Gordan v. Peirce

Weston J.

delivered the opinion of the Court.

The act to abolish special pleading, stat. 1831, ch. 514, must be understood to be limited to pleas in bar. Every defence, either in law or fact, upon the merits, is made available to the defendant, under the general issue. He is relieved froln the necessity of double pleading, or of setting forth the ground, upon which he relies in a special plea. Pleas in abatement are of a different character. They are dilatory in their nature j and turn upon points which do not affect the merits. Hence at common law, they could not be pleaded after a general imparlance; nor by our statute, in the Common Pleas, after the jury are empannelled. If the plaintiff was wrong in point of form, and the defendant would take advantage of the defect, he was required to do it, upon the entry of the action, that the plaintiff might not be subjected to unnecessary expense, and that he might the more speedily bring a better writ. The force of these reasons still remains unimpaired; and we are satisfied that the act before cited, was not intended to apply to, or to affect, pleas in abatement.

Whether the disseizin, of which the demandant complains, was committed by the tenant or his ancestor, he is equally entitled to recover. The tenant has no right to hold the land against him. If then the disseizin is alleged to have been done by the one, when it was done by the other, it furnishes ground of objection to the form, and not to the substance, of the action. Coke says, if the degrees are not observed, the writ is abateable. Coke Lit. 238, b. This point was directly decided in Porter v. Cole, 4 Greenl. 20. It was there holden, that an exception of this sort must be taken in abatement. The demandant is often a nonresident proprietor, living at a distance, and may not know under what circumstances the tenant became seised. He knows the land to be his, that he has been disseised of it, and that the tenant has no lawful title to it; but whether he committed the dis-seizin, or holds by descent or conveyance from him who did, he may not be informed. The tenant must be conusant of the origin and source of his own title; and if he would object to the form in which he is called upon by the true owner, the reasons upon which pleas in abatement are founded, apply with as much force to this case, as to any other. If not holden to plead in this manner, the demandant may be defeated, upon a formal objection, after years of unnecessary delay. The law was thus settled in Porter v. Cole. It is a convenient rule, calculated to serve the purposes of justice, and sustained by the analogies of the law; and we are not satisfied that it ought to be disturbed.

Jackson on real actions, 114, gives the form of a plea of this kind in abatement. He says this matter may, according to the English practice, be pleaded also in bar, giving color to the de-mandant ; and he supposes it might here be pleaded in bar, without giving color. He cites no authority for this position. It has seemed to us that the law should be otherwise settled; and however we may respect the learning and experience of that eminent jurist, we feel constrained to abide by the rule established in Porter v. Cole. If, however, we were less clear upon this point, we entertain no doubt the objection might be removed by an amendment of the declaration, which we think, if necessary, ought to be granted. As this objection constituted one of the grounds of the nonsuit, it is to be set aside, and the action is to stand for trial.

The third point, taken by the tenant in his brief statement, was open to him under a special plea in bar, before the act abolishing special pleading. Wolcot v. Knight, 6 Mass. 418. It is said that before that act, double pleading was not allowed in real actions. Our practice has been otherwise: in support of which, Kent v. Kent, 2 Mass. 338, may be .cited. But it is urged that if double pleading is allowmd, inconsistent pleas could not be received, In certain cases they may have been rejected; but in others, as is well known, they have been admitted. The books are full of double pleas, not to be reconciled with each other. It is not necessary to cite examples ; as our statute requires imperatively the general issue, but admits under it, wúth a brief statement, any special matter in defence.

Whatever then bars the action, is admitted under the general issue ; and cannot be otherwise admitted. Hence in practice, necessarily, there is often the greatest inconsistency between the general issue and the brief statement. Thus in replevin, under the plea of non cepit, the ground of defence, disclosed in the brief statement, is very generally property in another, denying property in the plaintiff. If the demandant can repel the third ground, set up by the tenant in his brief statement, by showing that, by reason of an existing disseizin, nothing passed by his deed to Jesse Cordan, he may give evidence to this effect, under a counter brief statement, which he is at liberty to file.

Nonsuit set aside.