Comly v. Lockwood

Thompson, Ch. J. delivered the opinion of the court. This case comes before the court on a demurrer to the rejoinder. The action was trespass de bonis asportatis. The defendant pleaded, first, the general issue; and, secondly, that the plaintiff ought not to have and maintain his action, because the said supposed trespasses were done and committed by the authority of an act of the legislature of the state of New-York, entitled “ an act for relief against absconding and absent debtors,’’ passed the 21st of March, 1801, with a verification, &c. The plaintiff replied, setting forth, specially, certain proceedings commenced against Benjamin Field, as an absconding debtor, upon which an attachment issued, and the goods in question were seized under it, in the store of the plaintiff; that a claim of property was interposed, and a jury called to try the right, and by their inquisition found the goods in question to be the property of the plaintiff; upon which the defendant relinquished and gave up the goods to the plaintiff; that afterwards another attachment was issued upon the same proof, and without any new affidavits, and the same goods again taken ; and, that the last taking was the trespass complained of, and denying that the goods were taken by the defendant, under the authority of the act set forth in his plea, and concluding with a verification. The defendant rejoined in nearly the same words of his plea, without answering any of the special matter set up in the replication, and concluded to the country. To this replication there is a special demurrer. [193] The question presented by the demurrer must turn upon the construction to be given to the act, lor the more easy pleading in certain suits. (1 N. R. L. 155.) By this act it is declared, that if any action shall be brought against any person for any thing done by authority of any statute of this state, the defendant may make justification for the thing done, alleging therein, that the thing whereof the plaintiiF complains, was done by authority of such statute, without-expressing any other matter, or circumstance, contained in such statute ; to which the plaintiff shall be admitted to reply, that the defendant did the act, or trespass, supposed in his declaration, of his own wrong, without any such cause alleged by the defendant, whereupon issue shall be joined to be tried by a jury, and upon the trial the whole matter may be given in evidence by both parties. The object of this statute was (as it purports from the title to be,) to give á more easy mode of pleading in certain cases, than would otherwise be admissible, according to the general rules of pleading If the plaintiff can, by his replication, draw the defendant into a special rejoinder, he will lose all the benefit intended by the statute, in giving the general pleadings therein contained. The plea pursues the very words of the statute, and as it is given by the statute, no more can be required. The facts set forth in the replication are matters of evidence, and the plaintiff must avail himself of them upon the trial. The statute, after giving this general plea, declares, that upon the trial of such issue, the whole matter may be given in evidence. If the plea is good, it follows, as matter of course, that the replication is bad ; it should have pursued the directions of the statute; and as this is the first fault in the pleadings, the defendant is entitled to judgment. Judgment for the defendant.