Summary
In Rogers v. Ratcliff, 3 Jones' Rep. 225, the finding was for the defendant, and if he had relied alone on his special plea, there would have been an estoppel in respect to his title.
Summary of this case from Stokes v. FraleyOpinion
(December Term, 1855.)
In an action of trespass quare clausum fregit, the pleas of general issue and liberum tenementum were entered, and the finding was general for the defendant; such finding was held not to be a bar to plaintiff's right to recover in a second action brought for trespass on the same land.
EJECTMENT, tried before his Honor, Judge BAILEY, at the Special Term, July, 1855, of Buncombe Superior Court. Pleas; general issue, liberum tenementum and stat. lim.; and specially, a former judgment and recovery between the same parties, upon the same subject matter.
J. W. Woodfin and N.W. Woodfin, for plaintiff.
Gaither, for defendant.
In support of the plea of liberum tenementum, and of the special plea, the defendant produced in evidence the transcript of a record of an action of trespass quare clausum fregit, tried at December Term, 1851, of Buncombe Superior Court, between the same parties. The pleas therein were general issue liberum tenementum and stat. lim. The cause of action in that case was trespass upon the same land that is now in controversy, and the same evidence was offered in that trial as in this.
The verdict in that case was in favor of the defendant, on all the issues, and a judgment thereon rendered for the defendant. Upon the trial below, it was insisted by the defendant's counsel that the former verdict and judgment were a bar to the plaintiff's recovery in this action, as an estoppel.
The cause was submitted to the jury upon the other evidence in the case, with instructions from the Court, to which there was no exception, and a verdict was rendered for the plaintiff. The question of law, however, as to the effect of the recovery in the former action, was reserved by the Court with the understanding, that if the Court should be of opinion with the defendant, the plaintiff would take a non-suit.
The Court, upon consideration, being of opinion with the defendant, the verdict was set aside, and a non-suit entered. Plaintiff appealed.
It is agreed that the finding upon an issue taken on a traverse of a precise fact material to the right in question, is conclusive, and operates by way of estoppel between the parties and privies, if pleaded in "due form and apt time." Long v. Baugus, 2 Ire. Rep. 290; Bennet v. Holmes, 1 Dev. and Bat. Rep. 486; Outram v. Morewood, 3 East, 346.
It is conceded also, for the purpose of this decision, that if the case had been put to the jury, upon the issue taken on the plea of liberum tenementum alone, a verdict responsive to that single issue would have been conclusive.
But it is contended that, as it appears by the record, the case was put to the jury upon the issue joined on the plea of "not guilty," which issue is found in favor of the defendant, that finding put an end to the case. The jury were then functi officio; and the finding, in regard to the issues, the plea of liberum tenementum, and also the statute of limitation, was uncalled for, — not material to the right in question, and consequently cannot have the effect of an estoppel.
The broad question is, when a verdict is in favor of the defendant, both upon the general issue and upon an issue taken in a special plea, can the finding upon the latter issue be afterwards used as an estoppel against the plaintiff?
When an estoppel is technical, and does not involve considerations of bad faith or unfair dealing, it is, according to the authority of Lord Coke, odious, and should not be extended by inference or implication.
The research which this case has given rise to, has not enabled us to find any case in which it is held that a verdict amounts to an estoppel, except where the finding is of a precise fact material to the decision of the case. For instance, in Outram v. Morewood, cited above, the only matter put in issue on a former trial, was, whether a certain coal-mine was included by a certain deed. The jury found that it was not. Upon that the case turned. Afterwards, in a second action in respect to the same coal-mine, the defendant, by his plea, alleged that the coal-mine was included by the deed. The plaintiff, in his replication, relied on the finding in the former action as an estoppel, and the Court held that it operated as an estoppel.
We do not consider "a case in point" necessary, in order to justify the application of a general principle; but when no such case can be met with, a careful recurrence to principles becomes necessary.
Our reflections have brought us to the conclusion, that a finding for a defendant, upon a fact put in issue by a special plea, is not conclusive, when there is, by the same verdict, a finding for the defendant upon the general issue.
