Wood v. Mann et al.

so particular as the answer in support of it. But still it must generally by proper averments deny notice of the fraud and imposition, otherwise the fact of fraud and imposition will not be in issue. The case of Pennington v. Beachey (2 Sim. & Stuart R. 282) fully supports this distinction. The ViceChancellor on that occasion said: "It is not the office of a plea to deny particular facts, even if such particular facts are charged." At the same time he held, that there must be a general denial of notice in the plea, and special denial of the particular facts in the answer in support of the plea. But I think the averment of the plea, in this case, is too argumentative, and not sufficiently pointed. It is, "that this defendant had no notice whatever of any title, claim, or demand of the complainant, or of any other person, to or in the lands so purchased by this defendant, as aforesaid, which would affect the same or any of them, or any part thereof." Now this is no denial of notice of the asserted fraud and imposition; but it is merely arguendo, that he had no notice of any title, &c., in the lands, which could affect the same. How can the Court say, until it knows, what facts he had notice of, whether they would affect the title or not? The averment contains a denial of matters of law, and not of matters of fact.2

I have the less hesitation in overruling the plea absolutely on this account, because if it were permitted to stand for an answer with liberty to except, it would be defective, and upon exceptions must be amended. And no difficulty will

1 Ibid.

2 See Cooper's Eq. Plead., p. 283. Mitford's Eq. Plead., pp. 286, 287, (4th edition, by Jeremy.) Jerrard v. Saunders, 2 Ves. Jr. R. 187. S. C. 4 Brown Ch. R. 322.

VOL. VI,

Claridge v. Hoare, 14 Ves. R. 59, 66.

65

Crosby v. Folger et al.

occur in stating fully, by way of answer, all the matters, which may establish the defence. At the same time I am satisfied, that the bill requires amendment, so as to charge the notice more directly; and the answer should meet the allegations more distinctly.

Plea overruled.

JOHN CROSBY, JR.

v.

PHILIP P. FOLGER AND OTHERS.

In a case of tort, several costs of travel, attendance, and attorney's fees will be allowed to several defendants, whether the pleadings are joint or several.

THE action was trover against four persons. No pleas were filed until October Term, 1833; no motion or call was made by the plaintiffs for pleas; and no objection was made to the pleas, when filed by the plaintiffs.

The cause proceeded to the Jury, and the plaintiffs went through their side of the cause. The defendants stated their case, and put in some of their evidence, when the Court intimated an opinion against the plaintiffs, and they became nonsuit.

The defendants now moved for several costs of travel, and attendance, and attorney's fees. They claimed them under the authority of a case decided in Massachusetts, (Mason v. Waite, 1 Pick. R. 452,) which they thought settled this

case.

The plaintiff's Counsel objected to the allowance of several costs at all; and at least, they said, they could not be allowed before the pleas were actually filed.

Crosby v. Folger et al.

THE COURT, upon the authority of Mason v. Waite, (1 Pick. R. 452,) directed several costs to be allowed to the defendants. They thought it made no difference in a case of tort, whether the pleadings were joint or several, as to costs.1

Hubbard and Webster for plaintiff.

C. P. Curtis for defendants.

1 See Brown v. Stearns, 13 Mass. R. 536.

CIRCUIT COURT OF THE UNITED STATES.

Spring Circuit.

MAINE, MAY TERM, 1834, AT PORTLAND.

Hon. JOSEPH STORY, Associate Justice of the Supreme Court.
Hon. ASHUR WARE, District Judge.

THE SCHOONEr Nymph, BibbORD CLAIMANT.

Since the Act of 1828, ch. 109, the mackerel fishery cannot be lawfully carried on under a license for the cod fishery, in pursuance of the Act of 1793, ch. 52, § 32. Semble, that before the Act of 1828 it could not be carried on under such a license, unless so far as it was an incident to the cod fishery; as, for instance, for bait, or provisions for the crew.

The cod fishery is a trade within the true intent and meaning of the 32d section of the Act of 1793, ch. 52. So is the mackerel fishery. "Trade" in the Act is used as equivalent to occupation, employment, or business, for gain or profit.

THIS was the case of a libel of seizure against the Nymph, a vessel licensed for the cod fisheries. And the charges were: (1st.) That during the continuance of the license the schooner was employed in a trade other than that, for which she was licensed, contrary to the 32d section of the Coasting Act of 1793, ch. 52, (8); (2d.) That during the same period she proceeded on a foreign voyage, without first giving up her enrolment and license, contrary to the 8th section of the

The Schooner Nymph.

same Act. The District Court pronounced a decree of acquittal upon the facts; and from that decree the United States appealed to this Court.

The cause was argued at this term by Anderson, District Attorney, for the United States, and by C. S. Daveis for the claimant.

STORY J. There are in this case two points; one of law, upon which, having been fully argued, the Court will now pronounce its opinion; and the other of fact, which will be open for argument at a future term, if in the mean time the cause is not otherwise disposed of. The schooner was duly licensed in October, 1832, to be employed in the cod fishery, pursuant to the Coasting and Fishery Act of 1793, ch. 52. And the allegation made at the bar is, that she was during the existence of that license employed in the mackerel fishery, which, it is contended, is a trade other than that for which she was licensed; and consequently, that she is subjected to forfeiture under the 32d section of the Act. Assuming, that she was so employed in the mackerel fishery, it is contended; first, that the mackerel fishery is not a trade within the meaning of the 32d section of the Act; and, secondly, that if it be, still the license for the cod fishery includes the right to be employed in the mackerel fishery.

The 32d section declares, that if any licensed ship or vessel shall be employed in any other trade than that, for which she is licensed," she, with her tackle, &c. shall be forfeited. And the first question is, in what sense the word "trade" is used in this section. The argument for the claimant insists, that "trade" is here used in its most restrictive sense, and as equivalent to traffic in goods, or buying and selling in commerce or exchange. But I am clearly of opinion, that such is not the true sense of the word, as used in the 32d section. In the first place, the word "trade" is often