The declaration seems to us to be a sufficient declaration, in substance, for a tort in breaking and entering the plaintiff’s close, although the word close is not used, no objection to its correctness in point of form being made by the defendants.
*196Treating it as such, the answer of the defendant Stone contains a denial of every fact alleged in the declaration, and asserts an authority under the Commonwealth for certain acts done by the defendant, which seem to have some resemblance to the acts complained of by the plaintiffs. Undoubtedly this answer is open to criticism in several particulars; and if the plaintiffs had pointed them out and relied upon them in their pleading, as they have in their argument, they might have availed them. But the statute required the plaintiffs specially to point out in their demurrer the particulars in which the alleged defect consisted. The only cause assigned by them for the demurrer is that the answer does not state a legal defence to the plaintiffs’ declaration. They do not even say, as the statute allows them to do, that it does not contain a legal defence “ substantially in accordance with the rules in the statute contained.” By a demurrer in such terms we think no matter of form is open to them, and that an objection to defences as improperly joined, or to any informal statement of defences in the answer, is not the species of objection which the demurrer presents. If the answer contains anything which is a defence to the action, all other objections to it are waived.
The denial of the plaintiffs’ allegations is unquestionably in its nature, and relieved from all objections of form, a sufficient answer. The defendant Stone is therefore entitled to judgment upon the demurrer. For a like reason the defendant Lawrence is entitled to judgment in his favor upon the demurrer to his answer to the amended count. But the answer of Lawrence to the first count contains no defence to the allegation of breaking and entering, and is in that respect insufficient. The demurrer to that extent is therefore sustained.
As the parties have presented the merits of the defence set up in the answer of the defendant Stone, aside from its general denials, for the consideration of the court, it may not be superfluous to add, that, upon the facts stated in the answer, it appears to us that the armory was not the close of the plaintiffs; that the defendant, acting on behalf of the Commonwealth and with the assent of the city of Lowell, was fully justified in en*197tering upon it, and that on this ground the defence must prevail.
Judgment for the defendant Stone upon demurrer, and for the defendcmt Lawrence on the amended count. Demurrer sustained as to the answer of. the defendant Lawrence to the original count. *
In 1837 the justices of the supreme judicial court, at the request of the governor, gave an opinion as to the right of the commander-in-chief to disband companies of the militia. The opinion is as follows:
“ To his Excellency Edward Everett, Governor of the Commonwealth of Massachusetts.
“ The undersigned, justices of the supreme judicial court, in answer to the question proposed to them by his excellency the governor, with the advice of the council, in his communication dated the 4th of the present month, whether it is competent for the commander-in-chief, with the advice and consent of the council, to order the companies therein mentioned, or any one of them, for the causes therein expressed, to be disbanded, ask leave to submit the following opinion:
“ The undersigned are of opinion that it is competent for the commander-in-chief with the advice and consent of the council to disband any of. the military companies in question, whenever in his judgment there is sufficient cause for the exercise of that power. As this is a power vested in the commander-in-chief, by the constitution and laws of the Commonwealth, for general purposes, which is not to be regarded as special in its operation or character, nor limited in its exercise to the purposes of punishment for misconduct, the above is expressed with reference to the constitutional and legal powers incident to the office of commander-in-chief, and without regard to the supposed misconduct of either the officers or members of the companies referred to in the cases specified.
Lemuel Shaw,
Samuel Putnam,
S. S. Wilde,
Marcus Morton,
“Worcester, 10th Oct. 1837.” Charles A. Dewey."