2 Blackf. 163 | Ind. | 1828
This was an action of trespass. The declaration contains two counts. Tho first, for breaking and entering the plaintiff’s close, situate in the county of Henry, and taking away his marc, and converting her to his own use. The second, for breaking and entering the plaintiff’s dwelling bouse, situate in the county of Henry, and breaking his clock.
Two of the defendants, Leavell and Forkner, pleaded in justification, that the plaintiff, conscientiously scrupulous of bearing arms, was, on, &c. at, &c. by a Court of assessment, adjudged to pay two dollars and a half as an equivalent for not
The other defendant, Boggs, besides the general issue, pleaded a justification similar to that of his co-defendants, with the exception that he states his having acted not as an officer, but in aid of Leavell the sheriff, and in obedience to his command.
To the plea of Leavell and Forkner, the plaintiff demurred specially for the following.causes: 1st, the plea does not answer the trespass charged as to the house and clock; 2ndly, the plea shows that the fine was against the plaintiff, as one conscientiously scrupulous of bearing arms; and that the alias list was not signed, sealed, and delivered, by the senior officer of thó Court of appeals, without which it was void; Srdly, the plea shows that the property was taken on an alias list of fines, which could not issue in this case; 4thly, it does not appear that the process was in the name of the state; 5thly, it does
.There is nothing in the first objection. Entering into the dwelling house, breaking the close, and taking the plaintiff’s mare, constitute the gist of the trespass alleged; and these, the defendants undertake to justify: breaking the clock is merely a matter of aggravation, and needed not to be answered by the plea. Taylor v. Cole, 3 T. R. 392.
The second objection is also untenable. The word's of thé militia law of 1824, section 47, are express, that if the money be not made on the first list, the judge advocate, on being notified thereof by the paymaster, shall issue an alias or pluries list of the uncollected fines. The law requires the first list to be Signed and sealed by the senior officer; but, in so many words; authorises the judge advocate himself to issue the subsequent ones.
As to the third objection, we are clearly of opinion, that thé provision in the section of the militia law already referred to, which requires the judge advocate to issue an alias or a pluries list, extends tb the cases of fines against persons conscientiously scrupulous of bearing arms, as well as tb all others. That is, obviously, the intention of the statute, and we can find nothing in the letter to warrant any other construction.
The fourth objection, that the list is not, like executions of fieri facias, &c., in the name of the state, cannot be supported. It is plain, that the form contended for, is not within the intention of the statute. By the words, a list of fines, cannot bé meant a formal execution, running in the name of the state'. The objection, therefore, depends on the unconstitutionality Of the law. The clause in the constitution saying, “the style'of all process shall be, The State of Indiana f found in the fifth article; which relates to the judiciary department of the government, has no relation to the manner of collecting militia fines. There is a section in the seventh article, relative to these fines as to conscientious persons, which requires that they shall be collect
That part of the fifth objection to this plea, which relates to the want of a venue, is answered by observing that the place is laid in the declaration, and it was not necessary to repeat it in a justification of the trespass, alleged to be the same with that complained of. As to the other part of this objection, though the statement of the fact said to be omitted, is not as explicit as it might be, we think that the defect is rather too slight to authorise a reversal of the judgment on that ground.
The last cause of demurrer to this plea is fatal; and the plaintiff was entitled on it to the judgment of the'Court. The defendants, Leaveli and Forkner, justify as sheriff and deputy sheriff, but do not designate in their plea, which of them is the one, or which the other. It is impossible that this can be correct. The plaintiff has a right to know from the plea, which particular defendant it is that justifies as the sheriff; and, also, which one it is that justifies as the deputy sheriff The plaintiff, for example, might wish to deny that the person is sheriff, who justifies in that character; but in this case he could not do so, without averring that neither. of these two defendants was the sheriff That would surely be subjecting him to more than the law requires.
The special plea of Boggs is a bar of the suit as to him. The causes of demurrer to his plea have been shown to be insufficient; and it is, in other respects, substantially good.
The judgment is reversed with costs. Cause remanded to the Circuit Court, with directions to render judgment on the demurrer in favour of Boggs, and to permit the other defendants to withdraw their joinder in demurrer and amend, their plea.