Eyck v. Waterbury

New York Supreme Court

Eyck v. Waterbury

7 Cow. 51

DecidedFebruary 15, 1827

StatusPublished

This text of 7 Cow. 51 (Eyck v. Waterbury) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Eyck v. Waterbury, 7 Cow. 51 (N.Y. Super. Ct. 1827).

Pincite

Opinion

Curia, per Savage, Ch. J.

The plea is bad. This mode of pleading arose from the tender of the demimark, which was a sum of 6s. 8c?., paid for the privilege of pleading that the demandant or his ancestor was not seised in the time of the king mentioned in the writ; and the demandant, though seised in another king’s reign, might perhaps fail through this error, the same as if never seised at all. The time of seisin in another reign did not come in question upon the mise, which tried the question of mere right. The tenant, therefore, to entitle himself to this inquiry, as to the particular king’s reign, must pay the demimark. Booth, 68. A question is discussed in Booth, 98, as to the time when this should be done; whether at the time of pleading, or the time of trial.

The mise puts the seisin in issue, as the common plea of not guilty in ejectment puts in issue the title; and, under the mise, any thing may be given in evidence, except collateral warranty. Booth, 95, 115; 3 Wils. 419, 20. That part of the pleading which gives cause for the demurrer *has no application under our laws; and if it means any thing as a special plea of the statute, then it is bad as amounting to the general issue.

It is-bad also in another point of view. The mise is to be tried by 16 recognitors. (1 R. L. 51.) Special pleas may be pleaded in writs of right when clear; (Booth 115;) but "they are to be tried by a common jury; and hence, in England, it is best sometimes to plead specially, to save time and expense; for great delay and expense are common in summoning the knights to compose and prepare the grand assize.

The plea, in this case, was probably taken from 3 Chit. Pl. 654; but it is only applicable when the demimark may be tendered.

If intended as a special plea, it is bad; 1. as amounting [53]*53to the mise only; and 2. to the mise and a special plea. As such, it is bad in this action, because the two pleas are incompatible. They require different modes of trial; the former by the grand assize, the latter by a common jury. A plea bad in part is bad in the whole. (Com. Dig. Pleader, E. 36.) The whole plea is therefore bad; though the mise, had it stood alone, would have been good.

The demandants are entitled to judgment on the demurrer ; with leave to the tenant to amend on payment of costs.

Judgment for the demandants.

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Curia, per Savage, Ch. J.

The plea is bad. This mode of pleading arose from the tender of the demimark, which was a sum of 6s. 8c?., paid for the privilege of pleading that the demandant or his ancestor was not seised in the time of the king mentioned in the writ; and the demandant, though seised in another king’s reign, might perhaps fail through this error, the same as if never seised at all. The time of seisin in another reign did not come in question upon the mise, which tried the question of mere right. The tenant, therefore, to entitle himself to this inquiry, as to the particular king’s reign, must pay the demimark. Booth, 68. A question is discussed in Booth, 98, as to the time when this should be done; whether at the time of pleading, or the time of trial.

The mise puts the seisin in issue, as the common plea of not guilty in ejectment puts in issue the title; and, under the mise, any thing may be given in evidence, except collateral warranty. Booth, 95, 115; 3 Wils. 419, 20. That part of the pleading which gives cause for the demurrer *has no application under our laws; and if it means any thing as a special plea of the statute, then it is bad as amounting to the general issue.

It is-bad also in another point of view. The mise is to be tried by 16 recognitors. (1 R. L. 51.) Special pleas may be pleaded in writs of right when clear; (Booth 115;) but "they are to be tried by a common jury; and hence, in England, it is best sometimes to plead specially, to save time and expense; for great delay and expense are common in summoning the knights to compose and prepare the grand assize.

The plea, in this case, was probably taken from 3 Chit. Pl. 654; but it is only applicable when the demimark may be tendered.

If intended as a special plea, it is bad; 1. as amounting [53]*53to the mise only; and 2. to the mise and a special plea. As such, it is bad in this action, because the two pleas are incompatible. They require different modes of trial; the former by the grand assize, the latter by a common jury. A plea bad in part is bad in the whole. (Com. Dig. Pleader, E. 36.) The whole plea is therefore bad; though the mise, had it stood alone, would have been good.

The demandants are entitled to judgment on the demurrer ; with leave to the tenant to amend on payment of costs.

Judgment for the demandants.

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Bluebook (online)

7 Cow. 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eyck-v-waterbury-nysupct-1827.