Dolson v. Hill

8 Del. 255

• Court: Superior Court of Delaware
• Decided: July 5, 1866
• Status: Published

Opinion

The Court, Houston, J., charged the jury.

It was ata late stage of the case to raise such a question of pleading in it, as was now, for the first time, presented to the consideration of the court; but if it could now be entertained, he might well say in reply to it, that although it is said in the books that a replication de injuria absque tali causa is in general a proper answer and sufficient replication to a plea of excuse,, such as this purported to be upon its face, when it is wholly untrue, yet, we are not aware of any rule of pleading, which would forbid a plaintiff from replying specially to it, even if it was wholly untrue in point of fact. But the plea of the defendant in this case was not wholly untrue, for so much of it was true, at least, as alleges that the plaintiff was upon the defendant’s land, and was cutting and carrying away hoop-poles from it, and as he could not deny that fact, and nothing had yet been disclosed in the pleading to show that he was there rightfully and lawfully, it was not only allowable, but proper, to reply specially that he was there by his leave and license, and by virtue of a contract with him, under which he had bought them of him, with the right and privilege of entering upon his premises and cutting and carrying them away. If a defendant has pleaded mollitur manus imposuit in defence of the possession of his close, the plaintiff, if he claims a right of way, must reply specially. 1 Ch. PL 564; and this case is very similar to it. We have been, however, much more struck with the unprecedented novelty and singularity of a new assignment by a defendant in such an action, which we now find for the .first time, in our own or any other practice’ in the snr-rejcinder of the defendant in this case, new assigning the locus in quo by metes and bounds. This is sometimes necessary to be done by a plaintiff in actions somewhat similar to this, but it is never necessary, and is ndt allowable, for a defendant in any case. The facts in evidence were before the jury, and it would be for them to pass upon the weight and effect of them, and if in their judgment the plaintiff was entitled to recover upon the evidence, and circumstances of gross aggravation, outrage and cruelty, which characterized the assault and battery committed upon him by the defendant, they might award him exemplary damages.