Batchelder v. Kinney , 44 Vt. 150 ( 1871 )

The opinion of the court was delivered by

Barrett, J.

The question put to the plaintiff, on cross examination, was in relation to the transaction constituting the purchase of the liquor that went into his hands to be officially sold by him, and which, according to his testimony before the justice, set forth in the 1st and 5th special pleas, was furnished to him by the selectmen. The fact of his having signed a note to the vendor for the price, might, unexplained, indicate that it was not so furnished, in the true meaning of the statute on that subject. The question, therefore, was in relation to a legitimate subject of en-quiry, as bearing on the question whether the liquor was furnished by the selectmen. As he was a party, and on the stand ás a witness in his own behalf, his answer was subject to being contradicted, both for the purpose of invalidating it as evidence on the main issue, and of discrediting him as a witness in the cause in his own behalf on the direct examination.

It is to be noticed that the plaintiff did not limit himself to answering to the very point of the question,' — -which probably would have answered all the defendant’s purpose in putting it — but he proceeded to volunteer a narrative for purposes of his own, and outside of any purpose of the defendant as indicated by his question. If, in so doing, the plaintiff testified incorrectly or falsely, it is legitimate for the other party to show the incorrectness or falseness, as affecting his credit as a witness' in his own behalf on the main issue. The fact that to this question of the defendant, the plaintiff gave an answer that left the defendant much in the same condition on that subject as if he had not asked it, would not seem to constitute any reason why the plaintiff should have immunity from the effect upon his credit of his false-swearing as to a legitimate subject of enquiry by the other party, even though the question, if put to a witness not a party, might not be legitimate cross-examination. In this respect, a party as a witness holds a position differing in many respects from that of a witness who is not a party; and this fact distinguishes the present case from that cited in argument, of Fairchild et al. v. Bascom, 35 Vt., 405. In the opinion of this court, the rejected testimony of the vendor of the liquors ought to have been received.

II. The plaintiff, instead of demurring to the pleas hold by the county court to be insufficient, traversed those pleas and tendered issue to the country: which issue was joined by the defendant. The court declined the request of the defendant to put those issues to the jury. Though it has been said to be a departure from the English rule and practice, it has been held in this State to be in the- discretion of the court to decline to submit a general issue for a verdict, where the declaration sets forth no cause of action. This is the extent to which such discretion lias been exercised or sanctioned in this State, and this, even, seems to be counter to the decision in French v. Thompson, 6 Vt., 54. The more modern idea on that subject is developed in Baxter v. Winooski Turnpike Co., 22 Vt., 114. And yet in Dyer v. Tilton, 23 Vt., 313, it is said, “But as the 'plaintiff did prove his declaration, and the defendant thought proper to plead the general issue instead of demurring, we ought not, we think, to deprive the plaintiff of the benefit of his verdict: which was correct, we think, upon the issue joined.” But as the declaration was insufficient to found any judgment upon, judgment was arrested on motion. See Ammidon v. Aiken, 28 Vt., 440. The ground on which that practice has been adopted is, that the declaration showed no cause of action — and so judgment would be arrested on motion: in which case it was hardly worth while to go through with a fruitless trial. But when an issue has been formed upon the traverse of special pleas in bar, the matter stands on other and altogether different reasons. A defective plea may be sufficient for a defective declaration; and in pleading such plea, the defendant may design — -in case the sufficiency of his plea should be questioned — to protect himself by questioning the sufficiency of the declaration, as he might do if his plea had been demurred to. If the court refuse to submit to trial the issue found on the traverse to the plea, the defendant is deprived of his right to answer an objection to his plea by asserting a valid objection to the sufficiency of the declaration. If the plaintiff, sees fit to take his chances by traversing and tendering issue instead of demurring to the plea, it is equally the privilege and the right of the defendant to take his chances under a verdict found on that issue. If the verdict should be for the defendant, non constat the plaintiff would have judgment on motion, non obstante veredicto. The court, on such motion, would look into the whole record; and if the declaration had defects that would be reached by general demurrer, the verdict would be followed by judgment for the defendant. The doctrine and rules on this subject are well set forth in Gould’s Pl., ch. 10: §29, to §49, as also in Chit. Pl., ch. 9.

It would not accord to tiie defendant all the right he would have under, a demurrer to his pleas, if denied a trial on the issue made on the traverse of them, to say that for defect of the declaration be miglit move iu arrest of judgment; for many defects of substance would not be reached by that motion, that would be fatal on demurrer: while on motion by the plaintiff for judgment, notwithstanding verdict, the defendant would have all the advantage he would have been entitled to if plaintiff had demurred to his pleas.

Judgment reversed, and cause remanded.