Benedict agt. Seymour. instance will put this in a clear light. A, before the Code, sued me in trover for a horse, and I put in a plea that the horse, at the time of the alleged conversion, was my property, upon which the plaintiff took issue. If I maintained this issue, I made out a clear defence; but suppose upon the trial I had proved that the horse belonged to B, the issue must nevertheless have been found against me. Would the plaintiff therefore have been entitled to judgment? Clearly not. If he would, B might have sued me the next day for the horse and recovered upon the same evidence. A repleader was the remedy in such a case, if a verdict was found for the plaintiff. The same consequences attended every special plea amounting to the general issue. That this and not their tendency to prolixity, was the true reason why such pleas were held bad, is evident from the nature and success of the expedients invented to obviate the difficulty. The first of these was the special traverse, which consisted in merely appending to the plea a denial of the allegation in the declaration with which the matter of the plea conflicted. This was the origin of the absque hoc clause. This clause was held to make the plea good. But if prolixity was the objection, it is difficult to see how it was removed by converting the affirmative facts, which before were traversable, into mere matter of inducement which could not be traversed and need not be proved. Such a plea was good, simply because it presented an issue which found either way, would be decisive of the cause. This expedient however, although it cured the fault in the plea, did not effect the object generally in view; which was either to compel the plaintiff to admit some portion of the facts, and thus narrow the evidence, or to take the judgment of the court upon the sufficiency of the defence without going to the jury. This led to another invention highly artificial but effectual; to wit, that of giving express color. This consisted merely in admitting upon the face of the plea a state of facts purely fictitious, which but for the facts stated in defence, would support the action. This of course cured the defect; because if the issue upon the special matter was found for the plaintiff, although that find Benedict agt. Seymour. ing would not of itself show him entitled to recover; still he would then have judgment upon the admitted facts; the answer to those facts having been overthrown by the verdict. This again demonstrates that this tendency to prolixity was not the real objection to pleas amounting to the general issue, because the addition to such a plea of a fictitious cause of action for the plaintiff would be an absurd remedy for such an evil. The difficulty was this: It resulted from the very organization of the complex tribunal composed of court and jury; that the court could look only at the record in giving its judgment. The record, therefore, must show a right of recovery in the plaintiff, either found by the jury or admitted by the defendant; or a judgment for the plaintiff would be erroneous upon its face. It is certain that a special plea, which amounted to the general issue, or in other words, which denied argumentatively any material facts alleged by the plaintiff, did not even impliedly admit facts enough to constitute a cause of action; and it is equally clear that an issue found for the plaintiff upon such a plea would not, for the reasons I have given, show him to have any. Hence such pleas were defective. This subject might be further illustrated by reference to pleas giving implied color, as it was called, but I will not dwell longer upon it. It may be thought by some, that all this reasoning about what are called the subtleties of common law pleading is unnecessary in construing the simple provisions of the Code. The Code has on this subject all the simplicity which exists in the nature of things, and can not well have more. What particular subtlety is there about the rules of which I have been speaking? Can any thing be more palpable than these rules, as well as the reasons for them? And are they not just as applicable to judicial proceedings now as they ever were? Is the court under the Code to render a judgment for a plaintiff, unless the right to that judgment results in law from the facts admitted by the defendant or found by the jury? Must not such a judgment be reversed upon the face of the record? No one can doubt it. Again, a jury can determine nothing but the issue presented to Benedict agt. Seymour. it. Upon an allegation, therefore, by the defendant, that he owned the property claimed in the suit, which allegation is denied by the plaintiff, the jury can not find by their verdict that the plaintiff owned it. Such a verdict would be foreign to the issue and must be set aside. It would be unworthy the jurisprudence of any enlightened country to admit of such looseness. Upon a proper verdict therefore for the plaintiff, upon such an issue, no judgment whatever can be rendered, nor ever could with propriety; and an issue upon every plea, denying argumentatively any material allegation of the plaintiff, must be of this character. The practical difficulty growing out of this necessary rule, was avoided at common law by such pleas being generally pleaded in connection with the general issue, a verdict upon which latter issue against the defendant, would entitle the plaintiff to judgment. But