Snider v. Croy — 2 Johns. 227

Majority

p. 226

Snider and Vanvechten, executors of Bradt, against Croy.

Headnote

B brought an pass°againstS" c, for an in-done to tivo horses, inconsequence of which one of them died, and the trespass on one of them was on one day, and on the other at another day, and the court, on motion of the defendant, compelled the. plaintiff to elect for which trespass he would proceed, and the plaintiff thereupon élected to go for the injury done to the horse that survived, and the jury found a verdict accordingly The executors of B afterwards brought another action for the trespass on the horse which died of the injury-^ and the defendant

This was an action of trespass. The plaintiffs declared that tfie defendant, on the 1st of June, 1804, at Ho-sick, with force and arms, did tie and fasten certain

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pleaded a former recovery for (be same trespass. The plaintiff replied, setting forth the above facts by way of protestando. On a demurrer to the replication, it was held that the executors might maintain trespass for injuries done to the personal property of the testator in his life-time; that the record of the former recovery was no bar, since it appeared by the replication, that the injury done to the horse which died, was not taken into consideration by the jury; but that the replication was bad in stating these facts by way of protestando, and for not traversing and denying a former recovery for the same matter.

boards and billets of wood to the tail of a bay mare, the property of the testator, in his life-time, and of the value of one huudred dollars, by means whereof the mare died, &c.

The defendant pleaded a former recovery in the court of common pleas, of the county of Rensselaer, by the testator himself, for the same trespass, in February, 1805.

The plaintiff repliéd, protesting that the trespass alleged in the declaration, in the two suits, is not the same for which the jury assessed damages, &c. That on the trial in the common pleas, it appeared that the defendant had fastened boards, &c. to the tails of two horses of the testator, by means whereof, one was killed and the other much injured, and that the trespass then complained of was committed on one of the horses on one day, and on the other on another day; that the same being all in one count, the court on motion of the defendant, compelled the plaintiff to elect for which trespass he would go; and that he should not go for both; that the plaintiff, thereupon, elected to go for the trespass-done to the horse which survived, and the jury were charged to confine the damages to that trespass only, which the jury did accordingly. And the plaintiffs averred that the horse mentioned in the present declaration, is the same horse which is mentioned as being killed, in the said record, and this they were ready to verify. ;

To this replication there was a special demurrer, because the replication is no answer to the plea ; because it neither confesses, avoids, or traverses the allegations in the plea; because it tenders no issue, does not con-

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elude to the court, and is multifarious and argumentative, „ i &C.

Upon these pleadings the defendant contended,

1. That executors cannot bring trespass for an injury done to personal property of the testator in his lifetime.

2. That the former recovery, by the testator, was conclusive, and the plaintiffs cannot aver against the récord.

8. That the replication is bad in form, &c.'

Bliss, argued in support of the demurrer.

Boot, contra.

delivered the opinion of the court.

The first question in this case is, whether the executors are entitled to añ action of trespass for the injury alleged.

The statute, (Laws, vol. I. 536.) gives to executors an action of trespass for taking and carrying away the goods of their testator in his life-time. This statute was borrowed from 4 E. hi. c. 7. which had made a similar provision ; and by the equity and liberal construction of that statute, it has been extended to almost every injux-ydone to the personal estate of the testator before his death. {Toller'' s Law of Ex. 121. 345.) It applies to wasting and. destroying, as well as to taking'and cari-ying away the goods of the testator. Our act goes further, and makes thisconclusion inevitable. It gives to executors an action oftrespass against the executors and administrators of any person, who in his life-time had wasted, destroyed, taken or carried away the pei’sonal property of their testator. As the present action would, therefore, have lain against the executors and administrators of Croy, if he had died since the trespass, it is .absurd to suppose that a like action is not maintainable against him. The whole section, taken together, most clearly authorizes the present suit.

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The next question is, whether the replication is not good.

The plaintiffs are, in justice, entitled to recover ; for it is manifest, from the facts disclosed by the replication, that their testator never received any compensation for the injury now complained of; and it was upon the motion of the defendant, that the injury now charged, was not submitted tothe consideration of the jury. The present demand has never been satisfied, and the record of the former recovery is no bar, because it is clearly shown by the replication, that the present trespass was not inquired into in the former action. A recovery in a former action, apparently for the same cause, is only prima facie evidence, that the subsequent demand has been tried, but it is not conclusive. The case of Seddon v. Tutpot, (6 Term. 607.) is very pointed and perfectly applicable; and if the reasoning in that case be sound, and of which I entertain no doubt, it is á decisive authority. That was an action of assumpsit for. goods sold, to which there was a plea of a former recovery, and a replication that the promise in the last suit was not the same promise, for the non-performance of which, a sum of money was recovered in the same action. Upon the trial it apr peared, that the former suit was upon a promisory note, and for goods sold, and that upon the execution of the writ of inquiry, the plaintiff not being prepared with proof as to the goods sold, took an inquisition for the amount of the note only, and brought a new suit for the goods sold: Upon these facts the court of King’s Bench ruled that the former recovery was no bar, and they referred to the case of Kitchen v. Campbell, (3 Wils. 304.) where it was determined, that the test to know whether a verdict, and judgment, in a former action, is a bar, is whether the same evidence will support both actions.

The only remaining question then is, as to the form of the replication, and in this respect I think it defective. It is argumentative, instead of traversing and denying a

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former recovery for the same matter. The matter con-Gained in the protestando, should have formed the substance of the replication; for if the facts averred can be supported, the trespass alleged in this action, is not the same for which damages were given, and a recovery had, in the former action.

The plaintiffs ought, therefore, to have leave to amend their replication, on payment of costs.