Shaw v. Peckett

[426] The opinion of the court was delivered by Redfield, Ch. J. This is an action for assault and battery and false imprisonment. The plea is an attempt to justify, under a warrant of distress, for the collection of taxes. It appears by the evidence, that the warrant was attempted to be executed more • then three years after it was delivered to the collector, and no sufficient excuse is attempted to be set forth in the plea, for such delay in the execution until after three years. The plea is fatally defective for this reason, unless the defect is supplied in the replication. And we think it is not. It does not appear by the replication, that the plaintiff removed out of the state in 1846, but it does not appear, except by computation, that this wás within one year from the delivery of the tax bills and warrants to the collector. And there is no pretence of any allegation, that the plaintiff had not, during his absence, personal property, which the officer knew of, and might have distrained, unless we are to infer this fact from the replication not alleging it. And for the defendants to ask the aid of all the facts, which the plaintiff does allege in his replication, to help out the plea, and when those fail, then to crave the advantage of inferences against the pleader for facts which he omits to allege, is carrying the rule of compensation, by means of the adversary’s plea, farther than we have ever known claimed. The pleadings seem to be deficient in other respects, but this is all which it is necessary to decide here, and the pleadings may never present the same questions again. But we can state briefly our impressions of some of the questions raised. 1. A special demurrer, in reaching back to any former pleading of the adversary, only has the effect of a general demurrer. And it has only the effect of a general demurrer, as to the very plea demurred to, except in those particulars wherein it is special. This is too familiar to require authority. 2. It is questionable whether the plaintiff’s list is set forth with sufficient particularity. All the facts which are necessary to constitute a legal vote of the tax, a legal assessment, and for this purpose a legal list, and legal proceedings in the collection, must be expressly set forth in full detail, to make a good plea. The plea is exceedingly general in regard to most of these points. The replication seems to be equally vague in many points. But [427] the principal points, upon which the argument has proceeded, seem to us not to afford any excuse for not paying the tax. 1. We do not think Peckett making any arrangement with the collector such as is set forth, unless he paid the tax eo nomine, so as to discharge it, would affect the legality of the proceedings. 2. Nor does it appear to us, that the collector is compellable to go against the real estate for the taxes assessed upon that.. Judgment reversed, and judgment that the replication is sufficient, and the case remanded for trial on the general issue, unless the defendants choose to amend on the usual terms of paying costs, . during the pendency of the demurrer, and take none for the same time.