Sweet agt. Tuttle.

language by the draftsmen of the Code, of which that instrument certainly does not afford the highest evidence. On reading these sections together, it is reasonably clear that these terms, however dissimilar in their literal meaning, were used, and must be treated as synonymous. In section 74 we find additional proof of the correctness of this position. There it is provided that the objection that the action was not commenced within the time limited can only be taken by answer. No one will contend that the fact, that an action is not commenced within the statute limitation is any less a defence, because it is here called an objection. The difficulty apprehended by the learned justice in giving judgment so as to save the rights of the parties under this practice is obviated by sections 261 and 262. By section 261 it is provided that the, court may, in all cases, instruct the jury, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. By section 262 it is provided, that when a special finding of facts shall be inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.

Whenever there is an issue formed upon an answer containing matter in abatement and in bar, the jury may be required to find specially upon each issue; and if, as in this case, the issue upon the matter in bar is found for the plaintiff, and the issue upon the matter in abatement is found for the defendant, the court can give a judgment dismissing the plaintiff's complaint, leaving him to commence a new action. Under the sections in question, I do not see why the judgment is not now as flexible in the hands of the court, for every purpose, as the decree was formerly in equity.

The cases above cited arose under the Code of 1851; but I do not see that the amendment of 1852 affects this question. Section 140, in both Codes, relates simply to the forms, and the rules by which the sufficiency of pleadings was to be determined. The question in this case is not as to the sufficiency of the answer in abatement, but merely as to the right of the defendant to interpose that answer after setting up matter in

Hackley and others agt. Ogmun.

bar. It is proper to add, that the case of Bridge agt. Paysen was not cited on the argument of Gardiner agt. Clark.

The referee decides that the proper parties defendant not having been joined, the defendant, Tuttle, is not indebted to the plaintiff for any of the matters and things demanded in this action. This consequence does not follow, and, as a legal conclusion from the facts, is erroneous. The formal judgment entered on the report is merely for the costs of the action; but as the report of the referee stands as the decision of the court, it may be urged hereafter that the plaintiff's claim having been once passed upon by the court, the matter is res judicata. This consequence would follow, however erroneous the decision may be; and if the report and judgment taken together are to be so construed, the judgment is erroneous, and should be so modified as to leave the plaintiff at liberty to bring a new action.

I think the judgment should be, in form, a judgment dismissing the plaintiff's complaint with costs, and without prejudice to his right to bring another action; that the judgment entered should be modified accordingly, and affirmed as modified, with costs of the appeal.

SUPREME COURT.

ANDREW J. HACKLEY, MARCUS HUNGERFORD, and GRANT E. GARLOCK, agt. WILLIAM A. J. OGMUN.

In an action to recover the possession of personal property, the defendant may answer by a general denial, and set up a justification also-they are not inconsistent defences. (See 4 Sand. S. C. R. 664 and 680; and 8 How. P. R. 356, adverse.)

Sixth Dist., Delhi General Term, July, 1854.

CRIPPEN, SHANKLAND, and MASON, Justices.

This action is brought to recover the possession of personal property, and is familiarly known as an action of replevin.

Hackley and others agt. Ogmun.

The defendant, in his answer interposes a general denial of the allegations in the complaint, and, secondly, a justification for the taking of the property, under executions againt one William Bingham, whom the answer alleges to be the owner of the property.

At the commencement of the trial in the circuit, the counsel for the plaintiff moved the court that the defendant be required to elect upon which of the two defences set up in his answer he would rely, upon the ground that the answer set up inconsistent defences, and the judge at the circuit decided that the defendant should so elect, to which decision the counsel for the defendant did then and there except. Thereupon the counsel for the defendant elected to rely upon the second defence set up in answer. This exception presents the only question in the case.

SAMUEL GORDON, for plaintiffs.

ROBERT PARKER, for defendant.

