Etheridge v. Osborn

12 Wend. 399

• Court: New York Supreme Court
• Decided: July 15, 1834
• Status: Published

Opinion

By the Court,

Sutherland, J.

The objection to the plea principally relied upon is, that it professes to answer, and does-in fact answer only a.part of the declaration.

The declaration and bill of particulars show the plaintiff’s-claim to be for two years rent of the premises, commencing on the first of April, 1829, and ending on the first of April, 1831. The plea sets up a bar to the recovery of any rent which accrued on or before the first of April, 1830, but neither admits nor denies the claim for the rent of 1831. This is a fatal defect, according to the cases of Sterling v. Sherwood, 20 Johns. R. 204, Hecock v. Coates. 2 Wendell, 419, and Slocum v. Despard, 8 id. 615, where all the'authorities are referred to. In England, according to Mr. Chitty and Sergeant Saunders, 1 Chitty’s Pl. 509, 1 Saunders, 28, n. 1, 2, 3, if a plea begin only as an answer to part, and is in truth only an answer to part, the plaintiff* cannot demur, but must take his judgment for the part unanswered, as by nil dicit. Here the rule is different, as is shown by the preceding cases. In the recent case of Clarkson v. Lawson, 6 Bing. 587, 19 Com. Law R. 169, the defendant, in an action for a libel, put in a plea: first, to the whole declaration ; and second, a special plea justifying as to a part of the charge. The libel charged the plaintiff with extortion as a proctor, and alleged that he had been three times suspended. The secqnd special plea justified as to one suspension, and upon demurrer it was held good. The court considered the charge as sever-able in its nature, and amounting to an allegation of three distinct suspensions, and that the defendant had a right to justify as to part, by way of diminishing or mitigating the damages, Bosanquet, J. says one plea having been pleaded to the whole declaration, there has been no discontinuance, and the defendant has a right to put a second plea on record, applicable to a portion of the charge only, where the matter is in its nature severable.

If it were an open question, this would appear to me to be the sound rule upon the subject; but since the case in 20 Johnson, the rule in this court has been considered different, and perhaps ought not now to be disturbed, especially as it is rather a matter of form than of substance. It may also be said, in support of the decision and principle alluded to, that as a general rule, each plea must stand or fall by itself, and cannot therefore be supported by any other plea; and that therefore, in testing the sufficiency of a special plea, no regard can be paid to the general issue.

The principle of the plea is sound. So far as the subject matter in controversy has been once adjudicated upon the parties are concluded by it. Outram v. Morewood, 3 East, 346. 3 Cowen, 120. 3 Wendell, 32. 6 id. 288. Duchess of Kingston’s case, 11 State Trials, 261. 1 Phil. Ev. 223.

Judgment for plaintiff on demurrer, with leave to defendant to amend, on payment of costs.