Copley, plaintiff in error, vs. Rose, defendant in error

Copley, plaintiff in error, vs. Rose, defendant in error. Cn a justice’s court, the plaintiff’s declaration in writing stated that the defendant, on, &e. at, &e. with force and arms, seized, took and earned away certain personal property of the value of one hundred dollars, and converted the same to his own use. There was no allegation that the goods were the property of the plaintiff. The defendant did not appear. The plaintiff proved the trespass complained of, and that the property was his; held, that the declaration was sufficient to uphold the judgment, although it would be bad on demurrer. In an action of trespass in a justice’s court, the proof was that the defendant admitted that he had levied on the property, at the same time exhibiting the execution, and stating whom it was against; and when asked whether he would disclaim the levy, he refused to do so ; held, sufficient to charge him as a trespasser, and that the admission involved no justification under the process. A. party who seeks to justify the taking of property under legal process, must show that he was an officer, and had lawful authority to take the prouerty. On error from the supreme court. Rose sued Copley in a justice’s court of the county of Otsego. On the return day of the summons, the. defendant not appearing, the plaintiff declared in writing as follows': “ The plaintiff complains of the defendant, for that said defendant to wit, at Maryland, in the county of Otsego, on the 12th day of October last past, with force and arms, seized, took and carried away a large quantity of personal property, to wit, of the value of one hundred dollars, and converted the same to his own use, against the peace of the people of the state of New-York, and to the plaintiff’s damage of one hundred dollars; wherefore the said plaintiff brings suit, &c. The annexed is the list referred to.” A schedule of the articles referred to in the declaration was annexed thereto. The plaintiff then called a witness, who testified that at the request of the plaintiff, he asked the defendant if he had made a levy on the property in question. The defendant replied that he had, and showed the execution, which was against him, the witness. The defendant also gave to the witness a list of the property levied on, being the same as in the schedule annexed to the declaration. On another occasion, the witness asked the defendant if he insisted on the levy, and informed him that he was instructed by the plaintiff to say, that unless he disclaimed the levy, the plaintiff - would consider him as intending to hold on to the property. The defendant refused to disclaim, and the plaintiff then immediately caused this suit to be commenced. The same witness also testified that the plaintiff owned the property in question. The justice rendered judgment in the plaintiff’s favor for $ 100 damages and costs of suit. The common pleas, on certiorari, reversed the judgment, and the supreme court, on error brought, reversed the judgment of the common pleas, and affirmed that of the justice. The defendant brought error to this court. A. Becker, for plaintiff in error. E. E. Terry, for defendant in error. [MAJORITY — Bronson, J.] Bronson, J. Although the declaration would have been f>ad on demurrer, for not alleging that the plaintiff owned the property, it was quite as formal as pleadings usually are in justices’ com ts; and as no objection to the declaration was made before the justice, and the plaintiff proved a good cause of action of the kind mentioned in the pleadings, the common pleas was wrong in reversing the judgment. (Goff v. Griswold, 1 Denio, 432; Stafford v. Williams, 4 id. 182.) The declaration was none the worse for being in writing; nor is it important that the defendant did not appear. (Stafford v. Williams, supra.) The defendant said he had made a levy on the property, showed the execution by virtue of which he acted, and insisted on the levy. There was sufficient evidence that he had exercised such dominion over the property as would make him a trespasser : and it was for him to justify the act, if he could, by showing that he was an officer, and had lawful authority to take the property. The witness told whom the execution which the defendant showed him was against. That was hardly proving the contents of the execution by parol. And besides, it is impossible that the defendant should have been injured by the evidence; for whoever the execution may have been against, it was the business of the defendant to produce the process, and show a right to take this property under it. We see no legal objection to the proceedings before the justice. The error of the common pleas has been corrected by the court. Judgment affirmed. See Petrie v. Woodworth, 3 Caines 219 ; McNeil v. Scoffield, 3 Johns, 436 ; Bowditch v. Salisbury, 9 Id. 366; Keyser v. Shafer, 2 Cowen 437; Canfield v. Monger, 12 Johns. 347; Stolp v. Van Cortland, 3 Wend. 492; King v. Fuller, 3 Caines 152; Ehel v. Swith, Id. 187; Hasbrouck v. Weaver, 10 Johns. 247 ; Fitch v. Miller, 13 Wend. 66; Civill v. Wright, Id. 403; Whitney v. Crim, 1 Hill 61; West v. Stanley, Id. 69 ; Chamberlain v. Graves, 2 Id. 504, 3 Id. 187, 609 ; Young v. Rummell, 5 Hill 60; Bodenhamer v. Bodenhamer, 6 Humph. 264.