Boynton v. Tidwell

Wheeler, J. It is a rule of the Common Law, that a plea [121] justifying the arrest of the plaintiff, upon the ground that a crime had been committed, and that there was reasonable ground to suspect and accuse the plaintiff, must distinctly state the reasons for suspecting him. The object is to prevent surprise on the plaintiff at the trial, by the defendant then assigning various reasons and causes of imprisoning him, of which he had no notice, and which consequently he could not be prepared to meet at the trial on the plea of not guilty, on fair and equal terms with respect to the evidence and proof of facts. There is good sense in the rule ; and it is equally applicable in our pleadings. But with us it is well settled, that if the pleading states substantially a good cause of action or ground of defence, however defectively stated, it will be held good on general demurrer, or exceptions, unless the exceptions indicate the defect in the pleading, with such certainty as to enable the pleader to obviate the objection by amendment. The plea of justification in this case is defective, in that it does not conform to the rule. It does not state that the defendant had committed, or was suspected of having committed any crime, or any reasons for suspecting him of the commission of a crime. But the exception does not point out this objection. It is quite as indefinite and uncertain as the plea, and might well have been overruled; inasmuch as the plea does state the substance generally of that, which, if well pleaded, would be an answer to the action. But if the Court rightly sustained the exceptions, and held the plea insufficient to admit the evidence, still it was rendered admissible by the plaintiff’s averments. He distinctly alleged that there was no affidavit or warrant, under which the defendants acted, and thus tendered that issue; and the defendants were at liberty to introduce evidence to disprove the plaintiff’s averments. The evidence was material; for although it did not justify the arrest and imprisonment of the plaintiff in Louisiana, it showed that there was lawful authority for his imprisonment in Texas. (State v. Smith, 1 Bailey’s Rep. 289; [122] Id. 290, note a.) and went to mitigate the damages. It was error, therefore, to exclude it. As this error must work a reversal of the judgment, it is unnecessary to discuss the other questions raised by the argument for the appellants. It is clear, however, that there was no evidence to warrant the verdict as to any of the defendants except J. J. Boynton. None of the others are shown to have been party or privy to any illegal or unauthorized act or proceeding. Their having requested the witness to go to the Sheriff and to the residence of their co-defendant, in Harrison county, did not warrant the inference that they caused or procured the arrest of the plaintiff in Louisiana, or that they instigated, or contemplated the doing of any illegal or unauthorized act. As to them the motion for a new trial ought on this ground to have been sustained. The judgment is reversed and the cause remanded. Reversed and remanded.