Phelps & Ladd v. Sowles

19 Wend. 547 | N.Y. Sup. Ct. | 1838

By the Court,

Co wen, J.

The principle of the demurrer is, that the Vermont non-intercourse act of 1812 was void for want of state jurisdiction over the subject matter, inasmuch as that belonged exclusively to congress under the provisions of the constitution of the United States. The contrary was decided by the supreme court of the state of Vermont, in 1817, in an action of trespass de bonis, &c.; viz. that the proceedings under the act were proper as evidence to the jury, to justify the taking. Edwards v. Adams, Brayt. R. 46. When the question shall be properly raised in this cause, we must, of course, review that decision. However, we are not inclined to do it upon this plea, which is sufficiently defective in other respects.

In any form the plea must certainly be a very singular one in an action of general indebitatus assumpsit; and I am sure could never be sustained against a special demurrer. As it is, it is technically bad on general demurrer. First, it is an answer to only part of the first and second counts; and, .1 think, cannot be made to bear fully, if at all, as an answer to the fourth. It does not pretend to answer the third and fifth counts; Hickok v. Coates, 2 Wendell, 419; Jackson, ex dem. Hallenbake, v. McClaskey, id. 541, 544, 5, per Savage, C. J.; Sterling v. Sherwood, 20 Johns. R. 204; Slocum v. Despard, 8 Wendell, 615; Etheridge v. Osborn, 12 id. 399; Loder v. Phelps, 13 id. 46 ; and secondly, it begins as an answer to part and concludes by praying judgment of the action generally. Loder v. Phelps, 13 Wendell, 46, 48. It is no answer to these objections that the other pleas go to the whole action. Each plea must be perfect in itself. Loder v. Phelps, before cited.

This whole defence could with much more propriety have been heard on the general issue: and I seriously doubt whether a plea can ever be made to reach these general counts even in substance. The attempt is, at any rate, a very difficult one. It is out of the ordinary way of pleading, As the plea stands, it is a most tedious one, and must be made much more so before we can hold it technically good so as to raise the question of substance ; and as it is now overruled on technical defects merely, and the whole matter is receivable, if worth any thing, on the general issue, there can be no object in allowing an amendment.

There must be judgment for the plaintiff on the demurrer.