City of Philadelphia ex rel. Johnson v. Wistar

The judgment of the Supreme Court was entered, January 19th 1880, Per Curiam. This case is ruled by Wistar v. The City, 30 P. F. Smith 505. If any plea raised a sufficient defence, and that plea was admitted in fact by a demurrer, the court were clearly right in entering judgment for the defendant upon the whole record. Now the fourth plea set up the facts which, in Wistar v. The City, were held to constitute a good defence to the claim. It was objected that the plea was double and could not be replied to issuably. But a plea may suggest many facts when they all go to make up a single defence: Blair v. Singerly, 7 Phila. R. 230; Crogate’s Case, 8 Rep. 67. It was accordingly held in Robinson v. Bayley, Burrows 316, that to a plea of a right of common, the replication might deny that the cattle belonged to the defendant, that they were levant and couchant upon the premises, and were commonable cattle. Lord Mansfield said: “ It is true you must take issue upon a single point; but it is not necessary that this single point should consist only of a single fact.” Now the point is that the city could not recover the cost of the curbing from the properties, on the street. The whole plea might have been traversed, or, if the plaintiff had so chosen, he might have traversed any one of the facts necessary to constitute the defence. There is no general issue to a scire facias on a municipal claim, and it cannot, therefore, be objected that this plea amounts to the general issue. Judgment affirmed.