At this term the following opinions were delivered.
Ford, J.
In an action on the case for an injury to the plaintiff’s reversionary interest, in goods left with Charles and George Hall, for a year, and seized and sold by the defendant as sheriff, [560]*560within that time, the case appeared to be as follows: Charles and George Hall, being the owners of a shop of goods at Piscataway, mortgaged them to their father Peter Hall the plaintiff, to secure payment of a debt of nine hundred dollars to him in a year; until the expiration of which time, they, the mortgagors, were to keep the goods in possession, and if the debt should remain unpaid till the end of the year, the plaintiff might then seize the goods wheresoever they were to be found and sell them to pay his debt and expenses of sale, returning the overplus to Charles and George Hall, if any there should be. For several days after giving the said mortgage, Charles and George Hall sold goods, out of this store, to customers, by retail, as usual; and in three or four weeks after the mortgage had been executed, the plaintiff gave them direct permission to sell the goods without any restriction, limitation or condition, as to the application of the money, and unknown to any body, for all that appears, but the parties to the permission. Charles and George Hall were indebted so largely to other creditors, that their solvency was a doubtful and critical matter when the mortgage was executed, and it covered all their property, for aught that appears to the contrary, including even their household furniture. The defendant fii;st demurred to the declaration on this instrument, as being fraudulent on the face of it; but the court said it was valid between the parties to it, and if it was void against ereditors, the defendant should not have demurred, but should have shewn it in a plea, that is, in a proper plea, not saying what it should be. Upon liberty to amend, the defendant pleaded the general issue. When the- cause came to trial it appeared, that the firm of Oakfield & Baldwin, who were judgment creditors of Charles and George Hall, at the time the mortgage was executed, soon afterwards sued out an execution thereon, and delivered it to Andrew Snowhill the sheriff, to be executed, who seized the goods in question, by virtue thereof, and sold them to make the debt. The defendant offered the judgment and execution in evidence, in justification of the seizure of the goods: but, the plaintiff’s counsel insisting that the judgment and execution were not admissible evidence under the general issue, but ought to have been specially pleaded, they were overruled; whereby the validity of the mortgage as against creditors was shut out [561]*561of view, and tlie sheriff standing in the light of a mere wilful trespassor, the jury found a verdict against him for the full value of the goods.
This action differs altogether from an action of trespass for taking the plaintiff’s goods, for they were not to be Ms goods till the end of the year ; it is an action on the case for mal-feasance in respect of an interest which the plaintiff might lose in the reversion of the goods at a future day ; and being only an action on the case, the books say with one voice, that the defendant under the general issue, may give in evidence any matter of excuse or justification, without pleading it specially ; they liken it to a bill in equity, where no equitable defence can be excluded. Bacon says expressly, “ that in every action on the case where the matter confesses and avoids the cause of action, it may be given in evidence.” Bac. Ab. Plead. G. 3. Comyns says, “ that in case, 011 the general issue pleaded, any thing may be given in evidence that will destroy the plaintiff's action.” Com. Dig. Plead. E. 13. Tidd is no less explicit. Tidd’sprac. 204, cap. 27, Dub. edit, of 1796. Chitty is to the same effect. 1 Chit. Plead. 432, Philad. edit, of 1828. Judge Gould, says that, “in this comprehensive class, (of actions on the case) whether arising ex contractu or ex delicto, many defences which go merely in avoidance of the declaration, have been admitted under the general issue.” Gould. Plead. 329, sec. 46 and 47. In Lord Bernard v. Saul, 1 Stra. 498, in assumpsit, the defendant was allowed to give in evidence an usurious contract. In 2 Stra. 872, Slater v. Swan, Chief Justice Raymond allowed him, in an action on the case, to give in evidence, under not guilty, a justification for beating the plaintiff's horse. In the case of Bird v. Randale, 3 Burr. 1353, Lord Mansfield takes in the preceding doctrine at large ; “ that in an action on the ease, any thing may be given in evidence under the general issue, that will bar the plaintiff’s recovery ; as a former recovery, release, satisfaction, custom of London, right of common, or any justification or excuse.”