We base this opinion upon three grounds: 1. A finding in favor of the defendant, upon the "general issue," fixes the fact that the plaintiff has no cause of action; consequently, it is unnecessary to investigate the matter alleged by the special plea, and a finding in regard to it is immaterial — a blow inflicted upon the body of a dead adversary, — and must, at the least, be treated as surplusage, under the maxim utile per inutile non vitiatur; and being immaterial and mere surplusage in respect to the action then on trial, the idea that it may subsequently become material, and be used as an estoppel, so as to defeat another action brought afterwards, involves an absurdity. Every one who has witnessed trials on the circuit is aware that when a plaintiff fails to establish his cause of action, the defendant rarely offers evidence to support his special plea; for the very sufficient reason, that it is uncalled for; and if he does, the plaintiff and his counsel do not deem it necessary to contest the matter; and it is, on all hands, considered not worth while to attend to the manner in which the verdict should be entered; because the plaintiff is obliged to lose the case. If what is immaterial to the case then on trial, and is in practice, for that reason, permitted to pass sub silentio, may afterwards be used as an estoppel, so as to exclude the truth by a technical rule of law, it amounts to an intolerable grievance. For example: to an action of slander, the defendant pleads the "general issue" and "justification"; on the trial, the plaintiff fails to prove that the defendant spoke the words; a verdict is entered generally, finding "all the issues in favor of the defendant;" the defendant then makes the charge, and when sued for it, pleads "justification," and relies on the former general finding as an estoppel, by which the plaintiff's guilt is established, and his mouth shut; ought not the plaintiff to be allowed to say, "the general finding embraced a matter which had become immaterial, and no one paid any attention to it; and as the matter is now material, every principle of justice requires that it should undergo a full and deliberate investigation?"
Look at it in another point of view. Say the jury find the defendant not guilty; and upon the special plea, the verdict is entered for the plaintiff; another action is brought, to which the defendant pleads "justification," and the plaintiff relies on the finding in the former action as an estoppel; might not the defendant well be heard to say, "in that suit, as you had failed to establish a cause of action, I did not deem it worth while to offer evidence in support of my special plea; and if I had, it would have been looked upon by the Court and every body else, as not only evincing malice, but meanness; because I had you in my power, and was obliged to gain the suit any how?" To exclude the defendant from proving the truth under such circumstances, would be an ill return for his forbearance.
We are not to be understood as intimating that inattention on the part of a party, or of counsel, can prevent the application of a principle of law. Our position is, that when a matter becomes immaterial in the progress of a cause, an inattention to it is the natural result of its immateriality; it is not such a well considered and solemn act, as, according to all of the authorities, is necessary to create an estoppel. Armfield v. Moore, Busb. 157.
2nd. The finding is not merely immaterial, but inconsistent, and repugnant to the special plea.
Every special plea admits the cause of action. 1 Saunders' Rep. 14, note, 28, note 3. Indeed, from this quality it is called a plea by way of confession and avoidance. Formerly, this admission was made explicitly, and pleas commenced, "True it is, that, c.," (admitting the cause of action,) and then alleging matter in avoidance. Stephen's Pleading, 200. After double pleading was allowed by the statute of Anne, this explicit admission was, of course, no longer required; for as the defendant, after pleading the general issue, was allowed to add a special plea, an explicit and absolute admission of the plaintiff's cause of action would make the two pleas palpably inconsistent. Hence, the form of the pleas was modified, and instead of an explicit and absolute admission, it commenced by an implied and conditional one. "It is essential, however, that the confession, though not express, should be distinctly implied in, and inferable from, the matter of the pleading." Stephen on Pleading, 200. By way of example, he refers to a plea of release to an action for breach of covenant, "and the said defendant says that, after the said breach of covenant, the plaintiff, by his deed of release, c." This confession, although merely "implied, and inferable from the matter of the special plea," is, nevertheless, seemingly inconsistent, when the defendant, availing himself of the benefit of the statute, had before pleaded "non est factum." This was the necessary effect of the statute, and gave occasion for the witticism in ridicule of double pleading; "one sued for breach of a contract of bailment in returning a skillet broken, which he had borrowed whole, pleading; 1st. That he never had it. 2nd. That he returned it whole. 