Patcher v. Sprague — 2 Johns. 462

Majority

p. 461

Patcher against Sprague.

Headnote

In an action of trespass, the'defeiidant the^oods* w- ken, were seized by a deputy-sheriff, by virtue of a warrant, as the property of an absconding debtor, (setting forth the proceedings of the act, and that the plaintiff held the goods by a fraudulent conveyance from the debtor,) and that the defendant acted in aid of, and by command of the deputy-sheriff, <$-c. it was held to be a good plea. Several dependent facts, which make but one point of defence may be pleaded together. Where the issue to be taken on a rejoinder'must be substantially the same as on the plea, the replication may conclude to the country.

This was an action of trespass. The declaration stated, that the defendant, on the 17th November, 1806, at JCinslury, &c. with force and arms, took and carried away

p. 462

from the plaintiff, nine horses, «fee. of the value of, &c. then owned and possessed by the plaintiff, which the defendant kept and detained for six days, by which the horses were much damaged, and made worse, and the plaintiff lost the sale of the horses, &c. to his damage, &c, The defendant pleaded, 1. Not guilty. 2. That one H. Sage, on the 10th November, 1806, was indebted to the defendant, in the sum of 100 dollars, over and above all discounts, and departed out of the state, or kept concealed within it, with intent to defraud his creditors of their just demands, or to avoid being arrested by the ordinary process of law; that the defendant applied to the first judge of the court of common pleas of Washington county, (stating the proceedings to obtain an attachment against Sage, pursuant to the “ act for relief against absconding and absent debtors,”) that a warrant of attachment was issued by .the said judge to the sheriff of the county of Washington, commanding him to attach all the property, &c. of the said Sage, which warrant was delivered to One Hough, a deputy sheriff, to he executed in due form of law; tbat the plaintiff, on the 17th November, 1806, was possessed of the said nine horses, by virtue of a conveyance thereof, made to him by the said Sage, with intent to defraud the creditors of the said Sage of their just debts ; that the deputy sheriff, by virtue of the said warrant, and the defendant in aid, and by the command of the said deputy sheriff, did attach, and for the space of two days, did safely keep the said horses, as for the proper goods and chattels of the said Sage, which is the same trespass complained of by the plaintiff; that after the said horses were so attached, the plaintiff, pursuant to the fourth section of the said act, put in a claim to the said horses as his property, and the said deputy sheriff did, thereupon, summon and swear a jury to try the property of the said horses, and the said jury did, by inquisition on the 31st November, 1806, find the said horses to be the

p. 463

property of' the plaintiff, and the said deputy sheriff did, thereupon, deliver the said horses to the said plaintiff; and this the said defendant is ready to verify, &c. A notice was also subjoined by the defendant, stating the proceedings, on the attachment,- as men tioned in the second plea.

The plaintiff, in his replication to the second plea, denied that he was, on the 17th November, 1806, possessed of the said horses by virtue of a conveyance thereof made to him by the said Sage, with intent to defraud the creditors of the said Sage, &c. in manner and form, &c.; and also, that the said Hough, the deputy sheriff, by virtue of the said warrant, and the said defendant in aid, and by command of the said Hough, and the said Hough, for the space of two days, did safely keep the said horses, as and for the proper goods and chattels of the said Sage, as .the defendant in his said plea has alleged, with a conclusion to the country.

To this replication there was a special demurrer and joinder.

fVeston, in support of the demurrer,

contended that the replication was double, informal, multifarious, and ought to have concluded with a verification.

Skinner and Foot, contra, insisted,

that the plaintiff had a right to put as many facts as he pleased at issue, provided they made but one point. That the fault of duplicity, if any, originated in the plea, which stated two facts, to which the plaintiff must answer in his replication. Both facts being negatived by the replication, the parties Were at issue, and the proper conclusion was to the coun^[1] The plea was itself bad. It ought to have aver-rec] that the horses were the property of Sage. A party , 4 , . W • a , fV* ¶ m a suit cannot justify in assisting an officer to take pro^ perty, unless he shows that he had a lawful right to do so, that is, that such property really belonged to the de

p. 464

fendant named in the execution.^[2] Again, the facts in the pica are laid without a venue,^[3] and there is no averment that Sage had secretly departed out of the state, or kept concealed within it, in the language of the act.^[4]