On what ground does the plaintiff’s counsel hope to avoid the concurrent weight.of these writers and adjudged cases? He argues that this is really in its nature, an action of trespass, and in name only, an action on the case. Now, names distinactions from one another, with in and [562]*562an admission that it is termed in the writ and declaration, an action on the case, subjects it to all the rules in the foregoing decisions. If this action is, as the plaintiff alleges, really and in its nature, an action of trespass, it would not lie, and there ought to be a nonsuit; for the plaintiff had not the goods in possession, nor even a right of possession during the year. All the claim set up izz the declaratiozr is to a reversion. In the mean tizne, the possessiozi and right of possessiozi were out ot him by his owzi agreemezit. I do ziot zneazi to say that.his subsequent permission to those having actual possession, to sell the goods out azrd out, divested all his interest, though if they had sold thezn by his perznission, it would seezn to have annihilated even his residuary right to goods so sold. Neither is it necessary to consider at present, whether, if the two sozis had a general and unlimited power of sale for their own use, the law officer, as-their legal deputy, could not sell in their names and powers, for the payzzzent of their just debts. When the law officer sells lands of aziy debtor, he makes just as good a deed as if the debtor had made it himself. If the mortgage intended to fix them in possession, with full dominion over the property, and only to paralize the arm of the law, and of valid executions, it may raise a serious questiozr ; but my present aim is only to shew that there is no circumstance about the ease entitling the plaintiff to maintain trespass in zrame or substance. This distinction between trespass and case, is interesting to both the parties, especially to the sheriff, for ozi a recovery against hizn in trespass, the goods would have become his own, 41 transit rem in judicatumP It is also interestizig to the plaintiff, if, after a recovery of fuli Value in an action that does not pass the goods, he can still questiozr the title of purchasers in an action of trover. Not only in name, but in all its important bearings, this was an action in case, that entitled the defendant’s evidence to be received ; and for this reason I think there ought to be a new trial. It will also enable this instrument which is suigeneris, and rightly called a new invention, to be fully considered.
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At this term the following opinions were delivered.
Ford, J.
In an action on the case for an injury to the plaintiff’s reversionary interest, in goods left with Charles and George Hall, for a year, and seized and sold by the defendant as sheriff, [560]*560within that time, the case appeared to be as follows: Charles and George Hall, being the owners of a shop of goods at Piscataway, mortgaged them to their father Peter Hall the plaintiff, to secure payment of a debt of nine hundred dollars to him in a year; until the expiration of which time, they, the mortgagors, were to keep the goods in possession, and if the debt should remain unpaid till the end of the year, the plaintiff might then seize the goods wheresoever they were to be found and sell them to pay his debt and expenses of sale, returning the overplus to Charles and George Hall, if any there should be. For several days after giving the said mortgage, Charles and George Hall sold goods, out of this store, to customers, by retail, as usual; and in three or four weeks after the mortgage had been executed, the plaintiff gave them direct permission to sell the goods without any restriction, limitation or condition, as to the application of the money, and unknown to any body, for all that appears, but the parties to the permission. Charles and George Hall were indebted so largely to other creditors, that their solvency was a doubtful and critical matter when the mortgage was executed, and it covered all their property, for aught that appears to the contrary, including even their household furniture. The defendant fii;st demurred to the declaration on this instrument, as being fraudulent on the face of it; but the court said it was valid between the parties to it, and if it was void against ereditors, the defendant should not have demurred, but should have shewn it in a plea, that is, in a proper plea, not saying what it should be. Upon liberty to amend, the defendant pleaded the general issue. When the- cause came to trial it appeared, that the firm of Oakfield & Baldwin, who were judgment creditors of Charles and George Hall, at the time the mortgage was executed, soon afterwards sued out an execution thereon, and delivered it to Andrew Snowhill the sheriff, to be executed, who seized the goods in question, by virtue thereof, and sold them to make the debt. The defendant offered the judgment and execution in evidence, in justification of the seizure of the goods: but, the plaintiff’s counsel insisting that the judgment and execution were not admissible evidence under the general issue, but ought to have been specially pleaded, they were overruled; whereby the validity of the mortgage as against creditors was shut out [561]*561of view, and tlie sheriff standing in the light of a mere wilful trespassor, the jury found a verdict against him for the full value of the goods.
This action differs altogether from an action of trespass for taking the plaintiff’s goods, for they were not to be Ms goods till the end of the year ; it is an action on the case for mal-feasance in respect of an interest which the plaintiff might lose in the reversion of the goods at a future day ; and being only an action on the case, the books say with one voice, that the defendant under the general issue, may give in evidence any matter of excuse or justification, without pleading it specially ; they liken it to a bill in equity, where no equitable defence can be excluded. Bacon says expressly, “ that in every action on the case where the matter confesses and avoids the cause of action, it may be given in evidence.” Bac. Ab. Plead. G. 3. Comyns says, “ that in case, 011 the general issue pleaded, any thing may be given in evidence that will destroy the plaintiff's action.” Com. Dig. Plead. E. 13. Tidd is no less explicit. Tidd’sprac. 204, cap. 27, Dub. edit, of 1796. Chitty is to the same effect. 1 Chit. Plead. 432, Philad. edit, of 1828. Judge Gould, says that, “in this comprehensive class, (of actions on the case) whether arising ex contractu or ex delicto, many defences which go merely in avoidance of the declaration, have been admitted under the general issue.” Gould. Plead. 329, sec. 46 and 47. In Lord Bernard v. Saul, 1 Stra. 498, in assumpsit, the defendant was allowed to give in evidence an usurious contract. In 2 Stra. 872, Slater v. Swan, Chief Justice Raymond allowed him, in an action on the case, to give in evidence, under not guilty, a justification for beating the plaintiff's horse. In the case of Bird v. Randale, 3 Burr. 1353, Lord Mansfield takes in the preceding doctrine at large ; “ that in an action on the ease, any thing may be given in evidence under the general issue, that will bar the plaintiff’s recovery ; as a former recovery, release, satisfaction, custom of London, right of common, or any justification or excuse.”
