8 Wend. 129 | Court for the Trial of Impeachments and Correction of Errors | 1831
The following opinion was delivered
Before I proceed to examine the question arising on this replication, it may be proper to notice an objection made on the argument to the validity of the plea. It was said that if this replication is double, the plea also is double and bad for that cause, and that judgment should have been given against the party who committed the first fault. That rule applies only to cases
In almost every plea in bar it becomes necessary to allege several distinct matters to constitute the defence, neither of which pleaded by itself would be sufficient. There appears to be some conflict of opinion in the books, and particularly in the elementary treatises on pleading, as to the right of the plaintiff in his replication to take issue on more than one of the facts stated in the defendant’s plea. It seems to be admitted by all the judges and law writers who have examined this question that an issue or traverse must be to a single point, but that a single point may consist of several distinct facts. A special plea, however, as well as a declaration may consist of several distinct points, as well as of distinct facts constituting a single point. Thus, in the case of Robinson v. Raley, 1 Burr. R. 317, cited by the plaintiff’s counsel, to an action of trespass on land and depastureing it with cattle, the defendant pleaded that it was parcel of a common field, in which he had a right of common as appurtenant to the estate occupied by him. This was one point of the defences necessary to be established by his plea, but to make a valid bar, it was necessary to go still further and establish another point, to wit, that the cattle, with which the defendant had depastured the common, where commonable cattle, winch he
There is a class of cases in tort where the defendant sets up matter merely by way of excuse, in which the plaintiff may reply that the defendant of his own wrong, and without the cause by him alleged in his plea, committed the injury complained of in the declaration, and by this general traverse, he may put in issue every material allegation in the plea; but this manner of replying appears to be confined to cases of tort where the defence is by way of excuse merely, and is not allowed where the defendant by his plea insists upon a full and adequate right. Longford v. Waghorn, 7 Price’s R. 670. Jones v. Kitchen, 1 Bos. & Pul. 76. Lyttle v. Lee & Ruggles, 5 Johns. R. 112. Plumb v. McCrea, 12 id. 491.
I think the judgment .of the supreme court was correct, and that it ought to be affirmed.
On the question being put, Shall this judgment he reversed? three members expressed their opinions in the affirmative, and seventeen in the negative. The members expressing their opinions in the affirmative, were Senators Rexford, Seward and Sherman.
Whereupon the judgment of the supreme court was affirmed.