
    Hord’s Executrix v. Dishman.
    Saturday, October 8, 1808.
    Pleading — Trespass—Pleading by Way of Recital. — In
    trespass quare clausum fregit, the plaintiff declared for that whereas, &c. the defendant pleaded not guilty as to the whole trespass, and a special, plea of justification: the plaintiff joined issue on the first plea, and demurrer to the second; the demurrer having been sustained, a verdict and judgment were reudered for the plaintiff, on the first plea and issue; but the judgment was reversed on account of the insufficiency of the declaration, there being no positive averment.
    Dishman (the appellee) biought an action of trespass quare clausum fregit against Hord (the testator of the appellant) *in the County Court of Essex. The declaration is as follows: “John Dishman complains of John Hord, now in custody, &c. of a plea, for that whereas the said defendant, on the 1st day of June, 1801, at the County aforesaid, with force and arms, the close of the said plaintiff broke and entered, and the grass there growing to the value of 501. trod down and consumed with his feet and the feet of his servants, hprses and cattle, by his and their walking thereon, and the earth and soil thereof tore up and plowed, and the wheat of the said plaintiff thereon growing to the value of 1001. cut down, and to his own proper use did convert and dispose, and the goods and chattels of the said plaintiff, to wit; three beds of the value of 601. twelve chairs of the value of 121. and lOOOlbs. of bacon of the value of 501. did take, seize, carry away and convert, and dispose of to his own proper use, and also continuing the said trespass, as to the said treading down and consuming the said grass, and tearing up and plowing the said earth and soil, and cutting down and converting the wheat of the said plaintiff, thereon growing, at divers days and times, from the said 1st day of June, to the 21st day of said month then next following, and other wrongs, &c. to the great damage, &c. and against the peace, &c. to the plaintiff’s damage of 5001.”
    The defendant, “as to the breaking and entering, with force and arms, the close of the plaintiff, and also the whole of the trespass alleged by the plaintiff, in his declaration,” pleaded not guilty, and tendered an issue to the country. And, for further plea, justified under a process of execution, issued from the clerk’s office of Essex County Court; (which process is set out in haec verba, and purports to be authorised by a decree of the High Court of Chancery, “as appeareth by the decree above prefixed;”) but the decree is in no other manner set out, than by way of recital in the process of execution. The plea further states, that the above process was delivered to the deputy sheriff to be duly executed ; which was accordingly done, *and by virtue of which, the defendant was restored to his seisin in the tenement, in the writ mentioned, as by the return of the said deputy will more fully appear ; which entry is the same, &c. absque hoc, &c. and concludes with a verification.
    The entry then proceeds, “general replication and issue as to the plea of not guilty, and general demurrer as to the second plea, and joinder in demurrer.”
    On argument, the Court sustained the demurrer to the second plea, and immediately afterwards directed a Jury to be impanelled to try the issue on the first; who found that the defendant was “guilty of the trespass, breaking and entering the close of the plaintiff in such manner and form, as the plaintiff against him had declared,” and assessed the plaintiff’s damages, “by means thereof,” to sixty pounds, for which sum, and costs, judgment was rendered.
    Hord obtained a writ of supersedeas from the District Court; where, the judgment of the County Court being affirmed, he took an appeal to this Court.
    Warden, for the appellant.
    The question is, who was the trespasser? The sheriff being a ministerial officer, and having an execution in his hands, emanating from a Court of competent jurisdiction, which had power to command him, what was he to do? He was not to look into the authority of the Court, but to perform that which the writ commanded. He could, therefore, be no trespasser. If the proceedings were wrong, the defendant should have moved the Court to quash the execution ; the plaintiff cannot be a trespasser, when he is put in possession by the proper officer. The question whether he was legally put in possession or not, is not for him to decide.
    The demurrer, he contended, was irregular, and amounted to nothing. It should have been drawn up at full length; and then the party could only have insisted upon such matters as he had stated as causes of demurrer.
    *Wickham, for the appellee.
    The single question, in the cause is, whether a person suing out a writ, can justify himself by averring the writ, and the writ only. The distinction is this: where a sheriff has a writ delivered to him, it is a sufficient authority, and he may justify himself by shewing it; but if a stranger, or any person, other than the officer be sued, he must shew the judicial act, on which the writ was founded; he must shew from what Court it emanated, and that it was warranted by the judgment or decree of such Court,  A mere recital of a judgment or decree, as in this case, is not sufficient. If the decree had been set out in the plea, the plaintiff would have replied, as was the fact, that there was no decree to warrant the execution, an appeal to a Superior Court being then depending.
    It is objected that the demurrer is informal. Admit that to be the case, it will not avail the defendant in the Court below; the Court will go back to the first fault, which is in the plea. The defendant put in an informal plea, and the plaintiff an informal demurrer. But according to the practice of this country, the word “demurrer,” put in ore tenus has been held sufficient. In various instances, it has been decided by this Court, that the words “not guilty,” were sufficient as a plea of the general issue. The act of Assembly which requires the causes of demurrer to be specially assigned, applies only to those cases where the demurrer is for want of form and not of substance. This was a bad plea in substance; and the most that can be said, is, that the word “demurrer” shall be taken as a general demurrer; in which case it is not necessary to assign any causes.
    Warden, in reply.
    The execution recited in the plea, speaks of a decree above prefixed, which is as good as if it had been set out at full length.
    
