2 Brock. 14 | U.S. Circuit Court for the District of Virginia | 1822
This motion is sustained by the allegation that the demurrer ought not to have been received by the clerk; and consequently admits of no inquiry into its sufficiency, farther than is necessary to determine on the right to offer iL It wás offered at a time when the right to plead was complete and under a law which authorizes the defendant to plead as many several matters, both of law and fact, as he may think necessary for his defense.
But the plaintiffs contend that there is in the nature and fitness of things, an objection to the allowance of inconsistent matter to be pleaded in the same cause which must enter into the construction of the act of assembly,' and control, or at least influence, the meaning of its words. There is, they say, this inconsistency in a demurrer to the whole declaration and a plea to the whole. The demurrer confesses all the facts, and the plea denies them all.
But a demurrer confesses those facts only which are sufficiently pleaded; and the plea, as the plea of non-assumpsit, though it admits nothing, is not false, though many of the facts alleged in the declaration are true. It amounts to pleading double, but not to a positive inconsistency. I cannot however admit, that it is beyond the power of the legislature to pass an act allowing inconsistent pleas, or that a court can disregard such an act
The plaintiffs’ counsel supports his argument by reference to several English authorities, to all which it may be observed, that the law which governs the practice in England, is different from that which governs the practice in Virginia. The statute of 4 & 5 Anne, c. 1G, allows the defendant to plead several matters only with the leave of the court. The English statute gives to the court a controlling power over the admission of the plea: the statute of Virginia gives the court no such power. In the exercise of this controlling power, the courts of England have prescribed rules by which they will be governed in granting or refusing an application to plead different matters. But the
These cases go far to show that the court would overrule this demurrer, and decide the cause 8 gainst the party demurring, not that it should be expunged from the pleadings. (1 Tidd, Pr. 475.) “If the defendant plead in abatement, &c.” These cases show that if a plea in abatement be tendered when it is not receivable, the plaintiff may proceed as if no plea had been offered, or he may move the court to strike it out. It is obvious that they do not apply directly to the case at bar. This demurrer was receivable when it was tendered. But the counsel brings this case within their reasoning, by considering the demurrer as a plea in abatement Now. this it cannot be. The cases cited from Bacon and Salkeld, show that a demurrer cannot be in abatement The court, therefore, can consider this only as a general demurrer, and. of course, it was offered in proper time. Tidd (4S4, 4S5,) shows, that where a defendant is under a judge’s order to plead issuably, and he pleads a plea which is not issuable, or puts in a sham demurrer, the plaintiff may consider it as a mere nullity. But these defendants were not under a judge’s order to plead. They were not acting under the guidance of the court, but acting by authority of the law of tlie land, according to their own judgment. Had they permitted a writ of inquiry to be entered against them, and the term at which it might be set aside to pass away; or had they been in a situation in which they could not plead but under the direction of the court, this doctrine would certainly be applicable to the case. At present, I think it is not Tidd (4S2)
In another book of practice which has been cited, it is said; “But if the demurrer be frivolous, only to put off the trial or for delay of the proceedings, they will not allow of such a demurrer, nor cause the other party •to join, but will give judgment against the party upon his frivolous demurrer.” It . would require a person more conversant with the English practice than I am, to understand precisely the bearing of this dictum. The court must examine the declaration, to determine whether a demurrer be frivolous. Although the special causes assigned’ for de murring may be frivolous, the demurrer it- . self may be substantial. But be this as it may, the rule is inapplicable to this case, and perhaps to the practice of this country. The demurrer, according to our practice, can produce no delay, cannot put off the trial of the cause. Had the plaintiffs joined in demurrer, and it had appeared to be frivolous, a writ of inquiry would have been awarded and executed immediately; or the issue would have been tiled without allowing a continuance. A frivolous demurrer, therefore, in this case, could not put off the cause, or have occasioned any delay. I do not know what delays, according to the practice of England, a frivolous demurrer may occasion. But this doctrine is founded on the controlling power of the courts of England over pleading, a power which the courts of this country do not possess, if the demurrer in this case was receivable, and I think it was, the refusal to join in it was a discontinuance which is provided for in the act of assembly. The plaintiffs must be non-suited. This proceeding, however, is now under the direction of the court, and the cause may certainly be reinstated.
I come now to consider the application to amend. I have no doubt of the power of the court to allow amendments in all cases of clerical misprision, where there is any thing to amend by, but I had doubted whether the memorandum of counsel was a document by which an amendment would be made. The cases cited by Mr. Call have in a great measure removed that doubt, and
This motion involves no question about the recognizance of the bail. I do not -at present perceive how that recognizance can avail the party, but I do not understand that the motion extends to it
“The plaintiff in replevin, and the defendant in all other actions, may plead as many several matters, whether of law or fact, as ho shall think necessary for his defence.” 1 Rev. Code Va. 1819, p. 510, § 88.
These references are to the second American from the eighth London edition of Tidd's Practice (1828).
