Snyder, Van Vechten, and Bradt, executors of Bradt, against Croy, 2 Johns. 428

SpenceR, J. Wherever- there is an affirmative held . . , ... by one of the -parties, and the other negatives it, there is substantially an issue between them, ready to be tried, This is the .case here. .The defendant says, that the trespass for which he is now sued, has heretofore been prosecuted, and that the plaintiff’s testator recovered damages for it. This the replication denies, and tenders an issue to the country. In good sense and sound lo- gic there can be no necessity for the defendant to answer over, when he must have reiterated the facts set forth in his plea.

Upon authority, it is settled, that where the replication denies the substance of the plea, it may conclude to the country. In the present case, the substance of the plea is denied, for although the defendant had set forth the record of the other suit, that was matter of inducement. The essence of the plea is a former recovery for the same trespass. The replication is‘informal in praying judgment; büt to this informality the special de;-murrer does not-extend, and it cannot be noticed unless the defendant puts his finger on the informality.

There is more weight in the objection, that after the insertion pfán ohsque hoc, the plaintiffs should have concluded with 9. verification ; but I.think that the distinction taken by. the. court in Haywood v. Davis and others, is sound; that where the ohsque hoc comprises the whole matter generally, it may conclude to the country, but not where it only traverses a particular matter. This principle is also, recognised in many other cases. I have already said, that the replication put the substance, ofthe plea in issue, and the ohsque hoc in this case comprises the whole matter. The case, also of Rohinson. v.

Raley, supports this opinion. In that case, the replication to the plea to the 13th count, traversing the license, after protesting that the tree wps not used for gates, &c. as was alleged by the defendant’s plea, and concluded to the country. On ,a special demurrer to this replication, it was held to be good. This last exception is wholly misapplied 5 there is no new assignment of a trespass ip the replication. It maintains the trespass alleged in the. declaration. The plaiptiif must have judgment. Kent, Ch. J. and Van Ness, J. were of the same opimon. Thompson, J. not having heard the argument, gave no opinion.

Judgment for the plaintiff- 2 Term, 439. Doug. 94. in note. 1 Wils 219. 1 Salk. 4. Vent. 101. 1 Saund. 103 note a. 6. Clark v. Glass. 1 Burr, 317.