CASES

ARGUED AND DETERMINED

IN THE

Supreme Court of Judicature

OF THE

STATE OF NEW-YORK.

IN MAY TERM, 1818, IN THE FORTY-SECOND YEAR OF OUR

INDEPENDENCE.

JOHNSON against HITCHCOCK.

IN ERROR, on certiorari to a justice's Court.

No action lies for representing the plaintiff's ferry not to be other rival ferry, as good as anand inducing and persuading

to

This was an action on the case brought by the defendant in error against the plaintiff in error, for a disturbance of his right of ferry, and his use and enjoyment thereof, and hindering persons from crossing at the same. It appeared that the defendant below had endeavored to divert travellers from the ferry of travellers the plaintiff, representing it not to be as good as another near cross it, and had, on many occasions, succeeded. No evidence was at the plaintiff's offered on the part of the defendant, and the jury found a verdict for the plaintiff below, for 22 dollars and 16 cents, on which judgment was rendered.

Per Curiam. It is clear, from the evidence, that the defendant below has, on many occasions, interfered, and prevented persons from crossing at the plaintiff's ferry; and if there is a good cause of action, the testimony shows an injury, probably, to the amount of the recovery. But there is *no principle on which this action can be sustained. The evidence, imperfectly as it is stated, is sufficient to warrant the conclusion, that these are rival ferries near each other, and that the defendant below was unfriendly to the plaintiff's ferry, and endeavored to turn the custom to the other. This action does not appear to be founded on any slander of title, even admitting that an action of that kind might be sustained in a justice's Court. Both ferries, from any thing that appears to the contrary, have equal rights and equal claims to be upheld and supported, and it cannot fur

at the other, and not

ferry.

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WOODWORTH

NEW-YORK, nish a cause of action that travellers have been persuaded to May, 1818. cross the one rather than the other. If an action would lie in this case, it would in all cases of rival business, where any means are used to draw custom; and if this were once admitted, it would be difficult to know where to stop. The judgment must be reversed.

V.

KISSAM.

Judgment reversed.

Where a creditor, by fraud or

WOODWORTH against KISSAM.

THIS was an action of trover for a gold watch. The cause deception, ob- was tried before Mr. J. Platt, at the Columbia circuit, in Septains the goods tember, 1817.

of his debtor, the

cannot apply

debt, but the

against him. (a)

cient to make

such case, is a

property is not A witness on the part of the plaintiff proved, that after the changed, and he plaintiff and defendant had been in private together, he came them to the sat- in, and found the defendant with the plaintiff's watch in his isfaction of his possession; that the plaintiff demanded the watch and money, debtor may notes and accounts, of the defendant, who refused to give them maintain trover up; that the plaintiff charged the defendant with having snatched What circum them from the table, and that he had deceived him; that the stances are suffi- defendant replied, that the plaintiff owed him, and that he out fraud and meant to have his pay. The plaintiff, soon after, stated to the deception, in defendant, in the presence of the witness, that the defendant question to be had uniformly represented himself as the agent of the plaintiff's left to the jury. creditors in the city *of New-York; that he had assured him, re[* 187 ] peatedly, that he was authorized to receive the three shillings in the pound, which had been offered, and discharge him from his debts in New-York; that the defendant well knew, that such discharge, on the delivery of the property, was the only condition upon which he had ever consented to treat with him, and had gotten his property unfairly, and the plaintiff again demanded it of him. The defendant did not deny these allegations, but replied, that he would endorse the amount of the property on the notes which he held against the plaintiff, and would not restore it. It appeared that the plaintiff was indebted to the defendant and his partner in the sum of 800. dollars, and that the defendant had endorsed upon the notes in his possession, given by the plaintiff to the defendant and his partner, the value of the property, which amounted to nearly the sum due on the face of the

notes.

On this evidence the judge nonsuited the plaintiff, who now moved to set aside the nonsuit; and the case was submitted to the Court without argument.

