Home >> Cyclopedia-of-law-vol-10 >> Other Examples Where The to Whom The Covenant Benefits >> Rules Which Tend to

Rules Which Tend to the Materiality of the Issue the General Rule


RULES WHICH TEND TO THE MATERIALITY OF THE ISSUE THE GENERAL RULE. All pleadings nzust contain matter pertinent and material. This is essential to keep the issue from going astray. As where the dec laration on assumpsit laying promises by the intestate, should be traversed by the defendant administratrix as to her own promises instead of those of the intestate, such plea would be immaterial and bad.

As to traverses this rule includes the following: I. A traverse must not be taken on an immaterial point ; or upon matter the allegation of \vhich was pre mature ; or upon matter of ag,g,ravation ; or upon mat ter of inducement. But this last rule does not apply where the introductory matter is in itself essential, and of the substance of the case, for in such a case it may be traversed. Also, where there are several material allegations, the pleader may traverse whichever he pleases, since if he breaks a single link he breaks the chain.

2. A traverse must not be too large, nor too nar row; that is, it must take in no more, and no less of the allegation traversed than is material.

A traverse may be too large by involving in the is sue quantity, time, place, or other circumstances, which, though forming part of the allegation traversed, are immaterial to the merits of the cause. A traverse may also be too large by being taken in the conjunc tion instead of the disjunctive, where it is not material that the allegation traversed should be proved con junctively. On the other hand, a party may, general ly, traverse a material allegation of title or estate to the extent to which it is alleged, though it need not have been alleged to that extent, and such traverses will not be considered too large.

A traverse is too narrow when it fails to answer fully the whole of the adversary's allegation which it purports or undertakes to answer. So, a traverse may be too narrow by being applied to a part only of an allegation which the law considers as in its nature indivisible and entire, such as that of a prescription or grant. The principle which forbids too narrow a traverse is the same as that which requires that every pleading shall really answer so much of the adver sary's pleading as it professes and undertakes to an swer.

traverse, allegation and traversed