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Book 4, tit. 8, chap. 7, sec. 2, § 2, art. 2.

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account of its conciseness it is frequently adopted in practice.

2983.-3. When, in a replication or other pleading, it is necessary to show title in the plaintiff, or to introduce new matter inconsistent with that stated by the other party, (a) or when there are two affirmatives, which do not impliedly negative each other, or a confession and avoidance by argument only, a traverse is necessary, for otherwise the pleadings would run to infinite prolixity.(b)

2984. Before proceeding to the further discussion of this subject, it will be proper to inquire into the nature and use of a traverse. The word traverse, in pleading, signifies to deny or controvert any thing which is alleged in the declaration, plea, replication or other pleadings; (c) there is no real distinction between traverses and denials, they are substantially the same. However a traverse, in the strict technical meaning, and the more ordinary acceptation of the term, signifies a direct denial in formal words, "without this, that," etc.(d)

All issues are traverses, although all traverses cannot be said to be issues, and the difference is this; issues are where one or more facts are affirmed on one side, and directly and merely denied upon the other.

It is a general rule that when a traverse is well tendered on one side it must be accepted on the other, and hence it follows that there cannot be a traverse upon traverse, if the first traverse be material. But in cases where the first traverse is immaterial, there may be a traverse upon a traverse; (e) and when the plaintiff might be ousted of some right or liberty the law allows him, there may be a traverse upon a

(a) Com. Dig. Pleader, F 12, G 3.

(b) 1 Saund. 22, n. 2; Com. Dig. Pleader, G; Bac. Ab. Pleadings, H. (c) Lawes, Pl. 116, 117.

(d) Summary of Pleadings, 75; 1 Chit. Pl. 576, n. a.

(e) Gould on Pl. c. 7, § 43.

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Book 4, tit. 8, chap. 7, sec. 2, § 2, art. 2.

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traverse, although the first traverse include what is material.(a)

A traverse upon a traverse is one growing out of the same point, or subject matter, as is embraced in a preceding traverse on the other side; as where the defendant pleads title under a devise from Paul, alleging that he died seised in fee; the plaintiff replies that Paul died seised in tail, absque hoc that he died seised in fee, with a verification; the defendant cannot then rejoin that Paul died seised in fee, absque hoc that he died seised in tail; but must join the plaintiff's traverse, by re-affirming that Paul died seised in fee, as alleged in the plea, and conclude to the country; for both traverses would go to the same point, namely, whether or not Paul died seised in fee, the only material point in controversy, and to the determination of which the first traverse is precisely adapted. (b)

2985. Traverses may be divided into three kinds : 1. General traverses. A general traverse is one preceded by a general inducement, and denying, in general terms, all that is last before alleged on the opposite side, instead of pursuing the words of the allegations which it denies. Of this sort of traverse, the replication de injuria, in answer to a justification, is an example.(c)

2. Special pleas in denial of the declaration are usually called special traverses. A special technical traverse begins in most cases with the words absque hoc, (without this,) which words in pleading are a technical form of negation.(d) It is a general rule

(a) Gould on Pl. c. 7, § 44; Com. Dig. Pleader, G 18; Bac. Ab. Pleas, H 4.

(b) Gould on Pl. c. 7, § 42; 1 Chit. Pl. 597.

(c) Bac. Ab. Pleas, H 1; Steph. Pl. 171.

(d) Lawes on Pl. 116 to 120. These words, "without this," are calculated to convey the most pointed denial, by putting, as it were, the matter denied out of the plea; but any other words which are equipollent or equivalent, and import an express denial or exclusion of the matter intended to be traversed, are sufficient. A traverse, by the words et non, is therefore good; as if a party pleads that Peter was taken into custody by a warrant

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Book 4, tit. 8, chap. 7, sec. 2, § 2, art. 2.