      
      PIeading — Trespass—Pleading: by Way of Recital.— In Battrell v. Ohio River R. Co., 34 W. Va. 233, 12 S. B. Rep. 700, It is said: “The rule of pleading forbidding the statement of facts constituting- the cause of action with a quod atm, that is, 'for that whereas,’ which is purely by way of recital. Is centuries old, and though technical, and, in my judgment, a stigma upon the common law. has been persistently insisted upon in early Virginia cases. In Ballard v. Leavell, 5 Call 531, a verdict was overthrown because of such defect. In ¡lord v, Dishman, 2 Hen. <6 M. 595. the declaration was held bad in substance because of it. on general demurrer. And in Moore v. Dawney, 3 Hen. & M. 127, though there was no demurrer, it was held bad after verdict. The rule applied to actions of trespass or case for torts. Lomax v. Hord, 3 Hen. & M. 271; Donaghe v. Rankin, 4 Muni. 261.”
      Further, on this question, the principal case is cited in foot-note to Ballard v. Leavell, 5 Call 531 ; Moore v. Dawney, 3 Hen. & M. 131, 135; Lomax v. Hord, 3 Hen. & M. 271; Hill V. Harvey. 2 Munf. 526; Spiker v. Bohrer, 37 W. Va. 262, 16 S. E. Rep. 577.
    
    
      
       1 Ld. Raym. 305, 309. Britton v. Cole. 1 Stra. 509. Philips y. Biron; lb. 993,994. Smith v. Boucher, Lili. Ent. 443. See also, 3 W. Bl. Rep. 701. Martin v. Podger and others, 1 Saund'. by Williams, 38; The Earl of Manchester and others v. Vale, and the cases there cited.
    
   *Tuesday, October 11. The Judges delivered their opinions.

JUDGE TUCKER.

This, was an action of trespass quare clausum fregit, brought by John Dishman against John Hord, for breaking and entering his close, and treading down his grass, and ploughing up the earth, and the soil thereof, and cutting down his wheat thereon growing, and converting the same to his own use; and taking and carrying away, and disposing of three beds, twelve chairs, and lOOlbs. of bacon, of the plaintiffs, and converting the same to his own use; with a continuando from the first to the 21st day of June; and other wrongs done to the plaintiff, to his damage 5001.

The defendant, as to the breaking and entering and the whole trespass alleged, pleaded, first, not guilty; and for further plea, he said, that before the time of entering upon the close aforesaid, to wit, on the twelfth day of June, in the same year, he, the defendant, sued out of the office of the Court of Essex County, a writ in these words: The Commonwealth, &c. Whereas John Hord hath, as appeareth by the decree above prefixed, (which decree is no otherwise mentioned or set forth in the plea,) recovered against Samuel Dishman, (and twenty-three other persons, whose names are set forth,) his right and seisin, &c. of one tenement, &c. in the County of Essex, therefore the sheriff is commanded to cause the defendants as before named, to restore to the said John Hord the tenement, so that he have his seisin thereof, &c. and also, that he cause to be made the sum of forty cents for the costs of that writ, and also his legal fees for serving the same; which said writ afterwards was delivered to a sheriff of the said County to execute, by virtue whereof R. H. one of the deputy sheriffs of that Countj', restored to the said John the tenement aforesaid, as by return of the said deputy will more fully appear; which said entry is the same of which the said John Dishman now complains: without this, &c. *and concludes with a verification: wherefore he prays judgment, &c. To which plea the plaintiff demurred generally. The Court gave judgment for the plaintiff. And on the trial of the issue joined on the first plea, the Jury found a verdict for the plaintiff, with 601. damages; for which the plaintiff had judgment, which was affirmed in the District Court.

It was observed by the counsel for the appellant, though the observation was certainly against his client, that this plea ought to have concluded to the country. But all special pleas in bar, where any new matter, not before apparent upon the record, is alleged, ought to conclude as this does, with a verification, and a submission to the judgment of the Court upon the matter so alleged: which the opposite party may either take issue upon by a total denial of the facts alleged; or confess and avoid them; or admit them to be true, but deny their sufficiency in law to avail the party; as the plaintiff has done in the present case by a demurrer.

