Gerrish v. Train

Wilde J. delivered the opinion of the Court. The first question to be considered is, whether the verdict is to be set aside for informality. It is very clear that by the principles of the common law it cannot be sustained. The finding must be direct, and cannot be made good by inference. Thus if the defendant pleads [126] solvit, and issue is thereon, verdict that the defendant owes the money is not good, for it finds only by argument quod non solvit. Com. Dig. Pleader, S, 22 ; 2 Rol. Abr. 693. So, in trespass for taking and cutting leather, the defendant justifies as a searcher of leather, &c., and that in searching he cut it more scrutator.; the plaintiff replies, of his own wrong absque hoc that he cut it more scrutator.; verdict that he cut it of his own wrong is not good. In trover, on not guilty pleaded, the verdict was that the defendant converted the goods to his own use ; and this was held bad, though equivalent to a verdict of guilty by necessary inference. But these are objections to the form of the verdict, and may perhaps be obviated by amendment, or the verdict may be aided by some of the statutes of jeofails.1 It is however unnecessary to decide this point, as the objections to the pleadings are unanswerable. Nothing appears by the record which can authorize us to render judgment for either party. The verdict can only establish the fact that the goods were not the property of Stephens ; non constat that they were the property of the plaintiff.2 The plaintiff should have taken issue on the traverse in the defendant’s plea. But it is argued, that in trespass it is sufficient to traverse the defendant’s title, and the case of Cary v. Holt, 2 Str. 1238, is relied upon to establish this position. This case is more fully reported in a note in 11 East, 70. It was trespass qu. cl. fregit. The defendant makes title and gives color. The plaintiff replies de injuria and traverses the defendant’s title, and it was held good. This is the established rule of pleading in trespass quare clausum. The defendant impliedly admits the possession to be in the plaintiff and justifies bis right to enter; a traverse of his right or title so to enter is therefore proper. But in trespass de bonis the rule is different. If the defendant pleads property in himself or a third person, this is no admission that the property is the plaintiff’s, but it is an allegation inconsistent with a material allegation in the declaration, and a traverse is necessary ; otherwise pleadings might run into infinite prolixity. 1 Chit. Pl. 593. Thus if the defendant alleges seisin in A from whom he claims, the plaintiff cannot reply seisin in B from whom he claims, without traversing the seisin of A, or confessing and avoiding it. Cro. Eliz. 30. But it has been argued, that no repleader should be awarded, because the issue was tendered by the defendant and is found against him ; and in such case, it is said to be a rule of law, never to grant a repleader on motion of the party against whom the issue is found ; and a dictum of Butter J. to this effect in the case of Webster v. Bannister, 1 Doug. 395, is, relied on by the plaintiff’s counsel. But it appears that the remark alluded to was incidentally made on the argument of the cause, and was not intended to be laid down with much precision. The rule rather seems to be, that a repleader shall not be granted on motion of the party who committed the first fault in pleading, which occasioned the immaterial issue.1 And even the rule thus laid down is not to be applied, unless enough appears on the record to entitle the opposite party to judgment.2 Kempe v. Crewes, 1 Ld. Raym. 167 ; 1 Chit. Pl. 633. If the Court are at a loss how to give judgment, a repleader will be awarded on the motion of either party. In this case the first fault in pleading is in the replication. The plea is well enough ; if it amounts to the general issue the plaintiff has no right to complain, and it can only be objected to on special demurrer. It is even favorable for the plaintiff, for it admits the taking. The replication should have tendered an issue on the traverse in the plea. The first fault therefore - being on the plaintiff’s side, he has no right to object to the defendant’s motion for judgment of repleader. But were it otherwise, a repleader would be [127] granted, because nothing appears by the pleadings, or on the record, which can authorize us to give judgment for either party. A repleader, therefore, is awarded, and the parties mast begin again at the first fault, which is in the replication.3 Footnotes [1] St. 32 Hen. 8, c. 30; Myn v. Cole, Cro. Jac. 87; Cobb v. Brian, 3 Bos. & Pul. 348, 352; Winstanly v. Head, 3 Taunt. 237. [2] A verdict does not help an immaterial issue. Jones v. Bodinner, Carth 371; Peck v Hill, 2 Mod. 137; Cobb v. Brian, 3 Bos. & Pul. 352; Strong v Smith, 3 Caines’s R. 163; Stafford v. Corporation of Albany, 6 Johns. R [1] Kirtley v. Deck, 3 Hen. & Munf. 388; Hammett v. Bullitt, 1 Call, 567; Smith v. Harmanson, 1 Wash. 6 ; Kerr v. Dixon, 2 Call, 379. [2] And it seems a repleader will not be allowed at all, where the court on the whole record can give judgment. Parnham v. Pacey, Willes, 532, 533e See Perkins v. Burbank, 2 Mass. R. 81. [3] Cox v. Mellish. 3 Keb. 664; Stevens v. Taliaferro, 1 Wash. 155; Smith v Walker, 1 Wash 135, 136.