Dorman v. Long

Every plea in bar must either contain a denial of the plaintiff’s allegations, or must confess *215and avoid the facts stated in the declaration. The former constitutes the general issue, while matter in confession and avoidance is pleaded specially. When the matter thus specially pleaded amounts to a mere denial of allegations, which the plaintiff under a plea of the general issue must necessarily prove, to maintain his action, it is bad, because it only amounts to the general issue. (1 Chit. Pl. 527, 9th Am. ed.)

Let us apply these rules of pleading to the case before the court. The plaintiff alleges that the defendant has committed a trespass upon his land “ abutted and bounded on the south by lot number ten Buffington?s patent.” To sustain this allegation, under a plea of the general issue, the plaintiff must prove that the act alleged to be a trespass was committed upon the land particularly described in his declaration. The substance and import of the plea is, that the act complained of was not committed where the plaintiff alleges it was, but that it was committed on an adjoining lot, where the defendant was justified in committing such act. It does not, as every special plea should, either expressly or impliedly, confess that but for the defence set forth in the plea, the action could be sustained. On the contrary, it argumentatively denies the alleged trespass by averring that the plaintiff is mistaken in the place where the act alleged as a trespass, was in fact committed.

The plea, therefore, amounts to the general issue, and the plaintiff is entitled to judgment upon the demurrer, with liberty to the defendant to amend on payment of costs.