Thomas & Plumb Overseers of the Poor v. Harrop

Mason, Justice The plaintiffs in this case have mistaken their remedy in demurring to this answer. They should either have moved to strike out the answer and for judgment, or else noticed the cause for trial at the circuit and applied for judgment there. The plaintiff can not demur to an answer which does not purport to do more than deny some of the allegations of the complaint. It is only where the answer sets up new matter constituting a defence, and which would require a reply from 58 the plaintiff that he can, under the present system, demur to the answer. The 153d section of the Code settles this question, and only allows the demurrer in the case above stated. Indeed the plaintiff could never, under our former system of pleading, demur to the general issue, and such is the legal effect of an answer which barely denies the allegations of the complaint. The demurrer in this case, in legal effect, is that the defendant has not denied a single allegation of the complaint, and it seems to me this .is a strange point for the plaintiffs to make. It is not necessary to decide whether this is a good answer as a denial of the allegations of the complaint. I am inclined to think, however, the answer should- be allowed to stand, and be deemed to put the plaintiff to the proof of his case. The maxim of the common law is, “ Nemo tenetur se ipsurn prodere,” and is founded on the fundamental principles of constitutional right. This doctrine was firmly settled and incorporated into the common law of England at an early day, and was brought to this country by our ancestors, and has been steadfastly maintained as amongst the most inestimable rights of the citizens of this state. This doctrine, that no man is bound to accuse himself of any crime, or to furnish any evidence to convict himself thereof, is now the fundamental law of this state (§6 of Art. 1 of the Constitution). The same provision was inserted in the constitution of 1821. This principle with us is, thérefore, placed beyond the power of legislative encroachment, and our courts have held under the Code of 1848 and 1849, that no such encroachment was attempted by the provision requiring the defendant to swear to his answer in a civil action (Hill vs. Muller, 2 Sanf. S. C. R. 684; White vs. Cummings, 3" id. 716; Clapper vs. Fitzpatrick, 3 How, Pr. R. 314; Bailey vs. Dean, 5 Barb. R. 297); and although the Code of 1851 would seem to throw some obscurity over this subject, yet I can not think it was the intention of the legislature to interfere with this constitutional right of the citizen, and I think we may safely hold that this last amendment is not repugnant to the doctrines contained in the adjudications under the Codes of 1848 and 1849, above referred to; and such is the opinion expressed by Whit-taker in his new practice, page 164. The demurrer in this case 59 must be overruled, but as the answer is at most but a denial of the complaint, and not therefore requiring a reply, I do not see how he can have a judgment in the action against the plaintiffs, unless he prevails upon the issue of fact (6 How. Pr. R. 113).