Currie v. Henry

avers that this is the same escape as is set forth in the? plaintiff’s declaration, &c. with a verification, &c. 3. That the said Haff, on the 24th May, 1805, by force'and arms, broke and escaped out of the said prison and the custody of the defendant against his will and without his knowledge* and that the defendant, immediately after the escape, made fresh pursuit for retaking the said Haff, «fee. and made and continued such pursuit, &c. until af-terwards, on the same day, &c. and before exhibiting the bill of the said plaintiffs, «fee. upon that pursuit, he retook the- said Haff, and him again had and detained in the said prison, «fee. until' afterwards, to wit, on the 24th May, 1805, the said Haff was discharged out of the said prison, «fee. by due course of law, which escape, «fee. the defendant avers is the same escape charged in the first count of the plaintiffs’ declaration, «fee. with a verification «fee. 4. The fourth- plea- was like the second, with an averment, that the escape therein mentioned, was the same escape stated in the second count of the plaintiffs’' declaration, «fee. and not different, «fee. 5. The fifth plea was like the third, with an averment that the escape therein mentioned was the same escape charged in the second count of the declaration. The plaintiffs demurred specially to all the pleas, and the defendant joined in demurrer. The causes of demurrer assigned to line second plea, were, 1. That the pleas were multifarious and double, containing matters distinct- and independent,, without tendering an issue on a single point. 2. That it did not show that the eourt of common pleas of Rens-selaer county had sufficient authority or competent jurisdiction to discharge Haff out of the custody of the defendant. 3. That the pleas are inconsistent and repugnant, in admitting that Haff was in the custody of the defendant, on the 24th May, 1805-, and that on the same day he discharged the said Peter Haff from his custody* hy virtue of an order of the court of common pleas, held,•&c. on the third Monday of May, 1805, being the 20th day of May, and averring, that on the day and year last mentioned, the said Peter Haff was discharged, &c. by the said court, by virtue of the act for the relief of debtors, with respect to the imprisonment of their persons, &c. 4. Because the plea does not allege that the escape of Haff on the 24th May, 1805, is the same escape for which the plaintiffs have brought this action, and which is charged in the first count of their declaration; nor does the plea confess the escape alleged in the first count, and avoid the right of action thereby accrued, nor traverse, nor deny the same, «fee. and that the plea is otherwise uncertain, argumentative, &c. Similar causes were also assigned for the demurrers to the third, fourth, and fifth pleas, with the additional cause, as to the third and fifth pleas, that it is not alleged or shown by what authority or in what manner the said Peter Haff was discharged out of the custody of the defendant, &e.

1. The second plea is bad for its duplicity. It states two distinct and independent grounds of defence : First, that the prisoner escaped against the will and without the knowledge of the defendant, and on the same day privily and voluntarily returned again into custody. This alone is a sufficient defence. The second ground of defence is, that the prisoner was afterwards discharged by order of the court of common pleas, pursuant to the act for the relief of debtors, &c. This is totally distinct from the other ground. 2. Another objection to this plea is, that it does not state, that the eourt of ¡common pleas had jurisdiction to discharge the defendant. If the court had no authority, their proceedings werea nullity, and the sheriff would be liable for an escape.^[3] 3. The escape charged, is on . , , , , , the 25th May, and the defendant, in his third plea, says the prisoner escaped on the 24th May, and that he made fresh pursuit, and took him on the same day.^[4] 4. An

other objection to the third plea is, that it does not specify by what authority, or in what manner the prisoner, was discharged. It merely states that he was discharged by due course oflaw. Tiiis is too general and vague to admit of a replication.

It is not enough to say that a plea is double, and wants form, Unless the demurrer point out precisely wherein the duplicity consists, the general objection will not avail the plaintiffs.^[3] If the defendant shows enough to make a good defence, his pica will not be vitiated by any unnecessary matter.^[4] Alleging the issuing of an execution, on a judgment for less than 2,500 dollars, shows that the court of common pleas had jurisdiction to discharge the defendant in this suit. If he was improperly discharged from other executions, the plaintiffs cannot avail themselves of that irregularity. The order of discharge is peremptory, and the sheriff is bound to obey it. He cannot inquire into the grounds on which the discharge has been obtained. The second plea contains a complete and substantial defence; and where there are two pleas, to the same count, and on demur-x’er, one be adjudged good, and the other bad, still the defendant must have judgment. The third and fifth pleas are substantially correct. A special demurrer does not reach defects in form, unless they be material. Imma terial matters may be rejected as surplusage.^[5] In alleging a discharge under the bankrupt law in England, it is sufficient to state generally, that the party became a bankrupt, according to the intent and meaning of the statutes in relation to bankrupts, without setting forth any of the proceedings.^[6] The allegation in the present case, that the prisoner was discharged by the course of law, is not more general.