State ex rel. Ladd v. Clark

Wagner, Judge,

delivered the opinion of the court.

The only question material to be noticed in this court is the sufficiency of the petition. There can be no doubt about the justice of the judgment; and if the plaintiff’s petition contains the requisite and necessary averments, the judgment should be affirmed. The action was based on an official bond, given by the defendant Clark and others, and was conditioned that Clark should faithfully perform the duties of constable of Washington township in Buchanan county.

The breaches assigned were in substance that, before and at the time of committing of the grievances by. the defendant Clark, the plaintiff Ladd was the head of a family consisting of his wife and several children, and was keeping house and living with his family in the said township of Washington; that Ladd was insolvent; that all the property of every kind and description that he owned *522 or was possessed o£ consisted of household and kitchen furniture, then used by him in his housekeeping, and was necessary for his family; that said household and kitchen furniture was not worth the sum of $300. Yet the said defendant Clark, well knowing that said goods and chattels were not liable to attachment, did, as constable of said township, by virtue of a writ of attachment issued by a justice of the peace, attach, levy upon, and sell, a portion of the furniture, etc. The petition then set out with sufficient particularity the goods attached, their value, the amount for which they were sold, and the damages resulting therefrom.

The attachment act declares what property the officer shall be authorized to seize as attachable, but expressly provides that no property or wages declared by statute to be exempt from execution shall be attached, except in the case of a non-resident defendant, or of a defendant who is about to move out of the State with intent to change his domicile. (Gen. Stat. 1865, p. 564, §19.)

The statute under the title “Execution” exempts from levy and sale personal property of the value of $300 when owned by the head of a family.

It is now insisted, and it is the principal ground relied upon by the plaintiffs in error, that the petition is fatally defective and sets out no cause of action, because it does not. negative the exceptions contained in the nineteenth section of the attachment act and specifically declare that at the time of the attachment and levy the plaintiff was not a non-resident, nor was he about to remove out of the State with intent to change his domicile. There can be no difficulty with regard to the first exception, as the petition states explicitly that the plaintiff was residing at the time with his family in the said township of Washington. This, though not in the language of the statuté, amounts to a substantial allegation that he was not a non-resident. As a general rule he who would entitle himself to an action upon a statute must allege all the facts upon which the statute grounds the action, and if he fails to do so in his petition he cannot have judgment. (Bartlett v. Crozier, 17 Johns. 456 ; Williams v. Hingham, 4 Pick. 341 .) In both civil and penal actions enough must be stated in the *523 declaration, or must be necessarily inferable from what is stated, to show a perfect right of action. The law seems to have firmly settled a distinction between an exception in the purview of an act and a proviso.

In the case of Spiers v. Parker, 1 T. R. 141, Mr. Justice Ashurst said that “ any man who will bring an action for a penalty on an act of Parliament must show himself entitled under the enacting clause; but if there be a subsequent exemption, that is a matter of defense, and the other party must show it to exempt himself from the penalty.” Mr. Justice Butler said: “I do not know any case for a penalty on a statute where there is an exception in the enacting clause, that the plaintiff must not show that the party whom he sues is not within it.” And it has been said that where an action is given by statute, and in another section or subsequent statute exceptions are' enacted, the plaintiff need not take' notice of these exceptions, but may leave it to the defendant to set them up in his defense. ' But where the exception or limitation is contained in the same section which gives the right of action, the plaintiff must negative the application of them to his ground of action. ( 4 Pick. 347 .)

The more reasonable rule, however, is this : If the proviso furnishes matter of excuse for the defendant, it need not be negatived in the petition, but he must plead it. And in this view of the matter it makes no difference whether the proviso be contained in the enacting clause or be subsequently introduced in a distinct form. It is the nature of the exception, and not its location, which ought to govern. (Sheldon v. Clark, 1 Johns. 513 ; Bennett v. Hurd, 3 Johns. 438 ; Teel v. Fonda et al., 4 Johns. 304 .) Where in the same section of the statute that the right of action is given the exception is contained, and it clearly appears that the plaintiff cannot maihtain his cause without negativing the exceptions, then his declaration or petition must be framed in conformity with the rules above laid down. But if his right of action is complete under a statute, and there is a provision or exception either in that or some other statute which may be made available to defeat it, then the matter must be taken advantage of by way of defense.

*524 Now, the action in this case was brought under the chapter in the statute providing for bringing suits on penal bonds for an alleged trespass in taking and selling personal property exempt by law. Everything is stated necessary to give the plaintiff a cause of action, and the defendant should have pleaded the proviso or exception contained in the nineteenth section of the attachment act in his defense, if he desired to exonerate himself from liability.

We therefore see no error in the judgment of the District Court, and its judgment is affirmed.

Judge Eagg concurs.