Perry v. Carr

The opinion of the court was delivered 'by Wilson, J. The questions which this case presents for adjudication arise from the charge of the court below upon the issues raised by the pleas and replication thereto, relating to the first and third counts of the declaration. These counts allege, among other things, “ that the defendant broke and entered the plaintiff’s store, and with force and arms, ejected, expelled, put out and removed the plaintiff from said store, and from the possession, use, and occupation and enjoyment thereof, for the space of twenty days.” The defendant, in his special pleas, sets forth, among other things, that the store in said counts mentioned was 'the store <of John S. Dexter, and that he owned the goods therein; that the [54] defendant, as deputy sheriff, had writs against Dexter, and entered the store for the purpose of attaching the goods therein. The defendant states in said pleas that he took the exclusive possession of the store, and expelled the plaintiff forcibly therefrom, and kept him. out for the space of time in the declaration mentioned ; that he was obliged to put him out in order to make the attachment of the goods and safely keep them until he could remove them elsewhere, and that for the same reason he was obliged to take and keep-possession of the store for the period mentioned in those counts of the declaration.' The plaintiff, in his replication, denies that the defendant necessarily took possession of the store in order to secure the goods and chattels safely for a reasonable time and until he could remove them to some other place, or that the defendant necessarily kept possession of the store for the space of time in the first and third counts of the declaration mentioned, and the replication denies that the defendant necessarily staid and continued in said store during said space of time. The defendant’s testimony tended to show that the contract between the plaintiff and Dexter, in relation to the goods in said store, was fraudulent and void as to the creditors of Dexter, and the jury so found the fact. But as between the plaintiff and Dexter, the plaintiff stood in the right of Dexter, and had the right to the possession, use and occupancy of the store, as against, the creditors of Dexter, until they had acquired title thereto. The jury found that the goods in the store were Dexter’s as to his creditors; the defendant, therefore, had the right to go into-the store for the purpose of attaching them on the writs he held, and x-emain as long as was reasonably necessary to make a proper-attachment of the goods on the writs so held by him. But the-evidence did not tend to show that it was necessary for the defendant to eject the plaintiff from the store and exclude him therefrom in the manner and for the time it was shown he did. Upon this state of the evidence relating to the issues joined by the-pleadings, the plaintiff requested the court to instruct the jury-that “ he was.in any event entitled to recover such damage as the jury might find he suffered by reason of the defendant having55 forcibly expelled him from the store, and also such damage as he suffered by reason of the defendant having taken and kept exclusive possession of the store from the 18th to the 30th of March'.” Upon the point made by said request, the court told the jury that “ if he (the defendant) thus properly entered, then the defendant is not liable for such entering, and under the count for breaking and entering he would not be liable for afterward remaining in it and keeping possession of it to the 30th of March.” We think the plaintiff was entitled to such a charge as he requested, and that the instructions of the court on this point are erroneous. The first and third counts of the declaration contain a minute and circumstantial statement of the cause and whole cause of action in respect to which the plaintiff proceeds. If the defendant had merely justified the breaking and entering the store for the purpose alleged, the plaintiff would have been required to new assign if he claimed to recover on the ground that the defendant remained in the store and kept the exclusive possession of it longer than was necessary to make the attachment. But the defendant’s plea to the first and third counts professes to answer the whole cause of action contained in said counts. The plea attempts to justify not only the breaking and entering the store, but also the ejecting of the plaintiff from the store and excluding him therefrom in the manner and for the length of time in said counts mentioned. All the material allegations of the plea are traversed by the replication, and the grounds on which the plaintiff claims to recover are directly and .perfectly within and presented by the issue thus formed. Upon the pleadings and evidence the case stands, as to the point in question, precisely as it would upon new assignment and traverse thereof. But the declaration was traversed, and under that issue the question, whether the defendant remained in the store and excluded the plaintiff therefrom for a longer time than was necessary to make the attachment, was presented for trial. If the plaintiff had new assigned, and the defendant had denied or attempted to justify the matter contained in the new assignment, the same subject matter, issue and questions would have been presented in two forms, differing the one from [56] tbe other only as to the stage of the pleadings at which the issue was formed. But we all agree that the pleadings in the case are sufficient, and that no new assignment was necessary. 1 Chit. Pl., 669, 659, et seq.; 5 Barn. & Ald., 220. It is not apparent to us how the plaintiff could set forth with greater precision and exactness the grounds on which he claims to recover damage, than they are set forth in his declaration. The defendant’s pleas show that he understood the grounds on which the plaintiff would claim damages; hence the pleas profess to answer all the grounds on which the plaintiff could claim to recover under the declaration, or under a new assignment. The judgment of the county'court is reversed and' the cause is remanded.