On what ground does the plaintiff’s counsel hope to avoid the concurrent weight.of these writers and adjudged cases? He argues that this is really in its nature, an action of trespass, and in name only, an action on the case. Now, names distinactions from one another, with in and [562]*562an admission that it is termed in the writ and declaration, an action on the case, subjects it to all the rules in the foregoing decisions. If this action is, as the plaintiff alleges, really and in its nature, an action of trespass, it would not lie, and there ought to be a nonsuit; for the plaintiff had not the goods in possession, nor even a right of possession during the year. All the claim set up izz the declaratiozr is to a reversion. In the mean tizne, the possessiozi and right of possessiozi were out ot him by his owzi agreemezit. I do ziot zneazi to say that.his subsequent permission to those having actual possession, to sell the goods out azrd out, divested all his interest, though if they had sold thezn by his perznission, it would seezn to have annihilated even his residuary right to goods so sold. Neither is it necessary to consider at present, whether, if the two sozis had a general and unlimited power of sale for their own use, the law officer, as-their legal deputy, could not sell in their names and powers, for the payzzzent of their just debts. When the law officer sells lands of aziy debtor, he makes just as good a deed as if the debtor had made it himself. If the mortgage intended to fix them in possession, with full dominion over the property, and only to paralize the arm of the law, and of valid executions, it may raise a serious questiozr ; but my present aim is only to shew that there is no circumstance about the ease entitling the plaintiff to maintain trespass in zrame or substance. This distinction between trespass and case, is interesting to both the parties, especially to the sheriff, for ozi a recovery against hizn in trespass, the goods would have become his own, 41 transit rem in judicatumP It is also interestizig to the plaintiff, if, after a recovery of fuli Value in an action that does not pass the goods, he can still questiozr the title of purchasers in an action of trover. Not only in name, but in all its important bearings, this was an action in case, that entitled the defendant’s evidence to be received ; and for this reason I think there ought to be a new trial. It will also enable this instrument which is suigeneris, and rightly called a new invention, to be fully considered. Let the rule be made absolute for a new trial.
Hornblower, C. J.
This is a special action of trespass on the case, brought by the plaintiff against the defendant for [563]*563taking out of the possession of two persons named Charles Hall and George Hall, certain goods and chattels, and for selling and converting the same to his own use, to the injury of the plaintiff’s reversionary right and interest in those goods, under a contract between the plaintiff and the said Charles Hall and George Hall.
The defendant pleaded not guilty, and on the trial, offered to shew that he had taken and sold the goods as sheriff of the county of Middlesex, under and by virtue of an execution directed to him, out of the Court of Common Pleas of that county, against the said Charles Hall and George Hall, and the defendant further offered to shew, that the bill of sale or mortgage under which the plaintiff claimed a reversionary interest in the goods, was fraudulent, and void as against creditors.
This evidence was rejected, on the ground that the defendant could not be permitted under the general issue, to justify the taking, or enter into the question of fraud. Not only so, but it was given in charge to the jury, that however false and fradulent they might believe the transaction to be, as respected the creditors of Charles Hall and George Hall, yet as between the plaintiff and this defendant, they must consider the bill of sale as valid and conclusive, inasmuch as the defendant had not by his plea justified the taking as sheriff under an execution.
In all this, I am satisfied, I was wrong and had overlooked the broad and rational distinction, between a special action on the case, and an action of trespass de bonis asportatis. In the latter case, the action is founded on the right of property or at least of possession, and the plaintiff claiming title to goods under a voluntary bill of sale, has a right' to retain them not only against the donor, but against all other persons except creditors. Hence it becomes necessary for a defendant in such case, to show himself a creditor or acting in behalf of a creditor, who has aright to question the bona fides of the transaction. Whereas, a special action on the ease, in which the plaintiff seeks to recover damages for some incidental injury he has sustained, is in the nature of a bill in equity, and being so, is open upon the general issue of every equitable defence. If the plaintiff is entitled to recover, it is upon the special circumstances of his case, and not for any trespass done by the defendant, to his person [564]*564or his property ; nor for any direct attack upon his rights or his possession. Consequently, upon the general issue, the defendant may give in evidence, by way of justification or protection, any thing and every thing which shew, that the special circumstances of the case are such, that ex aequo et bono, the plaintiff ought not to recover. The authorities cited by Mr. Justice Ford, in the opinion just delivered by him, are conclusive upon this point. The verdict must be set aside and a new trial granted. The costs to abide the event of the suit.
Ryerson, J. concurred.
New trial granted.