The first question that arises, ill the consideration of this cause, is, whether the defendant-has pie ided a good ¡dea in bar; for if he has not, the plain- tiff must have judgment, notwithstanding his replication may be bad, according to the well-settled rule, that judgment must be against the party who, in pleading, commits the first fault. The fourth section of the act, referred to in the plea provides, that if the sheriff shall ignorantly seize any goods which shall he claimed by a third person, such sheriff may summon a jury to try the right, and if the jury find in favour of the claimant, the sheriff shall forthwith restore the property. The defendant in this case does not place the taking of the horses by the deputy sheriff, on the ground of Ids having done so, ignorantly, and so excuse the taking, but he sets up a fact, which if true, amounts tó a complete and perfect justification. Ifthe deputy sheriff was justifiable, the defendant was so also, having, as he avers in his plea, acted subordinately to the deputy sheriff, in bis aid, and by his command. The warrant was regularly issued, and the horses taken were in the'plaintiff’s possession, under a fraudulent conveyance from Sage the absconding or absent debtor. If that be the fact, the deputy sheriff was not only justifiable, but bound to attach the horses under the warrant. The inquisition of the jury,, who found the right of property to be in the plaintiff, is not conclusive, on the question of right. That inquisition merely protected the sheriff against a prosecution for the seizure, and entitled the claimant to an immediate' restoration of the property, leaving to the assignees, if they thought fit, the right to contest the validity of stick

p. 465

claim in a suit at law. I consider the plea, therefore, to be good.

The next question that arises, is, whether there is a good replication. The facts stated in the plea, as constituting a justification, are, 1st. That the warrant was regularly issued and delivered to the deputy sheriff. 2d. That the deputy sheriff seized the horses by virtue of the warrant, being the property of Sage, but in the possession of the plaintiff, under a fraudulent conveyance. 3d. That the defendant acted in aid, and by command of the deputy sheriff. These are all dependent facts, making but one defence, and an omission to state either of them in the plea would have rendered the justification incompíete.

The replication admits the first, and takes issue directly upon the other facts. The case of Strong v. Smith and others,^[4] and the case there referred to, of Robinson v. Raley,^[2] are both in point, and decisive on this subject; all the modern decisions are in unison with them. Indeed, the law on this subject is so well established, that it ought not again to have been called in question. A plea may contain as many facts as are necessary to constitute one defence, and it is not on that account, double.^[3] In this plea there are a variety of facts, but dependent, and all tending to the same point. The second exception is also groundless. Several and distinct facts, and things in the sense in which it is intended this exception shall be understood, are not attempted to be put in issue. What has been said in answer to the first exception applies equally to the second. As to the third exception ; when a replication ought to conclude to the country, and when with a verification, has frequently embarrassed the ablest special pleaders on this subject, and it is difficult to lay down any general rule. Each case must, in a great measure, depend on its own circumstances. Sergeant Williams, in his edition of Saunders, (vol. 1. p. 108. n.[1.) has elabo

† † 1 Burrow, 316.

‡ ‡ See ante, 437.

p. 466

rately discussed the question, and reviewed all the lead- . . . . mg cases relating to it. The only objection to the conclusion in this replication, is, that it selects three particular facts alleged in the plea, and puts them in issue. The rule for a long time was, that when a particular fact in the plea was selected and traversed, the replication ought to conclude with a verification; but it has been justly remarked, that this rule is not universally true; that many instances may be mentioned where the conclusion must be to the country. It seems now to be considered as the best and safest rule, where a defendant cannot take any new or other issue in his rejoinder than the matter he had pleaded before, without a departure from his plea, or where the issue on the rejoinder would be the same in substance as on the plea, for the plaintiff to conclude to the country. This rule has very properly been adopted by the plaintiff in the present case. Had he concluded with a verification it would only have led to prolixity, and the issue must eventually have been substantially the same.^[4]

The plaintiff, by his replication, without introducing any new matter, admits that Sage had absconded, and the proceedings 'under the statute before mentioned, (for whatever is traversable in pleading, and which is not traversed, is admitted) but he denies, that he had the possession of the horses under the fraudulent conveyance, and that the officer seized them by virtue of the warrant, and denies also, that the defendant acted in his aid, and by his command ; thus negativing the material affirmative facts in the defendant’s plea. On this state of the pleading, the parties ean fairly go to trial, and the merits of the cause befairly investigated. My opinion, therefore, is, that the plaintiff ought to have judgment.

Kent, Ch. J., and Spencer, J. were of the same opinion.

Thompson, J., not having heard the argument in the. case, gave no opinion.

Judgment for the plaintiff.

* See ante. 428.

Footnotes

* 3 Caines, 160.