Pleading at Common Law and Under the Codes

Pleading at Common Law and Under the Codes

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This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1891 edition. Excerpt: ...of property, it must be given in evidence under "not possessed." To permit the proof of it under not guilty would be to allow a defendant to contradict in his evidence what he had admitted in his pleadings. 5. In Owen 11. Knight, 4 Bing. N. C54, the action was trover for the conversion ofa lease. The defendant pleaded that the plaintiff was not possessed, and possessed that the plaintiff acquiesced in the sale.1 Not guilty and not possessed seem to cover all defenses except matter in Such matter should be pleaded in confession and l (2) T Common Law.--Under the general issue, no matter whether the injury complained of relates to person or property, the defendant can give in evidence matter which oper ates as a direct denial of the doing of the act alleged.3 So also when the act in question was in fact done, but the defendant wishes to prove that he was a passive agent in the hands of a superior power, he can offer evidence of such adefense under the general issue.4 But if the defendant is prima fade a trespasser upon the trial proved that the indenture had been deposited to sezure an advance of money. The verdict-having been found for the defendant, the court refused a new trial on the ground that a lien, which is inconsistent, necessarily, with the plaintiffs right of immediate possession, might well be given in evidence upon the specific traverse "not possessed." ' It would follow logically from this decision that not possessed is the only plea under which a lien can be given in evidence; for a plea in confession in avoidance setting up a lien would amount to an argumentative traverse. The very point arose in Dorrington-u. Carter, 1 Exch. 566, where trover was brought for goods and more

Product details

  • Paperback | 70 pages
  • 189 x 246 x 4mm | 141g
  • United States
  • English
  • black & white illustrations
  • 123681147X
  • 9781236811479