Lyons v. Ward

124 Mass. 364, 1878 Mass. LEXIS 323

Opinion

Gray, C. J.

The denial, at the beginning of the answer, of each and every allegation in the declaration, put in issue all the facts necessary to be proved by the plaintiff to make out a primé facie case. Davis v. Travis, 98 Mass. 222. The plaintiff, for evidence in support of that issue, relied on the statements in subsequent clauses of the answer, setting up distinct defences; and cited Jackson v. Stetson, 15 Mass. 48, as establishing the rule that, when two pleas were pleaded, admissions in the one might be given in evidence on the trial of the other. But since that decision it has been enacted by the Legislature that statements in the pleadings should not be evidence on the trial. Rev. Sts. c. 100, § 18, and Commissioners’ Report, § 17 and note. Gen. Sts. c. 129, § 72. Walcott v. Kimball, 13 Allen, 460. As the plaintiff offered no other evidence, judgment was rightly ordered for the defendant. Objections to the inponsisteacy of defences in the answer, as to the misjoinder of counts in the declaration, can only be taken by demurrer. Gen. Sts. c. 129, §§ 12, 16, 24. Exceptions overruled.