(a) Vide Allen v. Crofoot, 5 Wendell's Rep. 506. Chapman v. Lathrop, 6 Cow. Rep. 110. Lockwood v. Bull, 1 Cowen, 322. Reynolds v. Shuler, 5 Id. 323.

COMLY

V.

LOCKWOOD.

Per Curiam. This is a motion to set aside a nonsuit, ordered NEW-YORK, upon the trial of this cause. This action was trover for a gold May, 1818. watch. Whether there was sufficient evidence of a conversion, should have been submitted to the jury. The evidence was circumstantial only; but it was pretty strong to show that the defendant had, by undue means, got possession of the watch in question. That the watch was the property of the plaintiff a short time before it was found in the defendant's possession, is not denied. What passed between the parties when the defendant received the watch, was in private; but in the subsequent conversation between them, the plaintiff charged the defendant with having violated his engagement in relation to it, and that he had deceived him, and got the possession unfairly. The defendant did not deny his statement, but offered to endorse the value of the watch upon the notes which he held against the plaintiff, and did, afterwards, make the endorsements. If there was, however, any fraud or deception practised on the plaintiff, no change or transfer of property took place. No man can avail himself of his own misconduct, as the foundation of a claim set up by him. The principles which governed the decision of the Court in Murray v. Burling, (10 Johns. Rep. 172.) will apply here, if the circumstances shown upon the trial were sufficient to make out the misconduct of the defendant; and whether they were so or not, should have been submitted to the jury. The nonsuit must, accordingly, be set aside, and a new trial awarded

Motion granted.

[* 188]

COMLY against LOCKWOOD and others.

THIS was an action of trespass, for breaking and entering the store of the plaintiff, and for taking and carrying away his goods, brought against the defendant, Lockwood, sheriff of the county of Orange, and several other persons.

Where, in an action of tresant, under the

pass,the defend

act for the more easy pleading in certain ruits, (sess. 24. c. 47. 155.) pleads that

s. 2. 1 R. L.

the supposed

was

Lockwood pleaded separately; 1. Not guilty. 2. That the plaintiff ought not to have or maintain his aforesaid action thereof against him, because he said, that the said supposed trespasses, whereof the said plaintiff above thereof complained trespass against him, were done and committed, if by the said defendant, done by authorby the authority of an act of the legislature of the state of New-ity of a statute York, entitled "an act for relief against absconding and absent without expressing any other matter or cir

of this state,

cumstance contained in such statute, the plaintiff must reply de injuria sua propria, concluding to the toantry, and a special replication, concluding with an averment, is bad. (a)

(a) Vide Allen v. Crofoot, 7 Cowen, 46.

NEW-YORK, debtors," passed the 21st of March, in the year 1801; and this May, 1818. he is ready to verify, &c.

COMLY

V.

LOCKWOOD.

[* 189]

The plaintiff replied that Haviland, one of the defendants, on or before the 13th day of July, made oath that one Field was justly indebted to him, in the sum of one hundred dollars and upwards, and had departed the state, or was concealed, with intent to defraud his creditors, and offered proof of his departure or concealment to Nathan H. White, Esq., first judge of the Court of Common Pleas of the county of Orange, who thereupon issued his warrant to the sheriff of the county of Orange, commanding him to attach the estate of Field; that the defendant thereupon seized the goods and chattels mentioned in the declaration, to which the *plaintiff put in a claim, whereupon the defendant summoned a jury to try the property thereof, who found the property of the same to be in the plaintiff, and the defendant then relinquished the goods to the plaintiff; that on the 22d of July, Nathan H. White issued another warrant, directed and delivered to the defendant, the former warrant still remaining in force, and not returned, and on no other proof than had been before made; that the goods which had been before restored to the plaintiff, were again seized by the defendant, which is the same trespass and taking as are complained of and intended by the plaintiff in his declaration; and that the defendant, well knowing the premises, took and carried away the goods of the plaintiff by the said second warrant, and not under authority of the "act for relief against absent and absconding debtors," and concluded with an averment.

