Sterling v. Sherwood

Spencer, Ch. J. delivered the opinion of the Court. The plaintiff has demurred to the defendant’s 2d and 3d pleas. The objections principally relied on are, that these pleas are an answer only to a part of the libellous matter charged in the declaration; and, also, that the matter setup in justification, does not justify the libellous charge. It is laid down by Mr. Chitty, (1 Chitty's Pl. 509, 510.) and by Serjeant Williams, (1 Saund. 28. n. 3.) that if a plea begin only as an answer to part, and is in truth but an answer to part, the plaintiff cannot demur, but must take his judgment for the part unánswered, as by nil dicit; and if he demurs or pleads over, the whole action is discontinued., The most disgraceful part of the libel, as charged, is unanswered in this case; and, though the pleas justify as to part of the libel, they do not profess to answer the whole libel, though they pray judgment of the action generally. It appears to me, the position laid down by Mr. Chitty and Seijeant Williams, is not law, and that the cases they refer to, do not bear out the proposition. On the contrary, there are several cases which are directly opposed to it. In Riggs v. Deniston, (3 Johns. Cas. 205.) Kent, J. lays down the rule thus: That as the plea did not, either by denying or justifying, meet the whole matter or gravamen contained in the count, it was, for that reason, bad; and he referred to 2 Vent. 193. Cro. Jac. 27. Cro. Eliz. 434. It does not expressly appear by the case, whether the plea professed to answer the whole declaration or not; but I infer that it did not, or else that would have been relied on in the opinion delivered.' This question is very fully discussed by Wittes, Ch. J. in Bullythrope v. Turner, (Willes’ Rep. 475. 480.) He reviews all the cases then extant, and he pronounced it absurd to say, that the defendant could discontinue the plaintiff’s action by putting in a defective plea. He observed, “ if he demur, it is said he discontinues his own suit, for he ought to have entered up judgment by nil dicit, considering it no plea at all; but this, I think, is a practice that ought not to be encouraged; for it is saying, the plaintiff may judge for himself, without [207] submitting his case to the judgment of the Court. If, indeed, there were no plea at all, the plaintiff might enter up such judgment j but if there be, in fact, a plea, though a defective one, I think that, in all" cases, he ought to pray the opinion of the Court, which he can do no otherwise than by demurring, and not to judge for himself,” He cited Yelv. 38. and Cro. Jac. 27. The case in Yelverton was decided finally on a writ of error, in the King's Bench, from the Common Pleas. The cases cited, justify the decision in Willes; and it seems to me the reasoning is sound and conclusive. The next objection to the pleas relates to the sufficiency of the justification, in this, that the libel charges that the plaintiff has proved himself the friend of slavery, has trafficked in human flesh, &rc. The pleas state that the plaintiff had a black man and a black girl living in his family, who were slaves, and the property of the plaintiff, he having purchased the black man for $200; and that the black girl died while a member of the plaintiff’s family. The plaintiff’s trafficking, and being the friend of slavery, is stated to consist in purchasing the black man, and having the black girl, without stating how. The charge in the libel undoubtedly imputes to the plaintiff the habit of buying and selling slaves. Whether such a charge is libellous, it would not be proper now to discuss; the justification falls far short of the charge, and is not, therefore, an answer to it. Judgment for the plaintiff, with leave to the defendant to amend, on payment of costs.