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2dly. De

demurrable (a). The plaintiff must be extremely careful in traversing II. THE one of several facts, that he denies that which is most open to objection, for he admits those which are not expressly denied (1). In trespass to nial of the land, the defendant pleaded that A. was seized in fee, and being so seized plea. granted a right of way by non-existing grant; and the replication travers- 2dly. Of ed the grant, and it was held that on these pleadings it was not competent part of the to the plaintiff to prove that A. was not seized in fee, for the purpose of refuting the presumption of the grant (b).

plea.

If, however, an allegation in the opposite pleading be altogether im- [ *612 ] material, it cannot be traversed; otherwise the object of pleading, viz. the bringing the parties to an issue upon a matter or point decisive of the merits, would be defeated (c). And upon this ground, mere matter of aggravation, not going to the cause of action, or mere inducement or explanatory matter not in itself essential to or the substance of the case, should not be traversed (d).

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It is also a most material rule upon this subject, that a traverse should be taken on matter of fact, not mere matter of conclusion of law; for to raise an issue upon a legal inference or question would be to submit to the jury that which is in the province of the court to decide (e); thus, where in trespass for fishing in the plaintiff's fishery, the defendant justified that it was an arm of the sea, wherein every one might fish; a replication, traversing that in the said arm of the sea every subject had the privilege of fishing, was held to be defective, as putting in issue a mere legal conclusion (ƒ). This erroneous traverse more frequently occurs in cases where the plea alleges certain facts in justification, and then concludes or infers from them "by virtue whereof," (virtute cujus,) the party "being seized," or became liable." In such case the preceding facts, or some or one of them, if any should be alone traversed; and no traverse should be taken on the mere legal result drawn from them, and alleged, perhaps unnecessarily, in the plea (g). But where the allegation, whether in the shape of virtute cujus prætextu or per quod, be compounded of law and fact, and they be connected together, a traverse may be properly taken thereon (h). This subject was clearly explained and setted in a late case (i), already referred to, as showing what may be put in issue by de injuria, &c. to a plea justifying under a fieri facias; the Chief Justice observed (k), "it has been argued before us, that motives are not examinable, and that the allegation in pleas of virtute cujus is not traversable. If a man do that which he is

(a) Stra. 817; 8 T. R. 487; 7 T. R. 557; ante, 603.

(b) 1 C. & J. 48.

(c) See 2 Saund. 207 a; Com. Dig. Pleader, R. 8, 10; Bac. Ab. Pleas, H. 5, Instances, Stephen, 2d ed. 283.

(d) Id.; Stephen, 2d ed. 284, 285. (e) Plowd. 231 a; 11 Rep. 10 b; 1 Saund. 23. note 5; 2 Hen. Bla. 182. See as to the rule that a plea must be capable of trial, ante, 540.

(ƒ) 2 Hen. Bla. 182; 5 T. R. 362; 2 Saund. 159 a; 161, note 11.

(g) 1 Saund. 23, n. 5.

VOL. I.

(h) 1 Saund. 23, n. 5; Stephen, 2d ed. 233, 234, and instances there, 11 Price, 343. As to traversing the due issuing of process, &c. 16 East, 41; 1 B. & Ald. 348; ante, 469. An averment that a party was "duly elected," 4 B. & C. 368; or that an assembly was "duly constituted," 4 B. & C. 427, is good.

(i) 4 Bing. 729. Affirmed in error, 1 M. & P. 783; 2 Y. & J. 304. Again affirmed in Dom. Proc. 3 Moore & Scott, 627; 10 Bar. & Cres. 157, S. C.; and 1 Crom. & M. 500.

(k) 1 M. & P. 803.

(1) Toland v. Sprague, 12 Peters, 335.

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II. THE
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plea.

