
    W. H. Ellison vs. H. K. Aiken.
    In trespass quare clausum fregit defendant justified because of a “private path,” setting forth no termini, and plaintiff demurred generally: Held, that if the plea was defective because the termini were not given, such defect was matter of form, and the demurrer should have been special.
    In a plea of justification to a civil action, Hob termini of a “ private path,” which in this State is a public way, need not be given.
    After judgment overruling a general demurrer, leave to plead over will not be given.
    BEFORE WHITNER, J., AT FAIRFIELD, SPRING TERM, 1857.
    Tbe plaintiff declared in trespass quare clausum fregit.
    
    Tbe defendant pleaded tbe general issue, justification by reason of a “private path,” and justification by reason of a private way.
    Tbe second plea above referred to, sets forth tbe private path thus, “ because be says, that before, &c., there was and of right ought to have been a certain private path into, through,over and along tbe said close in which, &c., for all persons to go, return, pass and repass, on foot and with horses, mules, cattle, carriages, carts and wagons, at all times, at their free will and pleasure. Wherefore the said defendant having occasion to use the same private path, when, &c., with, &c., went, passed, &c., &c.”
    To this plea, the plaintiff demurred generally, on the ground that the plea did not set forth any termini.
    
    His Honor overruled the demurrer.
    The plaintiff appealed on the ground:
    That his Honor erred in holding that a plea, setting forth a “ private path” as a justification for a trespass, is good, when it does not set forth any termini.
    
    
      Rion, for appellant,
    now moved for leave to withdraw the demurrer, and reply to defendant’s second plea. He submitted that the Courts in this State, distinguish between the case of a Plaintiff,\ and a Defendant demurring, — as allowing defendant to plead over would always operate a delay to plaintiff. Moore vs. Burbage, 2 McMul. 169 ; Aaron, admr. vs. Harley, 6 Eich. 26. Even the defendant is allowed to plead over in some cases, upon terms of paying costs. Bxr’s. of McQrady ads. Brisbane, 1 N. & McC. 108. The motion is properly made according to what is indicated in Price, Ex'r. vs: Price, 1 McMul. 291, and in Aaron, adm's vs. Harley; and may properly be granted according to Bxr's. of McQrady ads. Brisbane; Ayres vs. Wilson, Douglass, 385; 2 Wils. 173; 1 Moore, 61.
    Failing in this motion, then he moved for a reversal of the decision below. There can be no question, but that, by the rules of pleading in England, the termini of a private way must be set out; of a public way, not. 3 Ohitty PI. 1119 note(á). A “ private path” is the creature of South Carolina legislation, partaking of the nature both of a public, and a private way. Evans’ Eoad Law, sec. 1 to 9, inclusive. In reference to the mode and character of their terminations, or termini, there is no distinction between a “private path” and a private way. Id. According to the general rules and theory of pleading, and according to the reason of the English rule of pleading ways, (public and private,) the termini of a “ private path” should be set forth in pleading. 2 Saunders on P. & E. 919; Story’s Pleadings, 663.
    
      Boylston, contra.
    It is not necessary to set forth the termini in pleading a public way. 3 Chitty PI. 1116, note (w). A “private path” is a public way. State vs. Pettus, 7 Eich. Tbe reason of tbe distinction may be found set forth in tbe opinion of Wilson, J., in tbe leading case of Rouse vs. Barden, 1 H. Black. R. 355. In any point of view, tbe objection is merely one of form, and, if valid, was only ground for special demurrer.
    After general demurrer, joinder, argument and judgment tbereon, tbe Court bas no power to grant leave to amend. Moore vs. Burbage, 2 McMull. 169; Bagley -vs. Johnston, 4 Ricb.
   Tbe opinion of tbe Court was delivered by

O’Nball, J.

The plaintiff’s ground of appeal as set down in tbe report cannot avail bim. For be could not under bis general demurrer draw in question tbe point wbicb be wished, to wit, that tbe plea did not state tbe termini. For bis demurrer admitted tbe character of tbe road, a private path, wbicb is a public way, and along wbicb tbe defendant bad tbe right to pass and remove all obstructions.

If tbe termini ought to bave been stated, it was not matter of substance but was merely of form, and was tbe subject of special demurrer. A general demurrer does not raise such questions. It merely questions whether tbe plea in substance is good. But it is very clear in a plea to a civil action, it is not necessary to set out tbe termini of a public way. This tbe plaintiff concedes: but now insists, that be ought to be allowed to withdraw bis demurrer and reply. But this cannot be done. The judgment bas been pronounced against bim. Tbe Court can merely say whether it is right! Tbe case of McFarlan, vs. Dean, Cheves., 64, pointed out tbe distinction between tbe judgments on special and general demurrer. In tbe former tbe judgment was respondeat ouster, or to amend on payment of costs; in tbe latter, that it was final. Tbe case of Moore vs. Burbage, 2 McMull. 169, recognised tbe distinction and solemnly settled, that the judgment on general demurrer was final.

It is so here, and the plaintiff has been caught in his own trap. Prom the statements made at the bar, we are glad that it will work no injury to the plaintiff beyond the payment of costs, which is perhaps not an inappropriate penalty upon those, who unadvisedly resort to technical precision to cut off an adversary’s rights.

The motion is dismissed. '

Whither, Glover and MüNRO, JJ., concurred.

Motion dismissed.  