Bradley v. Powers — 7 Cow. 330

Majority

p. 329

J. D. Bradley, against Powers and Hunt.

NEW YORK,

May, 1827.

Headnote

where in trespass against a constable and another, for taking goods on a justice’s executions in one county, the venue being laid in another, the defendants pleaded the general issue jointly; and the jury found that the other defendant acted officiously, and not in aid or assistance or by command of the constable, 50

Trespass de honis asportatis, tried at the Monroe circuit, June 1826, before Birdsall, 0. Judge. ' ' °

p. 330

that he, (the other defendant,) was not within the statute for more easy pleading in certain suits, (1 R. Ii. 155;) held, that the constable, having joined in the same plea, was also, thereby, deprived of the protection of the statute.

Where two plead a justification jointly, or a plea involving a justification, which fails as to one the plea, being entire, fails as to both.

1 veraie was laid in Monroe county. The defendants pleaded the general issue jointly.

At the trial, the plaintiff proved, the taking of his goods -n Q.enegee county, by the defendants, who claimed to have acted under certain executions against L. Bradley, issued by a justice of Genesee. The defendant, Hunt, held the executions, being a constable of that county; and levied upon the goods in question as those of L. Bradley, pursuant to the advice and direction of the defendant, Powers; both being first informed by the plaintiff that the property was his. Powers, on the plaintiff’s claim being interposed, told Hunt, that he, (Powers,) would indemnify him against the levy; upon which, he took the property.

The defendant moved for a nonsuit, on the ground that the action was local, and should have been brought in *Genesee, within the statute for the more easy pleading in certain suits, (1 B. L. 155,) Hunt acting as constable, and Powers, in his aid. That, at all events, the constable was within the statute. The judge overruled the motion, on the ground that if the jury should find that Powers was not acting by the command of Hunt, but voluntarily and officiously, he (Powers;) was not within the statute; and that Hunt, having joined Powers in the plea under which the evidence was offered, must abide the decision as to him. The judge charged the jury accordingly; submitting to them the question, whether Powers acted by Hunt’s command, or officiously, as having an interest in the executions. Verdict for the plaintiff.

J. A. Spencer,

now moved for a new trial, on the ground that the judge should have directed the jury to find in favor of Hunt. He said the action as to him was local. The idea that the fate of one must abide that of another who is joined with him in a justification, applies only where they join in a special plea of the matter upon which they justify.

p. 331

When they plead the general issue, one may be found guilty, and the other not guilty. (2 Esp. Dig. 364, and the cases there cited. 1 Saund. 28, note (2.) 14 John. 166 .)

J. L. Wendell, contra.

The plea being entire, and the defense failing as to one, it must fail as to both. (1 Saund. 28, note (2).) The plea, in this kind of action, though not a justification in form, is equivalent to a justification. It is made so by the statute relied on; and the same rule applies as if the whole defense had been pleaded at length. (2 Str. 993, 1184; 2 Wils. 384.) But the reason is the same if it be considered the general issue. (2 Caines, 108; 2 Cowen, 426.)

The decision of the judge, at nisi prius, was correct. The jury have found that Powers did not act in aid or assistance, or by commandment of the constable; and he, therefore is not entitled to the benefit of the statute for more easy pleading in certain suits, (1 R. L. 155.) Hunt, the officer, by uniting in the same plea with one who was not within the statute, also lost the protection of it. (2 Caines, 108; 2 Cowen, 426: 1 Jaund. 28, note (2).) In the case of Schermerhorn v. Tripp, (2 Caines, 108,) the plea was the general issue. But it was there distinctly held, that where, in trespass against several, all unite in a plea of not guilty, the separate justification which one might have pleaded, is gone. (And vid. 2 Wils. 385; Str. 993, 1184.) The defense here is in nature of a justification; and admits the original trespass. It is conceded, that if the justification had been jointly pleaded, the privilege of the constable would have been forfeited. The case as presented is substantially the same. The general Issue involves a justification.

Hew trial denied.