
    John A. Berry, impleaded with Samuel H. Berry, at the suit of Pier Louis Cahanan.
    ON DEMURRER.
    1. If, in an action of trespass, tlie defendant, by liis plea, admits tlie thing charged to have been a trespass in its nature, but sets up certain concomitant circumstances which the law considers as an excuse or justification, there the plaintiff may reply, “ de, injuria sua propria,” &c.; but where tlie defendant denies the thing charged to have been a trespass at all, for that, the close broken and goods taken were the property of himself, or of another, hy whose authority he acted, there the plaintiff cannot reply, deinjuria. &c., hut must, in his replication, traverse the right or interest set up in the plea, otherwise it will be bad on demurrer.
    2. A replication which puts in issue several distinct facts, not tending to prove the same point, is bad on demurrer.
    
      This was an action of trespass. The declaration contained ■three counts. The first charged the defendants, John A. Berry and Samuel H. Berry, with breaking and entering the close of the plaintiff, and taking away certain goods and •chattels. The second was for breaking and entering the •dwelling house of plaintiff, and taking away certain articles •of furniture; and.the third count was for breaking and entering a cotton mill, and taking away certain articles of machinery.
    The defendants sever in their pleas; and John A. Berry pleads — 1. The general issue and notice.
    *2 & 3. Special justifications.
    4. In substance, as follows: “ that as to the said trespasses in the introductory part of the plea secondly above pleaded, the said Pier ought not to have or maintain his .action against him, because the close and dwelling house and cotton mill, in the declaration mentioned, at the time when, &c., were the property of one James Oallet, who resided out ■of this state, and had divers goods and chattels in the custody of the said plaintiff, in the said close, dwelling house, and cotton mill, which were liable to be attached for the payment of the debts of the said James Oallet; that the said James Oallet was justly indebted to the said JolnrA. Berry, and that the said John A. Berry made the oath required, (in order to obtain an attachment against an absconding debtor) filed the same with the clerk of the Common Pleas of Bergen, and that an attachment was thereupon issued out of the said court against the goods and chattels of the said James Oallet, and delivered to the said Samuel PI. Berry (who was then sheriff of Bergen) to be executed ; that, by virtue of the said writ of attachment, the said sheriff did attach the rights ,and credits, moneys and effects, goods and chattels, lands and tenements, of the said James Oallet, at the suit of the said John A. ,Berry, and the said Samuel, so being sheriff as aforesaid, and the said John, in aid and by the command of the said Samuel, did peaceably and quietly enter the close, dwelling house, and cotton mill of the plaintiff, the doors of the dwelling house and cotton mill being open, and did attach the goods in the declaration mentioned, being tlie goods and chattels of the said James Callet, and, in so doing, necessarily and unavoidably did a little hinder and disturb the said plaintiff, and unavoidable continued for a short space of time in the close, dwelling house, and cotton mill of the plaintiff, and did take an inventory and appraise all the property and estate of the said James Callet, and the said Samuel, so being sheriff as aforesaid, the said goods and chattels so attached did keep, according to the command of the said writ; which are the said several trespasses in the introductory part of this plea referred to.”
