DE MEDINA v. NORMAN.

IN THE EXCHEQUER, MAY 4, 1842.

[9 Meeson & Welsby, 820.]

THE declaration stated, that whereas the plaintiff, before and at the time of the making of the agreement as thereinafter mentioned, was lawfully possessed, for the residue of a term of years, whereof twentyone years and upwards from the 24th of June, 1841, were then to come and unexpired, of a certain dwelling-house and premises; and thereupon, to wit, on the 31st of March, 1841, by a certain agreement made between the plaintiff and the defendant, it was agreed that the plaintiff should, on or before the 24th of June, 1841, let to the defendant, and that the defendant should become tenant to the plaintiff, and the defendant then agreed to become tenant to the plaintiff, of the said house and premises, upon the following terms; viz. that the letting should be by a lease to be executed and granted by the plaintiff to the defendant for twenty-one years, the said term to commence from the 24th of June, 1841, when the plaintiff was to execute such lease. The declaration then stated, that although the plaintiff had performed and fulfilled all things in the agreement contained on his part to be performed, and although he was within a reasonable time after the making of the said agreement, and on the 24th June, 1841, ready and willing to let to the defendant the said house and premises, and to grant and execute to the defendant the said lease, yet the defendant did not nor would, at any time on or before the 24th June, 1841, become tenant to the said plaintiff of the said house and premises upon the terms aforesaid, or otherwise, and on the day and year last aforesaid wholly refused to become such tenant, or to accept such lease. To this declaration the defendant pleaded, secondly, that the plaintiff was not lawfully possessed for the residue of the said term of years of the said dwelling-house and premises in the declaration mentioned, modo et forma. Thirdly, that the plaintiff, at the time of the agreement, had not a good title to, and could not, nor could he on the 24th of June, 1841, legally let to the defendant, or grant and execute to her a lease of the dwelling-house for the said term of twenty-one years.

Special demurrer.1

act occurred, when the place is immaterial, is an insufficient pleading. Sherman v. Brampton, Latch, 92; Thomas v. Nichols, 3 Lev. 40; Rogers v. Burk, 10 Johns. 400; Salinger v. Lusk, 7 How. Pr. 430; Davison v. Powell, 16 How. Pr. 467; People v. Gunter, 37 N. Y. Ap. Div. 550; Spencer v. Turney, 5 Okla. 683. — Ed.

-

1 The second plea was objected to as being an immaterial traverse, and the third as putting in issue "more than was alleged in the averment, to wit, that at the time of the making of the agreement the plaintiff had not a good title to let the dwelling-house," etc. The arguments of counsel and the concurring judgments of Alderson and Rolfe, B.B., are omitted, together with portions of the other judgments sustaining the sufficiency of the declaration. -ED.

Lord ABINGER, C. B. I am of opinion that the second plea is bad, as containing an immaterial traverse of the plaintiff's title. It may be that the plaintiff was not possessed of the term on the day of the agreement being entered into, but that is unimportant, if he was possessed of it on the day when he was to execute the lease to the defendant.

PARKE, B. I think the second plea is bad, as containing an immaterial traverse. The averment in the declaration is, that the plaintiff was possessed of the term at the time of his agreement with the defendant, not that he contracted that he had the term on the 24th of June. The traverse of that averment is immaterial. The third plea is also bad, as being too large, since it includes the title of the plaintiff at the time of the contract, and also at the time of the demise. Judgment for the plaintiff.1

BRIDGWATER v. BYTHWAY.

IN THE COMMON PLEAS, EASTER TERM, 1683.

[Reported in 3 Levinz, 113.]

BATTERY; defendant pleads a judgment obtained by his father against Elias Jones, and an execution thereupon, whereon the goods of Jones were taken in execution, and that the plaintiff assaulted the bailiffs, and would have rescued the goods; whereupon, in aid of the bailiffs, and by their command, the defendant molliter manus imposuit upon the plaintiff to prevent his rescue of the goods. The plaintiff replied, de injuria sua propria absque hoc that the defendant by command of the bailiffs, and in aid of them, to prevent a rescue of the goods, etc. Whereupon the defendant demurred generally; and upon argument it was resolved by the whole court: That the replication in traversing the command of the bailiffs was not good; for he might of himself do that, to prevent the rescue, which is a tort and a breach of the peace.

