Jewett v. Locke

Thomas, J. 1. If the defences set up in the answer were inconsistent, it would seem that the plaintiff should have availed himself of the defect by way of demurrer. St. 1852, c. 312, §§ 20, 21. King v. Howard, 1 Cush. 141. But we do not perceive that the answer sets up two inconsistent defences. It denies informally, (pursuant to St. 1852, c. 312, § 14,) the allegations of the plaintiff’s declaration, to wit, that the plaintiff was twice arrested for the same cause of action; and then says, (not formally and with precision, but in substance and effect,) that, if it were so, the second arrest was made necessary and legal by reason of certain acts of the plaintiff, which it states. It is but saying to the plaintiff, “ If you were twice arrested for the same cause of action, (which we deny,) the arrests were not, under the circumstances, illegal. If what you say is true, it is not the whole truth, and, in the light of that, the acts charged were justifiable.” We see no legal inconsistency between the parts of this answer, much less distinct and inconsistent defences. Here is no denial, and then confession and avoidance; the facts stated in the answer tend to show there never existed a cause of action, because there was no false or illegal imprisonment or detention. The defendant does not say, “ You were illegally arrested, but you have discharged or released the cause of action; ” but he says, Under the facts, the arrests were not illegal, and the plaintiff had no cause of action.” This first exception cannot be sustained. 2. Nor can the second, for two reasons. The first is, that the entering of the judgment in the former action, in which the present plaintiff was defendant, was clearly right in itself; and, secondly, if it were not, it could be no ground of exception in [236] this suit. And that judgment, having been entered, was compe* tent evidence upon the question of the identity of the causes of action in the suits upon which the plaintiff was arrested. 3. We can see no objection to the service of the notice of the discontinuance of the first suit by the constable. There is nothing in the provisions of the statutes referred to by the plaintiff, (Rev. Sts. c. 14, § 79; c. 88, §§ 29, 30;) which at all conflicts with or forbids the performance of such duty by the constable. 4. The instructions of the learned judge to the jury are, it seems to us, subject to no just exception ; but, on the other hand, state the rule which should govern the case with precision and clearness. See, among other cases, Olmius v. Delany, 2 Stra. 1216; Turton v. Hayes, 1 Stra. 439; Bates v. Barry, 2 Wils. 381; Peck v. Hozier, 14 Johns. 346. Exceptions overruled.