Bebout v. Simmonds

1 Tapp. Rep. 258

• Court: Jefferson County Court of Common Pleas
• Decided: April 15, 1818
• Status: Published

Opinion

President.

This plea is signed by the defendant’s attorney, so that, taking the whole of it, it does appear that the defendant pleads by attorney; and although the usual form is, to state that the defendant, by A. B. his attorney, appears, defends, &c., in the beginning of the plea, yet I have heard no reason other than that of its necessity; and not perceiving any inconvenience likely to result from this mode of pleading, I should not sustain the demurrer on the first cause assigned. The second cause of demurrer is better founded; for a plea is defective that contains no defense, Com. Dig. Pleader, E. 27; and clearly bad on special demurrer, 1st Chitty 412, 413, 414. A defense is necessary in pleading, to apprize the plaintiff of what part of his complaint is confessed and what part denied; and formerly it was deemed so essential in pleading, “ that if no defense were made, though the plea were in other respects sufficient, judgment was given against the defendant.” 1 Chitty 412. The demurrer is also well taken for the third cause assigned; for every plea must answer the whole declaration or count, 1 Saund. 28, n. 3. Now here is no answer to the wounding complained of. Whether the defendant meant to protest that he had wounded the plaintiff or that he had not, is quite uncertain from his plea; and whatever might be the effect of a protestation, if well taken, this cannot pass for one' — -the wounding is a substantial part of the plaintiff’s complaint, and not like matter of aggravation, which need not be answered — and the mollitor mames imjposuit does not extend to and justify that. Com. Dig. Pleader, 3 M. 16. As to the fourth point; the demurrer should set forth wherein the plea is argumentative; for it is not sufficient to say, generally, that the plea is argumentative, more than that it is double, without pointing out in what particular parts it is so. Com. Dig. Pleader, Q. 9. As to the fifth; it is not necessary to aver that no unnecessary force was used; and indeed it seems, from this plea, that no force whatever was used; the defendant gently laid his hands on the plaintiff to remove him; and no more; so that, so that if such denial of excessive force would be necessary where any force was stated to have been used, it might be dispensed with in this case — the last objection to this plea is, that it contains no denial of a breach of the peace: to this it may be answered, that the plea confesses a breach of the peace, and attempts to justify it a denial would, therefore, be improper. On the whole, therefore, the plea is a very imperfect one, and the demurrer must be sustained.

Bedick then moyed for leave to amend his plea.

President — This is the second time we have had a demurrer to this plea; the first demurrer was sustained because the plea contained no answer to the wounding: the defendant moved the court for leave to amend; he had leave, upon payment of the cost of demurrer; and now, we have his amended plea, more defective than at first; still, however, we would allow him to amend, but on harder terms than at first. Amendment allowed, on the payment of full cost including a docket fee.