Underwood v. Campbell — 13 Wend. 78

Majority

p. 78

Underwood vs. Campbell and others.

ALBANY,

Oct. 1834.

Headnote

Each plea must be an answer to the whole declaration if it professes to answer the whole; or if it professes to answer one of several counts it must be an answer to the whole of such count; and the objection to a plea that it answers only a part of the trespass charged, is not obviated by a separate plea of the general issue, to the whole declaration.

A defendant may justify a party and demy the residue of trespasses charged against him; but the whole gravamen must be answered in the same plea.

A plaintiff is not bound to take judgment by nil dieit where a defective plea is interposed, but may demur.

A plea of license in an action quare clausum fregit, from one having only a possessory right to the locus in quo, without giving color to the plaintiff, is bad, as amounting only to the general issue.

A demurrer book should contain only those pleadings on which the ques-of law arises, or which are necessarily connected with the demurrer.

Demurrer to pleas. The plaintiff declared in trespass: the declaration contained five counts. In the first, the defendants were charged with breaking and entering three closes, situate, See.; treading down the grass, <fcc.; ploughing and tearing up the soil, Sec.; prostrating fences, and carrying away the materials composing the same; breaking open certain barns, and taldng and carrying away wagons, carts, Sec. and converting and disposing thereof to their own use. The second count charged the defendants with breaking and entering three closes, situate, Sec. and assaulting and beating the wife of the plaintiff, and setting on a dog to chase and bite her, whereby she became sore and diseased, See. The third count was like the second, except that the assault was charged to have been committed upon the son of the plaintiff. The fourth count charged the defendants with breaking and entering three closes, situate, See. and expelling the plaintiff and his family from the possession thereof, and continuing the expulsion for two years. The fifth count was like the fourth, except that the acts complained of were charged to have been done contrary to the statute to prevent and punish forcible entries and detainers. Campbell, one of

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the defendants, alone appeared and pleaded, 1. The general issue to the whole declaration; 2. As to the breaking and entering the closes, treading down the grass, fee., ploughing and tearing up the soil, &c., prostrating the fences, and car-lying away the materials, the defendant pleads liberum teñementum, alleging the closes to be his freehold, and thus justifies the acts complained of; 3, As to the breaking and entering the closes, &c. (the same enumeration of particulars as in second plea,) the defendant pleads that the closes, &c. were the soil and freehold of A. Varick / that Lyman Gaylord, one of the defendants, by the license of Varick, entered into the closes and became possessed thereof, and afterwards, he, the defendant Campbell, by the leave and license of Gaylord, entered the said closes, and thus justifies the acts complained of. 4. The fourth plea is like the first, except that the defendant alleges that he entered by the immediate license of Varick, in whom he alleges the fee to be. 5. Is a plea of the statute of limitations as to the first, forth snAfifth counts of the declaration. 6. As to the assaulting and ill treating the wife of the plaintiff, as in the second count of the declaration mentioned, the defendant pleads that Lyman Gaylord was lawfully possessed of certain closes, situate, &c. and the icife of the plaintiff came into the same, and with force and arms, &c. marls a great noise, &c. and assaulted Gaylord, and he (Campbell,) the defendant, as the servant and by the direction of Gay-lord, requested her to cease her noise and to depart; and she refusing so to do, he, (Campbell,) in aid of Gaylord, and by his request, moliter manus imposuit, &c. which is the same assaulting, &c. 7. A like pica as to the assaulting of the son of the plaintiff, as charged in the third count of the declaration. 8. A plea of the statute of limitations as to the assaulting, &c. in the second and third counts of the declaration mentioned. Theplaintiff<Ze?roMn’e<£tothe second,third,fourth, sixth and seventh pleas, and took issue upon the fifth and eighth pleas. The cause was argued on the demurrers, by

J. A. Spencer, for the plaintiff.

C. P. Kirkland, for the defendants.

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By the Court,

The pleas demurred to are all bad. The second, third and fourth profess each to be an answer to the whole declaration, but they give no answer, nor ^ey attempt to justify the assaulting and beating the plaintiff’s wife and son, charged in the second and third counts of the plaintiff’s declaration, nor the expulsion of the plaintiff’s family charged in the fourth and fifth counts. Since the case of Sterling v. Sherwood, 20 Johns. R. 204, and Hecok v. Coates, 2 Wendell, 419, it must be considered the settled rule of pleading in this court, that each plea must contain in itself an answer to the whole declaration, or to one count in the declaration, whichever it professes to answer. The defendant may deny part, and justify the residue, if he chooses ; but the whole gravamen must be answered in some way. This object is not answered, as it was contended on the argumeiit by the defendant’s counsel, by putting in first the general issue, and afterwards justifying apart. The general issue constitutes no part of a demurrer book, unless itisdemurredto. The record in such case should contain no pleadings, except such as are connected with the demurrer. In this case, the demurrer book contains, besides the general issue, two pleas of the statute of limitations and the replications to them, which only serve to encumber the record. It seems that in England the practice is unsettled, but this court, in 20 Johnson, adopted the rule as laid down by Oh. Justice Willes, that where a defendant puts in a defective plea, the plaintiff may demur to it without discontinuing his suit, and is not obliged to take judgment by nil dicit. Willes, 480. Yelv. 38.

The third plea is bad, also, as amounting only to the general issue. It sets up a license from a person having only a possessory right, without giving color to the plaintiff, and is therefore within the decision in Collett v. Flinn, 5 Cowen, 466. Upon the general issue, the plaintiff must prove his possession, and the plea as pleaded raises a question of possession only, and is therefore bad.. The sixth and seventh pleas are also bad, because they profess to answer only so much of the second and third counts of the plaintiff’s declaration as relates to the assaulting and beating of the plaintiff’s wife and son, and neither deny or justify the breaking and entering the

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plaintiff’s closes. The plaintiff is entitled to judgment on all the demurrers, with leave to the defendant to amend, on payment of costs.

Judgment for plaintiff.