The Goodyear Dental Vulcanite Company v. White.

He must either demur or answer. (Old Code of Procedure, SS 143 to 148 and 151.) There can be no doubt that the plaintiff could have stricken out either the matter in defence or the demurrers, upon a motion for that purpose. Instead of adopting this course, he preferred to notice the demurrers for hearing. By doing this, he elected to treat the demurrers as the regular pleading on the part of the defendant. Upon the decision overruling the demurrers, unless leave had been given to the defendant to answer, there would have been no answer in the case. This motion, then, is to be considered as though there had never been an answer in the case until leave was given, upon the decision of the demurrers, by which the defendant's pleading was allowed to stand as an answer; and the position of the plaintiff is the same as though the defendant had then, for the first time, served the answer which he now moves to amend. It is true, the error in the pleading was the fault of the defendant, but the plaintiff has no just cause to complain that he has been prejudiced by relying upon an admission in an answer, when he should have known that, as matter of law, there was no answer in the case.

But, I prefer to place the decision of this motion upon. broader grounds, and consider it as though the answer sought to be amended had been the only pleading served, when issue was originally joined in the action. I think the plaintiff's counsel were not justified in the belief that the defendant intended to admit such an important allegation of the complaint, and should have regarded it as inadvertent and a slip in pleading. Defendants who contest the plaintiff's right to recover in an action for a wrong, are not accustomed to accept the plaintiff's own statement of his damages; and, to concede, as was, apparently, done here, that the plaintiff sustained seventy-five thousand dollars damages by reason of a libel, would be such a startling departure from the line of action usually adopted by a defendant, as to suggest, almost necessarily, mistake or ignorance. If there had been an express admission in the answer to this effect, it would have excited surprise and incredulity.

Whalen v. Sheridan.

Aside from the extraordinary character of the admission, the rest of the answer indicated that the defendant intended to contest the amount of the plaintiff's damages, because, the last defence pleaded in the answer, while inartificially pleaded, was, in substance, a defence by way of mitigation of damages. Under the circumstances, the plaintiff's counsel should have anticipated that a motion to amend the answer would be made at the trial, if not before, and should, also, have assumed that the motion would appeal so strongly to the equitable consideration of the Court, that it could hardly be refused. The motion to amend is granted.

William A. Beach and William Tracy, for the motion. Benjamin F. Lee, opposed.

JAMES A. WHALEN 28. PHILIP H. SHERIDAN.

An officer of the army of the United States, assigned to the command of a military district created by the Act of March 2d, 1867, (14 U. S. Stat. at Large, 428,) had no authority, as military commander, to issue an order to the sheriff of a county, requiring him to place a person in possession of a plantation and personal property which were, at the time, in possession of another person. But, where he issued such an order, on the application of H., who claimed to be the true owner of the property, and was sued by W., who was dispossessed by the execution of the order, for damages for such dispossession, it was held that he could justify under such order if H. was the true owner and was entitled to the possession.

A motion for a new trial, because of alleged newly discovered evidence, denied, on the ground that such evidence was merely cumulative.

Under the system of pleading adopted in New York, judgment at the trial, in a suit at law, is to be rendered in accordance with the facts pleaded and proved, without regard to the form of the pleadings or the theory on which they were prepared.

(Before WALLACE, J., Southern District of New York, August 7th, 1879.)

Whalen v. Sheridan.

