2.
The import of this replication is to insist that the defendant
committed the act complained of, from a motive and impulse altogether
different from that insisted on by the plea. For example, if the
defendant has justified a battery under a writ of capias, having
averred, as he must do, that the arrest was made by virtue of the writ;
the plaintiff may rely de injuria sua propria absque tali causa, that
the defendant did the act of his own wrong, without the cause by him
alleged. This replication, then, has the effect of denying the alleged,
motive contained in the plea, and to insist that the defendant acted
from another, which was unlawful, and not in, consequence of the one
insisted upon in his plea. Steph. Pl. 186; 2 Chit. Pl. 523,.642; Hamm. N. P. 120, 121; Arch. Civ. Pl. 264; Com. Dig. Pleader, F 19.
3.
The form of this replication is, "precludi non, because he says that
the said defendant at the same time when, &c., of his own wrong, and
without the cause by him in his said second plea alleged, committed the
said trespass in the introductory part of that plea, in manner and form
as the said plaintiff hath above in his said declaration complained
against the said defendant, and this the said plaintiff prays, may be
inquired of by the country," &c. This is the uniform conclusion of
such a replication. 1 Chit. Pl. 585.
4.
The replication de injuria is only allowed when an excuse is offered
for personal injuries. 1 B. & P. 76; 5 Johns. R. 112; 4 Johns. 150;
12 Johns. 491. Vide 7 Vin. Ab. 503; 3 Saund. 295, note; 1 Lilly's Reg.
587.
5.
In England, where the extent of the general issues has been confined in
actions on contracts, and special pleas have become common in
assumpsit, it has become desirable, that the plaintiff, who hss but one
replication, should put in issue the several numerous allegations which
the special pleas were found to contain; for, unless he could do this,
he would labor under the hardship of being frequently compelled to admit
the greater part of an entirely false story. It became, therefore,
important to ascertain whether de injuria could not be replied to cases
of this description and, after numerous cases which were presented for
adjudication, it was finally settled that de injuria may be replied in
assumpsit, when the plea consists of matters of excuse. 3 C.M. &,R.
65; 2 Bing. N. C. 579 4 Dowl. 647.
6.
The improper use of de injuria is ground of general demurrer. 2 Lev.
65; 4 Tyrw. 771. But if the defendant do not demur, the objection will
not avail after verdict. Hob. 76: Sir T. Raym. 50.
7.
De injuria puts in issue the whole of the defence contained in the
plea. 5 B. & A. 420; 11 East, 451; 10 Bing. 157. But if the plea
state some authority in law, which, prima facie, would be a
justification of the act complained of, the plaintiff will not be
allowed under the plea of de injuria to show an abuse of that authority
so as to convert the defendant into a tort feasor ab initio. 1 Bing.
317; 1 Bing. N. S. 387. See 1 Smith's L. C. 53 to 61; 8 Co. 66.
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