Definition
Special matter is a procedural device in common law pleading that allows a defendant, having entered a plea of the general issue, to introduce at trial evidence of a specific affirmative defense or factual matter that would ordinarily require a special plea—provided the defendant first gives the plaintiff advance notice of what that evidence will be. Rather than formally pleading the defensive matter in the pleadings themselves, the defendant flags it by notice before trial, preserving the ability to argue it without technically departing from the general denial.
In practical terms, special matter functions as a controlled exception to the strict common law rule that a party must plead every ground of defense specifically. Without the device, a defendant relying solely on the general issue ("not guilty" or "never indebted," depending on the action) would be limited at trial to simple denial of the plaintiff's allegations. Special matter opened the door to raising substantive defenses—failure of consideration, release, illegality, and the like—without requiring the formal structure and risks of a special plea.
Common Confusion
Special matter is sometimes conflated with a special plea. The distinction is procedural, not substantive. A special plea formally sets out the defensive matter in the pleadings as a separate averment; special matter achieves a similar defensive result but remains technically under the shelter of the general issue, introduced by notice rather than by a separately pleaded count. The substantive defense may be identical; what differs is the mechanism. Researchers should also take care not to confuse special matter with special demurrer or special verdict, which are unrelated procedural devices that share the word "special."
Why It Matters in Research
Special matter is a creature of the formal common law pleading system and is largely obsolete under modern procedural codes. Researchers encountering it in pre-code cases—particularly English cases before the Judicature Acts of 1873–1875, and American cases before the mid-nineteenth century adoption of code pleading—need to understand it as a workaround baked into a highly technical system of pleading that no longer exists in its original form.
The most common research trap is reading a historical case that mentions "special matter" and assuming it implies a defect in the pleadings or a notable evidentiary ruling. In most instances, it is simply a notation that the defendant proceeded by notice under the general issue rather than by separate plea. The distinction mattered enormously at trial because a failure to give proper notice could result in exclusion of evidence that would otherwise be plainly relevant.
The requirement for notice, and its exceptions, varied by type of action and by jurisdiction. Bouvier's entry flags one important exception: in actions on sealed instruments, where consideration need not be averred in the declaration, notice was not required unless the defense was failure of consideration—an equitable defense that courts treated with particular caution in pleading. Spotting these carve-outs in historical sources requires understanding not just special matter as a concept but the action type in which the defense arose.
For researchers using Law Mind, special matter appears most frequently in civil procedure treatises, early American appellate opinions on pleading sufficiency, and equity practice materials. It is rarely the central holding of a case; more often it surfaces as a procedural backdrop that explains why particular evidence was or was not admitted.
Historical Dictionary Support
Both Black's and Bouvier's treat special matter consistently as a plea-of-general-issue device, and both trace the concept explicitly to Blackstone's Commentaries (3 Bl. Comm. 306), which remains the foundational citation for the doctrine. There is no meaningful divergence between the two dictionaries on the core definition.
What the historical dictionaries do not fully convey is how extensively this device was regulated by local court rules and statutes in the American states. Notice requirements, the timing of notice, and the consequences of defective notice varied considerably across jurisdictions, and neither Black's nor Bouvier's attempts a comparative treatment. Bouvier's partial entry (the source text is truncated) appears to have addressed at least one important exception involving sealed instruments and equitable defenses, which suggests the doctrine had meaningful complexity that a brief dictionary entry could not fully capture.
Researchers should treat the historical dictionary entries as orientation, not authority. For substantive analysis of how special matter operated in a specific jurisdiction or time period, contemporaneous practice treatises—Chitty on Pleading, Stephen on Pleading, or their American adaptations—will provide fuller and more reliable guidance.
Jurisdictional Note
Special matter as a formal device belonged to the common law pleading tradition shared by England and the American states before code pleading reforms. American states adopted code pleading at different times beginning with New York's Field Code in 1848, and later the Federal Rules of Civil Procedure in 1938, each effectively displacing the notice-under-general-issue mechanism. The concept has no direct analog in modern federal practice and is functionally extinct in code and rules-based jurisdictions, though it may surface in historical case law and in jurisdictions that retained common law pleading forms longer than most.