statutes Kentucky. Laws.

Civil and Criminal codes of practice of Kentucky online

. (page 92 of 142)
Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 92 of 142)
Font size
QR-code for this ebook


fendant, and refused to obey his lawful commands relating to his duty as such appren-
tice, whereupon the defendant then and there moderately corrected him for his said
misbehavior ; which are the said assaulting, beating, and ill-treating in the petition men-
tioned (b). E. H., Attorney.
(Verification as in Form I.)

(a) See note (a) to Form 109, ante, p. 647.

(b) See 2. Ch. PL, 558.

b. Another justification of an assault: — moliiter manus imposutt, to preserve the peace.

(Caption as in Form 77.)

The defendant [denies that — denying any allegations of the petition 7vhich are inconsistent
with the averments of the awswer(a) ; and] says that, at the place and just before the time
in the petition mentioned, the plaintiff assaulted and was beating one E. F. [or — the
plaintiff and one E. F. were fighting together] ; wherefore, to preserve the peace and pre-
vent the plaintiff from further beating the said E. F. (b) [or — and prevent the plaintiff and
said E. F. from hurting each other and to separate and part them], the defendant gently
laid his hands on the plaintiff; * which are the same assaulting, beating, and ill-treating
in the petition mentioned (c). G. H., Attorney.

(Verification as in Form I).

{a) See note (a) to Form 109, ante, p. 647.

\b) See Gillon, &c, v. Wilson, 3 A/on., 216, in which A. and his companions, who had
failed to interfere, were held liable for the beating of the plaintiff by A.

(c) See 2 Ch. PL, 556, 557.

c. Justification of an assault and wounding : — moliiter manus imposuit, to preserve the peace, and

plaintiff's assault on defendant.

(Caption as in Form 77.)

The defendant [adopt the last foregoing Form down to the *, and add] : whereupon
the plaintiff made an assault on the defendant [slate the assault or battery, <5rV., according to
the facts (a)] and would have beat, bruised, and ill-treated him if he had not immediately
defended himself; wherefore he did then and there defend himself against the plaintiff,
using no more force than was necessary (b) for that purpose, and in so doing did beat,
bruise, wound, and ill-treat the plaintiff; which are the same beating, bruising, wounding,
and ill-treating in the petition mentioned (c). G. H., Attorney.

(Verification as in Form I.)

(a) See Ch. PI., 555, note (h).

{b) See Brubaker v. Paul, &c, 7 Dana, 430.

(c) See Form in 2 Ch. PI., 555 ; in a note to which Chilly says : "The plea of son assault
demesne might, in such case, be insufficient, because the defendant's first interference, to
preserve the peace, would in point of law render him the first assaulter."

d. Another justification of an assault and wounding : — plaintiff's assault on defendant's father

(commonly called a plea of son assault demesne).

(Caption as in Form 77.)

The defendant [denies that — denying any allegations of the petition inconsistent with the
answer (a) ; and] says that, at the place and just before the time in the petition mentioned,
the plaintiff assaulted the defendant's father, D. D. [slate the assault or battery, &c, ac-
cording to the facts], and would have beat, bruised, and ill-treated him if the defendant had
not immediately defended him ; wherefore the defendant did then and there defend him



Digitized by



Google



658 FORMS.



against the plaintiff, using no more force than was necessary for that purpose, and in so
doing did assault, beat, bruise, and wound the plaintiff; which are the same assaulting,
beating, bruising, and wounding in the petition mentioned (b).

(Verification as in Form I.) G. H., Attorney.

{a) See note (a) to Form 109, ante, p. 647.

(b) See Form in 2 Ch. PL, 556, in a note to which Chiity says: "By inserting the
words 'wife/ ' mother,' 'son,' 'daughter,' 'servant,' or 'master,' according to the fact,
instead of the word 'father,' this Form may be readily applied to any case that may
arise."

Of course, a plea of self-defence against an assault on the defendant would be a jus-
tification. See Form in 2 Ch. PL, 554.

e. Another justification of an assault and wounding:— plaintiff y s assault on defendant whilst
protecting his possession; with a counter-claim against the plaintiff.

A. B Plaintiff, \ Lee Circuit Court.

against > Answer and Counter-claim.