3rd. That it was cracked when he got it." This inconsistency, however, is rather seeming than real, when it is borne in mind that the confession is only conditional, and made for the purpose of having the benefit of the new matter alleged by way of avoidance, in the event that the general issue is found against him. If that issue is found for him, then he has no occasion for his special plea, and it is thereby not only made immaterial, but its essential quality of confessing the cause of action is taken from it and made repugnant to the finding. A verdict, finding the issues for him, upon both pleas, would be obnoxious to the witticism alluded to; for, if the defendant, in the case supposed, did not execute the covenant, how could he have a release for the breach of it? Or, if, in trespass for assault and battery, the defendant pleads not guilty, and "son assault," when the jury find that he did not commit the assault and battery, it is manifestly inconsistent also, to find that the defendant was justifiable in committing the assault and battery in self-defense. In debt on specialty, pleas, "general issue," "payment and set-off," the jury find all issues in favor of the defendant; that is, "he did not execute the bond; he paid it, and had a set-off." Such repugnance must be attributed to inattention in entering the verdict. If the defendant afterwards bring an action for the debt due him, is he to be concluded by the former record, by which it appears he has used it as a set-off? In all such cases, where the jury find for the defendant upon the general issue, to prevent this apparent inconsistency from being put upon the record, the regular course is for the Court, upon motion, or ex mero motu, to direct the other issues to be withdrawn, or stricken out of the record.
3rd. Where there is a finding for the defendant upon the general issue, the instruction of the Judge in the Court below, in reference to the special plea, cannot be reviewed in this Court. By way of illustration: a woman brings an action against a man for assault and battery; the defendant pleads not guilty, son assault, c.; the Judge instructs the jury that a man may justify an assault and battery on a woman, if she gave the first blow. (Question raised in State v. Gibson, 10 Ire. Rep. 214.) The jury find all issues in favor of the defendant. The plaintiff appeals. This Court will not pass upon the plaintiff's exception to the charge; because, as the defendant had not committed the assault and battery complained of, its decision is uncalled for. On the same ground, if, in an action of covenant, the defendant plead "non est factum," which is found in his favor, this Court will not pass upon an exception to the charge, in reference to the measure of damages. Gant v. Hunsucker, 12 Ire. 254. As the plaintiff cannot have his exceptions to the charge, in reference to the special plea, passed upon in this Court, it follows that he should not be estopped.
The general rule, therefore, is, when the jury find for the defendant on the "general issue," the finding in his favor on a special plea, cannot be used as an estoppel. It remains to be seen whether there is any ground for making an exception in reference to the plea of liberum tenementum.
It is a well settled general rule, that matter which amounts to the general issue, cannot be pleaded specially. In cases where the defendant is willing to put the defense upon his title, there are several reasons for allowing him to do so by special plea; although it amounts to the "general issue." If the plaintiff admit the facts by a demurrer, the case is withdrawn from the jury, and decided at once by the Court. If he put in a replication, the case then goes to the jury upon a single issue; whereas, if the defendant is compelled to plead the "general issue," the matter goes to the jury at large. A defendant, therefore, is allowed to allege title in himself, by way of special plea; provided he will admit, as a condition precedent, that he committed the act complained of, and that the plaintiff has such a title as will enable him to recover against a wrong-doer, and of course against him, unless he is the true owner. This is what is called "giving color." Although Mr. Stephen, at page 206, remarks, "this is one of the most curious subtleties that belong to the science of pleading," the remark is applicable rather to the form than to the substance of the thing; for in substance, the rule which requires all special pleas amounting to the general issue, to give color, either expressed or implied, — that is, to admit that the plaintiff is entitled to judgment, unless the defendant is the true owner — has stood the test of ages; and, like all the other rules of pleading which have stood this test, is founded in good sense and the purest logic; has a practical object in view; and is well calculated to effect it. It would be equally appropriate to say, the rule which requires all special pleas in avoidance, to confess the cause of action, "is a curious subtlety of the science of pleading." For instance, the plea of liberum tenementum admits that the plaintiff was in possession, and that the defendant broke the close, and relies on the allegation, that it was the soil and freehold of defendant. Here, there is implied color, as the plaintiff may have been in possession as lessee for years; but if the defendant make title as tenant for years, so as to exclude this implied color, then he must give express color; the usual form being, to suppose the plaintiff's being in possession under a deed of feofment without livery of seisin. So, in an action for trespass to personal property, if the defendant plead specially "title in himself," he must give express color, and the usual form is, "that the defendant delivered the goods to a stranger, who delivered them to the plaintiff, from whom the defendant took them." See 2 vol. Chitty's Pleading. The form may be a "curious subtlety," but the substance is, that a defendant shall not play "open and shut." If he choose to rely on his title by special plea, he must do so in a way to make it decisive of the case, and is not allowed to assume a position so that if he succeeds he will be entitled to judgment; whereas if he fail, he may say to the plaintiff, "you are not entitled to judgment, although I have no title, for your cause of action has neither been established nor admitted." Thus it is seen, that "color" is just as essential a quality to a special plea which amounts to the general issue, as an admission of the cause of action is to an ordinary special plea by way of confession and avoidance; and the reasoning by which we have proven that an issue on the latter, found for the defendant, does not operate as an estoppel, when there is also a finding for him on the "general issue," is equally applicable to the finding for a defendant, upon an issue in the former.