    To this plea the plaintiff replied, that he, by any tiling in the plea of the said John A. Berry alleged, ought not to be barred from having his action aforesaid thereof against him, because protesting that the said John A. Berry did not make such oath, *and that the said oath was not filed, and that sucli writ of attachment did not issue, and that the said writ was not delivered to the said Samuel E. Berry, as the said John hath above alleged: for replication, nevertheless, in this behalf, the plaintiff saith, that the said John and the said Samuel, at the time, when, &c., in the said declaration mentioned, of their own wrong, and without the residue of the cause in his said fourth plea alleged, broke and entered the close, dwelling bouse and cotton mill of the said plaintiff, and took away the goods and chattels, furniture and machinery of the plaintiff, and disturbed the said plaintiff in the quiet use and occupation of his dwelling house; and • of this he puts himself upon the country. To this replication, tlio defendant, John A. Berry demurred, and assigned for causes of demurrer—
    I. That the replication puts in issue several matters or facts, in the said fourth plea set forth; that the said plaintiff protesting, as in the said replication in that behalf mentioned, in and by, the said replication says, that the said Samuel and John, of their own wrong, and without the residue of the cause in the said plea alleged, broke and entered the close, dwelling house and cotton mill, in the said replication referred to, and took and carried away, and to their own use converted the goods and chattels in that replication also referred to; which said residue of the cause comprehends several distinct facts which are thereby attempted to be put in issue, that is to say — 1. The said plaintiff, by that replication, denies that the said James Callet did reside out of' the state; and also, that he was indebted to the said John; (the demurrer goes on to recapitulate all those facts set out in the fourth plea which are not protested in the replication) which said several facts, or some two or more of them, the said plaintiff cannot by law traverse by that replication, in manner and form as he has thereby attempted to do. 2. That the said plaintiff, by that replication, attempts to put-in issue the right of the said Samuel, as sheriff as aforesaid, to enter, by virtue of the said writ of attachment, into the said close, dwelling house and cotton mill mentioned in the said plea last pleaded, and also the entry therein of the said John, in and by the command of the said Samuel, and also the right of the said Samuel, sheriff as aforesaid, to attach the said goods and chattels, and also the right of the said James Oallet to the said close, dwelling house and cotton *mill, and also the right of the said James Callet to the said goods and chattels in that plea mentioned; which is contrary to law.
    II. That the right of the said James Oallet to the said dwelling house and cotton mill, in that plea mentioned, being denied, such general replication is contrary to law.
    III. That in the manner the said replication is pleaded, no certain or single issue is joined in the same; and that the replication ought to have put in issue one single fact.
    IV. That the plaintiff hath omitted to insert, in his said, replication, the words following, or to that effect, that is to say — “ without this, that the said goods and chattels, in the-said several counts mentioned, were liable to be attached as the property of the said James Callot, in manner and form as the said John, above, in pleading, hath alleged,” which ought to have been inserted next preceding these words, “and this he, the said plaintiff, is ready to certify.”
    Y. That the said replication is also insufficient, inasmuch as the excuse offered in the said plea last pleaded relates to some interest in the land therein referred to, and also to some interest in the goods and chattels therein referred to, and also to the entry of the said John in aid of, and by the command of the said Samuel, sheriff as aforesaid, as therein mentioned; which said several matters, or some two of them, cannot be put in issue by one replication.
    YI. That the said replication puts in issue what ought not to be put in issue, that is to say, the plaintiff denies that the said Samuel, being sheriff as aforesaid, by virtue of the said writ of attachment, entered the said close, dwelling house and cotton mill, in order to attach; and also, that he did attach tlio property, as in the said fourth plea is set forth.
    The plaintiff joins in demurrer.
    