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that every matter which is the substance or gist of the plaintiff's action, or the defendant's defence, or is material to it, is traversable; but matters of inducement, and such as are not material to the action or defence, cannot be traversed. It is also a general rule that a special traverse must have a proper and sufficient inducement; for if there be no inducement to a special traverse, the issue will be a negative pregnant, by which term is meant such negative expression in pleading, as may imply or carry within it an affirmative. This is faulty, because the meaning of such form of expression is ambiguous; example, in trespass for entering the plaintiff's house, the defendant pleaded that the plaintiff's daughter had licensed him to do so, and that he entered by that license. The plaintiff replied that he did not enter by her license. This was considered a negative pregnant, and it was held that the plaintiff should have pleaded the entry by itself, or the license by itself, and not both together.(a)

It may be observed that this form of traverse may imply and carry within it, that the license was given, though the defendant did not enter by that license. It is therefore in the language of pleading said to be pregnant with the admission, namely, that a license was given; at the same time the license is not expressly admitted, and the effect therefore is, to leave it in doubt whether the plaintiff means to deny the license, or that the defendant entered by virtue of that license. It is this ambiguity which appears to constitute the fault.(b)

This rule against a negative pregnant appears, in modern times at least, to have received no very strict

returnable one day, and not by a warrant returnable another day, it is a good traverse of his having been taken on a warrant returnable on the latter day.

(a) Myn v. Cole, Cro. Jac. 87.

(b) Style's Pr. Reg. h. t.; Steph. Pl. 381; Gould on Pl. c. 6, § 29—37.

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construction; for many cases have occurred in which, upon various grounds of distinction from the general rule, that form of expression has been considered free from objection. (a)

A traverse, commencing with the words "without this," is special, because, when it thus commences, the inducement and the negation are regularly both special; the former consisting of new matter, and the latter pursuing, in general, the words of the allegation traversed, or at least those of them which are material. For example, if the defendant pleads title to land in himself, by alleging that Peter devised the land to him, and then died seised in fee; and the plaintiff replies that Peter died seised in fee intestate, and alleges title in himself, as heir of Peter, without this, that Peter devised the land to the defendant; the traverse is special. Here the allegation of Peter's intestacy, etc., forms the special inducement; and the absque hoc, with what follows it, is a special denial of the alleged devise; that is, a denial of it in the terms of the allegation.

After traversing any allegation in the pleading of the adversary, it is usual to say, "in manner and form. as he has in his declaration, plea, or replication, etc., in that behalf alleged," which is as much as to include in the traverse, not only the mere fact opposed to it, but that, in the manner and form in which it is stated by the other party; thus, in the case before mentioned, of traversing the party's title by devise, the defendant probably said, without this, that the ancestor devised modo et forma, etc., as the above form may have been concisely expressed, in the language of the old entries, when the proceedings were in Latin. These words, however, only put in issue the substantial statement of the manner of the fact traversed, and do not extend to the time, place, or other circumstances attending it,

(a) Com. Dig. Pleader, R 6; Steph. Pl. 383; Lawes, Pl. 114.

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Book 4, tit. 8, chap. 7, sec. 2, ◊ 2, art. 2.

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if they were not originally material and necessary to be proved as laid. (a)

A special traverse must not conclude to the country, but with a verification.

3. The third kind of traverse is called a common traverse. This kind differs from those commonly called traverses, principally in this, that it is preceded by no inducement, general or special; it is taken without an absque hoc, or any similar words, and is simply a direct denial of the adverse allegations, in common language, and always concludes to the country. It can be used only when an inducement is not requisite; that is, when the party traversing has no need to allege any new matter.(b) This traverse derives its name, it is presumed, from the fact that common language is used, and that it is more informal than the other traverses.

3° Of denying the effect of the plea, and showing a particular breach.

2986. It is frequently proper, in a replication, without confessing and avoiding the plea, to deny its effect, and show a particular breach of the contract declared upon; this occurs often in debt on bond, conditioned to perform covenants, and the like. When the defendant pleads matter in excuse, which admits of nonperformance, it is sufficient if the plaintiff denies the plea, and he need not assign a breach in his replication; it must be remembered, however, that this rule does not apply to an action brought upon an award, which stands upon a particular ground. But in other cases when the defendant has pleaded performance, the replication must state the breach with particularity, and it should conclude with a verification, so that the defendant may have an opportunity of answering it.(c)

(a) Bac. Ab. Pleas, G 1: Lawes, Pl. 120. See Steph. Pl. 213; Gould on Pl. c. 6, § 22; Dane's Ab. Index, h. t.; Bac. Ab. Verdict, P.; Vin. Ab. h. t.; Bouv. L. D. h. t.

(b) 1 Saund. 103, b, n. 1.

(c) 1 Saund. 101; Com. Dig. Pleader, F 14, 15.