OF 0 Tll E STATE OF ARNANS c I Term, 1857) Vaden et al: 1'9: Ellis: VADES ET Al,: VS. E F,EIS In pleading a judgment, it is usual to aver that "it remains in fu l l fflt,' P and virtue, and in no wi.e aPt n =thin, rr yp roil or held for naught:" but the better opinion seems to be that such an averment is not a substantial one: and being only a matter of form, its omission cannot be taken advantage of by demurrer under our statute: No intendment will be made in aid of a plea in trover, setting up a justifi-,ation nf thn coil-version tinder a judgment and proceedings of a justice of the peace: 17 Eng: 6881) as where such plea fails to allege that the proceedings and judgment were had within the territm ial jurisdiction of the justice: Where the defendant pleads the general issue, and also pleads specially, matter winch may be given in evidence as well under the general issue as under the special plea: and the court sustains a demurrer to the special plea—there is no error for which this court would reverse the judgment, even though the matter set up in the plea be a good defence—the party migbt have had idle benefit of it under the general issue_ It is not necessar y in an action of trover, to swear the jury "to try the issue and the damages to assess:" if they are sworn "to try the issue joined" it is sufficient: A verdict for the plaintiff, merely for a certain amount of money, upon the plea of not guilty: in an action of trover, is a substantial response to the issue, and if not, it would be cured by the operation of the statute of amendments: Where no e7weption is taken to the refusal of the court below to grant a new trial this court cannot revise the decision on the motion. (15 Ark, 515 and cases cited,
356 CASES IN TTIE SUPREME COURT Vaden et al vs Ellis_ [January Writ of error to Prairie Circuit Court. The Hon. FELIX J. -BATSON, Circuit Judge, presiding. Jordan for the plaintiffs. Bertrand and Williams & Williams for the defendant. Mr. Justice HANEY, delivered the opinion of the Court. This was an action of trover, brought by the defendant in error, against the plaintiffs in error, for sundry goods and chattels, of the alleged value of two thousand dollars. Writ issued, returnable to the February term of the Prairie Circuit Court for 1855. At the August term following, the defendants below appeared and filed their two pleas, i. e., 1st, the general issue— and 2d, a special plea, in substance, as follows: That therefore, to wit, on the 29th day of September, 1854. the plaintiffs in error sued out a writ of attachment, before Charles W Smith, of White River township, in the p ounty of Prairie, against John A. Mitchell, directed to the constable of that township, by virtue of which the constable, on the 30th of September, 1854, attached thereunder, and took into his possession, the goods and chattels described in the declaration, as the property of the defendant in the attachment suit, and to satisfy the debt therein specified: that on the 7th of October, 1854, whilst the property so attached was in the custody of the constable, by virtue of the attachment, the defendant in error filed his plea of interplea, :in which he claimed all the property attached as the property of Mitchell, upon which the plaintiffs in error took issue :—that, thereupon, the justice of the peace, before whom the attachment suit was pending, at the instance of the inter-pleader and the plaintiffs in the attachment suit, caused a jury to be summoned and sworn to try the issue upon the plea of interplea :—that the jury, upon the evidence, returned before the justice of the peace a verdict in favor of the plaintiffs in error to the effect, that the goods, claimed by the defendant in error were subject to the attachment against Mitchell, and of
OF THE STATE OF ARKANSAS. 3571 Term, 1857] \laden et al vs Ellis right, not the property of the defendant in error, as by him in his interplea was alleged :—that, upon this verdict, the justice proceeded to and did render ludgment against the defendant in error for the costs of that proceeding: concluding with a verification, Issue was taken to the first plea, and a demurrer interposed to the second; which was sustained. The record shows that, at the same term, August, 1855, a trial was had before a jury upon the issue to the first plea, ( the plaintiffs in error having declined to answer over upon the sustaining of the demuriei to their second plea ;I that the jury were sworn "to try the issue joined according to the evidence," and upon the evidence adduced returned a verdict in these words; 'We, the jury, find for the plaintiff $441" On this verdict judgment was rendered by the Court, A motion for a new trial was made, and overruled by the Court, and no exception seems to have been taken thereto. The defendant below brought error. The errors assigned are: "The court below erred in sustaining the demurrer to the defendant's second plea. 2. 'The j ury were not sworn according to law—having been sworn to try the issue joined, instead of to try the issue joined, and the damages to assess. 8. The verdict is not responsive to the issue joined, nor to the issue the jury were sworn to try. 4. The Court erred in overruling the motion for a new trial." We will proceed to consider and determine the several errors assigned, as far as we can legitimately do so, consistently with the settled doctrines and practiee of this Court, in the order which they severally oceur, 1. This assignment questions the legal sufficiency of the plea, to bar the defendant in error from a recovery in his action. The demurrer interposed contains several special causes, and among the number, there is one which assumes that the plea is defective on account of its omitting to aver, that the verdict and judgment upon the interplea "remain in full force and vir-
