TRAVERSE
TRAVERSE, crim. law practice. This is a technical term, which means to turnover: it is applied to an issue taken upon an indictment for a misdemeanor, and means nothing more than turning over or putting off the trial to a following sessions or assize; it has, perhaps with more propriety, been applied to the denying or taking issue upon an indictment, without reference to the delay of trial. Dick. Sess. 151; Burn's Just. h. t.; 4 Bl. Com. 351.
TRAVERSE
TRAVERSE, pleading. This term, from the French traverser, signifies to deny or controvert anything which is alleged in the declaration, plea, replication or other pleadings; Lawes' Civ. Plead. 116, 117 there is no real distinction between traverses and denials, they are the same in substance. Willes. R. 224. however, a traverse, in the strict technical meaning, and more ordinary acceptation of the term, signifies a direct denial in formal words, "without this that," &c. Summary of Pleadings, 75; 1 Chit. Pl. 576, n. a.
2. All issues are traverses, although all traverses cannot be said to be issues, and the difference is this; issues are where one or more facts are affirmed on one side, and directly and merely denied on the other; but special traverses are where the matter asserted by one party is not directly and merely denied or put in issue. by the other, but he alleges some new matter or distinction inconsistent with what is previously stated, and then distinctly excludes the previous statement of his adversary. The new matter so alleged is called the inducement to the traverse, and the exclusion of the previous statement, the traverse itself. Lawes' Civ. Pl. 117. See, in general, 20 Vin. Abr. 339; Com. Dig. Pleader, G; Bac. Abr. Pleas, H; Yelv. R. 147, 8; 1 Saund. 22, n. 2; Gould. on Pl. ell. 7 Bouv. Inst. Index, n. t.
3. A traverse upon a traverse is one growing out of the same point, or subject matter, as is embraced in a preceding traverse on the other side. Gould on Pl. ch. 7, §42, n. It is a general rule, that a traverse, well tendered on one side, must be accepted on the other. And hence it follows, as a general rule, that there cannot be a traverse upon a traverse, if the, first traverse is material. The meaning of the rule is, that when one party has tendered a material traverse, the other cannot leave it and tender another of his own to the same point upon the inducement of the first traverse, but must join in that first tendered; otherwise the parties might alternately tender traverses to each other, in unlimited succession, without coming to an issue. Gould on Pl. ch. 7, §42.
4. In cases where the first traverse is immaterial, there may be a traverse upon a traverse. Id. ch. 7, §43. And where the plaintiff might be ousted of some right or liberty the law allows him, there may be a traverse upon a traverse, although the first traverse include what is material. Poph. 101; Mo. 350; Com. Dig. Pleader, G 18; Bac. Abr. Pleas, H 4; Hob. 104, marg.; Cro. Eliz. 99, 418; Gould on Pl. ch. 7, 44.
5. Traverses may be divided into general traverses, (q. v.) and special traverses. (q. v.) There is a third kind called a common traverse. (q. v.)