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Pleadings in General


PLEADINGS IN GENERAL. Un der this head, Mr. Stephen examines : i. The nature and properties of traverses. 2. The nature and prop erties of pleading in confession and avoidance. 3. The nature and properties of pleadings in general, without reference to their quality, as being by way of traverse, or confession and avoidance.

OF THE NATURE AND PROPER TIES OF TRAVERSES. Of the various kinds of traverses, the most ordinary kind is called the common traverse. It consists of a tender of issue, that is, of a denial accompanied by a formal offer of the point denied for decision, and the denial that it makes is by way of express contradiction in terms of the alle gation traversed. These are generally expressed in the negative, but if opposed to a precedent negative allega tion, then, of course, it is in the affirmative.

There is another class of traverses of frequent oc currence, known as general issues, so called because the issue that one of them tenders involves the whole declaration or the principal part of it, and usually the contradiction is not in terms of the allegation traversed, but in a more general form of expression. Thus, in debt upon specia/ty, the general issue is called the plea of non est factunt; upon simple contract, thc plea is nil debet. In covenant it is 11011 est factum. In detinue it is 71011 detinet. In trespass, and trespass on the case in general, it is not guilty. In trespass on the case on promises (assumpsit) it is 71071 aSSIMPSii. In replevin it in non cepit. The great practical advantage of the general issue is that it brings to issue at the earliest possible stage in the cause, and in many cases it puts the plaintiff to the proof of every substantial part of his cause of action, that is, the general issue usually admits nothing, and denies all.

issue, nature and traverses