Griswold v. Sedgwick

1 Wend. 126 | N.Y. Sup. Ct. | 1828

By the Court,

Savage, Ch. J.

The first question is, whether the replication is good ? The resolutions in Crogate's case,(8 Co. 132,) establish this rule:, that where the plea contains matter of excuse only, there the replication of de injuria sua propria absque tali causa is a good replication ; but not where it contains matter of justification, whether that justification rest upon matter of right or interest, or upon an authority from the plaintiff, or upon authority given by law. In Jones v. Kitchin, (1 B. & P. 80, 1,) Eyre, chief justice, says, “ If we were now to break in upon the rule so satisfac. torily. laid down in Crogate's case, we should confound all the rules of pleading.” (2 Saun. 295, n. 1. Com. Dig. F. 18, 20. Willes, 100, 202. 1 Chitt. Pl. 564, 581, 2, 3, 4, and cases there cited.) The point is also perfectly settled in this court, (4 Johns. R. 159, 5 Johns. R. 112,) where Kent, chief justice, says, “ The rule is, that the general replication, de injuria, &c. is bad where the defendant insists on a right, and is good only where he pleads matter of excuse.” (See also 12 Johns. R. 491.) The same rule is recognized in 7 Cowen, 46, Allen v. Crofoot. The replication is therefore clearly bad.

The next question is upon the validity of the plea. It states the proceedings in part; and if the circuit court is to be considered a court of general jurisdiction, the plea states toore than was necessary to give validity to its process. In this plea, no question of misnomer or mistake can arise, as the order is stated to have been made against the complainant. Notice of the order was served upon him. He is said to have neglected to comply with the order of the court, and according to the plea, the process was issued against the present plaintiff. In Baldwin v. Hale, (17 Johns. R. 272,) it was said by this court, that Ci the circuit court of the United States, in relation to this court, is neither a superior nor an inferior court, but it is to be regarded as a court of another government.” It is a court constituted by a statute of the general government, and is a court of general jurisdiction. The only limitation is as to the parties who can litigate there; and when parties are litigating in that court, we are not to presume that they are there irregularly. But if it were necessary to state enough to give jurisdiction, that is done by the averment that the complainant was a citizen of this state, and the defendant a citizen of Massachusetts. The court then had jurisdiction of the persons of the parties, and of the subject matter; and being a court of general jurisdiction in every other respect, except that particular in relation to which jurisdiction is shewn, this court will not examine the proceedings, to ascertain whether they were according to the course and practice of that court. Such an inquiry should be made in that court only. On tliis point, the opinion of this court has already been expressed in this cause. (6 Cowen, 463, 4.) My conclusion, therefore, is, that the plea is good. The replication being bad, the defendants, the Sedgwicks, are entitled to judgment upon the demurrer; and as the whole matter has been before a jury upon the general issue, I can perceive no benefit in allowing an amendment.

The next subject of enquiry is the validity of the pleas of the defendants, Morris and Reid. These pleas admit the error in the process in the name of the party, and aver that the mistake was the misprision of the cleric or the solicitor, and that the plaintiff was the person intended to be affected by the proceedings in the circuit court. These facts are admitted by the demurrer, but in my judgment do not vary the case from what it was when heretofore befpre us. The cases there cited, particularly the case of Shadgelt v. Clipson, (8 East, 328,) decides that the defendant catinot justify the arrest of the plaintiff by a wrong name, though he was the person intended to be arrested, unless it was shewn that he was known as well by one name as the other. The correctness of this doctrine was admitted, and the same was adopted by this court in Mead v. Hawes, (7 Cowen, 332.) These pleas are bad. This point was virtually so decided in the decision already referred to. (6 Cowen, 460.) The plaintiff is therefore entitled to judgment on the demurrer to the pleas of the defendants, Morris and Reid ; and here too, I apprehend an amendment would be useless.

The remaining points to be decided, arise upon the bills of exceptions. The cases and principles just adverted to, decide the defendants’ bill of exceptions. The evidence upon which they relied consisted of the proceedings of the circuit court, which it was insisted, constituted a suEcient authority for the arrest, and, of course, a good defence in this cause. The judge decided according to the former decision of this court, that these proceedings and writ did not authorize the arrest. This was correct. The motion of the defendants for a new trial must, therefore, be denied.

One other point was made, as to the admissibility of Mr. Warner. He was objected to on the ground of interest, being a partner with the plaintiff’s attorney, and interested in the costs, and probably expected higher fees as counsel in case of success. This is not a certain interest, which alone is sufficient to exclude a witness.

The judge, in charging the jury, instructed them, that with the regularity of the proceedings of the circuit court, this court had nothing to do ; that, for the purpose of this suit, the proceedings in that court roust be considered the acts of the court; the writ must be considered regularly issued, but, from an error in issuing it, the writ was against Samuel, instead of Daniel S. Griswold ; and that the plaintiff) having been arrested under this writ, was entitled to their verdict in his favor, against such of the defendants as had had a direct agency in causing the arrest; but that the circumstance of the defendant, R. Sedgwick’s name, being subscribed to the process without other proof of his agency, was not sufficient to charge him in this form of action. Upon so much of the charge as relates to the power of this court to look into the proceedings of the circuit court, an opinion has already been expressed upon the demurrer, in coincidence with that expressed by the learned judge at the trial. I concur with him, also, as to the liability of the defendant, R. Sedgwick. He took no active part in the transaction. It did not appear, on the trial, that he knew any thing about it till the day after the arrest and discharge of the plaintiff. The case of Barker v. Braham & Norwood, (3 Wils. 368,) is cited as an authority to shew the liability of an attorney in the cause for false imprisonment, under process issued by him. That was a case of a ca. sa. issued against an administratrix, to compel payment of a judgment against her as administratrix. The facts there were different from this case. There the attorney made out the writ himself; he delivered it to the officer, and gave him orders and directions to take and arrest the administratrix in execution. After a long and learned argument, both by counsel and by Chief Justice Be Grey, who gave the opinion of the court, he concludes as follows ; “ Upon the whole, Norwood, in this case, sued out the capias, and delivered it to the officer to be executed. Upon this ground, we are all of opinion that judgment must be entered for the plaintiff) against both Norwood, the real actor, and his client, Mrs. Braham, the nominal actor.” In this case, R S." was not an actor, and so not liable. The motion for a new trial, by the plaintiff, must be denied.