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Alvin Stow versus Ebenezer Scribner
May 1, 1832 - Opinion
Case records
Open case page| Date | Record Text | Type | Party | |
|---|---|---|---|---|
| May 1, 1832 | Alvin Stow versus Ebenezer Scribner Current page | Opinion | Supreme Court | Reporter |
Alvin Stow versus Ebenezer Scribner.
In trespass for killing a mare of the plaintiif, the defendant cannot be admitted to prove, under the general issue, that the blow, which caused the •death of the mare, was given in self defence.
TREspass, for killing a mare of the plaintiif.
On the trial here, November term, 1831, upon the general issue, the defence was, that the blow, which caused the wound whereof the mare died, was given, by the defendant, in defending himself against an attack made upon him by the mare. On the part of the plaintiff, it was objected that this defence was not admissible, under the general issue, without a brief statement, filed according to the statute; but it was admitted, and the jury, having found for the defendant, the plaintiff moved for a new trial.
Bellows, in support of the motion. In trespass, few matters of defence can be given in evidence under the general issue. When the act at common law, prima facie appears to be a trespass, any matter of justification or excuse must be, in general, specially pleaded. 1 Chitty’s PI. 492; 1 Saunders, 298, note 1.
BY THE COURT, J.
In this case the blow given to the mare was, prima fa-cie, a trespass, and, if the defendant had any thing to justify the blow, he was bound to plead it.
Hinds, for the defendant.
By the Court. The motion in this case must prevail. Matters which do not directly contradict that which a.plaintiff is bound to prove, in an action of trespass, under the general issue, but which show, collaterally, that.the action is not maintainable, must be specially pleaded, or a brief statement of the matters must be filed under the statute. Starkie's Ev. 1462, 1 Chitty's Pl. 491-493; 6 East, 394, Welch v. Nash.
New trial granted.