Shaw v. Peckett

Assault and battery and false imprisonment. Justification. Taxes. Collector. Pleading, fyc. In an action for assault and battery and false imprisonment, where the defendants by plea attempted to justify, under a warrant of distress, for the collection of taxes, and it appeared by the plea, that the warrant was attempted to be executed more than three years after it was delivered to the collector, and no sufficient excuse was set forth for such delay in the execution, until after three years, it was held that the plea was fatally defective, unless the defect is supplied in the replication. It was held, that where the defendant attempted to justify, under a warrant of distress, for the collection of taxes, all the facts, which are necessary to constitute a ' vote of the tax, a legal assessment, and for this purpose a legal list, and legal proceedings in the collection, must be expressly set forth in full detail to make a good plea. The collector of taxes is not compelled to go against the real estate for the taxes . assessed upon it.

Trespass for assault and battery and false imprisonment. The defendants pleaded not guilty, as to the force and arms, or whatever is against the peace, and to the beating, bruising and ill-treatment, and to the residue justified under a warrant of distress for the collection of taxes. The plaintiff filed his replication, to which the defendants demurred. The County Court, January Term, 1853, — Collamer, J., presiding, — adjudged the replication insufficient, and rendered judgment for defendants. Exceptions by plaintiff. On demurrer, defendants’ plea is insufficient. 1st. It does not allege, saving perhaps argumentatively, that plaintiff had any list in Bradford. 2d. The plea alleges that at the time, before and after the trespass complained of, the plaintiff had taxable property in said town, and it is not alleged that said property could not be found by said Gerry. 3d. It is alleged that the taxes, for which plaintiff was arrested in 1851, were assessed in 1846; it is not alleged that the plaintiff had been out of the state in the meantime, and had no property in the state which might have been distrained for said taxes; but the allegations rather show that he had property here. The replication aEeges, that the plaintiff had been a non-resident since the assessment of the tax, but that the estate taxed remained liable for said taxes three years. That the purchaser, Peckett, in fact paid the taxes at the time, but intrigued with the constable to get them out of plaintiff some five years afterwards. That taxes should be collected in three years, see Comp. Stat.chap. 81, sec. 16. That real estate is holden, see id. chap. 80 sec. 12. In Jacobs’ Law Dictionary, title Distress, it is said, “ There are “ distresses in actions compulsory to make a man appear in court; “ and of these, there is distress personal of a man’s moveable goods “ and profits of land, &c., for contempt in not appearing after sum“moned; and distress real upon immoveable goods. And none “ shaE be distrained for any thing touching their freeholds, but by “the king’s writ.” 52 Hen. 3, chap. 1. Our statute authorizes the summary taking of real estate for taxes, which is but a process of distraining. The observations of the court in the case of Sherwin v. Bugbee, 16 Vt. 439, fuEy Elustrate this. This rephcation is bad. I. It admits that the taxes named in defendant’s bar were legally assessed in 1846, on the plaintiff’s estate liable to taxation; that the defendant, Peckett, took possession of the land by purchase early in the said year 1846, and had the benefit of it; whereupon the plaintiff insists he is discharged from liabEity. If so, this is weE, and the plaintiff might have stopped at this point. If not, then it proves the vieiousness of the whole replication. II. It admits that plaintiff owned the land, that it was subject to taxation in 1846, and that the taxes were properly assessed thereon against him; but insists, that because he went to Massachusetts and resided there more than three years, that discharged him from personal liability, but left the land liable therefor. This is, at least, a novel way of attempting to avail himself of the plea of the statute of limitations; and if it has the merit of being ingenious, it has also the disadvantage of being most fatally argumentative and indefinitely uncertain. III. The plaintiff’s replication is a departure in pleading from his declaration; that is, for an assault and battery and imprisonment ; this is setting matter of contract between these defendants, to which the plaintiff is no party, in avoidance of the defendants’ plea and discharge of his obligation to pay. The new matter alleged in the replication does neither prove nor fortify the plaintiff’s declaration; it alleges an executory agreement, and that still unexecuted, as the foundation for a trespass. Nonfeasance is no trespass; nor does the omission of Gerry to apply the money advanced by Peckett to discharge plaintiff’s liability, make him a trespasser ab initio. 6 Carpenter’s case, 1 Smith’s Lead. Cas. 62. The issue tendered by the plaintiff, if any, in his replication, is an immaterial one, and therefore well met by the demurrer. Marvin v. Wilkins, 1 Aiken 107, 1 Chitty’s Pleadings, 556, 557. Chearley v. Bowes, et al., 10 East. 73. This replication is double and repugnant. It alleges “ that the “ taxes were assessed upon the real estate of the plaintiff, then owned “ by the plaintiff, to wit, in the year 1846 — that early in 1846, “ John B. Peckett, one of the defendants, took possession of said “ land by purchase.” It insists that plaintiff owned the land, and Peckett owned it at the same time. That plaintiff was liable, and was not liable for the tax, at the same time. It proposes to avoid the defendants’ bar by new matter. It should admit, either in words or effect, the facts alleged in the plea. A replication of this nature must confess and avoid the plea — this does neither. If the plaintiff really relied on new matter, as the substantial ground of his recovery, he should have new assigned. Scott v. Dixon, 2 Wilson, 3, 4. 1 Chitty’s Plead. 540, 542, 556.