Goodrich v. Judevine, 40 Vt. 190

40 Vt. 190 | Vt. | 1867

The opinion of the court was delivered by

Kellogg, J.

The plaintiff’s declaration is in trespass quare clausum frecjit, for the breaking and entering by the defendant, on the 1st day of April, 1853, of a certain close of the plaintiff’s in Hard-wick, (which is described,) and then and there, on the said 1st day of April, and on the 2d and 3d days of the same month, breaking down the plaintiff’s fences, and, with cattle, horses and men, treading down the herbage there growing, and taking and carrying away from the premises the plaintiff’s buildings and timbers and other materials of great value, to wit, one hundred dollars, and also taking and carrying away “ the plaintiff’s granite stone there situate, all of the value of eighty dollars,” and converting the same to his, the defendant’s, own use. The defendant pleaded, first, the general issue ; second, license, and three pleas in bar. Issue was duly joined on the first, second and third of these pleas, and to the fourth and fifth the plaintiff demurred specially. The county court, pro forma, overruled the demurrer, and held the fourth and fifth pleas to be'sufficient, and rendered judgment for the defendant. To this decision and judgment the plaintiff excepted.

A copy of the fourth plea only, with the demurrer thereto, w'as furnished to this court on the hearing; but it was agreed by the counsel that the originals of the fifth plea, and the demurrer to the same, were lost, and that the fifth plea should be regarded and treated as being like the fourth pleá- in all respects, except the beginning and conclusion, which were in proper form in estoppel, and that the same causes of demurrer, mutatis mutandis, should be treated as assigned to this plea which were assigned to the fourth plea, so far as the same were applicable.

It may be doubted whether the defence set up in the fifth plea can be pleaded by way of estoppel, inasmuch as the estoppel must depend, in a large measure, upon questions of fact to' be decided on the trial. But the same defence is pleaded in bar in the fourth plea, and we are disposed to regard it as immaterial* if the pleas set forth a defence which is good in substance, whether this defence is pleaded in form, in bar, or as an estoppel.

The pi-incipal question arising on these two pleas is, whether the plaintiff’s relation or connection with the suit in favor of Holton and the defendant against Simeon Goodrich, (35 Vt. 19,) is sufficiently set forth, or averred, to make the judgment in that suit binding and conclusive, as against the plaintiff, in respect to the matters therein litigated. It is clear that the plaintiff is not affected or barred by that judgment, unless it is shown that he was a party or privy to the suit, and that the identical right, which is the subject of controversy in this action, was adjudicated upon in that suit. The pleas state, in substance, that in the entry on the close and removing of the stone, which was the act of trespass complained of in that suit, Simeon Goodrich, who'" was the defendant in the suit, was the servant and agent of the plaintiff, and that, on the return day of the writ in that suit, the plaintiff and the said Simeon “ appeared in court ” before the justice to whom the writ -was returnable, “ and the respective parties in said action were then and there impleaded, and issue was joined then and there in said court between said parties,” * * and that the stone, for the removal and conversion of which that suit was commenced, was part of the same quantity of stone the title to which is in issue between the parties in this action, and that the title to that stone which was in issue and determined in that suit is the same title now in issue in this action. The pleas aver merely that the plaintiff “ appeared in court ” on the trial of the former suit, and this is the only connection which he is alleged to have had with that suit. We think that this averment of an appearance in court is not sufficiently definite to show that the plaintiff had any connection with the suit or took any part in the proceedings on the trial. The pleas should show not only that the plaintiff “ appeared in court” but that he also defended the suit, or took upon himself the burden of its defence, either upon his voluntary appearance, or after being cited by the defendant in the suit to appear'and make defence to it. The -pleas do not show that the plaintiff took any part in conducting the defence, and the averment that he “ appeared in court ” would be supported by proof that he appeared as a witness or spectator, as much as by proof that he appeared in any other character. We cannot, without an unwarrantable relaxation of the rules of pleading, treat this averment as implying that the plaintiff appeared as a party to the suit, and conducted, or participated' in conducting, the defence which was made on the trial, and in this respect the pleas are defective.

The pleas do not show with sufficient distinctness and certainty that the identical right which is the subject of controversy in this action was adjudicated upon in the former suit. The pleas should have alleged that the stone mentioned in the declaration as taken and carried away by the defendant, were taken and carried away by him before the time for the removal of the stone, as enlarged and extended by the agreement referred to in the plea, had expired, and that this taking and carrying away of the stone by the defendant, was the same trespass for which this action was brought. But for aught which appears in the pleas, the taking and carrying away of these stone by the defendant might have been after this enlarged time for the removal of the stone by the defendant had expired ; and wo regard the pleas as being fatally defective in this particular. ■

The pleas are bad in another respect. The principal trespass complained of in the declaration is, the breaking and entering of the plaintiff’s close, and the residue is matter of aggravation. Under this declaration, if the defendant was not found guilty of breaking and entering the close, he could not be found guilty of the residue of the trespass as set forth in the declaration. 1 Saund. R., 27; Eames v. Prentice et al., 8 Cush. 337. The pleas are pleaded as an answer to the whole declaration, but set forth a. justification, not 'of the whole of the acts of trespass ■ complained of, but only of a part of those acts which were alleged as matter of aggravation. In respect to every thing complained of in the declaration, except the taking and carrying away of the stone, the pleas are silent. If the defendant had the right to take and carry away the stone, he should have pleaded that he entered the close for the purpose of exercising that right, and that, in so doing, he did no unnecessary damage. It is well settled that a justification, good as to a part only of the trespasses complained of in the declaration, is bad as a whole, if it professes to answer the whole. 1 Saund. R. 28, note 3; Dutton v. Holden, 4 Wend. 647.

It is not necessary to set forth, either in a plea in bar, or in estoppel, the whole proceedings in the former suit, but it is allowable to set them out with a taliter processum est, 1 Saund. R. 92, n. (2.)

The pro forma judgment of the county court, by which these pleas were held to be good, is reversed, and the pleas are adjudged to be insufficient. The defendant, if he desires to do so, will be allowed to withdraw and amend his pleadings on the ordinary terms ; but otherwise the case will be remanded to the county court for a trial on the issues joined on the other pleas.