CD., Defendant. J

The defendant [denies that — denying any allegations of the petition which are inconsistent
with averments tn the answer (a) ; and] says that, shortly before the time in the petition
mentioned, the plaintiff unlawfully entered into [describe the house or close in such manner
as to identify if[, of which the defendant was lawfully possessed [and made a great noise and
disturbance therein] (b) ; and the defendant requested him to depart therefrom, which he
refused to do ;

[Or — unlawfully entered into {describing the place as above suggested), of which the de-
fendant was lawfully possessed, with (stating facts showing the use of actual force by the
plaintiff (c) ;]

and thereupon the defendant, in defence of his possession of said premises, gently kid
hands on the plaintiff to remove him therefrom ; whereupon the plaintiff assaulted, and
beat, and ill-treated the defendant, and would have continued to beat and ill-treat him, if
he had not immediately defended himself; wherefore the defendant did then and there
defend himself against the plaintiff, using no more force than was necessary for that pur-
pose, and in doing so did beat, bruise, and wound the plaintiff; which are the same beat-
ing, bruising, and wounding in the petition mentioned (d).

Wherefore the defendant makes his answer a counter-claim against the plaintiff, and

asks for a judgment against him for dollars damages and costs, and any other

relief the defendant may appear entitled to (e). G. H., Attorney.

(Verification as in Form I.)

(a) See note {a) to Form 109, ante, p. 647.

(b) Such averments are not necessary for the purpose «of defence, but may be advisable
to aggravate damages on the counter-claim.

(c) See Robinson v. Hawkins, 4 A/on., 134, holding that, in a plea averring an entry
with force, " its degree and circumstances ought to be shown."

(d) See Form in 2 Ch. PL, 559, and note thereto.

Whilst the common law implies force from an entry on land without right, though
made peaceably and without resistance (1 Ch. PL, 126; 2 Mar., 275; 3 J. J. A/., 186),
such entry does not justify ejection of the intruder unless he has been requested and has
refused to depart : but after such refusal, or without such request upon an entry with
actual force, the possessor ma^y lawfully eject the intruder by a "gentle laying on of
hands; " and, if then assaulted by the intruder, he may lawfully use such force as may be
necessary for his self-defence, even to the extent of wounding his assailant. Afcltroy v.
Cochran, 2 Afar., 271; Ford v. Logan, Id., 324; Robinson v. Hawkins; supra ; 1 J.J. M.,
361 ; 4 Id., 579; Brubaker v. Paul, &c, 7 Dana, 428.

The foregoing Form, in accordance with that of Chilly, avers that the defendant was
"lawfully possessed " when the plaintiff entered. In Mcllroy v. Cockran, supra, the court
evidently regarded " the defence of the possession" of real or personal property as stand-
ing on the same footing: see 2 Afar., 274. In Bobb v. Bosworth, Lilt. S. C. t 81, it was



Digitized by



Google



PLEAS OF AVOIDANCE. 659



held that the owner of •' personal chattels may, if wrongfully dispossessed thereof, retake
them wherever he can find them, provided he can obtain peaceable possession ; but the
law more highly regards the public peace than the right of property of a private indi-
vidual, and therefore forbids re-caption to be made in a riotous or forcible manner. The
law, however, permits the possessor of property to maintain his possession by force, where
force is used in attempting to divest his possession : the law, in that case, permits the party
in possession to oppose violence to violence. It is material, whether the violence has been
used to regain a possession which has been lost, or whether it has been used to maintain a
present possession: in the former, it is unlawful; in the latter, lawful." And in Tribble
v. Frame, 3 Mon., 14, it was held that " the right of entry [on land]/*r se confers no au-
thority on the person having the right to commit violence, in making the entry, upon the
person of the possessor or his personal estate." And it is settled that the owner of land
who peaceably exercises his right of entry can not be lawfully removed except by a writ
of forcible entry {Tribble v. Frame, 7 J. J. M., 599; Tucker v. Phillips, 2 Met, 418) ; — in
which respect the wrongful possessor of land stands on a different footing from a wrong-
ful possessor of a chattel, who has no remedy in case of a peaceable re-caption by the
owner. And, according to a dictum in the opinion of a majority of the court in Trimble
v. Frame, 7 J. J. M., 605, " if a person exercise his right of re-caption [of land], even in a
forcible or unlawful manner, still he has a right to retain his property when thus retaken
[except against a writ of forcible entry], and to resort to actual force in defending his pos-
session against the former possessor : " but see Judge Underwood's dissenting opinion.
{e) See Slone v. Si one, 2 Met., 339.

f. Justification of an arrest, &c, of the plaintiff, under a warrant. (See Form 48, a, ante,
p. 560.)

(Caption as in Form 77.)