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justified in doing, and no more, the law, in many cases, will not permit his motives to be inquired into, as if he have a right to prosecute for a crime, 2dly. Denial of the or to arrest for a debt, there can be no inquiry as to the motives with which plea. these acts were done; but if he do more than as a prosecutor or creditor 2dly. Of he have a right to do, he will not be justified, and it becomes proper to part of the inquire whether the prosecution or arrest were not mere pretence. Such an 613] inquiry is material for the purpose of getting at the nature of the transaction, and enabling a jury to award proper damages. The virtute cujus is sometimes a mere inference of law, as to what is the meaning of a writ, or the extent of authority given by it. In such cases a question of law is raised, and there can be no traverse, for that withdraws the consideration of law from the judges, and presents it to the jury. But the virtute cujus sometimes raises a mixed question of law and fact, and when this is the case, there may be a traverse, for that is the only mode by which the facts. are to be settled on which the law depends. In Beal v. Simpson (1), Mr. Justice Powell says, that when a matter of law is only comprised in a virtute cujus, then it is only traversable; but matter of fact in the virtute cujus, is traversable.' Lord Chief Justice Treby differed from Mr. Justice Powell on this point, and said, 'By virtue of a writ, means by authority of the writ by an operation of law on the writ, without any ingredient or mixture of matter of fact.' The other judges agreed with Mr. Justice Powell, and said that when the virtute cujus is mixed with fact, it may be traversed.' (). It appears from Williams' Saunders (m), that virtute cujus, may be traversed, and he refers, in support of this opinion, to Hobart (n), and 9 Hen. 6 (o). The learned editor, Mr. Serjeant Williams, says that when the words virtute prætextu per quod, &c. introduce a consequence from the preceding matter, they are not traversable, but that matter of law connected with fact, or rather matter of right resulting from facts, is traversable.' In The Grocers' Company v. The Archbishop of Canterbury, Lord Chief Justice De Grey, in giving the judgment of the Court, says (p), 'law connected with fact is clearly traversable." "

Traverse

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The traverse should also be on some affirmative matter, and not put in should be issue a negative allegation; thus, if a plea state a request to deliver an abstract and refusal, a replication that the plaintiff did not neglect and refuse to deliver such abstract, would be insufficient (9).

of affirmative allegations, and not put in is

sue a neg

ative alle gation. Traverse

The traverse must not be too large (r). Thus, to an avowry for £20 arrears of rent, the plea in bar must be, that "no part of it is in arrear," and if it were merely, that "the said sum of £20" is not in arrear, without saying" or any part thereof," it would be "demurrable (8). So, if a defendant show that on a certain day and at a certain place, the plaintiff demised to him the close in question, a traverse, that "on the day," or [614]" at the place stated," the plaintiff did not demise, &c. is bad, as involving in the issue the time or place, neither of which is material (t). And

must not be too large.

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ing quantity, time, place, or other circumstances, which, though forming part of the allegation traversed, are not of the substance of the matter, id.

(s) 3 B. & P. 348; Com. Dig. Pleader, G. 12, 15; 2 Saund. 207, n. 24; 319, n. 6; 1 Saund. 268; the reason, 269, n. 2.

(t) 2 Saund. 319, note 6; 1 Saund, 268 a, note; Steph. 2d edit. 287, 288,

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where in trespass for entering the plaintiff's house, the defendant pleads II. THE that the plaintiff's daughter licensed him to enter, a replication that defendant "did not enter per licentiam suam," is bad as a negative pregnant nial of the 2dly. Dethough good after verdict (u). It is enough to deny the substance and ef- plea. fect of the averment, without pursuing the words of the party (x). But 2dly. Of where to a declaration against a rector for not carrying away tithe, the de- part of the plea. fendant pleaded that the close was surrounded with ditches, and that the Negative ditches, ways and passages were so filled with water that the defendant pregnant. could not carry off his tithes; a replication that the ditches, ways, and passages were not so, was held sufficient on demurrer, though in the conjunctive; because the plea is one entire matter of excuse, and the defendant relies on the whole, and not on each particular part being impassable (y). So, a replication to a plea claiming a right of common, traversing "that the cattle were the defendant's own cattle, and that they were levant and couchant upon the premises, and commonable cattle," was held sufficient; because, though issue must be taken upon a single point, it is not necessary that such single point should consist only of a single fact, and the point of defence was the cattle in question being entitled to common (z). So, to a plea prescribing for tolls, and also showing a prescriptive right to distrain for the same, the replication may deny both the prescriptions.

tire allega

party to

part.

