13 Wend. 78 | N.Y. Sup. Ct. | 1834
The pleas demurred to are all bad. The second, third and fourth profess each to be an answer to the whole declaration, but they give no answer, nor ^ey attempt to justify the assaulting and beating the plaintiff’s wife and son, charged in the second and third counts of the plaintiff’s declaration, nor the expulsion of the plaintiff’s family charged in the fourth and fifth counts. Since the case of Sterling v. Sherwood, 20 Johns. R. 204, and Hecok v. Coates, 2 Wendell, 419, it must be considered the settled rule of pleading in this court, that each plea must contain in itself an answer to the whole declaration, or to one count in the declaration, whichever it professes to answer. The defendant may deny part, and justify the residue, if he chooses ; but the whole gravamen must be answered in some way. This object is not answered, as it was contended on the argumeiit by the defendant’s counsel, by putting in first the general issue, and afterwards justifying apart. The general issue constitutes no part of a demurrer book, unless itisdemurredto. The record in such case should contain no pleadings, except such as are connected with the demurrer. In this case, the demurrer book contains, besides the general issue, two pleas of the statute of limitations and the replications to them, which only serve to encumber the record. It seems that in England the practice is unsettled, but this court, in 20 Johnson, adopted the rule as laid down by Oh. Justice Willes, that where a defendant puts in a defective plea, the plaintiff may demur to it without discontinuing his suit, and is not obliged to take judgment by nil dicit. Willes, 480. Yelv. 38.
The third plea is bad, also, as amounting only to the general issue. It sets up a license from a person having only a possessory right, without giving color to the plaintiff, and is therefore within the decision in Collett v. Flinn, 5 Cowen, 466. Upon the general issue, the plaintiff must prove his possession, and the plea as pleaded raises a question of possession only, and is therefore bad.. The sixth and seventh pleas are also bad, because they profess to answer only so much of the second and third counts of the plaintiff’s declaration as relates to the assaulting and beating of the plaintiff’s wife and son, and neither deny or justify the breaking and entering the
Judgment for plaintiff.
