Warfield v. Walter , 11 G. & J. 80 ( 1839 )

Stephen, J.,

delivered the opinion of the court.

We think the court below were right in the opinions given by them in the first and second exceptions; but that they erred in those expressed in the third and fourth.

In the first exception, Hiram C. Walter was offered as a witness by the plaintiff, to prove the taking of the property mentioned in the declaration, and the amount of injury sustained by her; but the defendants objected to his being sworn as a witness in the cause, because of his liability to warrant and defend the title of the plaintiff under the said bill of sale. This objection was overruled by the court, and the witness was permitted to be sworn. In this opinion we can perceive no error. The bill of sale to the plaintiff, recognizes the mortgage made by the witness to the defendants, and was to be taken subject to it. The plaintiff therefore could not sustain an action for a breach of warranty, upon the ground of a paramount title in the defendants; because the recital of the mortgage in the bill of sale, and the acceptance of the title by the plaintiff, subject to its operation, necessarily excepted the title of the defendants under the mortgage,, from the effect and operation of such warranty. The witness therefore had no interest in the result of the suit, and the court rightfully decided that he was competent to testify in the action.

The court we think were also right in the opinion given by them in the second exception. The fact which the witness was called to prove, was the very gravamen or, ground of the plaintiff’s action, and the objection made by the defendant’s counsel to the propounding of the question, would, we think, have been waived, if the cause of action, as stated in the declaration, had been carefully adverted to. The pleadings show that the suit was not brought to recover the entire value of the property, but damages for the temporary loss of the use of it. The testimony which the plaintiff offered to give by the witness, was therefore properly received by the court, as it went to prove the value of the use of the property, during the interval of time which had elapsed between the taking of it by the defendants, and the commencement of the action; the loss of which use by the plaintiff, being the injury of which she complained, and to recover damages for which her action had been instituted.

We think the court below erred in the opinion delivered by them in the third exception, as to the binding and conclusive effect of the judgment in the replevin suit, in support of the plaintiff’s title in this action to the goods embraced in that suit. In support of this position, see Cullum vs. Bevan, 6 Harr. & John. 469, where the court say — “no principle in the law seems more universal or better established, than that the onus probandi rests on the party who maintains the affirmative side of the issue. On what then is the issue joined in this case? It is not on the defendants’ plea of property, but upon the replication filed by the plaintiff, asserting the right of property to be in himself, and tendering an issue on that point. He must therefore support his allegation by proof. It was therefore the plaintiff’s title to the property in dispute which was put in issue by the pleadings; and upon which the jury had to decide by their verdict, and not the title of Susanna E. Walter, the pleading of property in whom by the defendant, only having had the effect of casting upon the plaintiff the onus of pleading and proving the property in himself, and not involving within the issue any trial of a title to the property in her, which could give to the verdict of the jury in that action a conclusive effect in establishing such title.

We think also that the court erred in refusing to permit the defendants to read to the jury the mortgage from Hiram C. Walter to them, which was prior in point of time to the bill of sale to the plaintiff, and which bill of sale was taken by the plaintiff subject to its operation.

We do not concur with the court below, in the opinion given by them, in the fourth and last exception. In suing in trespass, we think that the plaintiff below clearly misconceived her remedy; and that to redress the injury of which she complained, trespass on the case, and not trespass vi et arrnis, was the proper action. The goods were taken under legal process, specifically describing them, out of the possession of the defendant, against whom the process issued; and in such case the law is clear, that case, and not trespass, is the proper remedy. 2 Saun. Plea, & Evid. 651, declares — “whenever an injury to a person, or his property, is occasioned by regular process of a court of competent jurisdictiction, maliciously adopted, the remedy is by an action on the case, and trespass does not lie.” In support of this principle Saunders refers to 3 Term Rep. 185, where Lord Kenyon says — “If a party be arrested without any cause of action, he has his remedy by an action on the case for maliciously holding him to bail. But it is incomprehensible to say, that a person shall be considered as a trespasser, who acts under the process of the court.” The same doctrine may be found in 2 Saun. P. & E. 515, where he says, “trespass is the only remedy for an illegal imprisonment when not done under color pf legal process.” “If the imprisonment took place under color of a legal proceeding, the plaintiff’s only remedy is by an action on the case for the malice, if indeed there was malice.”

The action being misconceived, the only question remaining to be considered is the right of the defendant to make the objection under the pleadings in this case, and that he had such right is, we think, clear, both upon principle and authority. Gould in his treatise on the principles of pleading in civil actions, 289, says — “That the action is misconceived is pleadable in abatement. As if assumpsit is brought where account is the only proper remedy; or trespass where case is the proper action. But a plea in abatement for this cause is unnecessary and unusual; for if the mistake appears upon the face of the declaration, it is fatal on demurrer; and if not, advantage may be taken of it under the general issue.” Upon the whole, we are of opinion that there is error in the judgment in the court below, and that the same must be reversed. JUDGMENT REVERSED.