QUEEN CITY BANK v. F. W. HUDSON AND S. E. SHORT. SUPREME COURT, NEW YORK, JUNE TERM, 1896.

[8 New York, Appellate Division, 27.]

ORDER affirmed on the opinion of SPRING, J., delivered at Special Term, with ten dollars costs and disbursements.

1 In the following cases, as in the principal case, the denial was too large in point of the time covered: Osborne v. Rogers, 1 Saund. 267; Basam v. Arnold, 6 M. & W. 559; Tempest v. Kilner, 2 C. B. 300; Aldis v. Mason, 11 C. B. 132; Camden v. Mullen, 29 Cal.

All concurred.

The following is the opinion of SPRING, J.:1

SPRING, J. The action is on a promissory note made by the defendant, Hudson, to the order of his co-defendant. The complaint alleges that the payee, "for value and before the maturity of said note, duly indorsed and transferred the same to the plaintiff, which thereupon became and still is the sole, true, and lawful owner thereof." The averment of denial of the defendant Hudson, who alone answers, is as follows: "That he has no knowledge or information sufficient to form a belief as to whether or not said defendant, Sarah E. Short, for value, indorsed and transferred said note to said plaintiff, as alleged in said complaint, or otherwise, and, therefore, denies the same."

The contention of the defendant is, that this is a denial of the indorsement and transfer of the note to plaintiff, which is an issuable averment. Taylor v. Smith; The Robert Geer Bank v. Inman.*

2

The vice in the denial is that it does not deny the indorsement and transfer, but that they were made for value, which is an immaterial averment. Whether the plaintiff's title came by gift, or was based upon a valuable consideration, is unimportant in this case; but tho significant inquiry is as to whether it obtained title by indorsement and transfer from the payee, and that fact is not covered by the quoted allegation in the answer. If the defendant possessed knowledge of the indorsement and transfer of this note, no indictment for perjury could be based upon the denial, for he could say that he simply denied that the indorsement and transfer were for value, and an inspection of the answer would sustain this contention.

Nor does the phrase "or otherwise" shield defendant from the defective pleading, for that limits the consideration of the transfer; that is, defendant has no knowledge whether the transfer was made for value or otherwise, whether with or without consideration. The averment is skillfully drawn to place stress upon the quid pro quo and evade any denial of the facts which vest title and possession in the plaintiff as alleged in the complaint. See Morrill v. Morrill; ' Frasier v. Williams."

1 A portion of this opinion is omitted. - ED. 29 N. Y. St. Repr. 365.

8 51 Hun, 97.

+ Morrill v. Morrill, 26 Cal. 288; Landers v. Bolton, 26 Cal. 393; Randolph v. Harris, 28 Cal. 561; Tate v. People, 6 Colo. Ap. 202; Mahoney v. Butte Co., 19 Mont. 377 Accord. For other instances of the mistake of covering by a denial not only the material allegation but also an immaterial qualification of the allegation, when the denial should deny simply the material allegation and ignore the immaterial qualification, see Anon., 2 Leon. 13 (denial that defendant converted a chattel to his own use by a sale to a buyer); De Godey . Godey, 39 Cal. 157 (denial that defendant fraudulently transported plaintiff to Kerr Co. for the purpose of having her served with summons); Bradbury v. Croniss, 46 Cal. 287 (denial that plaintiff worked in mine at request of defendant); Knowles v. Murphy, 107 Cal. 107 (denial that defendant holds possession as tenant); Grand Co. v. Lester, 28 Colo. 273 (denial of execution of deed conveying perpetual water rights); Wright v. Fire Co., 12 Mont. 474 (deniai of incorporation under the laws of a particular State); State v. Board, 53 615 Minn. 288.

5 26 Cal. 288-292.

Judgment is ordered for plaintiff on the ground that the answer is frivolous, with ten dollars costs.

AUBERY v. JAMES.

IN THE KING'S BENCH, EASTER TERM, 1670.

[1 Ventris, 70.1]

ASSAULT, Battery and Wounding: The Defendant Justified; for that he, being Master of a Ship, commanded the Plaintiff to do some Service in the Ship, which he refusing to do, he moderate castigavit the Plaintiff, prout ei bene licuit.

The Plaintiff maintains his Declaration absque hoc quod moderate castigavit, and issue was taken thereupon.

