Bates v. Loomis
New York Supreme Court
Motion that writ of inquiry be executed at the circuit. The action was for an assault and battery. The day laid in the declaration was the second day of January, 1830. The defendant did not plead, and a writ of inquiry was executed and an inquisition found for $300 damages, which inquisition was set aside and a new inquiry held.
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Motion that writ of inquiry be executed at the circuit. The action was for an assault and battery. The day laid in the declaration was the second day of January, 1830. The defendant did not plead, and a writ of inquiry was executed and an inquisition found for $300 damages, which inquisition was set aside and a new inquiry held. On the hearing.before the sheriff and the jury, the plaintiff proved that on the day laid in the declaration he was severely beaten, but did not prove that the defendant inflicted the injuries complained of. The counsel for the plaintiff insisted that the defendant,…
1Opinion of the Court
By the Court,
Marcy, J.
A default in a case like this admits an assault and battery; but it does not, I apprehend, entitle the plaintiff to any thing more than nominal damages. It admits only the traversable allegations in the declaration. Neither the specific day when the injury was done, nor the circumstances of aggravation are traversable. They are not therefore admitted by the default. A plea in this case denying a battery on the second day of January, (that being the day *136laid in the declaration,) would have been clearly bad, because the plaintiff, to entitle him to recover, is not confined…
2Cited by15 opinions
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