Straight v. Hanchett

Moran, J. The contention of appellant, that the plea last filed did not answer the whole declaration, even on the assumption that the plea was in other respects good in substance, can not, we think, be sustained. It alleges that the case which was tried in the United States Court was brought for the same trespasses as this suit, and that pleas filed in said case contained the same matters in substance and effect as the special pleas filed herein, with the additional matter that Hanchett, Sheriff, was directed by said Carter and the Keely Stove Company to attach the goods and chattels mentioned. The question on this particular point then is, do the special pleas filed herein answer the whole declaration? Counsel for appellant contends that said pleas do not answer the “continuance in plaintiff’s premises for twenty days,” or if they do so that he has new assigned as to that trespass in his replications. The declaration does not aver the remaining in for twenty days as a separate special trespass." The first count, which is the one in which the continuance in possession is stated, simply avers it under a videlicet, “ and stayed and continued therein for a long space of time, to wit, for the space of twenty days and during the time aforesaid, to wit, on 15th,” etc. The defendants in their first plea after justifying the entry and seizure of the goods under the writs, aver that in so doing they unavoidably and necessarily continued therein “for the space of time in the said declaration mentioned.” Plaintiff’s averment of the time under a videlicet was not traversable; the proof of any length of time would support the averment. Therefore the plea justified the whole time thus averred, and if plaintiff desired to go for the unreasonable continuance in his premises he was bound to new assign. This he failed to do. Neither of his replications contains a new assignment either in substance or in form. They amount to a traverse of the plea only. 1 Cliitty’s Plead., 657, 667 (16 Am. Ed.). It follows that, as the pleadings stood before the filing of the plea demurred to, the plaintiff could not recover for the continuance in possession of his premises if the defendants established the truth of their pleas; and therefore, assuming the plea demurred to had been properly pleaded and otherwise good in substance, it was an answer- to plaintiff’s eniire case. But we are clearly of opinion that the court erred in allowing said plea to be filed as an additional plea in bar of the action not waiving defendants’ other pleas. This suit was commenced November 3, 1883. Defendants’ joint plea of not guilty was filed January 5, 1884. The judgment of the United States Court set up in the plea as estopping the plaintiff was, as appears by the plea, rendered November 24,' 1885. The matter of defense set up in the plea then having arisen after- the commencement of the suit therefore could not be pleaded in bar of the action generally, but must be pleaded as to the further maintenance of the suit, and having arisen after plea pleaded and issue joined, it could only be pleaded puis darrein continuance. 1 Chit., Plead., (16 Am. Ed.) 689. This rule is expressly recognized by the Supreme Court of this State in the recent case of Mount v. Schoales, 11 N. E. Rep. 401. Mr. Justice Mulkey, speaking for the court says: t£ A plea of this kind involves great legal consequences that do not attach to an ordinary plea. It only questions the plaintiff’s right to further maintain the suit. When filed, it, by operation of law, supersedes all other pleas and defenses in the cause and the parties proceed to settle the pleadings de novo]ust as though no plea or pleas had theretofore been filed in the case. By reason of pleas of this kind having a tendency to delay, great strictness is. required in framing them.” The court had no power to order that the plea should have an effect different from that which it had bj' operation of law. The legal effect of the plea is determined by the matter it sets up and where the matter only goes to the further maintenance of the action it is error to allow it to be pleaded in bar of the suit. The court should not, therefore, have allowed the plea to be tiled in the form in which it was offered, and against the objection of the plaintiff. So, the plea being by its subject-matter a plea puis darrein continuance, the court was bound to so treat it on the demurrer, and testing it by the rules governing such pleas, it was not properly pleaded. It is “ actio non ” when it should be that the plaintiff should not further prosecute his suit, and it fails to show by allegation that the matter of defense set up, arose after the last continuance. Such a plea, like a plea in abatement, must meet the requisite of certainty. A general demurrer will reach de. fects such °as those indicated. Ross v. Nesbit, 2 Gilm. 252, 257; Mount v. Scholes, supra; Lebret v. Papillon, 4 East, 502; McGowen v. Hay, 4 J. J. Marsh. 223; Morgan v. Dyer, 10 Johns. 162; McDouglas v. Rutherford, 30 Ala. 253. Counsel for appellee urge that our Practice Act, which perm its-a defendant to plead as many matters of fact in several ideas as he may deem necessary and gives him the right to file additional pleas any time before final judgment, operates to abolish the common law ru"[e governing pleas puis darrein continuance. We think that Mount v. Scholes, supra, must be regarded as a sufficient reply to this position. We are bound to assume that the decision in that case was reached, with all the changes and modifications in pleadings made by our statute, in the contemplation of the Supreme Court. For the errors indicated the judgment must be reversed and the case remanded. Reversed and remanded.