de injuria

DE INJURIA, pleading. The name of a replication in an action for a tort, 
that the defendant committed the trespasses or grievances of his own wrong, 
without the cause by,him in his plea alleged. 
     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 has 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.