Sparhawk v. Hall

The opinion of the court was delivered by Powers, J. The plaintiff declares for a single act of trespass —one arrest and imprisonment. The defendants justify that act under the process set out in their plea and an averment that they directed the officer, when they delivered the process to him, to serve as directed therein. The process was regular in form and returnable to the June Term, 1878, of the Caledonia County Court, and issued as a capias. By way of replication to the plea, the plaintiff averred that after the defendants delivered said process to the officer with the instruction to serve it as therein directed, as set forth in the plea, the defendants directed the officer to immediately arrest the body of the plaintiff by virtue of said writ, and that the officer, pursuant to said last-named direction, arrested the plaintiff and detained him, as stated in the declaration. Issue was joined on this replication and the fact found for the defendants. The plaintiff now claims judgment non obstante veredicto, or failing that, that a repleader should be awarded. The action is brought against the defendants, who were plaintiffs in the process set out in the plea. Their liability is predicated upon their command to the officer to make the arrest of the plaintiff. In the plea the defendants set out a process regular in form, and in itself valid to authorize the officer to arrest the plaintiff. They further aver that they commanded the officer to serve it as therein directed — that is, as a process returnable to the June Term, 1878, of Caledonia County Court. This direction was lawful. Thus far the defendants have made no improper use of the process. In fact the officer served it at once, and a term of the Caledonia County Court intervened between the ser [627] vice and the return of the process. The defect or irregularity was in the service, and not in the process itself. If the officer had delayed service a few days, no irregularity would have occurred. Nelson v. Denison, 17 Vt. 73. The plaintiff did not question this plea as he might and should have done. Boynton v. Willard, 10 Pick. 166 ; Oakley v. Davis, 16 East, 82. The replication gives the plea the “ go by ”, and alleges a command by the defendants to the officer, on a later and different occasion, to arrest the plaintiff by virtue of the process. This replication, though somewhat inartificial, is in substance a new assignment of the trespass complained of in the declaration ; and under it the plaintiff was bound to prove a command by the defendants after the delivery of the process to the officer. Oakley v. Davis, supra ; Pratt v. Groome, 15 East, 335 ; 1 Waterman Tresp. s. 241 ; 1 Chit. Pl. 632; Bragg v. Wetzel, 5 Blackf. 95. The plaintiff failing on this issue, the question arises as to the judgment to be rendered. A repleader cannot be awarded to the plaintiff, because, if, as he claims, the issue made upon the replication was immaterial, it was his fault. 1 Chit. Pl. 656 ; Gould Pl. c. 10, s. 32 ; Goodburne v. Bowman, 9 Bing. 532. By the new assignment the plaintiff has admitted that the trespass as alleged in the declaration is well answered by the plea. 1 Saund. 299 ; 1 Chit. Pl. 628, 632; Oakley v. Davis, supra ; Poor v. Taggart, 37 N. H. 544. The plea confessed the cause of action disclosed in the declaration and avoided it by matters of lawful excuse, and the plaintiff elects to so treat it. As the record stands, the plaintiff is not entitled to a judgment non obstante, but judgment must go for the defendants, who have in law answered the declaration by their plea, and are not guilty of the trespass put in issue by their rejoinder. Judgment affirmed.