1 Colo. 299 | Colo. | 1871
This was an action of trespass, de bonis asportatis, commenced by appellees against William Z. Cozens and Moritz Deitsch, Isidor Deitsch and Jonas Deitsch in the district court of Gilpin county, in which the appellees recovered a judgment against said William Z. Cozens and Moritz Deitsch for the sum of $2,315.90, and from this judgment Deitsch appeals. The declaration alleged that the defendants took and carried away certain goods and chattels in the declaration mentioned, on the 4th day of May, 1867, of the value of $2,315.90.
The defendants jointly plead the general issue, and also a special plea alleging that the goods and chattels in the declaration mentioned were the goods and chattels of O. S. Buell & Co., on the said 4th day of May, 1867, and that, on the 3d day of May, 1867, a writ of attachment was issued out of the district court of Gilpin county in favor of the firm of Deitsch & Bro., directed to the sheriff of said Gilpin county, commanding him to attach so much of the estate, real and personal, of the said O. S. Buell & Co., as should be of sufficient value to satisfy the sum of $1,478.90, and costs ; that, on the said 3d day of May, 1867, the said William Z. Cozens was sheriff of Gilpin county; that, on said day, the writ of attachment was delivered to said Cozens to
It is urged by the appellant that the appellee, having joined issue on the special plea, was by the joinder precluded from objecting to the introduction of evidence under it; that the filing of the replication cured whatever defects existed in the special plea. Under the ruling of the court below three questions present themselves. First, was the special plea defective in substance? Second, did the appellee, by pleading over, waive any substantial defects that existed in the special plea ? Third, the plea being defective, could the appellees object to the introduction of evidence under it ? It must be admitted, at least it will so appear after a careful examination, that there is no allegation in the special plea that O. S. Buell & Co. were, at the time of the alleged trespass, indebted to Deitsch & Bro. Giving the plea the most liberal construction, it simply avers that on the 3d day of May, 1867, a writ of attachment was issued
In the case of Bradley v. Powers, 7 Cow. 330, it is held, that when two plead a justification jointly or a plea involving a justification which fails as to one, the plea, being entire, faffs as to both. To the same effect is Middleton v. Price,
The special plea being defective, could the plaintiff below object to the introduction of evidence under it %
It is claimed by the appellant that the plaintiff below, having failed to demur, and having joined issue on this plea, was estopped from objecting to the introduction in evidence of matters alleged in it. If the plea was substantially defective, and so we adjudge it to be, and was not cured by .pleading over, then it was no defense to the action, and being no defense to the action, it was entirely competent
The same rule is laid down in Chitty’s Pl., vol. 1, p. 500, 502. In an action for trespass for injuries to real or personal property, the plea of not guilty puts in issue the trespass alleged in the place mentioned, and operates as a •denial of the plaintiff’s possession or right of possession. 'The substance of the declaration is, that the defendant has forcibly and wrongfully injured property in the possession ■of the plaintiff, and under the general issue the plaintiff must prove, first, that the property was in his possession at the time of the injury, and this rightfully as against the defendant. Second, that the injury was committed by the defendant with force. Under the general issue the defendant may give in evidence any facts tending to disprove either of the propositions which we have seen the plaintiff is obliged to make out to maintain his action. Every defense which admits the defendant to have been prima ,facie a trespasser must be pleaded specially, but any matters which go to show that he never did the act complained •of may be given in evidence under the general issue. Puterbaugh’s Pr. 464. In the extended examination given this .subject, we have found but two cases where proof tending to justify a trespass has been allowed to be introduced under the general issue. The first is the case of
In the case of Squire v. Hallenbeck, 9 Pick. 551, it is held that “in trespass de bonis asportatis the defendant may prove, in mitigation of damages, that the goods did not belong to the plaintiff, and that they came to the use of the owner, although in taking them the defendant acted without authority.” But the ruling in each of these cases is made to rest on special grounds. In Hew York, by statutory provision, the plea of not guilty is equivalent to a plea of justification. Merrill v. Forbes, 5 Wend. 239. It is further claimed by the appellant that the court erred in refusing to allow the defendants below to introduce proof of Sherman’s want of authority to sell the goods to Hart, Wiggins & Co. It must be borne in mind, that Deitsch’s interference with the property in controversy could only be justified on the ground that he was a creditor; that he had a valid subsisting debt against O. S. Buell & Co., and that, as such creditor, he was assailing the title of Hart, Wiggins & Co. These matters could only be introduced under a special plea, and we have already held that the special plea was fatally defective and no proof could be admitted under it. It is therefore not necessary for us to discuss or decide whether the sale made by Sherman to plaintiffs below was a valid sale, or whether it could or ought to be upheld against existing creditors of Buell. It is further urged by the appellant that the court below erred in the instructions given the jury on the subject of damages. We have carefully considered this point and find no error. In the case of Anthony v. Gilbert, supra, it is said : “We know of no standard by which damages in action of trespass can at all times be measured. The nature of the injury complained of renders it impracticable to establish such a rule, the first inquiry should be the amount of injury actually sustained, which, together with interest, is a good general
We have carefully considered the other objections urged, and find no reasons why the judgment should be reversed.
Judgment affirmed, with costs.
Affirmed.