15S cASES IN THE sITPIIFNIE courcr Vaden et al V9 Ellis [January tue, and in no wise set aside, ie ‘ ertial or held for naught." As that ground, innoti■ J: others, seelas to be ielied on by the coin's sel for the defemlant in error, in this Court, we will fUst eousi-der of it. There eau hi' 1141 414_11111t, hy reference to the precedents, that it is usual to insert the averment suggested in pleading (kith in declarations and pleas) a judgment We say u is nsual to insot tfir averniu lit. as the prl vedent show: hut it by uci ui.eans foollow, ficali this, that such an averment is a substantial one. The better opinion seems to be, that it is not, (See 2 (Aiitty's Plead, 454, mote r ; 1 Sand. 330, note 4.) Ain] if not a matter of Silbstance, 1 ut oue (only ,f form, the objection is not available under our statnte, for the reason that objections to the form of the pleading were only ground of special de-nonura at the co-wino-a law: As this is the only ground assumed in the denim IC -1, pia tumuiu t■-■ the form and structure of the plea, we will hasten to the consideration of its substance matter Upon the authority of Jones vs- Mason. 7 Eng R. rititi, I we lire constrained to hold_ the plea had in substance. Like in that case, the plaintiffs in error attempt 10 justify the conversion of the property specified in the declaration, under a judgment and proceedings hail twfore a justice of the peace, in favor of which nOthin is intended that is not sot forth in the record. In the ease at liar, the plea omits to ace-1, affirmatively, w liether the trial liefore the justice and jury. upon the interplea, IN as within tile territorial pi risdietion of the justice-Ilut apart from this, there is another view in which the question may be regarded, which is as conclusive again s t the plaintiffs troier, the general issue is not guilt\ , and it it taiil nil t to be 11Sual, before the new rules in England, in this form of ae than, te plead_ any other plea, ( Sec Kennedy vs. Strong, 10 T. 114.291,) foi the reason. that under the general issue, all the oh-- fences inav be he given in evidence, 1 , Jceept, possibly, the statute of limitations and release. See 1 Chittv's Plead: 409. 2 Camp!) 558. 2 Tucker's Com. 87. 2 G reenl. There are some defences, however, lic , sillesIi uutiatiiuns ;mil a
OF 11Ili STA el, 01_, ' A_IIKANSAS. 359 Tenn, 18571 Vaden et al: vs. Ellis: release, which may lie specially pleaded—such for iHstance, as former recovery by plaintiff iii tro y ( r, or trespass for the same goods, eithi r against tli ii frndant or another: So mav things, 111iich 4tim a right in the defi nd ant 1-11 111, tain the goods, be -pleaded specially; as a right id lien in a tavern keeper or c'ii' Tier tiionuii all these lefellees are proper admissible under the ■,eileral issue. See 1 Chith''s Plead , as above. Itioter's Com. as alcove l'I Wend. R. 461. The record before us shows, that, Lit the time the demurrer to the second plea was sustained, the plea of tlw gem ral issue was in, and that issne iii due fed m was made upon that idea, The canse was tried upon the general issue, and as we have shown from the above authorities, the olefence attempted to be et up -under the second plea, to which the olianurrer was sustained, was -j ust as availablo to the plamtit-ts 111 errecr. I 'A dence under the general issue, if a good defence at all, as if the same matter lind been specially pleaded and the plea permitted to stand. The plaintiffs in erriOr could Hot have been prejudiced by the judgment of the Coiri t below, cvii ecineedhig their plea to lie good; and as a consequence it dooes not become 11.01SSary. that we shold pass upon the legal sufficiency of tin. plea a. a hal% See p i mmi s Pa L , , 1 h ie, : 531,. „mei, turnip]: uot,,,, and hold there is -11 ,J ertO r 111 1 -110 -. 111dU1111 .-cf- the Covert below sustaining the demurrer of the defendant in error, to the second Ora of the plaintiffs in error: 2. As to this assignmellt, 1111 not think it well taken, for
the -reason] we do -mit conceive in the actiiin of Trover it is ne-cessori to s11-01_11' the jury –to try the issue and the danniges asRess, – The manner in which the Jur en the case before us, was sworm is suttien-1-44 formal, acid cull 11'nee=4 the pc)kter uses the dariezercs, as -well as t" fold aS 1 -0 1-11, _' el in el-vs Ion T1-10 11"11E•1' at ha 1' haS no analogy to the one of retain, Eli -11 /1 : i t l ( 4 Eng: It: 3 et seely.,) to which we have been referred by the counsel foi the plaintiffs in error: That was an action of debt on a penal bond, The statute on the subject controllo d the tloyi4 in in that ease: Here, issue was tIS to
360 CASES IN THE SUPREME COURT Term, 1857] Vaden et al. vs. Ellis. the conver g ion, and that, found for the plaintiff below, would draw after it, as a legal consequence or incident, damages to the value of the goods converted. So that, in swearing the jury to try the issue, they were necessarily sworn to try the whole issue, which, as we have shown, embraced the damages. Not so with debt on a penal bond ; for the statute provides for issues both as to the breaches and the damages, and prescribes the substance of the oath to be administered in each ease. See Dig. secs. 5, b, 7, p. 120. 3. We do not esteem this assignment well taken, for the following reasons : 1. Because we hold that the verdict rendered in this instance is a substantial response to the issue. 2. If it is not, it is cured by operation of our statute of amendments. See Dig. ch. 126, secs. 119, 120, p. 815. 1 Chitty's Plead. 684. 2 Tidd's Pr. 919. By applying the statute of amendments to the verdict before us, the formal defect is cured, not by actual amendment, but the Court, into which the record may be removed by error or appeal, will allow the benefit of the act to be obtained by overlooking the omission or exception. See 1 Chitty's Plead, as above. 2 Tidd's Pr. 928. 4. This assignment cannot avail the plaintiffs in error, for the reason that there is no exception upon the record to the judgment of the Court below, overruling their motion for a new trial. The uniform doctrine of this Court has been, that where there is no exception taken to a refusal of the Court to grant a new trial, the Supreme Court cannot revise the decision on the motion. See Neville vs. Hancock et al., 15 Ark. R. 515 516, and eases there cited. Also, State Bank vs. Conway, 13 Ark. 344, et seqr. Upoll the whole record, we have found no error in the judgment of the Court below of which the plaintiffs in error could properly complain. It is, therefore, in all things affirmed. •
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.