Demick v. Chapman

Per Curiam. The possession of the property by the plaintifF was, prima facie, evidence of right; and a" mere stran^er cou^ not lawfully deprive him "of that possession. -The offer, therefore, to prove that the property belonged to Ralph Chapman, could not excuse the taking by the defendant, without showing some authority or right derived from Ralph Chapman, amounting to a justification, and this was not admissible under the general issue. The taking was, prima facie, a trespass; and the excuse, that it was done by virtue of an attachment issued by a justice of the peace, ought to have been pleadedz specially. Lord Coke lays it down (Co. Lilt. 282. 2 Esp. N. P. 558.) as an established rule of the common law, that if a defendant hath cause of justification or excuse, he must plead it, and cannot give it in evidence under the general issue. This is a rule well settled in actions for false imprisonment, and assault and bat [133] tery; (3 Wils. 370.) and the reason for the rule appliés in this case, it being necessary to prevent surprise, and to enable the parties to go to trial on equal terms, with respect to evidence, and proof of facts. The transfer of the property, although with a design to defraud creditors, was valid as between the parties. And the defence, founded on the right of a creditor to defeat it, by attachment, or by a judgment and execution, is very special, and ought to be disclosed by pleading. The defendant in the court below did not come in aid of the officer, or act under his command, so as to bring himself within the statute authorizing the special matter to be given in evidence under the general issue. The testimony was, therefore, properly overruled, and the judgment below must be affirmed. Judgment affirmed.(a) Footnotes [(a)] See 1 Chit. Pl. 491—493. 497.