The defendant denies that he assaulted, or arrested, or beat, or bruised, or wounded,
or hurt the plaintiff, or forced him to go along a public road and public streets, or im-
prisoned him or kept him imprisoned, maliciously or wrongfully, or without reasonable or
probable cause or legal authority therefor ; and says that, before the time in the petition

mentioned, to-wit, on the .... day of , E. F., a justice of the peace for Lee county,

signed and issued a warrant, stating that there were reasonable grounds for believing that
A. B., who is the plaintiff in this action, had committed the offence of larceny in the
county of Lee, and commanding any sheriff, constable, coroner, jailer, marshal, or police-
man of the State of Kentucky, forthwith to arrest him and bring him before some magis-
trate of Lee county, to be dealt with according to law ; that said warrant was placed in the
hands of the defendant, who was sheriff of said county, to be executed, and, on the ....
day of , the defendant, in said county, informed the plaintiff of the defendant's in-
tention to arrest him under said warrant, upon a charge of larceny, and showed him said
warrant (a), and then gently laid hands on the plaintiff for the purpose of arresting him ;
but the plaintiff resisted arrest and [stale facts showing the plaintiff's forcible resistance {I)]
and would have continued to beat, bruise, and ill-treat the defendant and have made his
escape, if the defendant had not immediately defended himself; wherefore the defendant
did then and there defend himself against the plaintiff, using no more force than was
necessary for that purpose, and in so doing did bruise, hurt, and wound the plaintiff; which
are the same bruising, hurting, and wounding in the petition mentioned ; and the de-
fendant says that, forthwith after the plaintiff submitted to arrest, the defendant took him
to the office [or — dwelling-house] of G. H., a justice of the peace for Lee county, in doing
which the plaintiff was necessarily taken into and along a public road in Lee county, and
into and along several public streets in the town of ; and that he was kept impris-
oned in the office [or — dwelling house] of said G. H. only during the period whilst said
G. H. was examining the aforesaid charge against the plaintiff.

(Verification as in Form I.) G. H., Attorney.

(a) See Criminal Code, § 39.

(b) See 7 Dana, 453. Facts showing that a wounding was necessary, in consequence
of resistance and to prevent an escape, would perhaps be sufficient, though not necessary



Digitized by



Google



660 FORMS.

for the officer's self-defence. See Smith, &c, v. Hancock, 4 Bibb, 222 ; McClelland ▼. Kay,
14 B. M., 103; 80 Ay., 1; 85 Id., 483.

1 1 7. Defences in actions for trespass to personal property.

ft. Answer justifying removal of plaintiff* s goods and chattels from defendant's premises (a).

(Caption as in Form 77.)

The defendant [denies that — denying any allegations of the petition which are inconsistent
with averments in the answer (b) ; and] says that, at the time in the petition mentioned the
defendant was lawfully possessed of a close [or — parcel of land] on which he resided [or
describe it otherwise so as to identify it], and that the goods and chattels in the petition men-
tioned were wrongfully in and upon said close [or — parcel of land], encumbering the
same; wherefore the defendant removed and carried them away to a small and convenient
distance, and there left them for the use of the plaintiff, doing no unnecessary damage
thereto; which are the same supposed trespasses in the petition mentioned.

(Verification as in Form I.) G. H., Attorney.

(a) See Form 2 in Ch. PL, p. 576.

(b) See note {a) to Form 109, ante, p. 647.

b. Answer justifying the killing of plaintiff s dog".

(Caption as in Form 77.)

The defendant [denies that — denying any allegations of the petition which are inconsistent
with averments in the answer (a) ; and] says that, when he killed the dog in the petition
mentioned, it was roaming at large on the defendant's premises without the presence of its
owner or keeper.

[Or — says that, when he killed the dog in the petition mentioned, it was found (or — it had
been found) killing (tfr— worrying) (or — injuring sheep) (or — stating the kind of cattle it was
found killing or worrying or injuring) outside of the inclosures of the plaintiff, who was
its owner (<*).] G. H., Attorney.

(Verification as in Form I.)

(a) See note (a) to Form 109, ante, p. 647.

(b) See G. S. t ch. 9, \ 10. The common law authorizes the killing of a dog, when, and
perhaps only when, the killing is necessary for a person's defence or for the defence of
his property. See 1 Saunders, 84.

Under the statute, according to the decision in Bradford v. McKibben, 4 Bush, 545, the
owner of a bitch in heat may, after letting her run at large, kill any dog that he may find
following her on his premises. It seems to me that the court misinterpreted the statute,
and that it would be as reasonable to apply the words "roaming at large" to a hound at
the heels of a fox as to a dog following a proud bitch.