WALLACE, J. The jury having found a verdict for the defendant, the plaintiff now moves for a new trial, upon the ground of newly discovered evidence, and because of errors alleged to have been committed on the trial. The action was for trespass to personal property situate on the Killona plantation, in the State of Louisiana, of which the plaintiff was dispossessed, on the 8th day of August, 1867, under color of an order issued by the defendant, as military commander, directed to the sheriff of the county, requiring the sheriff to place one Mark Hoyt in peaceable possession of the plantation and personal property. The defence was a general denial of the plaintiff's cause of action, and a justification of the act of the defendant, under the authority of a law of Congress passed March 2d, 1867, (14 U. S. Stat. at Large, 428,) entitled, "An Act to provide for the more efficient government of the rebel States." By that Act those States were divided into five military districts, one of which was composed of the States of Louisiana and Texas, and the President of the United States was directed to assign an officer of the army to the command of each district, and to detail a sufficient military force to enable such officer to perform his duties and enforce his authority. The Act declared it to be the duty of each officer so assigned, to protect all persons in their rights of person and property, to suppress insurrection, disorder and violence, and to punish all criminals and disturbers of the public peace, and, to this end, to allow the local civil tribunals to take jurisdiction of, and try, offenders, or, when, in his judgment, it might be necessary, to organize military tribunals for that purpose. The defendant was assigned to the command of the district composed of the States of Louisiana and Texas. He alleged, by way of justification, that Mark Hoyt was the real owner of the personal property, and was entitled to the possession of the Killona plantation, and, having been dispossessed therefrom by the plaintiff and other lawless persons, he applied to the defendant for protection, and, thereupon, the defendant, as such military commander, issued the order to the sheriff to place Hoyt in possession, and that the

Whalen v. Sheridan.

dispossession of the plaintiff under the order was the supposed grievance of which the plaintiff complained. The evidence on the part of the plaintiff was to the effect, that the plaintiff was in the exclusive and peaceable possession of the Killona plantation and the personal property thereon, until the 8th day of August, when he was required by the sheriff of the county to obey the military order of the defendant, and remove from the plantation, and relinquish the personal property to Mark Hoyt. On the part of the defendant, there was evidence to the effect that Hoyt was the owner of the personal property, and entitled to the possession of the property and plantation, and that, for some time prior to the issuing of the order, and when the order was executed, one Slater was in possession of the plantation and personal property, and the plaintiff was merely an occupant of certain rooms in the plantation buildings. Upon any view of the facts justified by the evidence, it was clear, that, although the possession of the plantation and property was held adversely to Hoyt, such possession had been peaceably obtained and maintained, and was under color of right. Upon the evidence, the Court ruled that the defendant had no authority, as military commander, to issue the order in question, and, when he assumed to administer remedial justice between citizens, not essential for the preservation of the public peace, or the prevention of illegal violence to persons or property, he exceeded his lawful powers. The Court also ruled, that, while the defendant could not justify his act, as one done by virtue of his authority as military commander, nevertheless, as his order was issued upon the application of Mark Hoyt, for the purpose of assisting Hoyt to obtain possession of his property, if the jury should find that Hoyt was the owner, and entitled to the possession of the property, the defendant could justify under the authority of Hoyt. Exceptions were taken to this ruling. The principal questions of fact submitted to the jury were, whether the plaintiff was in possession of the property at the time the order was executed, and, if so, whether Hoyt was the true owner of the property.

Whalen v. Sheridan.

So far as the present motion proceeds upon the ground of newly discovered evidence, it can be briefly disposed of, and must be decided adversely to the plaintiff. The plaintiff desires to obtain the benefit of newly discovered testimony, to the effect, that, prior to the time of the execution of the order, Slater had transferred all his right and interest in the property to the plaintiff, and did not claim to exercise any control over it, and was not on the plantation, and had not been for some time. This testimony is insufficient to authorize a new trial, because it is merely cumulative. The status of Slater as well as of the plaintiff, with reference to the possession of the plantation and personal property, was one of the main issues of fact to which the evidence upon the trial was directed, and the newly discovered evidence is but additional evidence upon the same point, and is of the same general character as that produced upon the trial, and, within all the authorities, is cumulative, and, as such, not sufficient as ground for a new trial.

The important and more difficult question presented by this motion is that which involves the correctness of the ruling upon the trial, that the defendant could justify his act as one authorized by Hoyt, and could depend upon Hoyt's title to the property.

As the cause of action arose in the State of Louisiana, the rights of the parties are to be ascertained according to the law of that State, but, as nothing appeared, from the evidence on the trial, to show that the law of Louisiana differs from that of New York, the case was submitted, and is now to be considered, as though it were governed by the rules of the common law.

Although the owner of personal property, who takes it by force from the possession of one who holds it without right, is liable criminally for a breach of the peace, or civilly in an action for assault and battery, he is not liable in trespass, because, in an action of trespass, when the plaintiff's case rests upon proof of possession, title in the defendant is always a perfect defence. (Hyatt v. Wood, 4 Johns., 150; Ives v. Ives,