7 Cow. 450 | N.Y. Sup. Ct. | 1827
It will be necessary only to inquire whether the replication is faulty, for duplicity and multifariousness. If that objection fails, the others cannot be sustained.
This question has often been before the court, and as
The leading case, on this subject, is Robinson v. Raley, (1 Burr. 316.) That was an action of trespass. The defendant claimed a right of common; and averred that the cattle were his own, that they were levant and couchant upon the premises; and commonable cattle. The replication traversed these several facts ; and it was demurred to as multifarious. Lord Mansfield said, here the point is, the cattle being entitled to common. This is the single point of the defense. But in fact they must be both his own cattle, and also levant and couchant; which are two different essential circumstances of their being entitled *to .common ; and both of them essentially requisite. This case was cited as good law in Strong v. Smith, (3 Caines, 162.) In that case, the plea contained two facts, which were essential to the defense. Both those facts were traversed in the replication; which was held good upon special demurrer.
Duplicity consists in traversing distinct matters, not necessary to one point. (3 John. 318.)
In this case, the point of the defense is the set-off. To show that a right of set-off exists, all the facts set up in the plea are necessary. The plaintiff might, indeed, have admitted part of the facts directly, or by protestation, Jnd traversed the residue; but he was not bound to do so. He is right in traversing all the facts constituting the single point of the defense. The replication is, therefore, good.
Whether the matter set up in the plea is a good defense, it is not necessary to decide; but this court have several times held, that, under our statute, the defendant cannot plead a set-off. He must give notice of it with the general issue. (10 John. 400. 5 Cowen, 231, 368.) The plaintiffs are entitled to judgment on the demurrer to the replication. /
Sutherland, J., not having heard the argument, gave no opinion.
In au action on an executory contract for the purchase of lands, a plea by the vendee alleging that the defendant had no title when he was required to convey, and that the premises were encumbered by a mortgage, is bad for duplicity. Camp v. Morse, 5 Denio, 151.
In debt on bond, a single plea, containing the substance of non est factum and nil débet, is bad. Muzzy v. Shattuck, 1 Denio, 233.
In a demurrer to a replication for duplicity, the cause of demurrer is specially expressed, by an averment that the replication traverses several distinct and material allegations in the plea; when by referring to the plea, it appears to take issue on several distinct averments, each of which are mater rial. McNulty v. Frame, 1 Sandf. 126.
The rule, that a plea in replevin or a replication in any other action shall not be double, does not apply where one of the two facts denied is mere surplusage. Webber v. Shearman, 3 Hill, 547.
-A plea by a vendor that he was not requested to convey, and that be did not refuse, is bad for duplicity on special demurrer. Connelly v. Pierce, 7 Wen. 129.
A plea in trover, stating that the goods were sold by order of the plaintiff on commission, and that the defendant was discharged under the insolvent act, is bad fbr duplicity. Kennedy v. Strong, 10 J. R. 289.
• "To a plea of a discharge under the insolvent act, the plaintiff replied that the defendant had procured a creditor to sign his petition, and make affidavit for a larger sum than was due him; that he had concealed the plaintiff’s debt, and had also concealed a debt due to him, (the insolvent.). The replication is bad as containing three distinct and independent grounds for avoiding the .discharge, which would require several distinct points to be put in issue. Cooper v. Heermance, 3 J. R. 315. Service v. Seermance, 2 J. R. 96.
A plea may contain as many facts as are necessary to constitute one defense, and it is not on that account double. Patcher v. Sprague, 2 J. R. 462.
In trespass, a plea that the goods taken were seized by a deputy sheriff by virtue of a warrant, as the property of an absconding debtor, (setting forth the proceedings under the act, and that the plaintiff held the goods by a fraudulent conveyance from the debtor,) and that the defendant acted in aid of, and by command of the deputy sheriff, &o.r is good. Ib. (Dig. of N. Y. Rep. pp. 753, 754.)
A replication is not subject to the charge of duplicity, unless it sets up two or more answers to the matter relied on as a defense in the plea; if it contain no more facts than are necessary to be stated to establish the point
Where a replication contains two distinct matters in avoidance of the plea, either of which is a good and perfect answer, the defendant is not bound to demur for duplicity, or to answer to both matters, but may take issue upon either of the matters set up in avoidance. Gould v. Ray, 13 Wen. 633.
If, however, such issue be found for the defendant, and the other matter set forth in the replication which remained unanswered, and was of course admitted, be decisive of the merits of the case, the plaintiff will be entitled to judgment non obstante uerdicto. Ib.
Double replications or rejoinders cannot be interposed but by leave of the court, obtained on special application. Ames v. West, 4 Wen. 211.
A replication to a plea, that the promise declared on was made by the defendant and a third person, and that a release was executed to such third person, denying both the joint promise and the release, is bad for duplicity. Tubbs v. Caswell, 8 Wen. 129.
It seems, that in actions of tort, where the defendant sets up matter merely by way of excuse, the plaintiff, by a replication of de injuria, &c., may put in issue every material allegation in the plea, but this manner of replying is not allowed where the defendant by his plea insists upon a full and adequate right. Ib. (4 N. Y. Dig. p. 1015, et seq.)