Opinion
(June Term, 1847.)
1. The plea of not guilty to an action of trespass on the person merely denies that he committed any trespass at all.
2. If in such an action the defendant hath matter of justification, he cannot give it in evidence under the general issue, but must plead it specially.
APPEAL from PASQUOTANK Spring Term, 1847; Caldwell, J.
Trespass and false imprisonment, and the plea, not guilty. On the trial the defendant showed that he was sheriff of Pasquotank, and he offered in evidence a precept from a justice of the peace, which is set forth in the exception, and was directed to any lawful officer, and delivered to one of his deputies, who arrested the plaintiff thereon and committed him to jail. The defendant insisted that the precept was a capias ad satisfaciendum, and authorized the arrest and imprisonment of the plaintiff; whereas the plaintiff contended that it was void, and did not justify the officer. His Honor was of opinion that the process, though not strictly formal, was valid and justified the defendant, and therefore directed the jury to find for him. There was, accordingly, a (274) verdict for the defendant, and from the judgment the plaintiff appealed.
Badger for plaintiff.
A. Moore for defendant.
We are obliged to reverse the judgment, without reference to the question whether the process be valid as a ca. sa., so as to authorize the arrest; because, upon the pleadings in this case, it was not competent to the defendant to set up that defense. In actions for trespass on the person not guilty, says Lord Coke, is a good issue, if the defendant committed no trespass at all; but, by the common law, if he hath cause of justification or excuse, then can he not plead not guilty, for then upon the evidence it shall be found against him, and upon that issue he cannot justify it, but he must plead the special matter, and confess and justify the battery, Co. Lit., 283; and we have no statute allowing an officer to give the special matter in evidence on the general issue. It is most probable his Honor's attention was not called to the fact that not guilty was the only plea, as both parties seem to have put the case upon the sufficiency of the process as a ca. sa.; but as the error is apparent in the record, and is insisted on here, this Court must necessarily reverse the judgment and order a
PER CURIAM. Venire de novo.
(275)