By the court-MASON, Justice. The simple question presented for our determination therefore, is, whether in this action the defendant, under our present system of pleading, can set up a general denial and a justification in his answer, where they are separately pleaded. At common law, a defendant could not plead several distinct pleas to the same declaration, or a part thereof; (1 Chitty's Pl. 592, 593;) but by the statute 4 and 5 Anne, chapter 16, sec. 4 and 5, the defendant, with leave of the court, was allowed to plead as many several matters as he should think necessary for his defence, and by our former statute he was allowed to plead as many several matters as he should think necessary for his defence, provided he did not plead inconsistent pleas, and then his inconsistent pleas were subject to the power of the court, to compel him to elect by which plea he would abide. (2 R. S. 352, § 23.) Neither under the statute of Anne, nor our former statute, would the answer in this case have been held to set up inconsistent defences. (1 Chitty's Pl. 595; Shuter agt. Paige, 11 J. R. 196; Bemus agt. Beekman, 3 W. R. 667.)

Hill and others agt. Lott and others.

In replevin, non cepit, and property in himself, or a stranger, were always regarded as consistent pleas. The 150th section. of our present Code provides that the defendant may set forth by answer as many defences and counter claims as he may have, whether they be such as have heretofore been denominated legal or equitable, or both. I should not for a moment have entertained a doubt, but under this statute the defendant had a right to interpose both of these defences, had not opposite opinions been thrown out by the superior court of New-York, and by my brother CRIPPEN. (Arnold agt. Dimon, 4 Sanf. S. C. R. 680; Meyer agt. Shults, id. 664; 8 How. Pr. R. 356.) The 150th section of our present Code is broader in its language than either the statute of Anne or our former statute. It extended the right of the defendant to set up as many defences as he may, and I see no reason for giving this statute such a construction as shall make it more restrictive than our former. practice; and I see that my brother SHANKLAND has given it even a more extended construction than was given to our former statute. (Stiles agt. Comstock, 9 How. Pr. R. 48.) I think these defences are not inconsistent defences, under our present system, and that the judge at the circuit erred in requiring the defendant to abandon one or the other, and that for this reason the judgment of the court below should be reversed, and a new trial granted, costs to abide the event.

SUPREME COURT.

MIRON B. HILL and THOMAS H. ROBBINS agt. ENGLEHERT LOTT AND TWO OTHERS.

A sheriff is liable to arrest, the same as an ordinary person. The Code has not changed the rule as it existed prior to its passage. Therefore, a sheriff is liable to arrest in an action for damages for taking personal property, where he levies and takes possession by virtue of an execution.

Kings Special Term, October, 1854.-The defendants are the sheriff and two of his deputies of the county of Kings, who

Hill and others agt. Lott and others.

have been held to bail in an action for damages for taking per sonal property. A motion is now made to vacate the order, on the ground that a sheriff is not liable to arrest. The affidavits on the part of the defendants show that the property was taken by virtue of three several executions against the property of Benjamin T. Robbins. The plaintiffs, by their affidavits, claim that the title is in themselves.

MR. LANSING, for plaintiffs.

P. S. CROOKE, for defendants.

DEAN, Justice. The issue between the parties on the trial will be as to the title, whether it was in B. T. Robbins or the plaintiffs. But this cannot be tried here. For the purposes of this motion I take it for granted that the sheriff levied on the property while in the manual possession of the defendant in the execution, but that the plaintiffs claim the actual possession and title. The distinct question arises, whether a sheriff ist liable to arrest the same as an ordinary person. On this subject I entertain no doubt. It was so held distinctly in the case of Day & Whittlesey agt. Brett. (6 John. R. 22.) See opinion of KENT, J.

The revised statutes, page 442, have provided in what manner and place the sheriff shall be imprisoned in cases where he is liable to arrest and is in the custody of the coroner. The Code has not changed the rule.

But as the affidavits show that the defendants are entirely responsible, permanent residents of the county of Kings, and that the property was taken virtute officii, and the bail is now three times the value of the property, the order to hold to bail should be modified, reducing the amount to $1,000, with $10 costs, to abide the event of the action.