10 Johns. 369 | N.Y. Sup. Ct. | 1813
delivered the opinion of the court. The defendant avows the taking of the beasts damage-feascmt. He does this in three several avowries, and the last of them is clearly bad, because the avowant does not set forth his title, or allege the-estate of which he was seised. He avows only that he was lawfully possessed of the close, and this Was not enough by the rules of the common law; and as we have no statute altering the rule of pleading in this respect, the rule still prevails, and so it was declared by this court in Harrison v. M‘Intosh. (6 Johns. Rep. 380.)
The general replication to the avowries, de injuria sua, &c„ would have been bad on special demurrer, according to the cases of Lyttle v. Lee and Ruggles, (5 Johns. Rep. 112.) and Jones v. Kitchin. (1 Bos. & Pull. 76.) But the mérits of this case do-not turn upon the technical objections to the last avowry, or to the general replication. The special replications disclose matter which, according to the cases of Pratt v. Petrie,
The plaintiff is, consequently, entitled to judgment upon the whole record, and to have his damages assessed.
Judgment for the plaintiff
2 Johns. Rep. 691.
Ante, 253.