Grafflin v. Jackson

The opinion of the court was delivered by Depue, J. The damages sustained by the plaintiff are the foundation of his action, and the material averment in the defendant’s plea is, that the plaintiff had not, at the commencement of this suit, sustained, and would not sustain any damage by reason of the premises. Tancred v. Allgood, 4 H. & N. 437. The plea, therefore, amounts to a denial of the [443] plaintiff’s cause of action. The replication de injuria cannot properly be-pleaded to a plea denying, or, amounting to a denial of the plaintiff’s cause of action. 1 Sm. L. Cas. (208) 240, note to Crogate’s case; Elwell v. Grand Junction R. Co., 5 M. & W. 669 ; Ruckman v. Ridgefield Park R. R. Co., 9 Vroom 98. The replication is clearly bad. But the objection, I think, was only available on special demurrer, when special. demurrers were allowed, and, special demurrers having been abolished, can now only be taken by motion to strike out In Fursdon v. Weeks, 3 Levinz 65, it was adjudged that the'objection was good on general demurrer, but the later cases hold that it can only be taken by special demurrer. Curtis v. Marquis of Headfort, 6 Dowling 496 ; Parker v. Riley, 3 M. & W. 230. The objection to an improper use of this replication is removed by verdictj and,, inasmuch as its effect is to put the defendant to the proof of every material allegation in his plea, the fault is not one of substance, but of form merely, such as could only be reached by special demurrer. The plaintiff, on the argument, attacked the defendant’s, plea. A special plea was not necessary to present the defencerelied on. The defence might have been brought forward under the general issue. Dean v. Whitaker, 1 C. & P. 347 ; Duffill v. Spottiswoode, 3 C. & P. 435 ; Van Antwerp v. Newman, 2 Cow. 543. In Tancred v. Allgood, 4 H. & N. 444, there is a precedent for such a plea ; but that precedent arose-out of the Reg. Gen. Hil. T., 4 Wm. IV., which restricted the effect of the general issue to the denial of the wrongful act, (1 Chit. Pl. 744,) and has given rise to a multitude of special pleas in the English practice, which were previously unnecessary. This rule is not in force in this state. In one respect, however, the plea is defective. It professes, in the commencement, (aetio non, &e.,) to answer the whole of the plaintiff’s cause of action, and in the body contains an answer only to part. A plea may be pleaded to part of a count, if that part be material and severable from the rest; but it must, in such event, profess to answer that part only. [444] A plea which professes to answer the whole count, and answers only part, is bad. Fleming v. Hoboken, 11 Vroom 270; Lord v. Brookfield, 8 Vroom 552; Postmaster General v. Reeder, 4 Wash. C. C. R. 678; Earl of Manchester v. Vale, 1 Wm. Saund. 27. For the reason that the erroneous use of this replication cannot be objected to on general demurrer, judgment must be for the plaintiff.