Butterworth v. Soper — 13 Johns. 443

Majority

p. 443

Butterworth against Soper.

Headnote

raanuctionot an officer of the militia, who has j.^oawarrant ®°|nc^r ofa'r^imTntfi defeLdínt spSi8‘matter jSstmcatíon.u'nn/ue!116 £eneMa

IN ERROR, on certiorari to a justice’s court.

THE defendant in error brought an action of trespass in the ... ', A court .below against the plaintiff in error, and declared, for that he had, without authority, issued a written ordei’, commanding a constable to levy a fine for the delinquency of the son of the plaintiff below, as a soldier in the militia; in pursuance of which order the constable took and sold the cow of the plaintiff. The defendant below pleaded the general issue, and the plaintiff having proved his declaration, the defendant offered to prove that-he issued the warrant for collecting the fine, in pursuance of the sentence of a regimental court martial. The plaintiff objected that this justification was inadmissible under the general issue, and the justice gave judgment for the plaintiff below.

There is no error, and the judgment must be affirmed. The statute^[1] authorizing such defence under the general issue, does not extend to this case.

Judgment affirmed.

* (See act.for the more easy pleading in certain suits, N. R. L. 155. sect. 1.