Coburn v. Hopkins

By the Court, Sutherland, J. The pleas in this case evidently intend to justify the arrest, &c. of the plaintiff under the warrant stated in the pleas, and not to set them up merely by way of excuse. Every thing is stated in the pleas which was requisite to authorize the issuing of the warrant, and to justify the arrest and detention of the defendant by virtue thereof. The general replication de injuria sua propria absque tali causa is bad where the defendant justifies or insists on a right, and is good only where he pleads matter of excuse. (Crogate’s case, 8 Coke, 66. Willes, 54. 1 Bos. & Pul. 76. Com. Dig. Plead. F, 18 to 20.) And this rule is not confined to cases where the plea sets up matter of record as well as matter of fact, and where the general replication would put. in issue to the jury the matter of record as well as the matter of fact. Ch. J. Kent in Lytle v. Lee & Ruggles, (5 Johns. R. 114,) does not consider this the true ground of the rule ; but holds such a replication to be bad wherever the plea insists upon a full and adequate right or justification. In such a case, the plaintiff is bound to traverse his right. (Hob. 244. Holt. 20. 1 Chitty’s Pl. 581. 12 Johns. R. 491. Allen v. Crofoot, 7 Cowen, 46, and Griswold v. Sedgwick, 1 Wendell, 130, where all the cases are collected.) The excuse stated in [579] the plea for not producing the warrant does not affect the justification which the warrant afforded. The defendant perhaps was prima facie bound to aver or shew that the warrant had been duly returned or presented to the magistrate; to excuse himself from that averment, he alleges that it was casually lost by the officer to whom it was delivered, but after the plaintiff’s arrest. This excuse for not producing the warrant does not turn the defence into matter of excuse instead of justification. The pleas are substantially good, though perhaps they would not stand the test of a special demurrer. Judgment for defendant on demurrer to plaintiff’s replication, with leave to plaintiff to amend on payment of costs.