      Vanarsdale, in support of the demurrer,
    cited 1 Chit. Plead. 585; 12 John. Rep. 491, Plumb, v. M’Crea and others; Crogate’s case, 8 Co. 133; Comyn’s Rep. 582; 1 Bes. & Pul. 76, Jones v. Kitchen; 1 Chit. Pl. 587, 585; Com. Dig. F. 22; 11 East. 451, Barnes v. Hunt.
    
    
      Fwing, contra,
    cited 1 Chit. Pl. 564, 565, 569; 1 Bur. 317; 2 Chit. 537, 582, 584, 587, 644; 2 Lil. Ent. 442.
   * Kirkpatrick, O. JK

This is an action of trespass for breaking the close, and taking and carrying away the goods of the plaintiff.

The defendant, John A. Berry, avers in his defence, and for plea says, that the close broken, and the goods taken and carried away, were the proper close and goods of one James Callet; that, for the recovery of a debt due to him from the said James Callet, he had sued out a writ of attachment, and delivered the same to Samuel IT. Berry, the other defendant, who was the sheriff of the county of Bergen, to be executed; and that he, together with the said Samuel PI. Berry, and as his assistant, and by his command, entered and aided the said sheriff to attach the said goods; and that this is the trespass, &c.

To this plea the plaintiff, protesting the writ of attachment, &c., replies de injuria sua propria absquej, residuo talis causee, &cJ, and to this replication there is a^emurrer, cum causa, and a joinder in demurrer. \f

Crogate’s case (8 Co. 66, b.fwas trespass for driving the plaintiff’s cattle from their pasture. The defendant pleaded property in a third person, and that he, as his servant, and by his commandment, drove the cattle, &c. The plaintiff replied de injuria, &c., and it was demurred.

In the argument of this case, (Crogate’s,) it seems to have been fully admitted by the plaintiff, that if the defendant, in his plea, had claimed any interest in himself in the pasture, the replication would have been bad; but it is insisted, that he did not claim such interest, but justified by force of a commandment from a third person who had title, and so that the replication, de injuria, should have reference to the commandment only, and not to the other part of the plea which sets up the title. But it was adjudged that-the absque tali causa necessarily refers to the whole plea, the title as well as the commandment, and so that the replication w7as bad. And it was there further .resolved, that where the defendant sets up, in his plea, any interest in the land, either in his own right, or as servant to another, de injuria, &c., without more, is not a good replication; for that though, in some particular cases, it had been admitted, yet it was with a traverse of the commandment; which is not done here. And it is said, that a replication de injuria, &c., is properly made only where the defendant’s plea doth consist of mere excuse, and of no naatter of interest whatsoever; that is, as I understand it, when the * defendant .admits the thing charged to have been a trespass in its nature, but sets up certain concomitant circumstances which the law considers as an excuse or justification, there the plaintiff may reply generally de injuria, &o.; but where the defendant denies the thing charged to have been a trespass ,at all, for that the very close broken, and goods taken, were the property of himself, or of another, by whose authority he acted, and so that it could, not be a trespass upon the plaintiff; there the plaintiff cannot reply generally de injuria, &c., but must traverse the right or interest set up.

The decision in this case (Crogate’s) seems to me to be recognized as law in all the books to which I have had access, down till this day; and rightly so, because they are founded in sound sense, and the reason of things. The substance of the plea in this case is, that the property belonged to Callet, and that, standing without denial, and, of course, being admitted, the replication de injuria, &c., is no answer to the plea; nay, indeed, it cannot be true; for if the close and property belonged to Callet, (which is not denied) the breaking and entering, and the taking and carrying away, could be no injury to the plaintiff. It is always necessary, therefore, in such cases, to traverse the title or interest set up in the plea, and so to put the whole in issue. It will not be pretended, I presume, that the entry here, being by the authority of the law, and not by the authority of Callet, 'in whom the property is pleaded, can make any difference. For the writ of attachment being admitted by the protestando, if the property was really in him against whom the writ was taken, there can bo no doubt but that tho defendants had a perfect right, on the ground of that property, to enter and attach.

Besides this, the same objection lies to this replication that was raised by the court against that in Crogate’s case. The issue is full of multiplicity of matter, putting in. ques-tion everything not admitted by the protestando; whereas an issue ought to be single, terminating in one point.

I think, therefore, the replication is bad, and that .there must be judgment for the defendant upon the demurrer. '

^EoKtí, J.

The replication, in this case, protests the making and filing of an affidavit, the issuing an and delivery thereof to the sheriff, thereby admitting these facts, as set forth *in the plea; and then all other facts in the plea together, by de injuria sua propria absque tali causa; thus it involves, in one issue, the various facts of Callet’s residence out of the state, his being indebted to the defendant, his right and title to the goods, and the levying of the attachment. Uow the may take this general traverse in. some cases, and it may not take it in others. One of the excepted cases where it cannot be allowed, is stated in 1 Bur. 317; and that is where matter of title would be included under the absque tali causa; and. the cases collected in Qhit. 582, shew that such traverse is inadmissible where a right to personal would come within it. But Oallet’s right and title to the goods is mixed with all the other facts not covered by the protestando, instead of its being traversed in a simple issue by itself, as it must be if it is meant to be disputed ; therefore the general traverse in this instance is wrong, according to all the cases; and the replication must be set aside.

ROSSELL, J., concurred.

Judgment for defendant, the demurrer sustained.  