Frost v. Hammatt , 28 Mass. 71 ( 1831 )

Wilde J.

delivered the opinion of the Court. The plaintiff m this writ complains of an aggravated assault and battery committed upon him by the three defendants, on board of an American ship, at Whampoa, in China, he being a mariner and one of the crew of the ship, and the defendants being the master and the first and second mates.

He alleges that the defendants, without any justifiable cause, stripped him of his clothes, tied his hands to the rigging, and inflicted on his naked back twenty-five severe and disgraceful blows, thereby lacerating and wounding his body, and subjecting him to severe sufferings of body and mind.

The defendants severally pleaded the general issue, which is joined ; and also several pleas in justification. In two of these pleas the two mates severally justified the stripping the plaintiff and tying him to the rigging, by the order of the master, which order they aver they were bound to obey, and that the same was executed without any unnecessary violence ; but they do not undertake to justify, or to give any answer to, the residue of the trespass.

The plaintiff replies, protesting that no such order was given by the master, and tiaversing the residue of the pleas ; and to this replication the defendants demur.

The objection to the replication is, that it puts in issue mere questions of law. The answer is, that the averments that the defendants were bound in law to obey the order of the master, and that no unnecessary violence was used, involved mixed questions of law and fact; and we are all clearly of this opinion. The mates had no right to obey any illegal order of the master, and to support the first averment the defendants were hound to show some offence committed by the plaintiff deserving the punishment inflicted ; for surely no one can maintain, that the master can beat or inflict any punishment on a mariner at his own will and pleasure. So that the legality of the order essentially depended on a question of fact. And with regard to the other averment, how could it be determined whether any unnecessary violence had been used, without showing the facts and the circumstances of the case ? These averments therefore were properly traversed, and an issue tendered to the country.

But if the objections to the replication were well founded, still it is a sufficient answer to the plea, which is substantially defective in not answering the whole declaration ; and we must recur to the first fault in pleading ; so that any replication is good in answer to a plea substantially bad.

But it has been argued that there was a discontinuance, because the plaintiff did not take judgment by nil dicit for that part of the declaration which was not answered by the plea ; and some of the ancient authorities would seem to support this objection; they have however been overruled by more recent decision’s, on grounds which are entirely satisfactory.

It seems to be well settled, that a discontinuance is cured by verdict; and a fortiori is the plaintiff entitled to judgment when he demurs to a defective plea which is not a full answer to the declaration. It seems absurd to say that a defective plea which is demurred to because it is defective, should nevertheless operate as a discontinuance of the action, and that a court of law should be called upon to sanction such an absurdity. The cases cited from the reports of Willes and of Johnson, and the reasons there given, are abundantly sufficient to show that such a position cannot be maintained. It is neither supported by any good reason, nor by authority.

But on this point also there is a double answer to the defendants’ objection. The defendants having pleaded the general issue, the plaintiff could not be entitled to judgment by nil dicit on account of any deficiency in another plea. It is imnossible that this could be allowed, when there is a full answer to the whole declaration. It is said that if there is no answer to one of several counts, or to a part of one count, it will discontinue the whole action ; but the general issue is a full answer, and until that shall be decided in favor of the plaintiff, he cannot be entitled to judgment.

For all or any one of these reasons we think it clear that the replications to the pleas in justification are good.