Allen v. Fuller , 10 Vt. 557 ( 1838 )

The opinion of the Court was delivered by

Collamer, J.

*,If the plaintiff proved either count in his dec* laration,against either defendant, he was entitled to a verdict. The rules of evidence and pleading arc in strict accordance and consistency,and constitute a system the symmetry of which,in the action of trespass, has not been destroyed by any modern relaxations or exceptions in the science of special pleading. The party is bound to prove what he alleges, so far as the same is denied, and he tg neither bound,nor permitted to prove more.

In the first count, the plaintiff alleges a forcible arrest and imprisonment by the defendants in Canada, To this the de-. fendants do not demur, but deny the fact, by plead* ing, not guilty. This issue the jury are sworn to try, and most clearly if the plaintiff proved the fact, against eithcr.de* fendant, he was entitled to a verdict. If its being in Cañar da deprived the plaintiff of an action here, the defendants should have demurred or moved in arrest, after verdict; for the declaration alleged that it took place in Canada.

In the action of trespass the general issue is, in law, what , , „ „ . 7 . it actually purports to be, on the lace oí it-~a aemal ol the facts stated in the declaration. It requires the plaintiff, .sub» stantially, to prove these facts and it permits the defendant simply to contradict and disprove these facts, and it permits no more. If the defendant has any matter of justification or excuse, he must specially plead it or he cannot be permit' ted to prove it or insist upon it, if it casually appears. Among the matters required by law to be specially pleaded, in order to be insisted on as a defence, is • arrest on process. “ In ‘‘ trespass to persons, son assault demesne, moderate correci( tion,molliter manus imposuit to preserve the peace or (c under civil process, either mesne or final, of superior or u inferior or foreign courts, must be pleaded specially; for u whoever imprisons another must justify himself by pleading and show specially to the court that the imprisonment was u lawful: this is a positive rule of law.” 1 Chitty Plea. 492, il where the process is legal they, the defendants, must plead “ their justification specially ; for, unless a justification be (t shown,a trespass has been committed.” 3 Stark. Ev. 1447, 1 Saund, R, 298 note 1. 2 East’s. R. 260. Co. Litt, 283, a.

In- this case the plaintiff proved, by evidence not objected to, that the defendant Fuller procured a warrant from a magistrate, who issued it at his request, and on this the plaintiff was imprisoned. Now this was not merely entering com-, plaint, with or without cause. It was by a substantive act and request procuring the plaintiff to be arrested. This, then, proved against Fuller all the plaintiff had alleged in the first count of his declaration and entitled him to a verdict against Fuller, whether the warrant was legal or illegal; as no j ustification under that process was pleaded and none could be insisted on. We, therefore, think the county court erred in charging the jury, that under the general issue, the warrant iqould justify the original arrest.

Judgment reversed.

Redeielo, J. having been of counsel in this case,did not sit.

On inquiry by D. A. Smalley whether the application to amend the pleadings should be made here or to the county court, the court replied that it should be made to the county court.