Page images
PDF
EPUB

1833.

LUCAS

NOCK ELLS.

position of the state of the pleadings on which I have been arguing, is matter which should have been replied. For the reasons I have above given, I conceive it to be clear that a man, whatever his purpose may be in acting according to the authority of a writ, is justified by it, if he acts according to it; but if he does an act inconsistent with its authority, he is no longer justified by it, but is either a trespasser ab initio, or is liable to another action, according to the nature of the inconsistent act so done. In the present instance, therefore, if the plaintiff had replied that the goods were delivered up by the sheriff, it would have been a good answer, but it is no answer as a proof of the intention of the defendants under the general traverse.

I have so far argued the case on the supposition that the plea justified the trespass as to the house, by the statement of the writ, and delivery to the sheriff and seizure of goods in the house, liable to the execution, and omitted all mention of the subsequent sale or levy, and payment to the execution plaintiff.

The next question is whether the averment of the sale, or of the levy, or both, make any difference. Now it is to be observed that the plea does not justify seizing the plaintiff's goods, but only the entry into the plaintiff's house, and the question is, whether the unnecessary averment that the goods had been sold, &c. is involved in the issue that the defendant committed the trespasses without the residue of the cause alleged in the plea. I take it to be clear that the plea need have stated no more, and that if it had omitted to state that the goods had been sold, it would have made no

1833.

LUCAS

NOCKELLS.

difference; and it is a general rule in pleading, that an unnecessary averment, if capable of being separated without injury to the sense, need not be proved. That so much of this plea as relates to the sale and levy may be so separated admits of no doubt. Suppose that under these pleadings, the defendants had never sold at all, but having legally entered and seized in order to execute the writ, they had kept the goods unsold for want of buyers; would not the defendants have been entitled to a verdict? and if so, it must be on the ground that the statement as to the sale is immaterial and may be rejected. I think, therefore, that the averment of the sale in this case is immaterial.

But it is not the question proposed by your lordships, whether it was necessary under these pleadings to prove the sale of the goods and payment of the money, the question is a different one; and I feel satisfied that it was incompetent for the plaintiff, upon the pleadings stated in your lord. ships' question, to give evidence that the acts of the defendants were not really done under and by virtue of the writ, but for another purpose, under another claim, and that the writ and proceedings under it were a mere colour and contrivance to get possession of the goods.

Gaselee, J. — Having attentively considered the question put by your Lordships to the Judges in this case, I continue of the opinion in which I concurred in the Court below, that it was competent by law on these pleadings for the plaintiff to shew at the trial, in maintenance of this action, that the acts of the defendant were not really done under the execution of the writ, but for

1833.

LUCAS

NOCKELLS.

another purpose under another claim, and that the writ and proceedings under it were a mere colour and contrivance to get possession of the goods.

The difference between this case and those of Groenvelt v. Burwell and Crowther v. Ramsbottom, which are principally relied on by the plaintiffs in error, is so fully stated by the late Lord Chief Justice of the Court of Common Pleas in giving the unanimous judgment of the Court of Exchequer Chamber, and by some of my learned brothers to your lordships on this occasion, that it would be an unnecessary waste of time to go over them again at any length. The main difference is, that in those cases, what the defendants in their pleas professed to have done they had done, Here it is not so. They have not executed the writ; they have not made the debt of the goods and paid it over to the creditors; but have de. livered over the goods themselves, not in satisfaction of the debt as directed by the writ, but to the importers claiming under a bill of lading, and seeking to avoid any question of the payment of freight, or any other charge upon which any question might arise. This, I am inclined to think, also satisfies the new assignment. But it is said it was not competent to the plaintiff below to reply, and also to new assign, because, it is alleged, there is only one trespass in the declaration, and for this is cited the case of Cheasley v. Barnes *; upon referring, however, to the statement of the declaration in the question put by your lordships, and also to that contained in the bill of exceptions, the trespasses are, in both, charged to have been com

M

.

[ocr errors]

1833.

LUCAS

NOCKELLS.

mitted diversis diebus et vicibus, in which case it is admitted the defendant may reply and new assign; and although the precise terms of the new assignment are not stated, enough of it is set out to shew that it states the plaintiff to have brought his action not only for the trespasses in the pleas mentioned, and thereby attempted to be justified, but also for that the defendant committed trespasses at other times, and on other occasions, and for other purposes, under which, supposing it to be held that the seizing the goods is justified under the pleas, they afterwards delivered them over to the defendants, below instead of making the debt of them, and paying the money over to the creditors; and this may be given in evidence: but admitting it to have been wrong to have replied, and also new assigned, it seems to me, that as the de. fendants below have not demurred, it is now too late to take advantage of the duplicity. If I am at all right as to the first point, the question as to the new assignment is immaterial.

Littledale J.- On first considering the question státed by your lordships for the opinion of the Judges, I felt a difficulty in giving an answer to it. The action is brought for breaking and entering the plaintiff's house, and taking his goods, and the justification is under a writ of fieri facias to take the goods of A. B. Generally speaking, the Plaintiff's goods could not be taken under an execution against the goods of A. B. But I must assume that the plaintiff has something to do with the goods in such a way as that they may be called his goods, and also that the property of the goods is in A. B., and that they are liable to be

1833.

LUCAS

NOCKELLS.

---

--

-

taken in execution absolutely, because, if the plain.
tiff had such an interest in them as that they could
not be taken in execution absolutely, but only
subject to a claim which he might have either by
the goods being let to him, or pledged or pawned
with him, or by having a lien upon them; then,
though the goods might be seized pro forma, they
could not be removed, and the defendant's plea
of justification would fail altogether. On the
other hand, if the goods were the property of
A. B. liable to be taken in execution, the plaintiff
would appear to have nothing but the possession
of the goods, and could not maintain an action
against persons who stand in the place of the
owner of the goods, and the sheriff might justify
entering the plaintiff's house to take the goods.

But laying aside these considerations, the first
point I notice is the allegation of excess. It does
not appear that any excess has been proved, and
it forms no part of your lordships' question.

The next point I notice is how far the new assignment bears upon the case: and as to that, I think a new assignment is not applicable to it. In case of a single trespass in the declaration, and a plea justifying it, the plaintiff cannot both reply and new assign, as that would be giving a double answer to the plea. Cheasley v. Barnes, 10 East, 73.; Franks v. Morris, in the notes to that case, 81., and Taylor v. Smith, 7 Taunt. 156. But in the present case the trespass is laid on divers days and times, and therefore both in point of form as to the pleading, the Plaintiff might new assign, and might also at the trial give in evidence trespasses committed on other occasions, and for other purposes, than are alleged in the plea. Now the occasions

new

« PreviousContinue »