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Principles Applicable to Traverses in General


PRINCIPLES APPLICABLE TO TRAVERSES IN GENERAL. The following prin ciples are applicable to traverses in general : 1. A traverse must deny modo et formo (in man ner and form) as alleged. This is required that the traverser may take advantag-e of any variance between his opponent's allegations and his proof. But these words, though usually employed, are not so essential that their omission is cause for demurrer, and they are not used in the general issue of non est factin, nor in the replication de injuria.

2. A traverse must not be taken upon a matter of lam. A demurrer is the approriate form for test ing the correctness of an allegation of law. But where an allegation is a confusion of law and fact, it may be traversed.

3. A traverse must not be taken upon matter not alleged, but it may be taken upon matter not expressly alleged, if it is necessarily implied.

4. A party to a deed who traverses it must plead non est faction, and should not plead that he did not grant, did not demise, etc. This is to avoid the doctrine of estoppel. For a man is sometimes in law preclud ed from alleging or denying a fact because by some previous act, allegation, or denial, he has taken a posi tion inconsistent with the one he now desires to take, and such a preclusion is called an estoppel. Estoppel may arise : (a) From matter of record; (b) from the deed of the party ; (c) from matter in pais, that is, matter of fact. Thus, any confession or admission in a pleading in a of record, whether it be express or be implied from pleading over without a traverse, will,—unless coupled at the time with a saving prot estation,—forever preclude the party from afterwards contesting the same fact in any subsequent suit with the same adversary. So a recital of a certain fact by the party in any deed which he executes, precludes his denying that fact in any action brought by or against him upon that deed. And where one party accepts rent from another he is thereby estopped from denying in any action with such party, that the party paying the rent was not in fact at the time his tenant. But a stranger to a deed is not estopped to deny allegations of the deed hence, when he is sued, he pleads non est facture, but not concessit, etc.

party, deed and matter