matters thereto as he shall think necessary for his defence; provided, 1 THE COURT. The words of the act of Parliament are, "That it shall be lawful to plead as many several matters," etc. Now a demurrer is so far from being a plea, that it is an excuse for not pleading. Here you plead, and at the same time pray that you may not plead. The word "matter" imports a possibility that the other party may demur to it; but there can be no demurrer upon a demurrer. This was never attempted before." BARBER v. VINCENT. IN THE COMMON PLEAS, MICHAELMAS TERM, 1680. 16 H.P. 422 pleaded deins age. 130116.937 68 Neb. 317 890.026 [Reported in Freeman, 531.] Indebitatus assumpsit for a horse sold for £20. The defendant The plaintiff replied, that he sold him the horse for his conveniency 1 But a demurrer filed is so far a pleading as to preclude a judgment for default of an 2 The error of pleading and demurring to the same pleading is dealt with differently in different jurisdictions. In England, formerly, both the plea and the demurrer were treated as expunged and the opposite party was entitled to sign judgment for default. Bayley v. Baker, 1 Dowl. N. s. 891. In this country it is customary to treat the demurrer as nonexistent. Bell v. R. R. Co., 4 Wall. 598; Gayle v. Smith, Minor (Ala.), 83; Taylor v. Rhea, Minor (Ala.), 414; Morrison v. Morrison, 3 Stew. (Ala.) 444; Grigsby v. Nance, 3 Ala. 347; Hosier. Eliason, 4 Ind. 523; Earhart v. Farmers' Creamery, 148 Ind 79; Fisher v. Scholte, 30 Iowa, 221 Cicotte v. Wayne Co., 44 Mich. 173; Fisher v. Wayne, 128 Mich. 543; Taber r. Wilson, 34 Mo. Ap. 89; Trusdale v. Shaw, 58 N. H. 207; Rickert v. Snyder, 5 Wend. 104; Clark v. Van Densen, 3 N. Y. Code Rep. 219; Snyder & Hearman, 2 How. Pr. 279; Slocum v. Wheeler, How. Pr. 372; Spellman v. Weider, 5 How Pr. 5; Munn v. Barnum, 12 How. Pr. 563, Abb. Pr. 281 s. c.; Struver v. Ocean Co., 76 How. Pr. 422; Slack v. Heath, + E. D. Sm. 95; Ransom v. McClees, N. Ca. 17, 20; Stocking v. Barnett, 10.Oh 137; Calvin v. State, 12 Oh. St. 60; McFate v. Shallcross, 1 Phila. 75; Commw. v. Housekeeper, 6 Lanc. Bar, 105; Lang v. Lewis, 1 Raud. 277; Chesapeake Co. v. American Bank, 92 Va. 495. (But see, Eppes v. Smith, 4 Munf. 466; Jones v. Stevenson, 5 Munf. 1; Syme v. Griffin, 4 Hen. & M. 277.) 67 wis.296, 926 205;5.8. 22 Nom 869 In the following cases the party who demurred and pleaded to the same pleading was compelled to elect between his demurrer and plea: Bridges v. Reed, 9 Bush, 329; Angell gooda 224 Mog 514 16; Bernard, Morrison, 61 How. Pr. 108, Sp. T., 29 Hun, 410 G. T. 650.E.969(2) H.es, GOh. St. 473; Smead v. Chrisfield, 1 Disn. (Oh.) 17; Stahn v. Catawba Mills, 53 423N.W.80 (D.) 8. . 579. (emble); Craighead v. Kemble, Tapp. (Oh.) 246; Pa. Co. v. Webb, 9 Oh. 136; Davis v. In England, to-day, by the Common Law Procedure Act, 1852, § 80, either party may, 137N.W.433 by leave of the court, plead and demur to the same pleading at the same time. There has been similar legislation in some of the states in this country. Furniss v. Ellis, 2 Brock. 14; searching and (Bold.o. Gladen) 51.4.5.63 29H410 And the sole question was, whether an action would lie against an infant for money for a horse sold. It was urged on the defendant's part, that an infant was chargeable only for necessaries, as meat, drink, clothes, lodging, and education.1 But the court were of a contrary opinion; for the plaintiff having averred that he sold him the horse to ride about upon his necessary occasions, and the defendant having confessed it by his demurrer, it must now be taken to be so. If the defendant had traversed, then the jury must have judged of it, whether it were necessary or convenient, or not; and so likewise of the price of the horse, whether it were excessive or not. Jud' pro quer nisi.3 HODGES v. STEWARD. IN THE KING'S BENCH, EASTER TERM, 1693. [Reported in 3 Salkeld, 68.] THIS case is reported in 1 Salk. 125; to which may be added, that this was an action on the case brought upon an inland bill of exchange, in which the plaintiff declared upon a special custom in London for the bearer to bring the action, etc.; and upon a demurrer to the declaration, besides the other points adjudged in this case, it was held, that the defendant having demurred, without traversing the custom, he had thereby confessed there was such a custom, though in truth there was not, and for that reason the plaintiff had judgment; for though the court takes notice of the law of merchants, as part of the law of England, yet they cannot take notice of the customs of particular places; and this custom, as set forth in the declaration, being sufficient to 1 Cro. Eliz. 920; Ayliff v. Archdale, Latch, 169. 