19 Wend. 463 | N.Y. Sup. Ct. | 1838
By the Court,
I confess I supposed, upon the argument, that I should find the question raised, perfectly disposed of by cases in this court. But one case was cited, and so far as that goes, it is against the plea. It was sought to be distinguished, and indeed brought down to the force of a mere dictum; and it was insisted that the plea is maintainable on a correct understanding of the authorities. Having satisfied himself of this, the counsel went back to Rockwood v. Feasar, Cro. Eliz. 262, and The Archbishop of Canterbury v. Kemp, id. 539. I shall notice what these cases are, in the course of my remarks. For the present I admit that the first case, if to be followed, will sustain not only this plea, but any imaginable special plea amounting to the general issue. The plea was an argumentative denial both of the plaintiff’s property and of an illegal conversion by the defendant, the whole matter, and nothing but the matter involved in the general issue. In the second the plea was to the same effect, but the point was not raised, for the plaintiff replied. It was the more surprising to hear so late an authority as Wingfield v. Srafford, 1 Wils. 315, cited to the same point, but the report there is probably, as we shall see hereafter, imperfect, and in any view far from being an authority for the defendant. As the case stands in Wilson, nothing is said of the point before us ; but there is more in it than I could have supposed.
Some cases assume that a special plea may be properly interposed, if it confess part of the plaintiff’s case ; as in Dee v. Bacon, Cro. Eliz. 435, which was a plea of taking damage feasant, and held bad because it did not confess the conversion. Agar & Lisle, Hob. 187, was a plea of distress for market-toll, held bad for the same reason; Salter v. Butler, Noy’s R. 46, was a plea of distress for rent, held bad for the same reason; and Kinnersley v. Barnard, Cro. Eliz. 554, was a plea traversing a conversion, but of the wrong thing. Hartford v. Jones, 2 Salk. 654, was a plea of seizure as wreck, and detaining till paid for the pains, and held .bad because it did not confess a conversion. 1 Ld. Raym. 393, S. C. 3 Salk. 366, S. C.
Several special pleas of a like character have been countenanced and directly sustained by the courts on demurrer, assigning for cause that they amounted to the general issue. Such is Kinnersley v. Barnard, Cro. Eliz. 554, the case of a plea admitting property in the plaintiff and specially traversing the conversion with an absque hoc; Hill v. Hawkes, 1 Roll. R. 1, 44, justifying the taking by force of a custom ; 2 Bulst. 201, S. C. and S. P.; Moore, 835, S. C. but not S. P. Such is Rockwood v. Feasar, Cro. Eliz. 262, a plea of property out of the plaintiff, and in one J. S. by whose command the defendant took it, giving color and showing that the plaintiff had title against all except J. S. I repeat the admission before made, that if the last case be law, it exactly sustains the plea in the case at bar. Both of them deny the plaintiff’s property and an illegal conversion. In Strausham's case, Cro. Eliz. 98, Coke, J. mentions special pleas in trover as admissible, and among others a taking" damage feasant. In Bisse Tyler’s case Godb. 267, 13 Jac. it was put with a quere whether a plea of a sale by the plaintiff to the defendant were bad as amounting to the general issue, and according to a report of the same case in 1 Roll. R. 173, the plea was thought good.
The most ancient cases seems to be against this plea. Brooke, in his Abr. Action, Surle case, pi. 113, cites the year book, 4 E. 6, and at pi. 109, he cites 33 H. 8 to that effect. The cases of Whittaker v. Collet, 1 Roll. R. 22, Row v. Thompson, id. 197, and Phillips v. Wickes, 3 Bulstr. 209, may also be added to the cases before cited as directly against the Like pleas ; and see also Vandrink and Archer’s case, 1 Leon. 22T
At a time when the judgments at Westminster Hall stood in singular conflict, and their reasoning and dicta on the subject of these special pleas in trover exhibited contradictions and subtleties no less extraordinary, as may be seen on a still closer examination of the cases, the courts adopted and
It is also said in 1 Chilly’s Pl. 490, the defendant may, in trover, plead any thing specially which admits property in the plaintiff and a conversion by the defendant. I think he might have added that a special plea showing either property out of the plaintiff or that there was no r conversion, or both, would be bad on special demurrer, as amounting to the general issue. It may be taken as the clear result of the more numerous cases including the modern authorities, of the course of which this court strongly intimated its approbation in Kennedy v. Strong, that a special plea showing there never was an unlawful conversion of the plaintiff’s property, or in other words, that he never had any cause of action, is bad in form. But where the plea admits that there once was a cause of action, and sets up subsequent matter in discharge or avoidance, it may be pleaded specially. The general issue is, not guilty of the premises, &c. In good sense, this denies all which the plaintiff, in legal effect, alleges in his declaration, viz., property in himself and an illegal conversion by the defendant. The evidence on such an issue, so long as it is confined to the original cause of actioq, comes literally within the scope of the pleadings, as remarked by King, Ch. J., in regard to other actions on the case : “ Every thing which shows that the defendant did what he might do, may be given in evidence upon not guilty pleaded ; for that proves he had done no injury.” Anon. Com. Rep. 274, ■ It is not necessary to say that the defendant must plead even matter in discharge or avoidance. We know that generally he need not, though he may do so in actions of assumpsit, and especially in other actions on the case. 1 Chilly’s Pl. 486, and the cases there cited. T have noticed the statute
So many old cases occurring which certainly do go to sustain the plea in the principal case, I have taken some pains to discover how they have been met and overturned, if such were the fact, I encountered more labor from not being' able to find that the matter had been systematically taken up by any author. 1 may have failed to find some material cases, but as far as I have examined, I feel well satisfied with the results already expressed; and, at least, that authority, reason and convenience all concur against the plea in question. The best collection of the old authorities is to be found in Yin. Abr. Actions of Trover, &c. L. 5, Trover, Plea. vol. 1, p. 254, et seq. The remark in Petersdorf’s Abr., Trover, pi. 5, (B.,) Plea, note, that the defendant may plead any matter which admits the conversion, and that the property is in the plaintiff, but justifies the former, I am satisfied is wrong. See accordingly, Bac. Abr. Trover, (F.) pi. 2, of the plea.
I presume the general issue has been pleaded, though very properly omitted in the demurrer book. If so, no amendment is necessary. If otherwise, the defendant may now add the general issue,
Judgment for the plaintiff.