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of speaking the words, of speaking them maliciously, and in the defamatory sense imputed, and with reference to the plaintiff's office, profession, or trade; but it will not operate as a denial of the fact of the plaintiff holding the office, or being of the profession or trade alleged.

"In actions for an escape, it will operate as a denial of the neglect or default of the sheriff or his officers, but not of the debt, judgment, or preliminary proceedings.

"In actions against a carrier, the plea of not guilty will operate as a denial of the loss or damage, but not of the receipt of the goods by the defendant as a carrier for hire, or of the purpose for which they were received."i

The general issue in these cases admits the facts stated in the inducement or introduction to the substantial ground of action, and denies only the fact alleged to have been done wrongfully, and not the wrongfulness of the fact.2 In other words, it denies only the fact complained of and not its nature.3 Thus in an action for obstructing light it denies only the fact of obstruction; and the defendant cannot (under this plea) show either that the plaintiff has no right to the easement, or that the defendant has a right which supersedes it. So, where the declaration alleges that the defendant, being possessed of a cart and horse, drove negligently against the plaintiff's horse, the defendant, under not guilty, cannot show that he was not the person driving, nor that the cart did not belong to him; for the plea admits these two facts, and denies only the fact of the collision, and also the alleged negligence. So, generally, in actions for negligence,

Reg. Hil. T. 1853, r. 16.

2 Frankson v. Lord Falmouth, 2 A. & E. 452; Per cur.: Renshaw v. Bean, 21 L. J. 219, Q. B.

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the defendant, under not guilty, may show that the damage was caused either wholly or partly by the fault of the plaintiff; or that it was the result of inevitable accident.2 For this plea denies all the facts which give a tortious character to the act and constitute the injury, and which are not merely matter of recital.3 Thus, in an action for indicting the plaintiff maliciously and without probable cause, the defendant may prove probable cause under the general issue; or for keeping a mischievous dog, that he did not know it to be mischievous; for the scienter is of the substance of the action.5 So in actions of slander or libel, not guilty puts in issue the publication, the malice, and the alleged defamatory meaning of the slander or libel ;6 and the defendant may prove any facts which tend to show that the communication was privileged.7

"All matters in confession and avoidance shall be pleaded specially as in actions or contract.'


The rules applicable to the proof of affirmative pleadings in contract will be applicable equally to the proof of affirmative pleadings in tort.

"In actions for trespass to land, the plea of not guilty shall operate as a denial that the defendant committed the trespass alleged in the place mentioned; but not as a denial of the plaintiff's possession or right of possession of that place, which, if intended to be denied, must be traversed specially."9

"In actions for taking, damaging, or converting the plaintiff's goods, the plea of not guilty shall operate as a denial of the defendant's having committed the

1 Tuff v. Warman, 27 L. J. 322, C. P.; Sc. Cam.

2 Hall v. Fearnley, 3 Q. B. 919.

3 Tayl. § 279.

Cotton v. Browne, 3 A. & E. 312.

5 Thomas v. Morgan, 2 C. M. & R. 496. 615 & 16 Vict. c. 76, s. 61.

7 Harrison v. Bush, 25 L. J. 25, Q. B. 8 Reg. Hil. T. 1853, r. 17.

9 Ibid. r. 19.

wrong alleged by taking, damaging, or converting the goods mentioned, but not of the plaintiff's property therein."1

Under this issue the defendant cannot raise any claim of title.2 The plea admits the plaintiff's title, and denies only the fact that he has been deprived of his goods, and the circumstances which make the deprivation wrongful.3 A plea of not possessed denies the plaintiff's possession and property in the goods.*

In some cases a defendant is empowered by act of Parliament to plead the general issue and to give in evidence special matter, which, except for the statutory privileges, could not be so given, but would have to be pleaded specially. In order that he may have the benefit of this privilege a defendant must attend to the following rule:

"In every case in which a defendant shall plead the general issue, intending to give the special matter in evidence, by virtue of an act of Parliament, he shall insert in the margin of the plea the words by statute,' together with the year or years of the reign in which the act or acts of Parliament upon which he relies for that purpose were passed, and also the chapter and section of each of such acts, and shall specify whether such acts are public or otherwise; otherwise such plea shall be taken not to have been pleaded by virtue of any act of Parliament; and such memorandum shall be inserted in the margin of the issue, and of the Nisi Prius record."5

Under this plea the defendant may give in evidence every defence arising under the statute, and every other defence at common law.6 Thus, in an action for excessive distress under 11 Geo. 2, c. 19, s. 21, this plea puts in issue not only the matter of justification,

1 Reg. Hil. T. 1853, r. 20.

2 Jones v. Davies, 6 Exch. 663. 3 Young v. Cooper, 6 Ex. 259.

4 Harrison v. Dixon, 12 M. & W. 142.

5 Reg. Hil. T. 1853, r. 21.

Ross v. Clifton, 11 A. & E. 631.

but the tenancy and ownership of the goods. So the clerk of a county court against whom trespass is brought may give special matter in evidence under not guilty by statute under 13 & 14 Vict. c. 61, s. 19.2

On criminal charges the plea of not guilty puts in issue every fact and circumstance constituting the offence, and compels the prosecutor to prove them. The defendant may give in evidence under this plea everything which negatives the allegations in the charge, and all matters of excuse and satisfaction.3 Only pleas to the jurisdiction must be pleaded specially, and cannot be pleaded with the general issue.1

1 Williams v. Jones, 11 A. & E. 643. 2 Dews v. Ryley, 11 C. B. 434.

3 Wels. Cr. Pr. p. 124, 12th ed.

R. v. Strahan, 7 Cox. Cr. Cas. 85.




It is proposed in this chapter to state and illustrate shortly the leading principles by which courts and juries are bound to estimate the damages which are recoverable by a plaintiff in an action of contract or tort. Such a chapter, although a new element in a work on evidence, is conceived to be strictly in its place, and to form a fit appendix to a branch of the subject in which the relevancy of evidence and the proof of issues have been treated.1

The measure of damages is still a department of presumptive evidence. It rested originally, and it still rests in many cases, on an undefined conception of the extent of an injury. The rule necessarily operates at times as a standard founded on merely hypothetical, conventional, and even gratuitous assumptions. It originates in the lex talionis, or law of retaliation, which has always prevailed in uncivilized communities. But it has always been the first effort of legislators to withdraw the adjustment of compensation for an injury from the arbitration of individuals and even juries, and to regulate it by principles of written law. This task is comparatively easy as long as a community is in the infancy of its development. The law which prescribes an eye for an eye, and a tooth for a tooth," and the


At the time when this chapter was English treatise existed on this subject. treatise on Damages has been published.

written originally, no modern But since then Mr. Mayne's

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