
    John H. Sargeant vs. Hon. Wm. Johnson, Solomon Moses, and J. S. Cogdell.
    To an action for false imprisonment, tlie defentlants pleaded “not guilty within/oar j-ears,” (whereas the act requires but one to bar the action) “ next before tlie suing out of the original writ.” The plaint titfreplied that he had sued out the writ within the time required by tlie law. To this replication, the defendants demurred, and assigned for cause, that tile replication was vague and uncertain, in not denying tlie defendant’s plea, nor in specifying the time within which the writ was issued; the court Held, that if the plea was defective, (which il did not seem to think,) itcould only be taken advantage of !\v a special and not a general demurrer; which advantage was writ'. sclby the plaintiff’s replication: and that the replication was also defective, inasmuch as it did not deny the allegation in the defendant’s plea, nor specify the.time within which the action was commenced. The rule that the court will lookback through all the proceedings, and give judgment against the party who has been guilty of the first fault in pleading, applies only, where the preceding pleadings were defective in substance and not merely in form, and such a3 would bo aided on a general demurrer.
    This was an actioil of false imprisonment, tried before Mr. Justice Bay, Fall Term, 1819. The defendants pleaded not guilty within four years next before the suing out of the original writ. The plaintiff replied that he had"sued out the writ within the time required by the law. To this replication, the defendants demurred, and assigned for causes of demurrer, that the replication was vague and uncertain in not denying the defendant’s plea, r.or in specifying the time within which the writ was issued.'
    The presiding Judge maintained ' the demurrer, and gave judgment for the defendants in the action.
    This was a motion to reverse that decision.
   Mr.' Justice Nott

delivered the opinion of the court. ..

The defendants in this cáse appear to have been under an impression that the act oflimitatioh allows a plaintiff in an action of false imprisonment, four years to commence bis suit, whereas it allows but one. And it appears by some authorities that a special demurrer to such a plea ought to be supported. (1 Espinasse N. P. pt. 181.— Salk, 442.) But it is difficult, perhaps, to give a good reason for that rule. The general rifle of law is, “ omne majus cóñtinet in se minus.” If the defendants had not been guilty within four years, a fortiori, they could not Have been guilty within one. But admitting the plea to be bad, it could only be taken advantage of by a special and not by a general demurrer, (6 East, 387, Macfaden vs. Olivant;) and this advantage the plaintiff waived by his replication. The replication also is defective, inasmuch as it does not deny the allegation in the defendant’s plea, r-cr specify the time within which the action was coremen-¿ed. It is now contended that as the defendants have demurred to the plaintiffs replication, the court will look back through all the proceedings, and give judgment against the party whp has been guilty of the first fault in pleading. But that rule applies only where the preceding pleadings are defective in substance and not merely in form, and such as would be aided on a general demurrer. (1 Chitty, 647.) The demurrer was therefore properly sustained in the court below, and this motion must be refused..

Justices Colcock, Johnson, and Huger, concurred.  