In general a traverse, or denial, or allegation, should be so framed as to What enbe divisible, and entitle the party pleading to recover pro tanto, if he prove tion is or part of the allegation (a). And in one case, where the defendant pleaded not divisia right of common over the plaintiff's close, which the plaintiff had wrong- ble, so as fully inclosed, and the plaintiff replied that "the close in which, &c." had to enable a been inclosed twenty years, and the jury found that part only of the close, recover had been so inclosed, and that the trespass was committed on that part, pro tanto that the defendant was entitled to a verdict, on the ground that the plaintiff on proof of should have replied that that part of the close, and not that the close had [ *615 ] been so inclosed (b). But in a subsequent action of trespass, where plaintiff declared for entering two closes, and the plea was, that the said closes in which, &c. were from time immemorial parcels of a waste, and that the defendant had a prescriptive right of common in the waste, and entered at the times when, &c. to use his right of common thereon; and because the closes, in which, &c. were wrongfully separated from the residue of the waste, he broke down the gate; and the replication was, that the said closes, in which, &c. at the said time when, &c. were not wrongfully separated from the residue of the waste, but, continually, for twenty years and more, and before the first time when, &c., had been and were separated, and divided, and inclosed from the residue of the waste, and occupied and enjoined in severalty; and the rejoinder traversed the averment, and issue was joined thereon; it was held that the allegation in the replication was divisible, and the plaintiff entitled to recover on proof that any part of the closes had been inclosed for twenty years (c). This latter decision estab

(u) Cro. Jac. 87; 2 Saund. 319, note 6. A negative pregnant is such a form of neg. ative expression as implies or imports an affimative. See Steph. 2d edit. 424. In the instances put in the text, the denial that there was a demise "on a particular day," and that the defendant "entered by virtue of the license," is pregnant with an admission that there was some demise, and that there was some license. See further, Ventr.

70.

(x) Salk. 629; 1 Saund. 269, note.
(y) 1 Stra. 245.

(z) 1 Burr. 317; 1 Saund. 646 c.
(a) 2 Bar. & Cres. 918; 7 B. & Cres. 346.
(b) Hawke v. Bacon, 2 Taunt. 159; 2
Bar. & Cres. 918; 7 Bar. & Cres. 316. But
overruled, see 5 Bar. & Adol. 395.

(c) Tapley v. Wainwright, 5 B. & Adol.
395.

II. THE
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nial of the

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lishes that the word close in which, &c. is to be taken as divisible into several parts. There are other instances also in which an entire allegation 2dly. De- in pleading is to be read as divisible. Thus a replication to a plea of inplea. fancy, that the goods mentioned in the declaration were necessaries suita2dly. Of ble to the defendant's degree, is a divisible allegation, and may be proved part of the only in part, so as to enable the plaintiff to recover pro tanto, if he prove that a part of the goods were necessaries (d). But care must be observed not to introduce into the allegation any words that may impose the burthen of proving the whole, as for instance, in the above cases, "that all the goods were necessaries, or that the whole and every part of the said close had been inclosed for twenty years, &c., for such words may prevent the entire allegation from being treated as divisible (e). Where the defendant pleaded to indebitatus assumpsit for work and labor and materials, that there was an agreement that the work should be to the satisfaction of the defendant or his surveyor, and that the building had not been completed to the satisfaction of the defendant or his surveyor, and the replication unnecessarily was in the conjunctive, yet it was holden to be supported in evidence by proof that the defendant was satisfied (ƒ).

Must not

tensive.

A traverse may be too extensive, and therefore defective, by being taken be too ex- in the conjunctive, instead of the disjunctive, where proof of the allegation in the conjunctive is not essential. Thus, in an action on a policy on ship and tackle, the defendant should not deny that the ship and tackle were lost, but that neither was lost (g).

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Nor too

narrow.

2dly. The modes of

special denial.

*On the other hand the traverse must not be too narrow, so as to prejudice the defence (h). Thus, if in an action of trespass in a common called A., the defendant pleads that A. the locus in quo, and B. are commons which lie open to each other, and then prescribes for a right in both the commons, the plaintiff must traverse the entire prescription, and not the prescriptive right in A. only; for the prescription is entire, and it may be important to the defendant to be let in to prove acts in exercise of the right in B. (i). But in general a party is not bound to traverse more than one fact material to the matter in dispute (k). And in trespass, if the defendant justifed under a prescriptive right to a duty, and the like right to distrain for it, a replication traversing the duty without denying the right to distrain, is sufficient (1). And where the claim is divisible, and damages pro tanto are recoverable, the allegation should not attempt to confine the party to evidence of tort containing for a specific and named period (m).

Replications denying a particular fact or facts, are, in point of form, of three descriptions; first, the plaintiff protests some fact or facts, and denies the other, concluding to the country; or, secondly, he at once denies the particular fact intended to be put in issue, and concludes to the country; or, thirdly, formally traverses a particular fact, and concludes with a verification.