as the plea might be pleaded singly the rule was indispensable. It is so still; unless we absolve courts from the necessity of looking exclusively at the record in giving their judgment, and permit them to dispose of cases in view of facts not there appearing; or unless we allow juries to find their verdicts according to their conceptions of the abstract rights of the parties, without regard to the issues presented to them. Can any one fail to see that these rules, which circumscribe the power of juries, and limit the discretion of courts, constitute our most effectual guaranties for the faithful and regular administration of justice? And shall we then throw them away? There is no necessity for this. The Code does not require it. No such warfare between law and logic results from its provisions. I hold it therefore to be incontrovertible that every special defence which consists of matter which goes to disprove any material allegation in the complaint is defective and must be stricken out on motion. A doubt may be raised where the new matter is pleaded not in connection with a direct denial of any portion of the complaint, but as a separate defence, whether it can strictly be considered as redundant. This question, however, is not of the slightest importance; be Flynn agt. The Hudson River Rail Road Company. cause the court at common law possessed the power to strike out these pleas on motion; and this was the appropriate mode of getting rid of them instead of by demurrer, for this plain reason, that a demurrer admitted the truth of the plea; and the facts contained in such a plea, if proved or admitted, must necessarily constitute a good defence. To render judgment for a plaintiff, therefore, upon demurrer to such a plea, as was sometimes done when the demurrer was special, was incongruous, and not in accordance with the usual theory of pleading. This common law right of striking out such pleas on motion, has never been taken away; and the effect of the Code is to restore to us this ancient and simple practice which prevailed in early days in the common law courts. It follows from this reasoning that all and every portion of the answer in this case except the direct denials of the allegations in the complaint are defective and redundant and must be stricken out. No costs are allowed as it is an unsettled question. SUPREME COURT. FLYNN agt. THE HUDSON RIVER RAIL ROAD COMPANY. A suit can not be legally commenced against a Rail Road Corporation (for loss of baggage or any thing else) by the service of a summons upon a “baggage master" in their employ. He is not such a "managing agent" as the statute contemplates. But a general appearance, waives the irregularity of such a service. An action against a common carrier, under the Code, sounds in tort; and an application to the court for judgment under the second subdivision of § 246 must be made, where judgment is taken for want of an answer. Albany Special Term, December 1851. Motion to set aside judgment, &c., for irregularity. The action was brought to recover the value of a carpet bag and its contents, alleged to have been lost by one Sullivan, a passenger on the defendants' road. The summons is in the usual form with a notice that upon Flynn agt. The Hudson River Rail Road Company. the defendants' failure to answer, the plaintiff will take judgment for $150 and interest. The summons was served upon one Hotchkiss, a "managing agent" of the defendants, having charge of the baggage department at their depot at East Albany, on the 17th of November 1851. The next day the defendants' attorney served a notice of appearance, but omitted to demand a copy of the complaint, none having been served with the summons. The plaintiff afterwards filed his complaint, in which he alleged that Sullivan, having taken and paid for his passage from East Albany to Schodack, delivered his carpet bag with its contents to the defendants, which they put into their baggage car, and engaged to deliver to Sullivan upon the arrival of the train at Schodack; that they landed him there, but did not deliver his baggage, as they had agreed to do, but on the contrary, had lost it; whereupon they became liable to pay him the value of the carpet bag and its contents. The complaint also alleges the assignment of the claim by Sullivan to the plaintiff. On the 11th of December the plaintiff, for want of an answer, perfected a judgment for $158.99. E. J. SHERMAN, for Plaintiff. J. H. REYNOLDS, for Defendants. HARRIS, Justice.—It is very clear that the service of the summons upon Hotchkiss was not a sufficient commencement of the suit. He was not such a "managing agent" as the legislature intended, when it authorized the summons to be served on a person holding that relation to the corporation. To authorize such a service, the agent must have the same general supervision and control of the general interests of the corporation that are usually associated with the office of cashier or secretary. It was never intended that a rail road corporation might be sued by serving process upon a baggage master. But this irregularity, or want of legal service, has been cured by the general notice of appearance served by the defendants. They thereby admitted themselves to be "regularly in court" (Dix agt. Palmer, 5 How. Pr. R. 233). But the defendants insist that the plaintiff could not regularly perfect his judgment without application to the court. I think |