C. Answer averring that the defendant owned the goods and chattels when he took and carried
them away.

(Caption as in Form 77.)

The defendant [denies that — denying any allegations of the petitiott which are inconsistent
with averments in the ansiver (a) ; and] says that he owned the goods and chattels in the
petition mentioned, before and at the time therein mentioned (b).

(Verification as in Form I.) G. H., Attorney.

(a) See note (<7) to Form 109, ante, p. 647.

(b) A plea that a third person owned the goods and chattels at the time of the trespass
would present no defence, because possession of personal property gives the right of action
for a trespass, except against a person who was entitled to the possession. See note 1,
ante, p. 102. And, under the old practice, the defendant was required to plead " not



Digitized by



Google



PLEAS OF AVOIDANCE. 66l



guilty," in order to prove title in himself. I Ch. PI., 493, 499. But as that plea is not
allowable under the Code, it seems clear that an answer averring that the defendant was
the owner and entitled to the possession of the property at the time of the alleged trespass
would present a defence ; though, perhaps, a defendant can not acquire the right to the
concluding argument before the jury by averring facts concerning which he could form an
issue by specifically traversing the plaintiff's allegations

118. Plea of libcrum tenementum in an action of trespass quare
clausum f regit.

(Caption as in Form 77.)

The defendant [denies that — denying any allegatiotis of the petition which are inconsistent
with averments in the answer (a) ; and] says that, at the time in the petition mentioned, the
land therein mentioned was the soil and freehold of the defendant {b).

(Verification as in Form I.) G. H., Attorney.

{a) See note (a) to Form 109, ante, p 647.

(6) See Form in 2 Ch. PI., 581. "If the defendants have title, the damage done to the
close is no injury to the possessor who has no right." I Dana, 8. Though, in trespass
quare clausum /regit, the common law allowed the defendant to prove title in himself under
a plea of " not guilty" (I Ch. PI., 493), it also allowed the plea of liberum tenementum
{Ibid., 496; 5 Mon., 543; 7 Id., 529; 7 /./. M, 601 ; I Dana, 7 ; 2 Id., 134) ; and, a for-
tiori, that plea is allowable under the Code

119. Defence in an action for fraud in selling property to tlie plaintiff
(see Form 52, ante, p. 571).

(Caption as in Form 77.)

1. The defendant denies that he fraudulently represented to the plaintiff that the horse
in the petition mentioned was sound, and denies that the defendant, when he sold said
horse to the plaintiff, knew that it was unsound or that it had any disease, and says that
the defendant then believed that it was sound (a).

(Verification as in Form I.) G. II., Attorney.

{a). This Form is given in view of the following Form in the Code of 1854 (p. 373),
which seems to indicate that, in the opinion of the commissioners who prepared that work,
the abolition of pleas of " not guilty " made it necessary for the defendant to aver his be-
lief that the horse was sound, in an action charging him with ** fraudulently representing
the horse to be sound, when he knew the horse was unsound : "

John Smith, Plaintiff. ^|

against v Answer.

Richard Jones, ^ Defendant, J

The defendant, Richard Jones, admits that he represented the horse sold to the plain-
tiff to be sound, and he says he did believe the horse was sound at the time of the sale.

Richard Jones.

In Form 119, I have omitted the admission that the horse was represented to be sound,
because it is unnecessary under the present Code (J 113, subs. 6) ; and have inserted trav-
erses of the allegations that the representation was made fraudulently or that the defendant
knew that the horse was unsound or had any disease, as being necessary in order to make
the averment of the defendant's belief available, if that averment should be deemed neces-
sary. See note ia) to Form 109, ante, p. 647.

But it seems to me to be unnecessary because, though there has been a conflict of
opinion upon the question whether or not false representations by a vendor of real prop-
erty, which he believed to be true, are fraudulent in contemplation of law (see 2d para-
graph of note 2, ante, p. 580) ; it is settled that, in an action against the vendor of a chattel
for fraudulently misrepresenting its condition or quality, the plaintiff must allege, and if
the allegation be denied must prove, that the defendant knew that the representation was
untrue {Hardin, 50; 2 Bibb, 616-18; 3 Id., 35 ; 4 Id., 360; 3 Mon., 218-20; I Dana, 275 ;
3 Id., 479-80; 6 Id., 132-33; 4 £. M. t 601-2). Consequently, a complete issue would be



Digitized by



Google



662 FORMS.

formed as to the fraud, by specifically traversing such of the plaintiff's necessary allegations
as would be inconsistent with the averment of the defendant's belief that his represen-
tation was true ; and, as such traverse would be necessary in order to make such averment
available as a defence, the averment would not be necessary in order to form the issue;
and, it seems to me, ought to be stricken out, as being redundant. Code, \ 121.