The defendant rejoined; that the plaintiff ought not to have or maintain his action, because he saith, that the said supposed trespasses were done and committed by the defendant, by the authority of the act entitled, &c., and concluded to the country. To this rejoinder the plaintiff demurred, assigning a number of special causes of demurrer, which, as they are not noticed in the opinion of the Court, it is unnecessary to state, and the defendant joined in demurrer.

P. Ruggles, in support of the demurrer. The plea is bad; and if so, it is unnecessary for the plaintiff to go further. The act for more easy pleading in certain suits, (1 N. R. L. 155. sess. 24.ch. 47. s. 2.) (a) declares that persons sued for acts done by authority of any statute, may plead not guilty, or otherwise make avowry, cognizance, or justification, &c., alleging therein that such thing, of which the plaintiff complains, was done by the authority of such statute, without expressing any other matter or circumstance contained in such statute, &c. In this plea, nothing is stated, except that the act was done by authority of the statute. There is no fact which can be traversed, or on which issue can be taken. If the defendant makes avowry, or cognizance, he must use the proper form of such a plea. So,

if he pleads *a justification, it must be in such a way as to be NEW-YORK, traversable.

But if this objection to the plea be not well founded, then we say that the rejoinder is defective, for it ought to have concluded with a verification, and not to the country. Wherever any new matter is introduced, on either side, the pleading must conclude with a verification, so that the other party may have an opportunity of answering it. (1 Chitty's Pl. 537. Service v. Heermance, 1 Johns. Rep. 91. 1 Chitty's Pl. 578. Willes's Rep. 100. Comyn's Dig. Plead. (F. 18.) (F. 24.)

Betts, contra. The plea contains all that the statute requires: if the legislature have thought proper to authorize such a plea, it is sufficient. In Tower v. Cameron, (6 East, 413-416.) Lord Ellenborough says, it is enough that it is a plea given by the statute, and that every word required by the statute is found in the plea. All the rest is matter of evidence. In Labagh v. Cantine, (13 Johns. Rep. 272.) this Court held the plea supported by the statute, though contrary to the general rules of pleading.

If the plea is good, the rejoinder is so also. It cannot depart from it, and may adopt the very words of the plea, (3 Bl. Com. 410 1 Chitty, Pl. 627. 2 Chitty, 671. n. 1 Saund. 103. n. 3.) and conclude to the country. Matters allowed by statute to be given in evidence need not be put on the record. (Henriquez v. Dutch W. I. Co. 2 Ld. Raym. 1535.) If the several matters alleged in the replication are denied, they need not be severally and distinctly put in issue, but the rejoinder may conclude to the country generally. (1 Chitty, Pl. 629. Com. Dig. Plead. (H.) The rejoinder always concludes to the country, unless it introduces new matter, which the plaintiff might answer. (1 Chitty, Pl. 628) Where the whole matter in dispute is brought to a point, the pleading may conclude to the country. (Snyder v. Croy, 2 Johns. Rep. 428. Patcher v. Sprague, id. 462.)

But the replication is bad in form and substance. The defendant is, therefore, entitled to judgment. (Gelston v. Burr, 11 Johns. Rep. 482)

*[THOMPSON, Ch. J. When you go back to the plea of your adversary, to take advantage of its being bad, you can object only such defects as are grounds of general demurrer.]

Where the statute authorizes a particular mode of pleading, different from the common law, there the mode pointed out by the statute must be pursued. (Caines v. Brisban, in Error, 13 Johns. Rep. 9-23. Bouton v. Nelson, 3 Johns. Rep. 474. Mimro v. Allaire, 2 Caines, 322. Alsop v. Caines, 10 Johns. Rep. 396. 2 Burr. 803.) Again; the replication does not confess and avoid the plea. (Comyn's Dig. Plead. (G. 22.) 1 Chitty, 564. 600.) If the replication escapes the bar of the plea, it is

May, 1818.

COMLY

V.

LOCKWOOD

[* 191 ]