Lane v. Gilbert , 9 How. Pr. 150 ( 1854 )

Harris, Justice.

The plaintiff has stated, as his cause of action, that the defendant violently assaulted and beat him. The defendant, if he would interpose a legal defence, was required either to deny some allegation in the complaint essential to the cause of action, or, if he could not do this, to state some new matter in justification of what he had done. Has he done either 1 If I have understood the import of the answer it amounts to this, that the defendant had no intention to commit the alleged assault and battery, and whether he did so in fact, he is unable to say; But, conceding that he did, it was a very slight affair, and whatever more is stated in the complaint is untrue. In other words, the defendant has not felt himself at liberty to take issue upon the fact whether an assault was or was not committed, but has merely controverted the degree of aggravation by which it was characterized.

The defendant, being required, as he was, to answer upon oath, could probably do nothing more, nor could he legally do this. If he could neither deny nor justify the charge, he had no defence, and, of course, should not have answered at all. The mitigating circumstances alleged in his answer might very properly he proved before a sheriff’s jury upon'the assessment of the plaintiff’s damages. They could not be made the subject of an issue upon which the parties might go to a trial.

I think the plaintiff has mistaken his remedy, in moving, as he has, to strike out a part only of the answer as redundant or irrelevant. The effect of his motion, if granted, would be to leave the defendant with an unintelligible fragment of an answer, and no issue capable of trial. A trial upon such pleadings would be but a mere assessment of damages.

Under these circumstances I think the motion should be denied, with liberty to the plaintiff, if the defendant shall not, within ten days after notice of this decision, serve an amended answer, which he is to have liberty to do, to move for judgment under the 247th section of the Code, on account of the frivolousr ness of the answer. Neither party to have costs upon this motion.