Singleton v. Millet

10 S.C.L. 355

Opinion

The opinion of the Court was delivered by

Cheves, J.

The Court is of opinion the counsel for the defendants was entitled to the reply in the argument. His plea admitted the possession, and the trespass charged in the plaintiff’s pleadings, and tendered 'a new issue ; this, according to the general practice, and according *to the 53d¹ Rule of Court, I Const. Rep. XXI., entitled him to the reply.

Blanding, for the motion. Spann and Levy, contra.

It was argued that this plea was defective, inasmuch as it did not give the plaintiff color of title, (1 Chitty on Pleadings, 498, 500,) and that it, therefore only amounted to the general issue. The plea of liberum, tenementum, dn this case, was pleaded according to the best precedents ; and the plea thus pleaded, says Chitty, “ may be considered as giving implied color, for it admits that in point of fact the plaintiff may have been in possession of the locus in quo, (which, as in the case of personal property, prima facie entitles the plaintiff to maintain trespass against all the world, but the rightful owner,) but insists in point of law, such possession is unlawful.” The plea then did give color to the plaintiff, if that were necessary to make it perfect.

I am, therefore, of opinion that the plea was well pleaded, that the defendant’s counsel was entitled to the reply, and consequently that a new trial ought to be granted.

CoIíOook, Nora and Johnson, JJ., concurred.

1

Made 62d in 1837.