Loder v. Phelps

[48] By the court, Sutherland, J. The demurrers to the second and third pleas are well taken. Those pleas commence as an answer only to apart of the cause of action, but pray judgment of the action generally ; they are clearly bad on this ground. But if the conclusion had been right, they would still have been bad, on the ground that they contain an ansiver only to a part of the count, 20 Johns. R. 206 ; 2 Wendell, 419 ; 8 id. 617. The warrant under which the defendant sought to justify the arrest of the plaintiff was applied for and issued under the act, 2 R. S. 228, § 16, sub. 4, which authorizes the issuing of a warrant, notwithstanding the defendant is an inhabitant of the county having a family, or a freeholder of the same county, if it shall appear to the satisfaction of the justice, by the affidavit of the applicant or of any other witness, that the plaintiff will be in danger of losing his debt or demand unless such warrant be granted. It is however provided by § 19 of the same act, ” that in all cases upon application for a warrant, (except when the suit shall have been commenced by summons, )the person applying shall by affidavit state the facts and circumstances within his knowledge, showing the grounds of his application, whereby the justice may the better judge of the necessity and propriety of issuing such warrant.” This section must be construed as qualifying the sixteenth section, and as prescribing the contents of the affidavit; which, the applicant shall make when he asks for a warrant. The justice has no right to be satisfied with an affidavit, in the general terms empolyed in this case ; it states no fact or circumstance where by he could judge of the necessity or propriety of issuing the warrant; without such specification, he had no right or jurisdiction to issue the process, 3 Cowen, 206 ; 11 Johns R. 175 ; 12 id. 257 ; Cowen's Treatise, 256; 6 Wendell, 438 ; 6 Cowen, 234 ; and it can afford no protection to the defendant, who was the party who procured it. The court below therefore erred in charging the jury that the defendant had made outagoodjustification under the warrant. Not only the defendant’s special pleas therefore are bad, but the 'defence failed under the issue of fact, and the judgment bélow must be reversed. Judgment reversed; venire de novo, &c.