When the "general issue" is pleaded, it is difficult to see any motive for adding a special plea which amounts to the general issue. The greater includes the less; and none of the advantages in the administration of justice, which induce the Court to allow "title in the defendant," to be relied on by way of special plea, can be gained by it; for under the general issue, the whole matter goes to the jury with instructions from the Court in respect to the question of title; and if the jury find the issue for the defendant, any further enquiry as to the matter of the special plea, becomes immaterial, and the plea itself is made defective by being deprived of "the color" which is an essential quality. The habit of adding such a special plea after the "general issue," is attributable to a free use of the privilege of double pleading, which pleaders seem disposed to avail themselves of. They know a special plea can do no harm, and do not stop to enquire what purpose it is to answer. If the pleader desire to have the advantages above pointed out as attending a special plea, he must put the defense upon title alone. Even then, in regard to the plea of " liberum tenementum," it may be a question, whether he can have the additional advantage of using the finding as an estoppel in a second action; because the averment is general, that the close was the "soil and freehold" of the defendant at the time he entered, and non constant that his estate continued up to the time of the entry for which the second action is brought; so, the averment of title may be too vague to have the effect of an estoppel. Upon this question an opinion is not called for; but it certainly would not, like the averment in the leading case of Outram v. Morewood, be a precise allegation of a fact material to the decision.
Our attention was called to the case of Basset v. Bennet. We have no report of that case, and find it referred to by Lord ELLENBOROUGH in his elaborate opinion in Outram v. Morewood, where he proves that the finding of a precise fact, in reference to the title to real estate, is conclusive as to the title; although the issue was joined in a personal action. He says: "as to the case of Basset v. Bennet, in which a new trial was moved for, because a verdict was taken for the defendant, both on the general issue and on the plea of liberum tenementum; whereas, there was only evidence to support the finding on the general issue; and where the new trial is said to have been refused, because the Court held that the finding on liberum tenementum would not prejudice the plaintiff, as a judgment in the possessory action was not conclusive on real rights. If it were indeed so laid down by the Courts, the doctrine must certainly be received with some degree of qualification and allowance. The plea would be conclusive, that at the time of pleading the plea, the soil and freehold were in the defendant; and if properly pleaded by way of estoppel, it would estop the plaintiff from again alleging the contrary."
The decision in Basset v. Bennet was correct, and supports the conclusion to which we have arrived; but we concur with Lord ELLENBOROUGH, that, if correctly reported, the Court gave a wrong reason for it. The true reason is, that the finding for the defendant upon the general issue, made the finding upon the plea of liberum tenementum immaterial, and took from it an essential quality. The remark of Lord ELLENBOROUGH, that the finding was an estoppel, as to the soil and freehold being in the defendant at the time of pleading the plea, is a mere dictum. The aim of his Lordship was to get clear of Basset v. Bennet as an authority for the position, that a finding in a possessory action could not be conclusive of real rights; and he evidently made the remark without taking into consideration the effect of the peculiar circumstances, that there was a general finding in favor of the defendant upon both pleas. He was looking at the reason given for the decision, and not at the decision itself. There is error.