p. 205trespasses, &c.; concluding with a verification, Sec. The plaintiff replied, taking issue upon the plea of non cul., and as to the said several trespasses in the introductory part of that plea mentioned and therein attempted to be justified,” said that he ought not to be barred, Sec. because, before the said time when, <3fC. in the second and third counts of the declaration mentioned, to wit, on, &c. a warrant was issued against him, the plaintiff, by G. D., a justice of the county of Montgomery, at the suit of Adam Humphrey, one of the defendants, on the application of the said Adam, directed to any constable of the county of Montgomery, commanding such constable to apprehend the plaintiff and to bring him before the justice, at his office in Charlestown, to answer, &c. which warrant the said Adam caused to be delivered to J. Eaton, a constable of Montgomery, to be executed; that by virtue thereof, Eaton took the plaintiff into custody in the county of Montgomery, and while he was conveying him across apart of the county of Schenectady which lay in and was in the ordinary route of travel from the place where he took and arrested the plaintiff to the place where he was by the warrant commanded to convey the plaintiff, the defendants, after they had notice of such warrant issued by the justice of Montgomery and of the arrest of the plaintiff by Eaton, and that the plaintiff was in the custody of Eaton at the said time when, &c. in the second and third counts mentioned, committed the said several trespasses in the introductory part of the said second plea mentioned, in manner and form, &c. and this, &c. wherefore, Sec. To this replication the defendants demurred and assigned several special causes of demurrer, and, amongst others, that the replication does not traverse or avoid the matters contained in the second plea, except by inference or legal construction. The venue in the declaration was in Montgomery.
M. T. Reynolds, for defendants.
It is manifest from the pleadings that the acts complained of as trespasses were done in the county of Schenectady; that John Humphrey was acting as a constable, and the other defendants in his aid. The defendants therefore, on the trial of the cause, will be entitled
p. 206to a verdict, 1 R. L. 155. The court therefore will now give jU(]gment for the defendants. The special cause assigned for demurrer also is fatal against the plaintiff.
D. Cady, for plaintiff.
The plea is bad in not averring that John Humphrey was deputised at the request of Adam Humphrey, and also in not averring that he undertook to serve the warrant without fee or reward ; unless such undertaking was made, the justice had no power to depute him. Laws of 1824, p. 290, § 19. John Humphrey was a mere volunteer ; he was not a public officer, and had not the power to command assistance. At all events, Adam Humphrey was not bound to obey his own deputy constable, and the law will not permit him to commit an assault under such a pretence. If he and Smith were bound to obey, they should have averred that they were inhabitants of the county of which John Humphrey was a deputised officer. A deputy constable cannot claim the benefit of the act for the more easy pleading in certain suits. The defendants cannot, in this stage of the cause, raise the question whether the venue be or be not laid in the proper county; it can properly arise only on the trial. There is a plea of the general issue, and there is nothing to prohibit evidence of acts done in Montgomery, even though what transpired in Schenectady should not be considered as done in Montgomery. The replication admits the arrest pleaded by the defendants, but it sets up new matter, shewing that it cannot avail them as a defence. 2 R. S. 427, § 6, 7.
By the Court,
The replication, it appears to me, is good in substance. It brings the plaintiff’s case within the provisions of the sixth and seventh sections of the act concerning the arrest of persons on civil process. 2 R. S. 427. The sixth section provides that any officer who shall have arrested any prisoner in any county, may pass over, across, or through such parts of any other county or counties as shall be in the ordinary route of travel from the place where such prisoner shall have been arrested to the place where he is to be conveyed, according to the command of the process by which such arrest shall have been made; and the seventh section provides that such conveyance shall not in any case
p. 207be deemed an escape, nor shall the prisoner so conveyed, or the officer having him in custody, be liable to arrest on any civil process while passing through such other county or counties. ■ The knowledge of the defendants of the previous arrest of the plaintiff, and that he was then in custody under such arrest, when the trespass complained of was committed, is sufficiently averred. A second arrest under such circumstances must constitute a trespass, as much as "though it had been made in another county, to which the process did not extend. It does not stand on the same ground with an arrest made in violation of a personal privilege: such privilege an officer is not bound to regard. But in this case the exemption is intended to prevent a conflict between process issuing from different courts or officers. Thé effect of the provision is to take from the officer making the. second arrest, all jurisdiction over the defendant in the process while passing through his county, as much as though he had not entered the county, but had continued in that in which he was originally arrested.
The principal ground of special demurrer to this replication is, that it does not traverse or avoid the matter contained in the plea, except by inference or legal construction. The replication confesses or admits the bar set up in the defendant’s plea, and avoids it by new matter ; it admits the arrest and imprisonment, &c. to have been made under color of process, &c. as alleged in the plea, but it sets up new matter, which, if true in point of fact, shows that the plaintiff was not liable to be arrested, and thereby avoids the plea ; in such a case a traverse is not necessary. Comyn's Dig. Pl. G. 3. If the objection intended to be taken is that the replication professes to answer only the trespasses in the introductory part of the second plea mentioned, and not all the trespasses mentioned in that plea, the answer is, that by referring to the second plea, it will appear that the trespasses mentioned in the introductory part of it are in express terms all the residue of the trespasses mentioned in the declaration, except those which the defendant had answered and denied by his first plea. It appears therefore, with sufficient certainty and precision, that the replication embraced the whole matter of the plea. The other special causes of demurrer are equally unfounded.
p. 208The second plea is good in substance. It was not necessary for the defendant to aver that John Humphrey, who was deputed to serve the warrant, was deputed
at the request of Adam, the plaintiff in the warrant, or that he undertook to serve it
without fee or reward. The general averment that he was deputed by the justice and voluntarily undertook to execute the process, is sufficient at least upon general demurrer. It is not necessary to set out his title
in extenso. Upon a demurrer to the replication, no objection can be taken to the previous pleadings, except one of substance.
The objection to the venue, I am inclined to think, cannot be raised upon demurrer. If the plaintiff fails to prove a cause of action arising within the county of Montgomery, where his venue is, the statute provides, 1 R. L. 155, that the jury shall find the defendants not guilty, without any regard to the evidence given by the plaintiff, and they shall also have their double costs. The declaration itself does not show that the trespasses complained of were committed by the defendants as officers in the execution of process ; the plea discloses that fact, and I should question whether, independently of the statute remedy, it was competent for the defendants, upon a demurrer to the plaintiff’s replication, to raise an objection to the declaration, not appearing on the face of the declaration itself, but disclosed by their own plea. However this may be, the statute having prescribed the course to be pursued and given the remedy, that course must be adhered to.
I think the plaintiff is entitled to judgment upon the demurrer, with leave to the defendant to rejoin» on payment of costs.