Kennedy v. Strong — 10 Johns. 289

Majority

p. 293

Kennedy, survivor, &c. against Strong.

ALBANY,

August, 1813.

Headnote

in an action of trover, the defendant m beaded" speg^ite^ere* soid^by order tiff on coin-"h’aT^he^dlfendaru^was under the in“^pedal p®™™®hgy bad for dupii-

the degpeSywhat j^g^eral issue, it is bad demurrerTL ™0“*°ÍJhere defendant pleaded that the goods BulnTt’o the* w as held to issue.

unde^themt ¡f no bar to an ver. Nor is a ^er the. good plea m bar to an action against a factor or goods deUvered to him to count of the °¡gnor.°*

THIS was an action of tro ver, for four cases and a bale of ho- • t „ , yiery* The declaration was in the usual form. 1 he defendant pleaded, 1. Not guilty, with notice of his discharge under the insolvent act; 2. That the defendant and one Davis were copartiters in trade, and the plaintiff and his deceased partner, Stay ley, 'in his lifetime, &c. as copartners in trade, by a contract in writing, consigned to the said Strong S' Davis, as partners, certain goods, to wit, four cases and one bale of hosiery, to sell for the account of the plaintiff and his partner; that the goods came to the possession of the defendant, as one of the firm of Strong S' Davis, and that he sold them, as one of the said firm, according to the instructions of the plaintiff and his partner, in the Island of Cuba; and that the defendant, afterwards, being an insolvent debtor, within the meaning of the act passed the 3d April, 1811, and being prosecuted by civil process, &c. presented his petition to the recorder of New-York, See. v/as discharged, &c. on the 3d December, 1811, &c. setting forth the discharge verbatim. The defendant averred that the goods mentioned in the declaration were the same as those sold by the defendant, &c.

. . , _ , . 3d. I he like plea, stating that the goods were consigned to the defendant, without mentioning his being copartner, and setting forth his discharge under the insolvent act, subsequent to the consignment and delivery of the goods to him.

There were special demurrers to the second and third pleas, The causes of demurrer assigned were," 1. That the matter set forth amounted to the general issue, and ought not to have been pleaded specially; 2. Because no issue could be taken on either plea, being double, first denying the conversion, and, secondly, setting forth the defendant’s discharge under the insolvent act; and, 3. Because the discharge set forth is no bar to this action, which is , , , ■ , , iounded in tort.

Slosson, in support of the demurrer.

When the defence consists of matter of fact, amounting to a denial of the allegation of the plaintiff, it ought to be given in evidence under the general issue, and if specially pleaded, it is good cause for a special demurrer.^[9] Now, whatever goes to show that there was no conversion amounts

p. 294

to the general issue, for it is a complete negation of the tort. If the goods were sold pursuant to the order of the plaintiff) there was no conversion, and this might be given in evidence under the general issue. The special plea ought not to be encouraged, as every thing which goes to show that there has been no tort, may be given in evidence under the plea of not guilty, which is the proper plea in trover.

Trover is an action arising eic delicto, or for a tort.^[9] The insolvent act of April, 1811, (sess. 34. c. 123.) refers only to debts or contracts, express or implied. In Strong v. White,^[3] it was expressly decided that the act did not extend to an imprisonment for torts. Even m England, under the bankrupt laws of that country, where the discharge is not limited in its effect, the courts have decided that it could not be pleaded to an action of trover. The form of the action is matter of substance, and courts will maintain the established distinctions between the different kinds óf actions.^[4]

Again, the plea is manifestly bad for duplicity. It states two distinct and independent points or grounds of defence: 1. That the goods were delivered to the defendant to be sold on commission ; 2. That the defendant has been discharged under the insolvent act.

J. Strong, contra.

Though the general plea of not guilty is the most usual plea, yet the defendant, admitting the property iir the plaintiff, may plead any matter which justifies the conversion. Special pleas of justification in trover are frequently to be met with in the books.^[5]

A plea may contain several matters or distinct facts, which make but one defence. Duplicity is where distinct matters which. do not form a part of one defence are put in issue.^[6] A single point may consist of several matters of fact.^[7]

The technical objection as to the form of the action, is not sufficient to prevent the discharge from being a bar. Livingston, J. in the case of flatten v. Speyer,^[8] disregards this technical difficulty, and puts it on the ground of the claim being susceptible of proof before the commissioners of bankrupt; and he lays it down, on the authority of the English decisions, that all claims may be proved which are not contingent, or which" do not arise from such torts, as assault and battery, slander, trespass on land, in which the damages are arbitrary and depending on the

p. 295

judgment and discretion of a jury. The case of Strong v. White arose on an action for a libel, and it is not denied that in such an action, or for a proper tort, the discharge cannot be pleaded.

Precedents for pleas like the one in question, may be found in the books o.f entries.^[9]

The special pleas are bad on this special demurrer. The first special plea is double, and contains distinct and independent matter, viz., a sale of the goods by order of the plaintiff, and a discharge under the insolvent act. The plea is bad, on special demurrer, in another respect. It amounts to the general issue, and though the old books contain numerous precedents of special pleas in trover, they are deservedly discountenanced in modern times, as leading to unnecessary expense and troublesome prolixity. The defendant could avail himself, under the general issue, of the matter pleaded; and though a special plea in trover was admitted in the late case of Webb v. Fox, (7 Term Rep. 391.) yet Lord Kenyon, who censured the plea, said it would have been bad on special demurrer. The last objection applies equally to both pleas, but the last plea is bad in substance, for it admits that the goods were consigned to the defendant to be sold for and on account of the plaintiff; and then, without stating any disposition of the goods, sets up the discharge under the insolvent act. The plea admits that the defendant took the goods as factor or trustee for the plaintiff, and such property does not pass by assignment under the insolvent act, nor will the discharge affect it. The defendant remains equally liable as trustee, since as before the discharge. (Kips v. Bank of New-York, 10 Johns. Rep. 63 .) The first plea, so far as it sets up the discharge, and the second plea of the discharge are equally bad, because, a discharge under the insolvent act is no bar to an action of trover, which is grounded upon a tort or a wrongful conversion of the plaintiff’s property. The same rule applies to a case of bankruptcy in England, where it is no bar to an action of trover, though the conversion happen before the bankruptcy. (Parker v. Norton, 6 Term Rep. 695.)

The plaintiff is, accordingly, entitled to judgment upon both the demurrers.