As this is a general demurrer, no defect in the plea that is not matter of substance is to be regarded. The objection insisted on by the counsel for the appellee is, that the defendant not being an officer should have pleaded the record of recovery, especially it being his own suit: and the au-thoritj' in Britton v. Coler, is expressly to this effect; and is confirmed by those in 1 Stra. 509, 2 Stra. 992, and 2 Wils. 385, and by the precedent in Billy’s Entries, 442. The words in the execution, as appeareth by the decree above prefixed, are perfectly unintelligible of themselves, and do not aid this omission', any more than the usual words, “whereof he is convict, as appears to us of record,” would any other execution. The reason why the party must plead in this manner, is, because he is necessarily supposed to be conusant of his own suit; and possibly he may have obtained a judgment before a Court not having jurisdiction of the case; in which case both the officer and the party will be trespassers. Or he may have *obtained a judgment irregularly, and thereupon sued out execution, in which case if the judgment be afterwards vacated for irregularity, although the officer shall be excused, the party shall not. And the record in this very case shews the propriety of the rule. For, from the exhibits made a part thereof by the clerk, it appears that the decree referred to in the execution, was not a decree of Essex Court, from whence the execution issued; but a decree of the High Court of Chancery, from which the sheriff, in his return, acknowledges he had received notice under the hand of the clerk of that Court, that there was an appeal. A stronger case could not have occurred to I evince the soundness of the rule in such cases.

But this is not the only objection to the plea which strikes me. The trespass is alleged to have been committed on the first day of June, with a continuando to the 21st. The justification is under a writ bearing date the twelfth day of June. The trespass from the first day of June to the 12th is not answered: the plea is consequently bad for that reason also. But further : by the trespass in taking away three beds, twelve chairs, and 10001bs. of bacon, and converting the same to his own use, is not answered, nor any notice taken of it, in any way whatsoever, in the second plea; which, were there no other objection, would vitiate it entirely. I therefore think the judgment must be affirmed, unless there be some incurable fault in the declaration; to which no exception whatever was taken in the argument at the bar, nor did any occur to myself, until it was mentioned by the presiding Judge. The objection is to the word whereas in the beginning of the declaration, which, according to ancient precedents in the Court of King’s Bench in England, has been held to be fatal, even after a verdict, The Court of Common Pleas have struggled hard against this exception, holding that the declaration was aided by the original writ, And 'x'the King’s Bench have so far shewn a disposition to disregard this nicety, that in the case of Douglass v. Hall, which was a writ of error to a judgment in the Common Pleas, wherein a verdict had been rendered for the plaintiff, all the Judges of K. B. seemed to incline to affirm the judgment. And the reporter adds, 1 ‘To be spoken to again.” “But I suppose it never was spoken to again, the plaintiff in error seeing the Court incline against him.” In the case of Ballard v. Beavell, in this Court, which was after verdict, two of the Judges seemed to consider the objection as fatal; a third thought the word whereas might be rejected as surplusage; the fourth thought the defect cured by the statute of jeofails. I did not sit in that cause. But in this case there is a general demurrer; and the doctrine and practice has been too long established to be shaken upon a general demurrer by the plaintiff to the defendant’s plea, the rule being, that he who commits the first fault in pleading, shall never have judgment in his favour upon a general demurrer, Upon these grounds I am of opinion, that the District Court ought to have given judgment for the defendant on the demurrer; not because his plea was good, either in form or substance; but that the plaintiff’s counsel, by demurring to it, has exposed his own faulty declaration to the scrutiny of the Court.

JUDGE ROANE.

On the point of the quod cum, the declaration, in the present case, is precisely like the one in the case of Ballard v. Leavell. In that case, 1 declared it as my opinion, on due deliberation, that for this cause, the declaration was faulty in substance, because nothing was positively averred, nor put in issue: that the averment, being the substance and gist of the action, the omission of it was not cured by the statute of jeofails; and that the plaintiff could not have judgment, on the declaration. To my opinion in that case, I beg leave to refer, as the ground of my present opinion. It was said by one of the ^Judges, in that case, that the quod cum was mere surplusage, and would do no harm. I cannot, however, subscribe to that opinion. An averment in itself positive, may be rendered otherwise, by the insertion of qualifying words: and this I take to be the effect of the quod cum, in the case before us.

The declaration, then, being radically faulty, the case of Smith v. Walker, Executor of Michie, and various other cases, shew us, that it is unnecessary to look into the subsequent pleadings, and consequently that the judgment of the District Court, in favour of the appellee, ought to be reversed, and entered for the appellant.

JUDGE FLEMING concurred in opinion that the judgment must be reversed, on account of the defect in the declaration.

By the whole Court, (absent JUDGE LYONS,) the judgment of the District Court reversed. 
      
       1 Ld. Raym. 309.
     
      
       Philips v. Biron.
     
      
       Smith v. Boucher.
     
      
       Perkin v. Proctor and Green.
     
      
       2 Wils. 384, 385. Perkin v. Proctor and Green.
     
      
       1 Roll. Rep. 55; 2 Ld. Raym. 1413, Dobbs v. Edmunds; 1 Stra. 621. Amyon v. Shore.
     
      
       1 Wils. 99; Douglas v. Hall, 2 Wils. 203: White v. Shaw, 2 Ld. Raym. 1413, in margine.
     
      
       1 Wils. 99. 100.
     
      
       Oct. 1805, MS.
     
      
       1 Wils. 100.
     
      
       Oct. 1805, MS.
     
      
       1 wash. 135.
     