Carpenter v. Briggs

[40] The opinion of the court was delivered by Redfield, J. In this case, there are two pleas of part payment, both of which are not sufficient to cover the entire declaration. To these pleas the plaintiffs demur. The refinements in the English books, in regard to pleas in bar, which go only to a part of the declaration, leaving a portion unanswered, are nice to a degree which renders some of them not very intelligible. It seems to be admitted by the writers upon this subject, both English and American, that the rule in Westminster Hall is, that if the plaintiff demur to such pleas, he thereby discontinues his action. He should take judgment as by nil dicit, treating the plea as no plea at all. 1 Chit. Pl. 511. Gould’s Pl. 363. This view of the subject is denied in the state of New York, ever to have been the doctrine of the common law. Sterling v. Sherwood, 20 Johns. R. 204. Hicock v. Coates, 2 Wend. 419. Slocum v. Despard, 8 Wend. 615. It is there affirmed that a demurrer is the proper answer to, such a plea, where the objection is, that it is defective, or insufficient. Ch. J. Willes asserts the same doctrine in Bullythorpe v. Turner, Willes’ R. 475-80; and cites Yelverton 38; Hughs v. Philips, and Thomel v. Lopeld, Cro. Jac. 27; neither of which, to my mind, seem to throw much light upon the subject. In Edwards v. White, 12 Conn. 28. the rule is admitted to be, in England, as laid down by Chitty, above; but it is said it has never been adopted in Connecticut. A further qualification is there stated to the English rule, as laid down in Clarkson v. Lawson, 19 Eng. C. L. 169, that such plea is good, if there be upon the record some other plea, which answers the whole declaration ; but unless that be the case, such plea is technically bad. Such plea is also held to be bad, both in New York and Connecticut. Now this is surely too refined for common use, if not for common apprehension. The party may suffer judgment on the whole count by nil dicit; he may suffer judgment on a part of the count by default, and plead the general issue to the remainder. Penton v. Robart, 2 East’s R. 88. He may confess a part of the count, plead a tender to a part, payment of a part, and non assumpsit to the residue. Chit. Pl. 51. Gould’s Pl. 361-2. But if he plead to part of the declaration, although his plea profess to answer only that part, which it does answer, and answer [41] tveil, still, if he leave a portion of the declaration answered nor confessed, the plea is bad for the whole; it is as no plea, and it cannot be demurred to, but the party must take judgment by nil elicit. But if there be one plea upon the record, which covers the whole declaration, then the party may plead as many part defences as he will. This is the English law. The same rule obtains in New York and Connecticut, except that in these latter states advantage of the defect may be taken by demurrer. neither The courts in New York and Connecticut have advanced one step towards making this rule reasonable and tolerable ; the one, by denying an absurd doctrine of the common law ever to have existed, and the other, with more independence, denying, that it had ever been adopted in that state. We adopt the English rule as it exists at present, with two qualifications, that, under our rules of pleading, every portion of the declaration, which is not answered is admitted, and that the defendant may plead to part of one count, as well when there is no general, or full answer to the declaration upon the record, as when there is. Pleas to a part of the declaration, or to a part of a count, have beerl constantly received, in our practice, and their validity tested upon dej murrer, without any question being made of the propriety of this mode of trial. Torrey v. Field, 10 Vt. R. 353. And at this late day, to go back and attempt to dig up an absurd refinement of the seventeenth century, in regard to which, such men as Chief Justice Spencer and Judge Gould are in exact contradiction ; and to say, at the same time, that an answer to part of a declaration is to be regarded as nothing, because the party did not say he had no answer to make to the remainder of the declaration, when, by our rules of practice, had he interposed no plea, his silence must have been so construed as to the whole count or declaration, is, we think, pushing the matter of special pleading, (which is, in the main, a useful and improving study,) into some of those subtleties, which make it obnoxious to the severe reprobation of the unprofessional, and render it an instrument of entanglement and mystification, rather than a means of simplifying and abridging the sometimes involved and tortuous processes of judicial investigation. We wish to preserve the system to a reasonable extent; and in order to do this, it be42 , comes important, that we should not adopt a subtlety, which Mr. Justice Gould, in his very lucid treatise on pleading, after two pages of elucidation, (363-4), to my apprehension leaves darker than when he stated the naked proposition. The only rationale of such a rule is, that it is so, because it was so established, two hundred years ago, and that it is better now to adhere to it, than to introduce confusion by adopting a new one. With us, that argument is entirely in favor of the rule we here establish or rather declare, for, in practice, it has been established many years. These pleas are to be considered, then. The second is admitted to be bad, as being a payment alleged to have been made to the plaintiffs before the rendition of the judgment upon which the jail bond was given, which is now in suit. The first plea is payment generally, and although the time alleged is anterior to the date of the judgment, it was not thereby incumbent upon the defendants to have proved their payment on the day alleged, but they might have proved it at any time after the judgment. This plea is, therefore, good for so much as 'it professes to answer. The judgment of the county court is, therefore, reversed, and judgment that the plea is sufficient, and that the plaintiffs be barred of so much of their claim, and that they recover the balance, with costs, deducting therefrom the defendant’s costs of this court.