DE INJURIA (Lat. The full term 1§, de injuria sue propria absque tali cause, 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 ef fect of excuse or justification offered by the defendant.
It can only be used where the defendant pleads matter merely in excuse and not in justification of his act. It is confined to those instances in which the plea neither denies the original existence of the right which the defendant is charged with having violated, nor alleges that it has been released or extinguished, but sets up some new mat ter as a sufficient excuse or cause for that which would otherwise and in its own na ture be wrongful. It cannot, therefore, be properly used when the defendant's plea al leges any matter in the nature of title, in terest, authority, or matter of record; 8 Co. 66; 1 B. & P. 76; Hyatt v. Wood, 4 Johns. (N. Y.) 159, note, 4 Am. Dec. 258; Griswold v. Sedgwiek, 1 Wend. (N. Y.) 126; Oystead Shed, 12 Mass. 506; Ridgefield Park R. Co. v. Buckman, 38 N. J. L. 98 ; Steph. Pl. 276; Pepper, Pl. 35.
The English and American cases are at va riance as to what constitutes such legal au thority as cannot be replied to by de injuria. Most of the American cases hold that this replication is bad whenever the defendant in sists 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 cannot be used; Coburn v. Hopkins, 4 Wend. (N. Y.) 577; Stickle v. Richmond, 1 Hill (N. Y.) 78; Allen v. Scott, 13 Ill. 80. The Eng lish cases, on the other hand, hold that an authority derived from a court not of record may be traversed by the replication de in juria; 3 B. & 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 ques tion de injuria sua propria absque residuo causce, of his own wrong without the residue of the cause alleged; Stickle v. Richmond, 1 Hill (N. Y.) 78 ; Curry v. Hoffman, 2 Am. Law Reg. 246; Steph. Pl. 276.
The replication de injuria puts in issue the whole of the defence contained in the plea ; and evidence is, therefore, admissible to dis prove any material averment in the whole plea ; McKelv. Pl. 50; 8 Co. 66; 11 East 451; 10 Bingh. 157; Tubbs v. Caswell, 8 Wend. (N. Y.) 129 ; Erskine v. Hohnbach, 14 Wall. (U. S.) 613, 20 L. Ed. 745. See 2 Cr. M. & R. 338. In England, however, by a uniform course of decisions in their courts, evidence is not admissible under the replica tion de injuria to a plea, for instance, of moderate castigavit or mollitcr menus im posuit, to prove that an excess of force was used by the defendant; but it is necessary that such excess should be specially pleaded.
There must be a new assignment; 2 Cr. M. & R. 338; 1 Bingh. 317; 1 Bingh. N. C. 380; 3 M. & W. 150.
In this country, on the other hand, though some of the earlier cases followed the Eng lish 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 that is attempted to be justified by 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 ex cess; Hannen v. Edes, 15 Mass. 351; Ben nett v. Appleton, 25 Wend. (N. Y.) 371; El liot v. Kilburn, 2 Vt. 474; Bartlett v. Church ill, 24 Vt. 218 ; Vreeland v. Berry, 21 N. J. L. 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 rep lication de injuria cannot be objected to on this ground, although putting the same number of points in issue; 3 B. & Ad. 1; Marshall v. Aiken, 25 Vt. 330; 2 Bingh. N. 0, 579; 3 Tyrwh. 491. Hence this mode of replying has a great advantage when a spe cial plea has been resorted to, since it en ables the plaintiff to traverse all the facts contained in any single point, instead of be ing obliged to rest his cause on an issue join ed on one fact alone.
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 isTimited to actions of tort; Coffin v. Bassett, 2 Pick. (Mass.) 357. But in New Jersey it may be used in actions co contractu wherever a special plea in excuse of the breach of contract can be pleaded, as a general traverse to put in is sue every material allegation in the plea ; Ridgefield Park R. Co. v. Ruckman, 38 N. J. L. 98. Whether de injuria can be used in ac tions of replevin seems, even in. England, to be a disputed question. The following cases decide that it may be so used ; 9 Bingh. 756; 3 B. & Ad. 2; contra, 1 Chit. PL 622.
The improper use of de injuria is held to be only a ground of general demurrer ; 6 Dowl. 502; but see 3 M. & W. 230; Coffin v. Bassett, 2 Pick. (Mass.) 357. Where it is improperly employed, the defect will be cured by a verdict ; Lytle v. Lee, 5 Johns. (N. Y.) 112; Hob. 76; 1 T. Raym. 50. See Crogate's Case, 1 Sm. Lead. Cas. 247.