Souter v. CodmanSouter v. Codman
This is trespass by husband and wife, for assault and battery committed on the wife, to recover damages for injuries suffered by her. The declaration contains three counts, which with differences of phraseology and specification set forth the same cause of action. The defendants demur to the declaration and contend, on the strength of certain allegations, that it is bad for misjoinder, in that it contains, along with matters for which an action will lie in favor of the wife, matters which constitute causes of action only for the husband. We think, however, that the action is clearly for the wife only, and that any allegations contained in the declaration which are not prfiper to such an action may be rejected as sur-plusage. The demurrer is overruled.
The defendants plead the general issue and two special pleas in justification. The first special plea alleges in effect that at the time of the alleged trespasses the defendant Codman was lawfully possessed of a certain dwelling house, and that the plaintiffs unlawfully entered it and created a disturbance in it, and being requested to depart refused, and that, thereupon, the said Codman and the other defendants or his agents or servants gently removed *120 them; such removal being the trespasses complained of. The second special plea is like the first, except that instead of alleging that Codman was possessed of a dwelling house, it alleges that he was the owner of the close and freehold in which the supposed trespasses are alleged to have been committed. The plaintiffs reply that Codman was not possessed, &c.; that the plaintiffs did not unlawfully enter, &c.; but that the defendants of their own wrong and without the causes by them alleged, &c., committed the trespasses declared on. The replication, though a little redundant in its averments, is in effect simply that which is technically denominated de injurié sud proprid absque tali causd. The defendants demur to it generally.
“ The rule is,” says Chancellor Kent, “ that the general replication
de injurié
is bad when the defendant insists on a right, and is good only where he pleads matter of excuse.”
Lytle
v.
Lee,
5 Johns. Rep. 112;
Crogate’s case,
8 Rep. 66;
Hyatt
v.
Wood,
4 Johns. Rep. 150, 159;
Plumb
v.
M’Crea,
12 Johns. Rep. 491;
Allen
v.
Crofoot,
The plaintiffs contend that not only is the replication good, but
*121
that tbe special pleas are bad. If this be so they are entitled to set up tbe fault under tbe general demurrer. One count of tbe declaration avers tbat at tbe time of tbe alleged trespass the plaintiffs were peaceably domiciled in tbeir bouse, tbe female plaintiff being sick in bed in one of tbe rooms. Another count avers that tbe defendants broke tbe outer door of tbe house and the door of her bedroom. Tbe plaintiffs contend tbat if they were in peaceable possession, tbe defendants, though themselves entitled to the possession, cannot justify a personal trespass on them to recover it. The case has been argued principally on tbe question thus raised, though it may be doubted if the question be fairly presented by tbe pleadings. The defendants apparently assuming tbat it is presented contend tbat tbe true statement of the law is that which is made by Mr. Washburn in bis work on Real Property, to wit:: “ if tbe owner of land wrongfully held by another enter and expel tbe occupant, but makes use of no more force than is reasonably necessary to accomplish this, be will not be liable to an action! of trespass
quare
clausum, nor for an assault and battery, nor for1 injury to tbe occupant’s goods, although in order to effect such expulsion and removal it becomes necessary to use so much force1: and violence as to subject him to an indictment at common lawj for a breach of the peace, or under the statute for making forcible Í entry.” 1 Washburn Real Property, *396. This statement is fully supported by the decision of the Supreme Judicial Court of Massachusetts in
Low
v. Elwell,