Nye v. Spencer , 41 Me. 272 ( 1856 )

Tenney, C. J.

The defendants in the original action, having pleaded the general issue, were entitled to a trial thereon. The special pleas in justification of the acts complained of by the original plaintiff were not a waiver of that right. The language of a defendant in one plea, cannot be used to disprove another plea. Harrington v. McMorris, 5 Taunton, 228. One plea cannot be taken advantage of, to help or vitiate another, but every plea must stand or fall by itself. 1 Chit. Pl. 543.

After the question of law was raised upon the demurrer to the pleas in bar, justifying the act complained of, the case was properly carried to the law court, for the determination of this question, without a trial upon the general issue. This is in conformity with the practice, as appears by the cases of Alderman v. French, 1 Pick. 1, and of Eastman v. Cooper, 15 Pick. 276.

By the statutes of 1852, c. 246, § 8, it is provided, when a question of law is raised for the determination of the Supreme Judicial Court, sitting as a court of law and equity, the case shall be marked “ law,” on the docket of the county where it is pending, and shall be continued on the same, until the determination of the question so arising, shall be certified by the clerk of the district to the clerk of the county where it is pending.

When judgment was rendered in the law court upon the demurrer for the plaintiff, and the same was certified, to the clerk of the county where the action was pending, its effect was limited to the question presented, as the jurisdiction of that court extended to that issue only; and it was manifestly its design to certify nothing further.

After the question of law was disposed of, the case was in a condition to he tried upon the issue of fact, which had been .presented at the same time that the issue of law was raised. No judgment could be legally entered against the original defendants, excepting upon default, or a verdict against them upon the general issue. The special judgment, entered on Dec. 1, 1855, was erroneous, and should be reversed.

Rice, Cutting, Appleton, and May, J. J., concurred.