Tatnall & Richardson v. Kiamensi Woolen Co.

9 Del. 287

• Court: Superior Court of Delaware
• Decided: July 5, 1871
• Status: Published

Opinion

The Court.

(Gilpin, '(J. J.,

absent). The defendants having withdrawn before the trial commenced all their pleas, but that of justification of the alleged trespass, and having with the assent of the other side, proceeded in the first- place to call and examine their witnesses in support of the |>lea, and the plaintiffs having reserved their witnesses and afterward called and examined them in reply, the present is distinguishable from the case of Bonwill v. Dickson, 1 Harr. 105. In that case the defendant offered no evidence to support his plea of justification. And it was, besides, a bad plea, although traversed", being a plea of justification simply in a civil action for an assault and battery, and offering no proof in support of it, but only in mitigation of the damages, he thereby virtually admitted the trespass, and assumed the burden of no issue joined in the pleading. The general rule in such cases as this is thus stated. In an action of trespass with the general issue and pleas of justification the plaintiff is at liberty, if he thinks fit, to reserve his evidence in answer to the defendants’ case, until the defendants’ case is closed ; or he may in the first instance, call any evidence to repel the defendants’ justification. If he adopts the latter course, he must go through all the evidence he proposes to give, and he will not be permitted to give further evidence in reply. Where the general issue is not pleaded to an action of trespass, and .issue is taken on the defendants’ plea of justification, the defendants’ counsel has a right to begin, as he will have to maintain the affirmative of the issue; and this, notwithstanding the onus of proving damages is on the plaintiff. 3 Phil. on Ev. 431. 1 Ry. & Moo. 292. Hodges v. Holder, 3 Camp. 366. Jackson v. Hesketh, 2 Stark, 518. Cotton v. James, Moore & Walk. 273. The defendants have, therefore, the right to open and conclude.

Gray, (T. F. Bayard with him) for the defendants.

The law was well settled as to private nuisances or obstructions,and the right of one person to enter on the lands of another peaceably and abate or remove them. 3 Black. Com. 5 Ang. on Water Courses, 136 Roberts v. Rose. Law Rep. 1 Ex. 82. 11 M. & W. 176. Boston v. Dulaney 2 Harr. 489.

The case was afterward submitted to the jury without any charge from the court, and the defendants had a verdict.