According to several decisions, however, a vendor's misrepresentation as to the con-
dition or quality of a chattel, though not fraudulent because believed by him to be true,
may constitute a warranty that the chattel corresponds with the representation. In Smith
v. Miller, 2 Bibb, 616, and Bacon v. Brown, 3 Bibb, 35, it was held that a vendor's misrep-
resentation that a negro was sound, whether verbal or written, did not constitute a warranty
of soundness. But it was held that a bill of sale of a negro, in which the vendors said that
they " do forever warrant and defend the title of said negro from all persons whatever
claiming or to claim her, and likewise state that we have sold her to said Ditto as a sound
and healthy negro," created a warranty of soundness. Ditto v. Helm, <5rV., 2 J. J. M. %
129. Upon a sale of flour which was described in a receipt signed by the vendor as
«« superfine flour," and was proved to be of inferior quality, it was held that the question
of warranty depended on the question whether or not the vendee had an opportunity to
inspect the flour at the time of the purchase ; and that, as he had failed to prove that he
had no such opportunity, he was properly non-suited. Baird, <5rV., v. Afattkenos, 6 Dana,
129. According to the doctrine in that case, a misrepresentation, the truth of which can
not be tested by inspecting the property, such as a representation that a jackass "is a
good and sure foal-getter," constitutes a warranty, if untrue; but in Dickens v. Williams,
et al., 2 B. M., 374, it was held, not on that ground, but on the authority of Ditto v.
Helm, &c, that "the affirmation in the bill of sale of the Jack, that it was «a good and
sure foal-getter ' imports a covenant of warranty that it was so ; " and in Lamme v. Gregg,
I Met., 444, the court, after referring to Dickens v. Williams, et al., held that there is no
substantial reason for a distinction, in this respect, between a written and verbal affirma-
tion; and, consequently, that a verbal representation, that a jackass "was a good and
sure foal-getter," the making of which was admitted by the defendant's answer, consti-
tuted a warranty. I do not question the correctness of the decisions in Dickens v. Wil-
liams, et al., and Lamme v. Gregg, because the truth of the representation could not be
tested by inspecting the property. But in the latter case the court went to what seems to
me the questionable extent of saying : " We think whenever the vendor, at the time of the
sale, makes an assertion or representation respecting the kind, quality, or condition of the
thing sold, upon which he intends that the vendee shall rely, and upon which he does rely
in making the purchase, that it amounts to a warranty;" — the question of intention, &c.,
as the court proceeded to say, to be determined by the jury, unless shown by written evi-
dence or by the pleadings; and in McClintock v. Emick, &c, 87 Ky., 160, the court went
to what seems to me the questionable extent of holding that a verbal affirmation by the
vendor of a lot of mules, that they were "all right," constituted a warranty of soundness.*

The cases cited in the last foregoing paragraph do not conflict with the previously cited
cases, holding that, in an action for fraud, the plaintiff must allege that the defendant
knew that his representation was untrue.

120. Answer pleading several defences to the same cause of action (see
Form 30, ante, p. 546 (a).

(Caption as in Form 77.)

1. The defendant denies that the plaintiff sold or delivered to him any part of the mer-
chandise mentioned in the 2d and 5th items of the account filed with the petition.

2. As to other items in said account, the defendant says that the merchandise men-
tioned in the 3d item was not worth more than dollars, and that mentioned in the

4th item was not worth more than dollars, and that mentioned in the 7th item was

not worth more than dollars.

3. The defendant says that he was under the age of twenty-one years, to-wit, of the

age of years when the plaintiff sold and delivered to him the merchandise in the

petition mentioned, except that mentioned in the 2d and 5th items in said account, which
was not sold or delivered to him as is above stated.



41 As to the duty of a vendor to deliver property corresponding with his representations, when it is sold
" by description/' see 6 Dana, 133 ; Fogg's adm'r v. Rodger* ; 6*^ 84 Ky n 558.



Digitized by



Google



counter-claims; 663



4. The defendant says that [plead two years limitation as in Form b (2), ante, p. 647] (b).
(Verification as in Form I.) G. H., Attorney.

(a) Section 113 of the Code authorizes the pleading of several defences to the same
cause of action, if they are not inconsistent ; as, in an action for slander, an answer de-
nying in one paragraph the publication of the words complained of, and averring in



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 92 of 142)