(c) The inducement. This is used in trespass on the case, and shows the relation between the parties on which the duty violated is claimed to rest." (d) The charge. This is a positive allegation of the facts constituting the injury. (e) The injury and ad damnum clause. This is added after the allegation of the charge. Special damages must be specially alleged. (f) Production of suit. This generally consists of the words, "and therefore he brings his suit.” (g) Signature. Either by party or counsel. SECTION 33. THE PLEA. The first pleading on the part of the defendant is the plea. Pleas are divided into dilatory pleas and peremptory pleas. Peremptory pleas are those which go to the merits of the actions. Dilatory pleas are those which merely tend to delay the suit, or which seek to defeat it on some other grounds than those affecting the merits of the action. Dilatory pleas must be pleaded first. The following classification,' shows the various kinds of pleas and the order in which they must be pleaded: Dilatory pleas 1. To the jurisdiction of the court. 1. Of plaintiff. 2. Of defendant. 2. To the disability of the person. 3. To the count or declaration. (Obsolete.) 4. To the writ. 1. To the form of the writ. 1. For matter apparent on the face of it. 'People vs. Ryder, 12 N. Y., 433. Andrews Stevens' Pleading, Sec. 2. For matter dehors the writ. 2. To the action of the writ 1. By way of traverse. 2. Or in confession and avoidance. A peremptory plea must be either by way of traverse or by way of confession and avoidance. SECTION 34. TRAVERSE. A plea by way of traverse is a denial of some one fact. or of all the facts, set up in the plaintiff's declaration. Pleadings later than the plea can also be by way of traverse. In such cases there is a denial of some one fact or of all the previous facts set up in the last previous pleading. A traverse concludes with the words, "And of this he puts himself upon the country." A traverse produces an issue which is asserted by one side and denied by the other. It only remains with the other party to join issue, which is done by what is called a similiter, or a joinder in issue, which is generally in the following language: "And the said A as to the plea of the said B, above pleaded, and whereof he has put himself upon the country, does the like." The rules governing traverses will be found in the chapter on the rules of pleading. SECTION 35. GENERAL TRAVERSE OR GENERAL ISSUE. 8 "The general issue is a comprehensive denial of the whole cause of action or the principal part thereof, putting in issue those facts the burden of proving which rests primarily on the plaintiff, but none other." "The form of the general issue varies, and is not Osborn vs. Lovell, 36 Mich., 250. Louisville, etc., R. Co. vs. Trammell, 93 Ala., 352. the same for every form of action, but most of the forms of action have an appropriate, distinct, and fixed general issue.” 10 11 The forms of the general issue in the principal forms of action are as follows: (a) Debt on a simple contract. Nil debet. This is one of the broadest of all the general issues. It denies that the defendant owes the debt, and any matters which will avoid the indebtedness can be introduced under this plea, even although such matter is in reality in confession and avoidance. (b) Debt on record. Nul tiel record. (c) Debt on specialty. Non est factum. (d) Covenant. Non est factum. Under this plea evidence can be introduced either that the defendant never executed the instrument or that it is void. (e) Detinue. Non detinet, that the defendant does not detain the goods. (f) Assumpsit. Non assumpsit. "In an action of special assumpsit founded upon an express promise, non assumpsit originally denied only the fact of the promise, or that the promise was legal, but in general assumpsit founded upon an implied promise the defendant was at liberty to prove all facts which tended to exclude the implication of the promise.'' 12 13 (g) Trespass. Not guilty. Not guilty. (i) Trover. Not guilty. In this action the general issue of not guilty is said to permit the setting up every defense except the statute of limitations.14 10 3 Black., Com., 305. "Ency. of Pleading and Practice, 13 Ency. of Pleading and Practice, Vol. XVI, p. 544. 141 Chitty's Pl., (16th Am. Ed.), 181. "Pleas of the general issue as above enumerated cannot be indiscriminately used, but each must be confined to the particular form of action to which it is appropriate." 15 16 SECTION 36. SPECIAL TRAVERSE. "A special traverse consists of a statement of new matter amounting to an argumentative denial of facts adversely alleged, as an affirmative inducement to a specific traverse of some allegation in the pleading opposed to it." It consists of an affirmative not compatible with the adversary's former pleading, and a negative in direct contradiction to it.18 "The inducement cannot be traversed if confessed and avoided, under the general rule applicable to all good traverses. There cannot be a traverse upon a good traverse, nor can there be a confession and avoidance upon a good traverse, but issue must be taken upon it." 19 19 20 SECTION 37. REPLICATION DE INJURIA. A particular kind of a traverse which is only available to the plaintiff in his replication, is the replication de injuria. The leading case on this subject is that known as Crogate's Case," the decision in which was as follows: 15 Cunyus vs. Guenther, 96 Ala., 564. 18 Ency. of Pleading and Practice, Vol. XVI, p. 546. 17 Finley vs. Woodruff, 8 Ark., 328. "A special traverse in its simplest form is not very unlike some of the Eastern forms of speech found in the Holy Scriptures: "Thou shalt die and not live; He shall see for himself and not another.'" Day vs. Essex County Bank, 13 Vt., 97. 18 An inducement of a special tra verse can properly be of no other nature than an indirect denial. Hubbard vs. Mutual Reserve Fund L. Asso., 80 Fed. Rep., 684. 19 State vs. Chrisman, 2 Ind., 130. Where the special traverse is upon an inmaterial point it may be disregarded and in such a case the inducement may be traversed. 20 Ency. of Pleading and Practice, Vol. XVI, pp. 547-8. 21 8 Coke, 66. "Edward Crogate brought an action of trespass against Robert Marys, for driving his cattle in TownBarningham in Norfolk, etc. (a) The defendant pleaded, that a house and two acres in Barningham in the said county, were parcel of the manor of Thurgarton in the same county, and demised and demisable, etc., by copy, etc., in fee simple, etc., according to the custom of the manor, of which manor William late Bishop of Norwich was seised in fee in the right of his bishoprick, and prescribed to have common of pasture for him and his customary tenants of the said house and two acres of land in magna pecia pasturae vocat' Bassingham common, pro omnibus averiis, etc., omni tempore anni, and the said bishop at such a court, etc., granted the said house and two acres by copy to one William Marys, to him and his heirs, etc. And the plaintiff put his said cattle in the said great piece of pasture, wherefore the defendant, as servant to the said William, and by his commandment, molliter drove the said cattle out of the said place, where the said William had common in praed villam de Town-Barningham, adjoining to the said common of Bassingham, etc. The plaintiff replied, de injuria sua propria absque tali causa; upon which the defendant demurred in law. And it was objected on the plaintiff's part, that the said replication was good, because the defendant doth not claim any interest, but justified by force of commandment; to which de injuria sua propria absque tali causa, may be fitly applied: and this plea, De injuria sua propria, shall refer only to the commandment, and to no other part of the plea, and they cited (54) the books in 10 H. 3. 3. a. b. 9. 2. 16 H. 7. 3. a. b., etc., 3. H. 6. 35. a. 19 H. 6, 7. a. b., etc. But it was adjudged that the . |