2 Ryder v. Wombwell, L. R. 4 Ex. 32. Makarell v. Bachelor, Cro. El. 583, to the contrary is no longer law. Accord. - ED. 3 Tatem v. Perient, Yelv. 195; Speccot v. Sheres, Cro. El. 828; Gundry v. Feltham, 1 T. R. 338; Gas Co. v. Turner, 6 B. N. C. 327; Tyler v. Bland, 9 M. & W. 341; Tancred v. Allgood, 4 H. & N. 444; Evelyn v. Evelyn, 42 L. T. Rep. 248; P. M. Gen. v. Ustick, 4 Wash. C. C. 347; Woodroff v. Howes, 88 Cal. 184; Brown v. Corporate Bank, 34 Fed. 776; Lamphear v. Buckingham, 33 Conn. 237; Nispel v. La Parle, 74 Ill. 306; Fish v. McGann, 205 III. 179; City of Lowell v. Morse, 1 Met. 475; Troy & G. R. R. v, Newton, 1 Gray, 544; Sage e. Culver, 147 N. Y. 241; Coatsworth v. Lehigh Co., 156 N. Y. 451; Campbell v. Heiland, 55 N. Y. Ap. Div. 95; Hall v. Gilman, 77 N. Y. Ap. Div. 458, 461; Ellsworth v. Franklin Socy., 99 N. Y. Ap. Div. 119 Accord. ED. In Lamphear v. Buckingham, supra, the court said (p. 249): "The facts if well pleaded and sufficient are admitted, not because the demurrer admits them expressly or by force of any office it performs, but because the defendant has not denied and has defaulted them. A defendant therefore who demurs to a declaration admits, not by his demurrer but by his omission to deny them all the material well-pleaded facts alleged in it; and when his demurrer is overruled the case is in the condition precisely that it would have been if he had suffered a default and not demurred." By statute in Maryland the constructive admission, by a demurrer or default, of the allegations in a petition for a mandamus does not warrant a judgment for the petitioner. The court must be satisfied by evidence ex parte of the truth of the petition. Legg. Mayor, 42 Md. 203; Sudler v. Lankford, 82 Md. 142; Beasley v. Ridout, 94 Md 641.-ED. maintain the action, and the defendant confessing it by his demurrer, he hath given judgment against himself.1 TRESHAM v. FORD. IN THE COMMON PLEAS, HILARY TERM, 1601. [Reported in Croke's Elizabeth, 830.] ACCOUNT, supposing him to be receiver of £120 of his money by the hands of Vavasor, ad compotum reddendum. The defendant pleaded nunques son receiver, etc., and the jury find that he was receiver of such a sum. The defendant, before the auditors, pleaded that he was possessed of divers obligations, wherein Francis Tresham, son and heir to the plaintiff, was obliged unto him in £400, and that the said Vavasor paid unto him this £120 in satisfaction of those bonds, and thereupon he delivered unto him the said bonds to the use of the plaintiff, which he accepted. And thereupon the plaintiff demurred. And it was held by the whole court to be no plea, for it is contrary to the verdict, which found him to be receiver, to render, etc.; and the plea amounts to no more but that he was not receiver to account.2 COLE v. MAUNDER. IN THE KING'S BENCH, HILARY TERM, 1635. [Reported in 2 Rolle's Abridgment, 548.] Ir one enters my close, and with an iron sledge and bar breaks and displaces the stones on the land, being my chattels, and I request him to desist, and he refuses, and threatens me if I shall approach him; and upon this I, to prevent him from doing more damage to the stones, 1 A demurrer admits the truth of an allegation as to the law of another State. Liegeois v. McCracken, 10 Fed. R. 664. Compare Finney v. Guy, 189 U. S. 335. In this case the plaintiff, after setting forth sections of a foreign statute and referring to several decisions in the foreign jurisdiction, made an allegation as to the law in that jurisdiction. On demurrer to the declaration, the court decided that it was not bound by the plaintiff's interpretation of the foreign statute and decisions. - ED. 2 Taylor v. Page, Cro. Car. 116; Holabird v. Burr, 17 Conn. 556, 563; People v. Shaw, 13 Ill. 581; Housh v. People, 66 Ill. 178; North Co. v. Morse, 107 Ill. 340; Eylenfeldt v. Ill. Co., 165 Ill. 185; Chicago Co. v. Gillison, 173 Ill. 264; Cooke v. Tallman, 40 Iowa, 133; Columbia Co. v. Townsend, 74 Vt. 183 Accord. Similarly, a demurrer does not admit the truth of allegations contrary to legislative acts and records, of which the court must take judicial notice. Southern Co. v. Groeck, 68 Fed. 609 (official act of Secretary of the Interior); Griffin v. Augusta Co., 72 Ga. 423; Scofield v. McDowell, 47 Iowa, 129; Rauh v. Board, 66 How. Pr. 368; Pratt v. Lincoln Co., 61 Wis. 62.- ED. not daring to approach him, throw some stones at him molliter et molli manu, and they fall upon him molliter, still this is not a good justification, for the judges say that one cannot throw stones molliter, although it were confessed by a demurrer; and it would be perilous to give men liberty to throw stones in defence of their possession, for when a stone is thrown from the hand, it cannot be guided, and [here] a justification of a battery in defence of possession, although this arises from the possession, still [in] the conclusion is in defence of the person. Judgment for plaintiff FREEMAN v. FRANK. SUPREME COURT, NEW YORK, SPECIAL TERM, FEBRUARY, 1860. [10 Abbotts' Practice Reports, 370.] THE complaint alleged that the defendant assaulted, beat, impris oned, and ravished the plaintiff. The defendant pleaded that after service upon him by the summons in the action, he was convicted of the crime of rape and sentenced to the state prison for life. "Wherefore said defendant, by his attorneys, avers that he is civilly dead,' and that this action has abated." Demurrer to this answer. BALCOM, J.