Willing v. Bozman

Robinson, J.,

delivered the opinion of the Court.

The declaration in this case contains three counts.

The first charges the defendants with having unlawfully, wickedly and maliciously seized and taken possession of the plaintiff’s boat, whereby he was greatly damaged and injured. • •

To this count the defendants pleaded the general issue, and then filed separate pleas by way of justification to the whole declaration.

The separate plea of the defendant, Willing, alleges that the boat mentioned in the declaration was being used for the purpose of dredging oysters in the waters of Wicomico County, and that on being pursued the person in charge of said boat escaped and the boat itself was taken by the defendant, as Deputy Commander of the State Fishery Force, and delivered to one Affra D. Mezick, justice of the peace of said county, to be disposed of according to law.

The separate plea of the defendant, Mezick, alleges that the boat was delivered to him as a justice of the peace, of Wicomico County, by the defendant, Willing, acting as. Deputy Commander of the State Fishery Force, charged with violating the provisions of the Act of 1872, ch. 241; and that as justice of the peace he held the same upon said charge to await the adjudication of the questions of law, arising in connection with the condemnation of said boat.

To these pleas the plaintiff demurred, and the question is, whether the defendants, under the facts set forth in these pleas, were justified in taking the plaintiff’s boat?

The Act of 1872, ch. 241, prohibits the catching of oysters in the waters of Wicomico County, with scoop, scrape, drag or dredge, and provides that the boat or boats used by persons in violating the provisions of the Act, shall be seized and taken possession of to be disposed of as therein directed.

*61 Conceding now for the purposes of this case, that the defendant, Willing, as Deputy Commander was authorized hy this Act to seize the plaintiff’s boat, on the charge of being used in violating the provisions of the statute, the ■question then is whether the Act of 1812, ch. 241, has been repealed hy the Act of 1814, ch. 181?

There is no reference either in the preamble or in the body •of the Act of 1814 to the Act of 1812, and the question whether it operates as a repeal of the latter, depends upon whether the provisions of the general Act of 1814 are inconsistent with and repugnant to the provisions of the ¡special Act of 1812. State vs. Northern Central Railway Company, 44 Md., 131 .

Row hy the Act of 1814, the entire oyster law of this State was revised and remodeled. It appropriated twenty thousand dollars for the construction and equipment of six boats, divided the waters of the State into six districts, ■and provided that a boat should he stationed in the waters' of each district, to prevent the violation of the provisions ■of the Act. One of these districts embraced the waters of Dorchester and Wicomico Counties. It created a Board to he styled the “State Fishery Force,” and authorized said Board to appoint Commanders for each boat. It no longer permitted the seizure and condemnation of boats used in violating the law; hut changed the kind and nature of the punishment and the tribunal to enforce it; ■and there is not a word in the Act to show it was not intended to he of uniform application everywhere except as to Worcester County. Then again the provisions of the Act of 1814, in regard to the time allowed for catching oysters and the persons to whom they may he sold, are inconsistent with sec. 2, of the Act of 1812.

The two Acts cannot stand together, and the general Act of 1814 must therefore he construed as repealing the ¡special Act of 1812. The defendant had no right to take possession of the plaintiff’s boat, although it was used *62 in violating the provisions of that Act; The facts set forth in the special plea did not therefore amount to a justification, and the Court was right in sustaining the plaintiff's demurrer.

We are of opinion also, that the special plea of the defendant Mezick is a bad plea. No rule of pleading is better settled, than that a plea in bar must answer the whole declaration. If the plea undertakes to answer the whole, but in fact answers a part only, the plea is bad, and the plaintiff may demur. Com. Dig. Pleader, E., 1, 36; Coke Littleton, 303 a; 1 Saun., 28, note 3; Steph. on Plead., (5th Ed.) 246; 1 Tyr. & Gran., 85; Karthaus vs. Owings, 2 G. & J., 430 ; Consolidation Coal Co. vs. Shannon, 34 Md., 144 .

And it is equally well settled that every plea is to be understood as confessing such traversable matters alleged on the other side, as it does not traverse. Bac. Abr. Pleas, 322, 386, (5th Ed.); Com. Dig. Pleader, (G. 2); Hudson vs. Jones, 1 Salk., 91; Nicholson vs. Simpson, Fort., 356.

Now the declaration charges the defendants with having unlaiofully, wickedly and maliciously taken the plaintiff's boat, &c. The defendant Mezick undertakes to justify the taking as thus alleged, by saying that the boat was delivered to him as a justice of the peace, by the defendant Willing acting as Deputy Commander, &c., charged with violating the provisions of the Act of 1812, oh. 241, and that as justice of the peace he held the same, &c. To make this a good and sufficient plea, it ought to conclude by denying that the defendant “ unlawfully, wickedly and maliciously took the plaintiff's boat.” These facts are alleged in the declaration, and should have been expressly and not inferentially or argumentatively denied. But it is further argued, that the demurrer mounts up to the first error in pleading, and if the narr. was defective, the Court should have entered judgment for the defendants. It is true, the Court on demurrer will consider the whole record, and give judgment for the party, who, on the whole ap *63 pears entitled to it. Com. Dig. Pleader, M, 1; 5 Coke Rep., 29 a; 1 Saunders, 285 n; Le Bret vs. Pophillon, 4 East, 502.

(Decided 19th June, 1879.)

It is insisted tliat the declaration is had because it charges the defendants with a joint and separate trespass. This, of course, the plaintiff could not do,

The first and second counts charge the defendants with a joint trespass, and the third charges “the defendant.” Whether this be a mere slip of the pen and “ defendant ” was written for “defendants,” is quite immaterial, because it does not designate which of the defendants committed the trespass. As a county therefore, charging a separate trespass it would he had. But on a general demurrer, the defendants would not he entitled to judgment unless all the counts were defective. In this declaration the first and second counts are good counts, and conceding the third to he had, yet the other counts were sufficient to support the action.

In any aspect, therefore, in which this case may he viewed, the judgment helow must he affirmed.

Judgment affirmed.