Coburn v. Hopkins — 4 Wend. 577

Majority

p. 577

Coburn vs. Hopkins.

Headnote

The geñéral replication dc injuria, &c. is bad where a defendant justifies op insists on a right as a justification, and is good only where he pleads matter of excuse ; in such a case, the defendant is bound to traverse the right.

Alleging the accidental loss of the process under which the party justifies does not turn the defence into matter of excuse instead of justification.

Demurrer to replication. The declaration contained two counts for an assault, battery and false imprisonment. The defendant pleaded a special justification to each count, alleging the existence of a debt due and owing by the plain

p. 578

tiff to the defendant, the due issuing of a warrant by a justice 0p tpe peace for the collection of the same, and the arrest of the present plaintiff by virtue of the same; which was alleged to be the same assault and imprisonment complained of. The . , . . . t i pleas also stated a variety of circumstances attending the arrest in answer to allegations set forth in the declaration by way of aggravation. In the first plea was an averment of the accidental loss of the warrant by the officer after the arrest and previous to its being returned to the justice. The plaintiff replied de injuria sua propria absque tali causa to each plea. The defendant demurred specially, and the plaintiff joined in demurrer.

V. Birdseye, for defendant.

Thomas Sf Shankland, for plaintiff.

By the Court,

The pleas in this case evidently intend to justify the arrest, &c. of the plaintiff under the warrant stated in the pleas, and not to set them up merely by way of excuse. Every thing is stated in the pleas which was requisite to authorize the issuing of the warrant, and to justify the arrest and detention of the defendant by virtue thereof.

The general replication de injuria sua propria absque tali causa is bad where the defendant justifies or insists on a right, and is good only where he pleads matter of excuse. (Crogate’s case, 8 Coke, 66. Willes, 54. 1 Bos. & Pul. 76. Com. Dig. Plead. F, 18 to 20.) And this rule is not confined to cases where the plea sets up matter of record as well as matter of fact, and where the general replication would put. in issue to the jury the matter of record as well as the matter of fact. Ch. J. Kent in Lytle v. Lee & Ruggles, (5 Johns. R. 114,) does not consider this the true ground of the rule ; but holds such a replication to be bad wherever the plea insists upon a full and adequate right or justification. In such a case, the plaintiff is bound to traverse his right. (Hob. 244. Holt. 20. 1 Chitty’s Pl. 581. 12 Johns. R. 491. Allen v. Crofoot, 7 Cowen, 46, and Griswold v. Sedgwick, 1 Wendell, 130, where all the cases are collected.) The excuse stated in

p. 579

the plea for not producing the warrant does not affect the justification which the warrant afforded. The defendant perhaps was prima facie bound to aver or shew that the warrant had been duly returned or presented to the magistrate; to excuse himself from that averment, he alleges that it was casually lost by the officer to whom it was delivered, but after the plaintiff’s arrest. This excuse for not producing the warrant does not turn the defence into matter of excuse instead of justification.

The pleas are substantially good, though perhaps they would not stand the test of a special demurrer.

Judgment for defendant on demurrer to plaintiff’s replication, with leave to plaintiff to amend on payment of costs.