(d) Per Denman, C. J. in Tapley v. 229. Wainwright, 5 B. & Adol. 399.

(e) Id. ibid.; and see 2 Saund. 206, note 21, as to the improper introduction of the word "only"

(f) Bradley v. Milnes, 1 Bing. N. C. 644. (g) 2 Saund. 205; Steph. 2d ed. 288, 289. As to traversing a particular estate, though unnecessarily stated so precisely, ante, 228,

(h) Com. Dig. Pleader, G. 16; Steph. 2d ed. 291. (i) 4 T. R. 157; 1 Saund. 269, n. 1; Steph. 2d ed. 291, 292. Sed quære. (k) 1 Saund. 268, n. 1. (1) 1 Wils. 338. (m) 1 Saund. 267.

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1st. When the pleading of either party contains several matters, and the opposite party is not at liberty to put the whole in issue, he may protest against one or more facts, and deny the other. Thus, if in assumpsit the nial of the defendant plead an accord and satisfaction, as that he delivered to the plain- plea. tiff, and the latter accepted a pipe of wine in satisfaction of the promises, 2dly. Of the plaintiff may protest the delivery in satisfaction (n), and reply that he part of the plea. did not accept the wine in satisfaction (o); or in trespass, where the defen- 1st. With dant in his plea has justified an arrest and wounding under a writ and war- a protestarant, the plaintiff may protest the writ and warrant and reply de injuria sua propria absque residua causa (p), or may protest one fact, and traverse another (q). And if to a plea of performance of several matters in the condition of a bond, the plaintiff mean in that suit to insist on the breach of one only, he may protest the performance of the others (r). This is termed a protestation, and its only possible use is, that in case the party making it succeeds in the point to be tried, he thereby saves himself the [ *617 ] liberty of disputing in any other suit the truth of the allegation which is protested against (s) (1). It is wholly unavailable in the particular suit in which it is adopted, for the allegation protested against is in effect admitted in that suit, so that no evidence need be adduced in support of it; for it is a rule that every pleading is taken to confess such traversable matter of fact alleged on the other side as it does not traverse (t): and it is of no service in any other action, if the issue be found against the party making it, unless it be matter which could not be pleaded, or on which issue could not be joined, and then the party protesting will not be concluded, though the issue be found against him (u). It is said that matter which is the ground of the suit, or upon which issue might be taken, cannot be protested (2); as that in detinue by the executor of A. the defendant cannot protest that A. did not make the plaintiff his executor, for it is the ground of the suit, and utterly destroys the plaintiff's action (x). It is also a rule, that a protestation which is repugnant to, or inconsistent with, the plea which it accompanies, is inartificial and improper (y). In these cases the replication should either admit the part of the plea which is not disputed, by saying, "true it is, that, &c. ;" or should at once deny the matter intended to be tried; though the latter mode, as being the most concise, appears preferable, for whatever is not traversed is in effect admitted. However, a repugnant, or inconsistent, or idle, or superfluous protestation, does not vitiate the plea, though it be shown for cause of demurrer, for the intent of a protestation is, that the party may not be concluded in another action, and in

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(s) 2 Saund. 103 a, note 1; Com. Dig. Pleader, N.; Doc. Plac. 295; Co. Lit. 124 b; Plowd. 276; Steph. 2d edit. 256.

(u) 2 Saund. 103 a, note 1; Com. Dig. Pleader, N.; Bro. Ab. Protestation; Finch's Law, 359; Plowd. 276; Co. Lit. 124 b.

(x) Com. Dig. Pleader, N.; 2 Saund. 103, n. 1; Plowd. 276; Doc. Plac. 296; Moor, 355, 356; Cro. Car. 365; 3 Wils. 109, 116; sed quare, see the cases in 2 Saund. 103, note 1, in which there are instances of protestation of matter, upon which issue might have been taken.

(y) 2 Saund. 103, n. 1; Bro. Ab. Protes(t) Com. Dig. Pleader, G. 2; Steph. 2d tation, 1, 5; Plowd. 276; Steph. 2d ed. 258. edit. 255, 259; ante, 611, 612.

(1) Briggs v. Dorr, 19 Johns. 96.

(2) Vide Snider v. Croy, 2 Johns. 227.

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