 157; Summary Treat. on Pleading. 78. (d) 1 B. & P. 80; 2 Saund. 295 a, note; 1 Bing. N. C. 644. When a replication traversing the whole of a plea is bad, see Moore v. Boulcott, 5 Moore & Scott, 122; 3 Dowl. 145, S. C. De injuria to a plea, justifying an expulsion from a house as servant of lawful occupier, is good, 1 Crom. & M. 197; and is good as a plea in bar to an avowry for poor rate, 1 Crom. & M. 500. (e) In replevin, the replication de injuria, it was said, never occurs. Finch. Law. 396; 1 B. & P. 76; but see I Crom. & M. 197, 500. (ƒ) Ante, 614. (g) See late instance in Bradley v. Milnes, 1 Bing N. C. C64. (h) Com. Dig. Pleader, F. 18; Crogate's case, 8 Co 67. Most of the points relating to this replication are collected in Crogate's case, 8 Co. 67; Cockrell v. Armstrong, Willes, 99; Doc. Plac. vol. i. 113 to 115; and Com. Dig. Pleader, F. 18. &c.; 1 B. & P. 79, 80, Finch. Low, 395, 396; 2 Saund. 295, n. 1; 1 Saund. 244 c. n. 7; Archb. 238. (i) Com. Dig. Pleader, F. 18 to 24; 8 Cc. 67a; Willes, 100. (k) 8 Co. 67, a; Com. Dig. Pleader, F. 18 &c.; Doc. Pl. 13 to 115; 1 B. & P. 80; 1 East, 212, 214, 218; 2 Saund. 295, n. 1; 7 Price, 670. BODY. nial of the in the subject-matter; for then the plaintiff must reply *specially (1). II. THE Thus, in an action for an assault, if the defendant plead son assault demesne, or that he arrested the plaintiff upon hue and cry levied (m); or the plea 2dly. Debe moderate correction of a servant for his neglect of service, the general rep- plea. lication de injuria is sufficient, if the plea be untrue (n). And though such ist. Of the whole plea. excuse for the personal injury may be stated in the plea to depend on the possession of land or personal property; as if the defendant plead that the plaintiff entered upon his possession, and that therefore the defendant molliter manus imposuit to remove him (o); or if the plea he that the defendant was seised, &c. as rector, and that the tithes were severed, and that the plaintiff endeavored to carry them away, and that the defendant, in defence of his tithes, molliter manus imposuit, &c; yet in these cases the general replication is sufficient, and the plaintiff need not answer the defendant's title; because the plaintiff by his action claims nothing in the soil or corn, but only damages for the battery, which is merely collateral to the title, and which is stated merely as inducement (p). However, in a recent case, it seems to have been considered that where the excuse arises, even in part, out of the seisin in fee of another, then de injuria is insufficient (q). So, in trespass to personal property, if the defendant merely justify the chasing cattle or removing goods from land of which he was possessed, the general replication will suffice (r). And in trespass to real property, if the defendant in his plea do not claim any interest therein, or easement over the same, the replication de injuria is sufficient; as if in trespass for pulling down a building, the defendant, without claiming any interest therein, plead that he removed it as being a nuisance on his land, this general replication will suffice (s). So, if in trespass to land with cattle, the defendant plead that the plaintiff's fences were out of repair, whereby the defendant's cattle escaped into the plaintiff's close, this plea consisting merely *of matter of excuse, and claiming no interest in the land, may, [ *640 ] it is said, be answered by the general replication (1). And though it is stated as a general rule, that where the defence rests upon an authority of law the replication must be special (u), yet this, as a general position, is inaccurate (x). For if the defendant justify, that he, as a constable, without a warrant, took the plaintiff for a breach of the peace; or as a vagrant or lunatic (y); or under a public act of parliament; or under a right for all persons given by the common law (z); or if in trespass for false imprisonment, the defendant justify by process out of the Admiralty, Hundred, or County Court, or other court not of record, the general replication is sufficient; all being matter of fact, and making but one cause (a). The instance of an entry to view waste (1) Yelv. 157; Cro. Jac. 225; Willes, 102, 103; Com. Dig. Pleader, F. 20, 21. (m) 8 Co 67 a; 1 Saur.d. 244 a, note 7. (a) Gilb. C. P. 154; Willes, 102. (0) Latch. 128, 221; Com. Dig. Plead., F. 18; 12 Mod. 582; ante, 626, n. (y). (p) Yelv. 157; Cro. Jac. 224, 225; Com. Dig. Pleader, F. 18; 2 Saund. 295, n. 1; 1 Crom. & M. 200. (4) Ante, 638; 1 B. & P. 90; and see Willes, 102, 103; 12 Mod. 582; Cro. Eliz. 539, 540; Cro. Jac. 598; 7 Price, 670. (r) Ante, 626, 627. |