Majority
p. 516Bindon against Robinson.
Headnote
care to till, stop ceitahiTiudt or liole, dug by street, nor to place near the to prevent, &c. ¡Aeaded^hatlíe did placea suffi•The replication words of-the -declaration, _ & arcWyíptitzm. On a demurrer, it was held to he bad, and that ougbt^to^have taken issue on t e plea, The declaration stated that the defendant did not takeTHIS was an action on the case. The declaration stated that the defendant dug and made a vault or hole in the public highway or street, to wit, John-street, in the city of New- Tor¿, and did not take care to fill, stop up or cover the same, nor to place near the same any fence or other thing whatsoever, to prevent any person passing along the said street from falling into the said vault or hole, and that the defenc]ant }n passing along the said street in the night, and not knowing of the said vau!t: or hole, fell into the same, and broke his leg, and otherwise injured himself, See. The defendant pleaded 1. Not guilty. '2. Protesting that he was possessed of a certain house in John-street on the said street or wa7? and had lawful power and authority to dig the said vault or hole, &c. for further plea, pleaded, that he, the defendant, did cause to be placed round the said vault'or hole, a sufficient fence to prevent, &c. and that the, injury com-r ’ . . / plained of by the plaintiff was caused by his own carelessness and fault. To the second plea the plaintiff replied that after the digging the said vault or hole, the plaintiff unavoidably, and agajnst bis will, fell into the same, &c. and that the defendant did not take care to fill up, stop up, or cover the same, nor to place near the same any fence or other thing whatsoever? So prevent, &c. and concluded with a verification. ■ The de
p. 517The replication contains the same facts as were stated in the declaration. There is no new matter in the replication, to authorise such a conclusion. The rejoinder therefore must have been the same as the plea. The replication ought to have negatived the plea and concluded to the country. There is no dispute about the rules of pleading ; the only question is whether the replication does not contain new matter. The plea merely says, that the defendant did put a fence round, &c. the replication states that he left it uncovered, and the plaintiff did not chuse to put the cause at issue on the single fact alone, that it was not fenced. He cited 2 Wilson, 65. Douglas, 58. 3 Term, 576. 2 Strange, 871. The charge in the declaration is in the disjunctive. If the plea were bad, the plaintiff ought to have demurred to it. Now if the defendant rejoin in the words of the plea, they may go on, ad infinitum without coming to an issue.
fendant demurred to the replication, and assigned for cause of demurrer, that it concluded with a verification, when it ought to have concluded to the country, &c.
Emott for defendant.
Henry, contra.
Emott, in reply.
The replication is bad. It states no new matter, and ought to have concluded to the country. The plaintiff, however, may amend his replication and take issue on the plea, upon payment of costs.