The general issue in several sorts of actions. It is the general issue.
In trespass, its form is as follows: "And the said C D, by E F, his attorney, comes and defends the, force and injury, when, etc., and says, that he is not guilty of the said trespasses above laid to his charge, or any part thereof, in the mannor and form as the said A B hath above complained. And of this the said C D puts himself upon the country."
Under this issue the defendant may give in evidence any matter which directly controverts the truth of any allegation, which the plaintiff on such general issue will be bound to prove and no person is bound to justify who is not, prima facie, a trespasser. For example, the plea of not guilty is proper in trespass to persons, if the defendant have committed no assault, battery, or imprisonment, etc.; and in trespass to personal property, if the plaintiff had no property in the goods, or the defendant were not guilty of taking them, etc.; and in trespass to real property, this plea not only puts in issue the fact of trespass, etc., but also the title, which, whether freehold or possessory in the defendant, or a person under whom he claims, may be given in evidence under it, which matters show, prima facie, that the right of possession which is necessary in trespass, is not in the plaintiff but in the defendant or the person under whom he justifies.
In trespass on the case in general, the formula is as follows: " And the said C D, by E F his attorney, comes and defends the wrong and injury when, etc., and says, that he is not guilty of the premises above laid to his charge, in manner and form as the said A B hath above complained. And of this the said C D puts himself on the country."
This is a mere traverse or denial of the facts alleged in the declaration; and therefore, on principle, should be applied only to cases in which the defence rest's on such denial. But here a relaxation has taken place, for under this plea a defendant is permitted not only to contest the truth of the declaration, but with some exceptions, to prove any matter of defence that tends to show that the plaintiff has no cause of action though such matters be in confession and avoidance of the declaration; as, for example, a release given, or satisfaction made. In criminal cases, when the defendant wishes to put himself on his trial, he pleads not guilty.
Misjoinder of causes of action, or counts, consists in joining, in different counts in one declaration, several demands, which the law does not permit to be joined, to enforce several distinct, substantive rights of recovery; as, where a declaration joins a count in trespass with another in case, for distinct wrongs or a count in tort, with another in contract.
Misjoinder of parties, consists in joining as plaintiffs or defendants, persons, who have not a joint interest. When the misjoinder relates to the plaintiffs, the defendants may, at common law, plead the matter in abatement, whether the action be real or mixed; or it will be good cause of nonsuit at the trial. Where the objection appears upon the face of the declaration, the defendant may demur generally or move in arrest of judgment or bring a writ of error.
When in actions ex contractu against several, there is a misjoinder of the defendants, as if there be too many persons made defendants, and the objection appears on the pleadings, either of the defendants may demur, move in arrest of judgment, or support a writ of error; and, if the objection do not appear on the pleadings, the plaintiff may be nonsuited upon the trial, if he fail in proving a joint contract.
In actions ex delicto, the misjoinder cannot in general be objected to, because in actions for torts, one defendant may be found guilty and the others acquitted.
The omission of some one of the persons who ought to have been made a plaintiff or defendant along with others is called a non joinder.
In actions upon contracts, where the contract has been made with several, if their interest were joint they must all, if living, join in the action for its breach. In such case the non joinder must be pleaded in abatement.
This entry contains material from Bouvier's Legal Dictionary, a work published in the 1850's.
Md. Shahnewaz Zwaki Advocate The Supreme Court of Bangladesh (High Court Division).