VADEN V. ELLIS. VoL. 18 No intendment will be made in a. td of a idea In trover, setting up a justification of the cnnversion under a judgment and proceedings of a justice of the peace (12 Ark. 638); as where such plea fails to allege that tbe pro ,teedings and judgment were had within the territorial jurisdiction of the justice. Where the defendant pleads the general issue, and also pleads specially, matter which may be given in evidence as well under the general issue as under the special plea: and the court sustains a de-murrer to the spectal 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 defense—the party might have had the benefit of it under the general issue. It is not necessary in an action of trover, to swear the jury "to try the issue aud the damages to assess:" if they are sworn "to try the issue joined" it is sufficient. A verdict fur the plaintiff, merely for a certian 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 exception 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.) Writ of Error to Prairie Circuit Court. ON. FELIX J. BATSON, P356 M Circuit Judge, presiding. Jordan, for the plaintiff:s Bertrand and Williams Williams, for the defendant. HANLY, J. This was an action of trover, brought by the defendant in error, against the plaintiff's 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 1885. At the August term following, the de-fendar ts below appeared and filed their two pleas, i.e.,1st, the general issue-and 2d, a special plea, in substance, as fol-VADEN ET AL.
lows: That theretofore, to-wit, on the V.
29th day of September, 1854, the plaint-ELLIS iffs in error sued out a writ of attach-In pleading ajudgruent, it is usual to aver that ment, before Charles W Smith, of "It remains in full force and virtue, and in no White River township, in the county wise set aside, reversed or held for naught," but of Prairie, against John A. Mitchell, the better opinion s eems to be that such au aver-directed to the constable of that town-ment is not a substantial one: and being only a matter of form, its omissi•n cannot be taken ad-ship, by virtue of which the constable, vantage of by demurrer under our statute. on the 30th of September, 1854, at-
JAN. TERM, 1857. VADEN V. ELLIS. tached thereunder, and took into his On this verdict judgment was ren-possession Athe goods and chattels de-dered by the court. scribed in the declaration, as the prop-A motion for a new trial was made, erty of the defendant in the attach-and overruled by the court, and no ex-ment suit, and to satisfy the debt ception seems to have been taken therein specified: and that on the ith thereto. of October, 1854, whilst the propertY The defendants below brou g ht error. so attached was in the custody of the The errors assigned are: constable, by virtue of the attachment, "1. The court below erred in sus-the defendant in error filed his plea of taining the demurrer to the defend-interplea,:in which he claimed all the ant's second plea. property attached as the property of 2. The jury were not sworn accord-Mitchell, upon which the plaintiffs in ing to law—having been sworn to try error took issue:—that, thereupon, the the issue joined, instead of the issue justice of the peace, before whom the joined, and the damages to assess. attachment suit was pending, at the 3. The verdict is not responsive tc instance of the interpleader and the the issue joined, nor to the issue the plaintiffs in the attachment suit, jury were sworn to try. caused a jury to be summoned and 4. The court erred in overruling the sworn to:try the issue on the plea of motion for a new trial." interplea:—that the jury, upon the evi-We will proceed to consider and de-dence, returned before the justice of termine the several errors assigned, aF the peace a verdict in favor of the far as we can legitimately do so, con-plaintiffs in error to the effect, that the sistently with the settled doctrines and goods claimed by the defendant practice of this court, in the order in. in error were subject to the at-which they severally occur. tachment against Mitchell, and of 1. This assignment questions the le-3571 ''right, not the property of the gal sufficiency of the plea, to bar the defendant in error, as by him in his in-defendant in error from a recovery in terplea was alleged:—that, upon this his action. The demurrer interposed verdict, the justice proceeded to, and contains several special causes, and did render judgment against the de-among the number, there is one which fendant in error for the costs of that assumes that the plea is defective on proceeding: concluding with a verifica-account of its omitting to aver, that tion. the verdict and judgment upon the in-Issue was taken to the first plea, and a terplea "remain in full force and vir-demurrer interposed to the second ; 5 tue, and in no wise set aside, r358 which was sustained. reversed or held for naught." As that The record shows that, at the same ground, among others, seems to be re-term, August, 1855, a trial was had belied on by the counsel for the defend-fore a jury upon the issue to the first ant in error, in this court, we will first plea (the plaintiffs in error having de-consider of it. There can be no doubt, clined to answer over upon the sus-by reference to the precedents, that it taining of the demurrer to their second is usual to insert the averment sug-plea) that the jury were sworn "to try gested in pleading (both in declarations the issue joined according 'to the evi-and pleas) a judgment. We say it is dence," and upon the evidence adduced usual to insert the averment, as the returned a verdict in these words: precedents show: but it by no means "We, the jury, find for the plaintiff follows from this, that such an aver-$442." ment is a substantial one. The better
