Orange v. Berry

24 N.H. 105

• Court: Superior Court of New Hampshire
• Decided: December 15, 1851
• Status: Published

Opinion

Perley, J.

The defendant’s pleas go upon the assumption that the southerly line of land sold by James Horn and others to William Stearns, divides the close described in the declaration into two several parts; whereas it appears by the admissions reported in the case, that the plaintiff claims nothing on the northeasterly side of that line, but admits that the land to the northeast of it belongs to the defendant, as he has pleaded; the main controversy intended to be tried in the suit being on the question where that line is. A verdict on the plea of soil and freehold would determine nothing ; the issue on that plea must of course be found for the defendant, and would still leave the dispute as to the line wholly unsettled. It is plain, therefore, that the plaintiff could make no replication to these pleas on which the case could be properly and effectually tried and decided.

There is nothing in these pleas to show where the line of Horn’s land is ; no allegation that there is such a line known and fixed as a boundary on the land; nor so much as a reference to any deed or other description that might fix the line. The pleas therefore do not shew to what part of the plaintiff’s declaration they severally aud respectively apply. If there were issues joined on the pleas, and a verdict rendered for the defendant on both, the finding would not shew what part of the close the jury had found was his soil and freehold, and on what part the plaintiff had failed to prove that the defendant committed a trespass.

A defendant may plead one plea to one part of the declaration, and a different plea to another part; but the pleas must shew with certainty what part of the declaration each plea is intended to answer. Osborne v. Rogers, 1 Saunders’ Rep. 269; Com. Dig., Pleader, E 27, E 5, F 4; Cottingham v. The State, 7 Black. 405.

The pleas are therefore bad on demurrer, because they do not shew what part of the declaration each plea is intended to answer.

But the pleas are not irregularly pleaded, and it is not the usual course to reject a plea on motion, because it is found on examination to be bad. The plaintiff is usually left to his demurrer. This is the method which the law provides in ordinary cases for referring the sufficiency of a plea to the determination of the court. In some jurisdictions, where a plea is irregularly pleaded, or is manifestly frivolous, the plaintiff is allowed to treat the plea as a nullity, and sign judgment; but the court do not entertain motions to reject pleas for insufficiency. Falls v. Stickney, 3 Johns. Rep. 541; Davis v. Adams, 4 Cowen 142; Tucker v. Ladd, 4 Cowen 47.

We do not mean to disclaim for the court the power to reject a plea in a proper case, though pleaded in due time and otherwise regular; such a power may be necessary to protect parties against pleas merely frivolous, or manifestly pleaded for delay, or of a catching character, or extended to an unnecessary and oppressive length. 1 Saund. 92, note 3; Yates v. Carlisle, 1 W. Blackstone 270.

But the power is lodged in the discretion of the court; and the exercise of it should be reserved for cases where the plaintiff cannot be effectually relieved by the usual and plain method of a demurrer. If it were understood that motions would be entertained to reject pleas merely because they were insufficient and bad, plaintiffs, it is to be apprehended, would too often resort to that course instead of taking the responsibility to demur. We think the plaintiff in this case may be safely left to his demurrer.

Motion denied.