DE INJURIA (Lat. The full form is, de znjuria sou propria absque tali causes, of his own wrong without such cause ; or, where part of the plea is admitted, absque residuo causce, without the rest of the cause).
In Pleading. The replication by which in an action of tort the plaintiff denies the effect of excuse or justification offered by the defendant.
2. It can only be used where the defend ant pleads matter merely in excuse and not in justification of his act. It is confined to those instances in which the plea neither de nies the original existence of the right which the defendant is charged with havingviolated, nor alleges that it has been released or ex tinguished, but sets up some new matter as a sufficient excuse or cause for that which would otherwise and in its own nature be wrongful. It cannot, therefore, be properly used when the defendant's plea alleges any matter in the nature of title, interest, author ity, or matter of record. 8 Coke, 66; 1 Bas. & P. 76; 4 Johns. N. Y. 159, note; 5 id. 112; 12 id. 491 ; 1 Wend. N. Y. 126; 8 id. 129 ; 25 Vt. 328; Stephen, Plead. 276.
3. The English and American cases are at variance as to what constitutes such legal authority as cannot be replied to by de inju ria. Most of the American cases hold that this replication is bad whenever the defend ant insists upon a right, no matter from what source it may be derived; and this seems to be the more consistent doctrine.
If the plea in any sense justifies the act, instead of merely excusing it, de injuria can not be used. 4 Wend. N. Y. 577; 1 Hill, N. Y. 78; 13 Ill. 80. The English cases, on the other hand, hold that an authority de rived from a court not of record may be traversed by the replication de injuria. 3 Barnew. & Ad. 2.
The plaintiff may confess that portion of a plea which alleges an authority in law or an interest, title, or matter of record, and aver that the defendant did the act in question de injuria sua propria absque residuo causm, of his own wrong without the residue of the cause alleged. 1 Hill, N. Y. 78; 2 Am. Law Reg. 246 ; Stephen, Plead. 276.
4. The replication de injuria puts in issue the whole of the defence contained in the plea; and evidence is, therefore, admissible to disprove any material averment in the whole plea. 8 Coke, 66; 11 East, 451; 10 Bingh.
157 ; 8 Wend. N. Y. 129. In England, how ever, by a uniform course of decisions in their courts, evidence is not admissible under the replication de injuria to a plea, for instance, of moderate castigavit or nsolliter rnanus im posuit, to prove that an excess of farce was used by the defendant ; but it is necessary that such excess should be specially pleaded. There must be a new assignment. 2 Crompt.
M. & R. Exch. 338; 1 Bingh. 317; 1 Bingh, N. c. 380; 3 Mees. & W. Exch. 150.
5. In this country, on the other hand, though some of the earlier cases followed the English doctrine, later cases decide that the plaintiff need not plead specially in such a case. It is held that there is no new cause to assign when the act complained of is the same which is attempted to be justified by the plea. Therefore the fact of the act being moderate is a part of the plea, and is one of the points brought in issue by de injuria; and evidence is admissible to prove an excess. 15 Mass. 351; 25 Wend. N. Y. 371; 2 Vt. 474; 24 id. 218 ; 15 Mass. 365 ; 1 Zabr. N. J. 183.
Though a direct traverse of several points going to make up a single defence in a plea will be bad for duplicity, yet the general re plication de injuria cannot be objected to on this ground, although putting the same number of points in issue. 3 Barnew. & Ad.
1 ; 25 Vt. 330 ; 2 Bingh. N. c. 579 ; 4 Tyrwh. 491. Hence this mode of replying has a great advantage when a special plea has been resorted to, since it enables the plaintiff to traverse all the facts contained in any single point, instead of being obliged to rest his cause on an issue joined on one fact alone.
6. In England it is held that de injuria may be replied in assumpsit. 2 Bingh. N. c.
579.
In this country it has been held that the use of de injuria is limited to actions of tort.
2 Pick. Mass. 357. Whether de injuria can be used in actions of replevin seems, even in England, to be a disputed question. The following cases decide that it may be so used Bingh. 756 ; 3 Barnew. & Ad. 2; contra, 1 Chitty, Plead. 5th ed. 622.
The improper use of de injuria is now held to be only a ground of general demurrer. 6 Dowl. 502. Where it is improperly employed, the defect will be cured by a verdict. 5 Johns. N. Y. 112; Hob. 76; 1 T. Raym. 50.