Neale v. Clautice

7 H. & J. 372

• Court: Court of Appeals of Maryland
• Decided: June 15, 1826
• Status: Published

Opinion

Earle, J.

delivered the opinion ol the Court. The attention of the court is called to the pleadings of this case. It' is an action of trespass for taking the personal goods of the plaintiff. To the declaration, which is in common form, the defendant, pleaded specially; and he also, pleaded the general issue plea, which by consent was withdrawn from the case. The special-plea purports to be a justification of the taking, fora distress for rent, not due to the defendant by the plaintiff, but from hi3 tenant John O. Neale., who is charged with fraudulently removing the, distrained-property, being his own proper goods and, chattels, from off the demised premises, to prevent the distress, to the place where, &c. to which place they were followed within thirty days, and seized and sold by the -defendant for the payment of his rent. To this plea the plaintiff having replied, de injuria sua propria absque tali causa, the defendant demurred specially, and assigned for cause of demurrer the duplicity of the replication, inasmuch as it tended to put in issue various and distinct matters, when the same ought to have put-one single matter in issue only, and attempted to put in issue all the several matters and things in the plea contained, whereas it should have traversed one single matter, whereon’ a proper issue might have been joined.

The legal sufficiency of the replication furnished the principal ground of the arguments of the counsel, although the plea w,as also adverted to, as being defective. If it is so in form the fault is cured by the pleading over-of the replication; but if it is substantially incorrect, the fault must determine the case, against, the defendant, as it is the first to be found in the pleadings. By way of testing its soundness, the court have inquired whether it is a good plea on general demurrer? and their reflections have brought them to the conclusion that it is not. When applied to a plea, a general demurrer confesses all its well pleaded facts; and if all the facts contained in this plea are admitted to be true, the plaintiff we think must nevertheless prevail, because the gist or ground of his action, as set forth in his declaration, is not thereby answered. A plea in trespass is bad on demurrer, that does not cover the whole trespass as laid in the declaration, although it need not answer matter stated in aggravation of damages. Taylor vs. Cole, 3 T. R. 297, per Buller, J. The plaintiff here has alleged in his declaration, that the goods and chattels mentioned therein, at the time of the taking of them by the defendant, were his goods and chattels, and if be had omitted the averment, the omission would have been fatal even after verdict, the objection being a want of title, and not a title defectively stated. 1 Chitty’s Plead. 366, and the authorities there cited. This demonstrates the importance and character of this fact stated in the declaration, and there is no answer given to it in the plea, either by denying it, or by confessing and justifying it. The plea may bo said to assert the goods in question, to be the proper goods and chattels of the defendant’s tenant, when they were fraudulently removed by him from the demised premises; but it is silent as to their being the goods and chattels of any particular person at the time of the taking in the place where, &c. If it were admitted that they were the proper goods and chattels of the tenant, when they were removed by him from the premises, it would not thence follow, that they were his property many days after, when they were taken from the plaintiff, in the name of a distress for rent duo from the tenant. The plaintiff might, in the meantime, have purchased them bona fide of the tenant; and by the statute of 11 Geo. II, ch. 19, s 1, 2, the sale would have been protected, 3 Chitty’s Plead. 551, (in the note.) The defendant should have denied the property of the plaintiff, at the time of taking, and as he has omitted to do this, the declaration is not covered by the plea. The general issue plea would have been a denial of the properly of the plaintiff in the goods at the time of the taking, and imposed on him the necessity of proving it, or showing his right, to sue. The defendant might also have put .the same fact in issue, by a plea of property in himself, or his tenant, at the; time of the taking, if he had thought proper to imard a plea, whidi would have been bad on special demuirer, because it amounted to the general issue plea. In the same Way he might have added to his plea before us, that when he seized the goods in the place where, &e. they were the proper goods and chattels of his tenant, and not the plaintiff’s, which perhaps would have made of it a good plea, except as to form. Neither of those modes of negation has he, however, adopted; and his plea used as justification is not suited to the case, and does not justify the act complained of. It would have been a suitable plea, if the tenant had been the plaintiff, but will not answer the defendant’s purpose, as the action is brought by a stranger. To justify, he might well confess by his plea the-goods and chattels carried off the premises to be the property of his tenant, because he has a right to follow them, if they are fraudulently removed to prevent his distress; while a similar admission in the case of a stranger, would be to concede himself to be liable to his action. For the goods of a third person cannot be taken for rent in any place, except on the leased premises; and to admit by plea the taking as a distress for rent of the goods of such á person in alio loco, is little short of saying that they are not liable to the distress insisted on; and a justification following such an admission, could be of no avail.

So much having been said of the plea, it seems unnecessary for the court to speak of the replication. As its invalidity, however, was a point more than any other insisted on, we will briefly give our opinion in relation to it.

Without attending to the particular causes of demurrer pointed out, it appears to us that the replication is not sustainable in this case; de injuria sua propria absque tali causa, is a plea often resorted to in practice, but where it may be legitimately used, must be determined by a reference to Crogate’s Case, 8 Co. Rep. 66. This case is the foundation of all subsequent decisions on this question, and is an authority universally acknowledged. Adjudications of later date are little else than interpretations, given by successive judges, of Crogate’s Case, as applicable or not to the subjects which have come under their consideration. In the second resolution of the case, Lord Coke says, “the general plea de injuria sua propria, &c. is properly where the defendant’s plea doth consist merely upon matter of excuse, and no matter of interest whatsoever;” and this makes the use of this general replication to depend on the matter of the defendant’s plea. If matter of excuse is pleaded, the general replication is an appropriate plea; but if matter of interest is insisted on, a special reply is necessary. This distinction has been observed and enforced by the most modern decisions on this subject. Such are the cases of Cooper vs. Monke, and Cockerill vs. Armstrong in Willes’s Rep. 52 & 100; the case of Jones vs. Kitchim, 1 Bos. & Pull. 76, and Lytle vs. Lee and Ruggles, 5 Johns. Rep. 112; and such the law in White vs. Stubby, 3 Saund. 295, (note 1.) All these authorities are decided on the ground that the general replication, de injuria sua propria absque tali causa, is bad, when the defendant insists on a right, as P. Clautice does in this case, and is good only when he pleads matter of excuse.

JUDGMENT REVERSED.

Raymond then moved the court to order a writ of procedendo, or special mandate, to the court below, directing them to proceed in the cause, and to award an inquiry as to the damages to be assessed to the plaintiff, &c. He referred to Briscoe vs. Ward, 1 Harr. & Johns. 165. Davis vs. Wilson, 2 Harr. & Johns. 345. Davis vs. Benson, 6 Harr. & Johns. 272. 2 Sellon’s Pr. 399, 400. Vicars vs. Haydon, 2 Cowp. 843. Tidd’s Pr. 687. Foxwist vs. Tremaine, 2 Saund. 210, 211, (notes 2, 3.) Fox vs. Smith, 2 Wils. 267. Bowen vs. Shapcott, 1 East, 542, 544. Owen vs. Saunders, Colles’s P. Cas. 73. The Queen vs. Ford, Ib. 336.

PROCEDENDO AWARDED.