After Verdict for the Plaintiff, it was moved in arrest of Judgment that the Issue was not well joined; for non moderate castigavit doth not necessarily imply that he did Beat him at all, and so no direct Traverse to the Defendant's Justification, which immoderate castigavit would have been: But, De injuria sua propria absque aliqua tali causa would have been the most formal Replication.

But the Justices held, that it would serve as it was, after a Verdict, though the Statute at Oxford, 16 Car. 2, the last and most aiding Act of Jeofails be expired, and that de injuria sua propria, not adding absque aliqua tali causa, hath been held good after a Verdict."

WALL v. THE BUFFALO WATER WORKS COMPANY.

COURT OF APPEALS, NEW YORK, SEPTEMBER, 1858.

[18 New York Reports, 119.]

APPEAL from the Superior Court of the city of Buffalo. Action to recover damages for an injury sustained by the plaintiff, by falling Neb. 767, 771 (like preceding case); First Bank v. Gibson, 60 Neb. 767 (similar to preceding case); Storey v. Kerr, (Nebraska, 1902) 89 N. W. R. 60 (denial that note was lost by burning); McCormick Co. v. Hovey, 36 Oreg. 259 (denial of incorporation under laws of Illinois); St. Paul Co. v. Dakota Co., 10 S. Dak. 191 (denial that execution was duly returned); Briggs v. Mason, 31 Vt. 433 (denial of attachment of goods by virtue of said writ); Seattle Bank v. Meerwaldt, 8 Wash. 630 (denial that warrant came to A. by indorsement); Crane v. Morse, 49 Wis. 368 (denial of promise in writing); Carpenter v. Bolling, 107 Wis. 559 (denial that road was legally laid out as a highway). — ED.

1 1 Sid. 444, 2 Keb. 623, s. c.— - ED.

2 In Myn v. Cole, Cro. Jac. 87, the defendant, in bar of action of trespass quare clausum fregit, pleaded that he entered by the license of the plaintiff's daughter. The plaintiff replied that he did not enter by the said license. It was agreed that this was a bad issue, but the judges were divided as to whether the defect was cured by a verdict for the plaintiff.-ED.

into an excavation made by the defendant, in a street in Buffalo, in putting down their water pipes. The complaint alleged that the ditch was very negligently left open by the defendant, and it stated the injury to the plaintiff as follows: "That on or about, &c., and about the hour of ten o'clock in the evening of that day, the plaintiff fell into said ditch or trench. That he so fell into said ditch or trench while walking in Pearl-street, a highway, as he lawfully might, and without any fault or want of care on his part."

The answer, after denying that the ditch was negligently left open, proceeded thus: "And the defendant further denies that the plaintiff, without any fault or want of care on his part, did fall therein," &c.

On the trial, it appeared from the evidence that the plaintiff was found, on the night in question, some rods from the open ditch which the defendant had left, with his leg badly broken, and the evidence had a tendency to show that he had fallen into the ditch and thus injured himself, and had been able to get to the place where he was found, and could go no further. After the plaintiff had rested, the defendant moved for a nonsuit mainly on the ground that it was not proved that the plaintiff had fallen into the ditch. The judge thereupon decided that the answer admitted the fact of the plaintiff having so fallen, and the defendant excepted to this decision. The motion for a nonsuit was then denied, and there was another exception by the defendant. The plaintiff ultimately had a verdict for $1000.

ROOSEVELT, J. The answer denies that the ditch was left unguarded, and "that the plaintiff, without any fault or want of care on his part, did fall therein." And the question is, does this averment put in issue the plaintiff's want of negligence, or the plaintiff's falling into the ditch, or both.

We consider the answer, as open to criticism. It is a species of negative pregnant. But the plaintiff, if dissatisfied with the vagueness and uncertainty of the pleading, had his remedy by motion. Not having applied, at the proper time, for an order to compel the defendants to be "more definite and certain," he is presumed to have been satisfied with the pleading as it stood, especially as he knew that, under the present system, it was made "the duty of the court to construe pleadings liberally," and of course not to assume that parties, by implication, intended to admit when they could safely deny their adversary's case.

The point has been decided in this court, in a case which has not been reported here. At the March term, 1855, it had under review the action of Lawrence v. Williams, upon an appeal from a judgment of the Superior Court of the city of New York, which is reported in 1 Duer, 585. It was an action in the nature of ejectment, to recover the possession of certain premises which had been demised co the defendant, on the ground that he had broken the covenant not 1 Portions of the opinion are omitted. — ED.