-The Revised Statutes contain this section: "A person sentenced to imprisonment in a state prison for life shall thereafter be deemed civilly dead." (2 Rev. Stat. 701, § 20.) If the defendant was sentenced to the state prison at Auburn for life, as alleged in the answer, there can be no doubt but that such sentence abated the action. For causes of action for assault and battery and false imprisonment do not survive, they die with the person. (Gr. Pr. 2d ed. 93.). When the cause of action does not survive, no step can be taken in the action after the plaintiff or defendant dies. The rights and liabilities of a person civilly dead are as entirely gone as though he were actually dead; and his estate may be administered upon in like manner as if his body were a corpse. A deceased person, whether he died a civil or natural death, cannot have an attorney. qued 1 Weston v. Carter, 1 Sid. 9; Re Gosch, 121 Fed. 604 (allegation, that a sash and door factory was a sawmill); Southern Co. v. Covenia, 100 Ga. 46 (allegation that a child less than two years old rendered service worth two dollars a month). Atty-Gen. v. Foote, 11 Wis. 14 (allegation that a statute took effect on a certain day); State v. Weiss, 76 Wis. 177 (an allegation that there is no difference between the King James version of the Bible and the Douay version "is against common knowledge, and therefore not well pleaded") Accord. Similarly, if a plaintiff alleges his freedom from contributory negligence, but states the special circumstances from which it appears that the plaintiff must have been negligent, the demurrer will not admit the truth of the general statement. Indianapolis Co. v. Wilson, 134 Ind. 95; Baumler v. Narragansett Co., 23 R. I. 430; Donohoe v. Lonsdale Co., 25 B. I., 55 Atl. R. 326 s. c.— Ed. 1 By force of 2 Rev. St. 701, § 20.- Ed. * The statement of the case is condensed, and a part of the opinion is omitted. — Eď. His executor or administrator represents him, and no other person can act or speak for him. Does the new matter in the answer, demurred to, upon its face, constitute a defence to the action? The fact that the defendant has answered, though by attorney, shows he is neither civilly nor physically dead. It is conclusive that he is living, and not under any disability that prevents him defending the action. The defendant, by answering, proves he is alive; and when he avers in his answer that he is dead, he is not to be believed. The answer, therefore, contains two contradictory averments, one of which in judgment of law is a fiction. If the defendant was dead, he could not answer. Hence the averment that he is civilly dead must be deemed untrue. The demurrer only admits the allegations in the answer, when contradictory, which the law adjudges to be true. For this reason the demurrer does not admit that the defendant is civilly dead. It only admits he is living. The new matter in the answer, therefore, upon its face, does not constitute a defence to the action. The demurrer should be sustained; and the plaintiff is entitled to judgment thereon, with costs. But the defendant may answer over within twenty days, on payment of costs. THE STATE v. HENRY HAMLIN AND OTHERS. SUPREME COURT OF ERRORS, CONNECTICUT, MAY TERM, 1879. [47 Connecticut Reports, 95.] INDICTMENT for murder, in the Supreme Court of Hartford County, one count charging the three defendants, Henry Hamlin, William Allen, and John H. Davis as principals, with the murder of Wells Shipman. HOVEY, J. The next error assigned is that the Superior Court overruled that portion of the defendant Davis's plea in abatement in which it is alleged that there were not twelve members of the grand jury in favor of finding a true bill against that defendant; that a number of members desired to take a separate vote upon the question of his guilt, but the foreman ruled, as matter of law, that a true bill could not be found against the defendants Hamlin and Allen, unless a true bill was also found against the defendant Davis, and refused to allow a separate vote to be taken upon the question of finding a true bill against Davis alone, and that the grand jury, believing that a true bill ought not to be found against Davis, nevertheless found a true bill against him for the sake of finding a true bill against Hamlin and Allen. This ground of abatement, though demurred to by the state's attorney, was properly overruled by the court. The state's attorney had no authority, by demurrer or otherwise, to admit the truth of the 1 Only so much of the opinion is given as relates to the effect of the demurrer. - ED. |