VADEN V. ELLIS. VOL. 18 opinion seems to be, that it is not. trespass for the same goods, either (See 2 Chitty's Plead. 484, note r; 1 against the defendant or another. So Sand. 330, note 4.) And if not a matter may things, which show a right in the of substance, but one only of form, the defendant to detain the goods, be objection is not available under our pleaded specially ; as a right of lien in statute, for the reason that objections a tavern keeper or carrier ; though all to the form of the pleading were only these defenses are properly admissible ground of special demurrer at the com- under the general is-ue. See 1 Chitty's mon law. As this is the only ground Plead., as above ; 2 Tucker's Corn , as assumed in the demurrer, pertaining to above ; Hunt v. Cook, 19 Wend. I?. 463. the form and structure of the plea, we The record before us shows, that, at will hasten to the consideration of its the time the demurrer to the second aubstance and matter. plea was sustained, the plea of the gen-Upon the authority of Jones v. Mason eral issue was in, and that issue in due (12 Ark. 688), we are constrained to form was made upon that plea. The hold the plea bad in substance. Like cause was tried upon the general issue, in that case, the plaintiffs in error at- and as we have shown from the above tempt to justify the conversion of the authorites, the defense attempted to be property specified in the declaration, set up under the second plea, to which under a judgment and proceedings had the demurrer was sustained, was just before a justice of the peace, in favor of as available to the plaintiffs in error, which nothing is intended that is not in evidence under the general issue, if set forth in the record. In the case at a good defense at all, as if the same bar, the plea omits to aver, affirma- matter had been specially pleaded and tively, whether the trial before the the plea permitted to stand. The justice and jury, upon the interplea, plaintiffs in error could not have been was within the territorial jurisdiction prejudiced by the judgment of the court of the justice.' below, even conceding their plea to be But apart from this, there is another good; and as a consequence it does not view in which the question may be re- become necessary, that we should pass garded, which is as conclusive against upon the legal sufficiency of the plea the plaintiffs in error. as a bar. See Pelham v. Page, 6 Ark. In trover, the general issue not 536. guilty, and it is said not to be usual, be- We will, therefore, waive further no-fore the new rules in England, in this tice of this assignment, and hold there form of action, to plead auy other plea is no error in the judgment of the court (see Kennedy v. Strong, 107'. R. 291), below sustaining the demurrer of the for the reason, that, under the general defendant in error, to the second plea issue, all the defenses may be given in of the plaintiffs in error. evidence, except, possibly, the statute 2. As to this assignment, we do not of limitations and release. See 1 Chit- think it well taken, for the reason we ty's Plead. 499. 2 Gampb. 558. 2 Tuck- do not conceive in the action of trover er's Corn. 87. 2 Greenl. E y., sec. 648. it is necessary to swear the jury "to There are some defenses, how- try the issue and the damages to as-ever, besides limitations and a sess." The manner in which the jury, 3591 *release, which may be special- in the case before us, was sworn, is ly pleaded —such tor instance, as for- sufficiently formal, and embraces the mer recovery by plaintiff in trover, or power to assess the damages, as well.as I. All jurisdictional facts must affirmatively ap- to find as to the conversion. The case pear. Re ives v. Clark, 5-29, note I. at bar has no analogy to the one o
JAN. TERM, 1857. McLain, surv. v. Taylor et al. (9 Ark. grant a new trial, the supreme court 162, et seqr.) to which we have been cannot revise the decision on the referred by the counsel for the plaintiffs motion. See Neville v. Hancock et in error. That was an action of debt on al., 15 Ark. B. 515, 516, and cases a penal bond. The statute on the there cited. Also, State Bank v. Con-subject controlled the decision in way, 13 Ark. 344, et seqr. See note 1, that case. Here, the issue was as to Danley v. Bobbins, 3-146. 360*] *the conversion, and that, found Upon the whole record, we have for the plaintiff below, would draw found error in the judgment of the after it, as a legal consequence or inci-court below of which the plaintiffs in dent, damages to the value of t he goods error could properly complain. It converted. So that, in swearing the is, therefore, in all things affirmed. jury to try the issue, they were neces-Cfted.:-19-654 ; 21-190 ; 24-571 ; 33-48.5; 39-339. sarily swoen 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 the issues both as to the breaches and the damages, aud prescribes the substance of the oath to be administered in each case. See Dig., secs. 5, 6, 7, p. 120.2 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 • y operation of our statute of amendments. See Dig., ch. 126, secs. 119, 120, p. 815; 1 Chitty's Read. 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 • midsion 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. rhe uniform doctrine of this court has been, that where there is no exception taken to the refusal of the court to 2. On oath of jury, see Neal v. Peevey, 39-387; allies v. State, 45-145.
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.