Hanna v. Rust
New York Supreme Court
Demurrers to replications. The plaintiff declared in trespass, assault and battery, against three defendants, viz. Must, Winton and Stewart. The defendant Rust pleaded, ].. the general issue, and 2, specially, .that long before and at the said time when, The plaintiff, by leave of the court, put in four replications to this plea. First, not necessary to be noticed. Second.
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Demurrers to replications. The plaintiff declared in trespass, assault and battery, against three defendants, viz. Must, Winton and Stewart. The defendant Rust pleaded, ].. the general issue, and 2, specially, .that long before and at the said time when, The plaintiff, by leave of the court, put in four replications to this plea. First, not necessary to be noticed. Second. As to so much of the plea as alleges that Rust requested him to cease from making noise and disturbance, or to go and depart from and out of the house which the plaintiff wholly refused to do, the plaintiff says that at the…
1Opinion of the Court
By the Court,
Bronson, J.
The issue tendered by the second replication is too narrow. The plaintiff attempts to excuse his continuance in the house after a request to depart, without giving any reason for the noise and disturbance which he continued to make in the house after the request. And again: the point of the issue, as the plaintiff presents it, is, that he did not wholly refuse to depart. That may be true, and yet there may have been such a refusal as would authorize the host or his servant to remove him.
Another objection to the replication is, that it sets up new matter, and then…
2Cited by2 opinions
- Purdue v. NoffsingerIndiana Supreme Court · 1860
- Foye v. SewellNew York Court of Common Pleas · 1888