Definition
"Que est le mesme" (Law French: "which is the same") is a pleading phrase historically used in defendants' pleas in actions of trespass. When a defendant invoked the phrase, it signaled a positive or direct justification of the very act the plaintiff identified as a wrong — not a denial that the act occurred, but an assertion that the act complained of and the justified act were one and the same. In effect, the defendant was saying: the act you allege and the act I am entitled to perform are identical; therefore no wrong was done.
The phrase is the Law French equivalent of the Latin "quae est eadem," and the two expressions were used interchangeably as legal language shifted from French to Latin in English pleading practice.
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Common Confusion
Que est le mesme and que est eadem are not two separate doctrines — they are the same pleading formula in two different languages. Historical sources sometimes index them separately, which can mislead a researcher into treating them as distinct concepts. Burrill explicitly identifies them as equivalent. When researching trespass justification pleading in older materials, both forms should be searched.
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Why It Matters in Research
This term is a marker of a specific pleading posture, not a substantive doctrine in itself. A researcher encountering it in a historical trespass plea should recognize that the defendant is not traversing (denying) the plaintiff's allegation but is instead conceding the act and asserting lawful justification. That distinction matters when tracing how a case was argued and decided: a plea of que est le mesme puts the lawfulness of the act at issue, not whether the act occurred.
The term belongs to the Law French period of English common law pleading, which means it will appear almost exclusively in materials predating the nineteenth-century procedural reforms — primarily pre-Hilary Rules (1834) English practice and early American common law pleading that tracked English forms. Researchers working in American materials from the colonial and early national periods may encounter it in records that preserved English pleading conventions closely.
Because the term is indexed inconsistently — sometimes under the French form, sometimes under the Latin equivalent quae est eadem, and sometimes not indexed at all — a corpus search should run both forms. Rapalje & Lawrence's entry truncates mid-sentence in some editions, which can obscure the full doctrinal context; Burrill's entry is the most complete of the standard historical dictionaries and should be treated as the primary reference among shelf sources.
Researchers should also be alert to the broader pleading family this phrase belongs to: justification pleas in trespass, which include defenses such as entry by license, distress for rent, and lawful authority. Que est le mesme is the connective formula that ties the justified act back to the specific act alleged, closing off any argument that the defendant is justifying a different act than the one sued upon.
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Historical Dictionary Support
All four shelf sources agree on the core meaning: a Law French phrase meaning "which is the same," used in trespass pleading to signal direct justification of the act complained of. Black's (both editions) is brief, functioning primarily as a cross-reference to the Latin form. Rapalje & Lawrence adds the functionally important detail that the justification is "direct" — of the very act the plaintiff frames as a wrong — though the entry appears incomplete in available editions. Burrill is the most substantive, identifying the phrase as "anciently used," attributing the entry to Cowell (John Cowell's Interpreter, a standard early glossary of law terms), and explicitly mapping the French phrase to its Latin equivalent. None of the shelf sources provide extended doctrinal treatment; for that, researchers should consult historical pleading treatises such as Chitty on Pleading or Stephen's Principles of Pleading.
The historical sources do not diverge on meaning. The minor variation is one of depth: Burrill situates the phrase in its procedural function more clearly than the others.
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Jurisdictional Note
This phrase is a relic of English common law pleading and has no active jurisdiction-specific application in modern practice. It may appear in historical American court records from jurisdictions that adopted English common law forms, particularly before code pleading displaced the old forms in the mid-nineteenth century.
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