Noyes v. Edgerly

• Decision Date: 09 October 1902
• Citation: 71 N.H. 500,53 A. 311
• Parties: NOYES v. EDGERLY.
• Court: New Hampshire Supreme Court

53 A. 311

71 N.H. 500

NOYES

v. EDGERLY.

Supreme Court of New Hampshire. Merrimack.

Oct. 9, 1902.

Transferred from superior court; Peaslee, Judge.

Action for false imprisonment by Gilman C. Noyes against Frank G. Edgerly. A demurrer to defendant's brief statement was overruled. Case transferred from the superior court. Demurrer sustained.

October 5, 1898, the plaintiff was arrested for breaking and entering a building in the daytime, and the larceny therein of goods valued at $15. He was arraigned in police court, pleaded guilty, and was sentenced to four months' imprisonment in the county jail, and to pay a fine of $10 and costs. The defendant was sheriff and jailer of the county, and took the plaintiff into custody October 6, 1898, on the mittimus issued by the justice, and imprisoned him until March 19, 1899, when he was discharged. The writ in the present action is dated September 6, 1899. April 2, 1902, the defendant filed a plea of the general issue, with the following brief statement: "Prior to the bringing of this suit, to wit, on the 20th day of March, 1899, this plaintiff brought suit against this defendant, in the supreme court of said state, to recover a penalty established by the provisions of chapter 282 of the Public Statutes of said state, in which action the plaintiff declared as follows: 'In a plea of debt, for that on, to wit, the 15th day of October, 1898, said defendant, being then and there the sheriff and jailer of said county of Merrimack, did employ and set to labor the plaintiff, who was then and there a prisoner confined in the jail of said county, and did continue said plaintiff in said employment and labor for, to wit, eighty-seven days, during all of which time said plaintiff was a prisoner as aforesaid; and said plaintiff avers that said defendant did not keep a correct and itemized account with said plaintiff while the latter was so employed, showing his earnings and the charges and expenses made and incurred on his account, and when said plaintiff was discharged from said jail on, to wit, March 19, 1899, said defendant did not pay him the amount due him as provided by law for his labor, and did not take a receipt therefor,—contrary to the form of the statute in such case made and provided. Whereby an action has accrued to said plaintiff to have and to recover of said defendant the sum of $100. Yet said defendant has never paid the same.' Which action is still pending, and is based upon the legality of the commitment and imprisonment of said plaintiff, whereby said plaintiff elected to treat his imprisonment as legal, and thereby became estopped and barred from bringing and maintaining this action." The plaintiff moved to reject the brief statement as not being seasonably filed, as required by rules of court, Nos. 9 and 12. The motion was denied, not as a matter of discretion, but solely for the reason that the matter alleged was provable under the general issue, and the plaintiff excepted. The plaintiff's demurrer to the brief statement was overruled, subject to exception.

Martin & Howe, for plaintiff.

Matthews & Sawyer and Streeter & Hollis, for defendant.

BINGHAM, J. "No special plea shall be required in a civil action; * * * but any defense may be proved under the general issue, upon a brief statement thereof being filed in such time as the court may order." Pub. St. c. 223, § 3. "Brief statements, filed in pursuance of the statute, shall be subject to the same rules as special pleas." Rules of court, No. 12. "All special pleas shall be filed with the clerk of the court within ninety days from the commencement of the term when the action is entered; otherwise, the case shall be tried upon the general issue." Rules of court, No. 9. The brief statement was not seasonably filed, and the trial justice did not allow it in the exercise of his discretion. The question, therefore, is, can the matter alleged therein be given in evidence under the general issue? The statute allowing the use of a brief statement was enacted to do away with special pleading. Laws 1831, c. 48; Flagg v. Gotham, 7 N. H. 266. It substitutes a brief statement for a special plea (Folsom v. Brawn, 25 N. H. 114), but does not apply to matter in abatement of the writ, and was not intended to change the nature of the general issue from what it was at common law (Manufacturing Co. v. Whittier, 10 N. H. 305, 309).

What could be proved at common law under the general issue, in actions of trespass for false imprisonment, is well settled. The plaintiff's right in such actions consists in the freedom of ids person from unlawful restraint. The defendant's wrong is an infringement of that right. The act here complained of is the imprisonment of the plaintiff by the defendant upon process issued by a court without jurisdiction of the subject-matter. Tub. St. c. 276, § 3; Id. c. 248, §§ 3-5, 7, 8; State v. Weed, 21 N. H. 202, 53 Am. Dec. 188; State v. Dolby, 49 N. H. 483, 6 Am. Rep. 588; State v. Runnals, 49 N. H. 498; Batchelder v. Currier, 45 N. H. 460; Austin v. Vrooman, 128 N. Y. 230, 28 N. E. 477, 14 L. R. A. 138; Patzack v. Von Gerichten, 10 Mo. App. 424-429. The imprisonment is admitted, and the presumption is that it was unlawful. In such actions the plea of not guilty is proper, "if the defendant committed no assault, battery, or imprisonment." 1 Chit. PI. (9th Ed.) 500. "Every imprisonment of a man is prima facie a trespass, and, in an action to recover damages therefor, if the imprisonment is proved or admitted, the burden of justifying it is on the defendant." Bassett v. Porter, 10 Cush. 418, 420. "The gravamen of the action is the unlawful interference with the person * * * of the plaintiff." An interference with the general rights of personal liberty "is presumed prima facie to be unlawful, and the plaintiff has only to prove the fact of such interference to put his adversary upon his defense." Perry v. Buss, 15 N. H. 222, 224; Boiler v. Rounceville, 29 N. H. 554, 561, 562. "Matters which do not directly contradict that which a plaintiff is bound to prove, in an action of trespass, under the general issue, but which show collaterally that the action is not maintainable, must be specially pleaded, or a brief statement of the matters must be filed under the statute." Stow v. Scribner, 6 N. H. 24. Under this head may be classed any matter of excuse or justification, any warrant or authority, a satisfaction of the alleged trespass, a license from the plaintiff, that the act was done at the plaintiff's request, or matter of estoppel. Rawson v. Morse, 4 Pick. 127; 1 Chit. PI. (9th Ed.) 500, 501.

The brief statement does not deny any material allegation of the writ; it appears to be an attempt to show collaterally that the action is not maintainable. The most that can be claimed for it is that the plaintiff, subsequent to his discharge, took such a position in relation to his imprisonment as to estop him from showing that it was unlawful. It is matter in avoidance of the writ, and cannot be shown under the general issue. A brief statement is necessary.

The question raised by the demurrer is whether the brief statement is good in substance. Was the action of debt, based on the defendant's nonperformance of duty, an election to treat his imprisonment as lawful, and a waiver of his action for false imprisonment? It is claimed by the defendant that it is incumbent upon the plaintiff to prove, in the action of debt, that his imprisonment was lawful; and, having taken such a position by bringing that action, he cannot in this suit take the inconsistent position that his imprisonment was unlawful. It may be doubtful whether the inconsistency between this suit and the action of debt, as claimed by the defendant, exists. The imprisonment did not consist in a distinct and single act, but in continuous violation of personal liberty, and every continuation of the illegal imprisonment was a new trespass (Ruffner v. Williams, 3 W. Va. 243; 8 Enc. PI. & Prac. 843); and it might be argued that the present suit is based upon the trespass arising out of the imprisonment prior to October loth, and not upon the independent trespass involved in the imprisonment for 87 days subsequent to that date, and which is the basis of...