Richardson v. Hall

Bartol, J., delivered the .opinion of this 'Court: The record in this case presents for óur decision,, only, -questions of pleading. The appeal was taken from a judgment of the Superior Court, sustaining the defendants’ demurrer to the replication, and brings before us for examination the whole proceedings, it being the office and effect of-a. demurrer to carry the Court back to the first error. The suit was-an action of damages brought by the appellant, and the forms of proceedings are governed by .the Act of 1856, ch. 112. First.

The declaration. To this three objections have been urged by the appellees in the argument: 1st. That value was of the substance.of the issue, and ought to have been alleged. (Art. 5, sec. 115, page 160.) The tort complained'of in the declaration, is, that the defendants "wrongfully deprived the plaintiff of the rue and possession of the plaintiff’s goods, that is to say, one hundred barrels of flour, and-the plaintiff claims one thousand dollars.” The action is not to recover 'the value of' the flour, but damages for the alleged wrong, to le asres:ed by tho ⁴⁰⁴ jury, the amount of damage is alleged, b.ut the yalue of the' flour was riot of the substance of the issue, and, under the Act of 1856, was not material to be alleged. 2nd.

In this case time was not material, and it wás not necessary to allege the time when the wrong w,as committed. Act of 1856, Art. 2, sec. 111, page 160. 3rd". It was sufficient to aver that the act complained of was wrongfully done, without specifying the mode or manner in which it was done. The declaration follows the form prescribed by the Act, sec, 29, page 168, and must be held sufficient.

Second. The plea. This we consider to be fatally defective, and the objections_ to it well taken. If true in every •particular as pleaded, it constitutes no sufficient defence to 'the action.

It avers that the flour was taken by th,e sheriff under an attachment on warrant, &c., commanding him to take the goods and chattels of certain parties trad-under the firm and.style of Howard & Poor; that Hall and Loney are. the plaintiffs in said attachment suit; that the sheriff took said flour into his custody as the property of said-Howard &• Poor; and that said attachment suit; is still pending. „ . ' This is not a denial of the allegation in the declaration, that the flour was