Osgood v. Green

Eastman, J. This case, though very brief, presents two questions, and one of them has required considerable examination. In the order of time, the first question arises upon the ruling of the court, granting leave to the plaintiff to withdraw his plea and demur. With regard to this point, the rule is this: If upon the appeal papers being presented, sufficient does not appear upon them to give the appellate court jurisdiction, the amendment cannot be granted so as to obtain jurisdiction. Or if the amendment desired would introduce new matter, which the court below had not jurisdiction to determine, then it cannot be made. By admitting the former amendment, the court would, by its own act, obtain jurisdiction of a ease, of which the papers would show that it had no jurisdiction. And by the latter, a new cause of action would be introduced into the suit. Neither of which can be done. But if the amendment be such as not to affect the jurisdiction either of the appellate court or the court below, it is, in general, allowable under the broad pro [215] visions of the Revised Statutes, in relation to amendments; provided it does not conflict with the rules of court regulating the practice in such cases. Such being the rule as applicable to the amendment of pleadings in an appellate court, the ruling of the court below was correct. It was within their discretion to allow the plea to be withdrawn, and a demurrer to the avowry to be filed. Neither the jurisdiction of the common pleas nor of the justice of the peace was affected thereby. The second question is a more difficult one; but after considerable examination, we think that the demurrer must be overruled. The avowry is objected to on the ground that, while it justifies the taking, it leaves unanswered the detention; and this objection rests upon the position that our statute has extended the remedy of replevin to cases of wrongful detention, to which it did not apply at common law, and that the action must, therefore, be subject to new rules of pleading, requiring not only the taking to be justified, but the detention also. An examination of the authorities has brought us to the conclusion that, before the enactment of our statute, the action of replevin would lie for the wrongful detention of the distress, notwithstanding the taking might be rightful; and that the statute has made no substantial change in the law in that respect. Blackstone says, if I distrain another’s cattle damage feasant, and before they are impounded, he tenders me sufficient amends, now although the original taking was lawful, my subsequent detainment of them, after tender of amends, is wrongful, and he shall have an action of replevin against me to recover them; in which he shall recover damages only for the detention, and not for the caption, because the original taking was lawful. 3 Black. Com. 151. In Evans v. Elliott, 5 A. & E. 142, which was replevin for taking and detaining, &c,, the avowry was for rent in arrears, and the plea that, after the taking and before the im [216] pounding, the plaintiff tendered the rent and expenses; on special demurrer for that the plea did not go to the taking but only to the detaining, it was held that the plea was good, the tortious detention being a taking. The following authorities, it is believed, will also sustain us in the conclusion stated. Com. Dig. Replevin C.; Spelman’s Glossary 485; Gilbert on Replevin 58; Hammond’s N. P. 373, 448; Fitzherbert’s Natura Brevium 69, Hale’s note a.; 8 Coke 290; Isley & a. v. Stubbs, 5 Mass. Rep. 284; Baker v. Fales, 16 Mass. Rep. 147. Some of the books hold that the action cannot be maintained for an illegal detention merely, except by express provision of the statute, unless the act'be such as to make the defendant a trespasser ab initio. And such would appear to be the weight of authority. 7 Johns. Rep. 140 ; 17 Johns. Rep. 116 ; 1 Mason’s Rep. 322 ; Graham’s Prae. 55; Story’s PI. 442, note. But so are not all the authorities. In Massachusetts, the court have said that the action will lie at common law for an illegal detention, independent of their statutory provisions. Isley & a. v. Stubbs, 5 Mass. Rep. 284; Badger v. Phinney, 15 Mass. Rep. 359; Portland Bank v. Stubbs, 6 Mass. Rep. 427. And in Baker v. Fales, 16 Mass. Rep. 147, the particular point decided was that “ replevin lies for a wrongful detention of the plaintiff’s goods, although the original taking may have been justifiable.” And so also was the decision-in Marston v. Baldwin, 17 Mass. Rep. 606. It appears to be admitted in the argument that if the acts of the plaintiff were such as to make him a trespasser ab initio, the avowry is sufficient, replevin being maintainable in such a case, and the plea according to the forms. Assuming this to be so, and that the action cannot be maintained unless the acts amount to trespass ab initio, still this avowry would seem to be good. According to high authority, any matter showing the distress to have been abused, or [217] the proceedings of the defendant to have been irregular, may be brought out by plea to the avowry. As the detention presupposes and includes a caption, by the forms and rules of pleading a justification of the caption is a justification of the detention, and the new matter, showing the detention to have been illegal, should be set forth in the plea to the avowry. The issue thus becomes narrowed down to the real point in controversy — the irregular or illegal proceedings, or abuse of the distress after the caption. 10 Johns. Rep. 253 ; 2 Johns. 191; 10 Johns. 369. In Sackrider v. McDonald, 10 Johns. Rep. 253, it was decided that if a party failed to have the damages done by the cattle assessed, according to the requirements of the statute, it was irregular and unlawful, and rendered the party impounding a trespasser ab initio. Pratt v. Petrie, 2 Johns. Rep. 191, is to the same effect. And in Hopkins v. Hopkins, 10 Johns. Rep. 369, it was held that, in replevin, where the defendant justifies the taking of the beasts as a distress damage feasant, the plaintiff may reply that the avowant, after making the distress, abused it, so as to render him a trespasser ab initio ; as if he impounds the cattle after making the distress, without having the damage previously assessed by the fence-viewers, according to the directions of the (New York) act. And he shall recover damages, as in trespass, for the unlawful taking. In. the course of the opinion which was delivered by Kent, C. J., it is said that “ it is a point assumed in many of the books, and no where denied, that the plaintiff may plead in bar to the avowry that the avowant so abused the distress as to render himself a trespasser from the beginning. There is no reason why the general principle should not apply to this action as well as to trespass, that where a person acts under an authority or license given by law, and abuses it, he shall be deemed a trespasser ab initio.” According to the doctrine of these cases, this plaintiff may plead to the defendant’s avowry any matter showing an. [218] abuse of the distress, or any unlawful or illegal proceedings by the defendant, after the taking. The defendant may thus be shown to'stand in the position of a trespasser ab initio, and so liable, upon this ground, at common law. There is weight in the suggestion of the plaintiff’s counsel, that the defendant must know, and should, therefore, be held to set out the matter on which he relies for a defence of the detention. But when he justifies the taking of the cattle as damage feasant, his pleading shows him to be in the right, and this is all the law requires of him in the first instance. His rightful caption includes the detention. Replevin cannot be maintained against him unless he had no right to make the distress, or has abused it, or proceeded illegally after making it; and if the plaintiff sees fit to commence this form of action against him, and he justifies the taking, it has been said that the plaintiff, and not the defendant, should be called upon to show why the action was brought; that he ought to know and be required to state, in the course of the pleadings, the ground of bringing his action. But whatever may have been the reason of the rule, the books appear to us to settle it; and being more a matter of practice than one involving any essential principle affecting the rights of the parties, we think we should adhere to the authorities, and that the demurrer should be overruled.