Lytle v. Lee & Ruggles

Kent, Ch. J. delivered the opinion of the court. The replication would have been bad upon a special demurrer. The rule, as laid down in Crogate's case, (8 Co. 66.) and which has since been repeatedly recognised, (Cooper v. Monke, Willes’s Rep. 54. Jones v. Kitchin, 1 Bos. & 114 Pull. 76.) is, that the general replication de injuria suit propria absque tali causa, is bad, when the defendant in- '• sists on a right, and is good only when he pleads matter of excuse. The first resolution in Crogate,s case, states an example similar to the present case, in which the replication was deemed ill; it was where to an action of false imprisonment, the defendant justified under a writ to the sheriff, and a warrant thereon to him 5 this general replication to the plea was held bad, because it put in issue to the jury matter of record, as parcel of the cause, and the plaintiff ought not to reply de son tort without traversing the warrant. This last objection to the replication, that it puts matter of record and matter of fact, and a variety of matters, all together and at once, in issue to the country, was stated as a reason why the replication was deemed bad on a general demurrer, in Fursden v. Weeks; (3 Lev. 65.) and yet that objection has been denied and overruled in other cases. In Peter v. Stafford, (Hob. 244. Hutt. 20.) the suit was for false imprisonment; and the defendant plead that a plaint was levied by one of-the defendants in the mayor’s court of record at Bristol, and that the other defendants as officers arrested the plaintiff; the plaintiff took issue on this, and after a verdict for him, the defendant moved in arrest of judgment, because the issue was matter of record. The court denied the motion, and said it was well tried by a jury, where the matter of record was mixed with the matter of fact; and the same rule was laid down, upon demurrer, by Sir Dudley Ryder,- and the court of K. B. in Esplin v. Smollet. (Sayer, 208. 301.) I should prefer,, therefore, putting the objection to the replication upon the first ground, that the plea did not rest upon mere matter of excuse, but insisted upon a full and adequate right; and then the only question in the case is, whether this pleading is not cured by the verdict; and upon this point we cannot hesitate, at this day, when even before115 the statute of Anne, such an objection was not sustainable after verdict. In Banks v. Parker, (Hob. 76.) the defendant in an action of trespass justified under a custom, and issue was joined upon this general replication, de injuria, &c. and it was held to be cured by the verdict. The case of Collins v. Walker, (T. Raym. 50.) is in point; that was an action for an assault and battery and false imprisonment, and the defendant justified by warrant; and issue was joined upon this general replication, and a verdict for the plaintiff; and the court held it good after verdict, and gave judgment for the plaintiff. We are, therefore, of opinion, that the motion in arrest of judgment must bo denied. Motion denied.