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Special Traverses


SPECIAL TRAVERSES. A spe cial travers is a pleading which sets out with a detail of circumstances inconsistent with those stated in the preceding pleading to which it purports to be an an swer, and then directly denies some fact stated in the preceding pleading- and concludes with a verification. The detail of inconsistent circumstances with which it rommences, is called the inducement to the traverse ; the denial is called, from its introductory words, the absque hoc (without this).

This indirect form of denial might be advisable in any of four classes of circumstances, as follows : I. The case might be one in which some princi ple or rule of law was opposed to a direct denial.

2. Some fact, ordinarily immaterial, but in the present case material, might be falsely pleaded by the adversary, and the purpose of the defense would re quire the materiality of that fact to be made apparent on the face of the pleading.

3. It might be desirable in the particular case to separate questions of law from those of fact.

4. The party pleading the special traverse may desire to get by so doing the right to open and con clude the cause.

An example under the first class of circumstances may be as follows : Lessor's heir sues the lessee for non-payment of rent, alleging in lessor a title in fee simple. A rule of law prohibits the lessee from deny ing the lessor's title, but does not compel him to admit the precise title alleged, so that a special pleading may raise the issue that lessor did not have a title in fee but only a life estate.

Under the second class it may be observed, that while the time and place of facts constituting transitory causes of action are immaterial, yet if the question in volved is one of authority, as of a sheriff, time and place become material incidents.

Under the third class, in an action of waste, the acts of devastation may have been committed by rebels in arms. And the defendant wishes to raise the ques tion of his legal liability for such acts, and therefore pleads the fact of devastation wrottght by rebels in arms, and under the absque hoc denies his guilt. This compels plaintiff to demur, or else to join issue upon the fact that rebels committed the waSte charged.

The special traverse concludes with a verification, it puts, therefore, the affirmative of the issue upon the party pleading it, and thus gives him the right to be gin and conclude at the trial.

pleading, title, circumstances and rebels