Currie v. Henry

2 Johns. 433

Opinion

Spencer, J.

delivered the opinion of the court. The plaintiffs having charged two escapes, probably on the very same execution, it became necessary to plead to them several pleas. The second and fourth pleas are, no doubt, good. It has been contended, 1st. That the pleasure multifarious and double, .without specifying wherein. It would be a good answer to say, if these pleas were'double, yet as the duplicity has not been specially shown, they stand as on a general demurrer, and will be aided.

|| But these two pleas are, in truth, free from duplicity; the defendant could not have pleaded the involuntary escape, and. return, before action brought, without also alleging, that the prisoner was, at the time of the plea pleaded, in his custody. This is manifest from all the precedents ; and if he had relied solely on the'discharge by the court of common pleas, then at the trial he might have been surprised, and in fact charged for the involuntary escape; so that both facts are necessarily blended in his defence; and go to one point, to wit, an escape for which he was not responsible. The second ground, of exception to the second and fourth pleas, is, that they do not show that the court of common pleas had jurisdiction to discharge the prisoner, Hoj/f. It is a complete answer to this objection, that the plea avers the fact of jurisdiction in that court, and that it nowhere appears that the execution on which Haff was in custody exceeded 2,500 dollars. A ministerial officer can never be rendered liable for obeying the authority of a court, unless itappearstliatithad.no jurisdiction. If the plaintiffs meant to contest that point, he might have replied it. As it stands, we must intend, that the court had jurisdiction. The third, exception relates to the difference in dates between the discharge of Hajf, by the court, and the sheriff’s liberating him ; this does not require a serious consideration. The discharge by the court evidently means their order, and not the return of the prisoner; but if it did, the time is immaterial, as the discharge by the sheriff was posterior to the order of the court. The fourth exception is unfounded, in fact; the discharge by the sheriff, under the order of the court, is averred in the pleas to be the escape charged in both counts. The third aiMj gftg pleas are bad, in alleging, “that Half was dis- ‘ ~ 07 . charged out of custody by due course of law, as aforesaid,” w^'10ut stating how he was discharged. Pleas pleaded leave of the court, must contain, in each of them, sufficient matter in law, to bar the plaintiff’s action, and they cannot be made to depend on facts stated in other pleas. We are accordingly of opinion, that the de fendant must have judgment on the second and fourth pleas, and that the plaintiffs are entitled to judgment on the third and fifth pleas, (a)

1 Saun. 337 note 3.1 Salk 219. 5 Co. myns' 387. E. 2.

A. plea, &c. which introduces several facts, all of which are necessary to constitute hut one point of defence, is not bad for duplicity M’Clure v. Erwin, 3 Cowen, 313.

Where the defendant pleads two distinct pleas, neither of which is in itself a defence, though both together would be, and the plaintiff replies separately, and goes to trial, and the pleas are found for the defendant, judgment shall be for him ; for the cause is with him on the whole record ; and the court will consider the two pleas substantially one, though in form two, and to avail himself of Ihe def ect the plaintiff should demur. Shook v. Fulton, 4 Cowen, 424.