of Queensbury, in the county of Warren, he made complaint, on oath and in writing, before the Hon. Orange Ferris, who then was and still is the county judge of said county, a copy of which said complaint is hereto annexed, marked "Schedule A.," and forms part of this answer; and that then and there one William Bannin was produced and sworn as to the truth of the facts and circumstances set forth in said complaint, a copy of which is hereto annexed, marked "Schedule A." as aforesaid, and testified in substance as set forth in schedule B., hereto annexed, and which also forms a part of this answer. That thereupon, to wit, on the said 25th day of August, 1855, the said county judge issued a warrant, and delivered the same to Walter Smith, Jr., then a constable of said town and county, a copy of which said warrant is hereto annexed, marked "Schedule C." and forms a part of this answer. That upon and by virtue of said warrant, the said constable arrested the said George Conery, and brought him before the said county judge, to answer to the said complaint, on the said 25th day of August, 1855, which is the same inducing, procuring, arresting, imprisoning and retaining and detaining in custody, and supposed trespasses set forth in both causes of action, alleged in the plaintiff's complaint. I. J. DAVIS,

Defendant's Attorney.

and affairs, but was also thereby then and there greatly injured in his credit, reputation and circumstances, and was subjected and put to divers expenses, to wit, to the amount of $1,000, to obtain his liberation from said arrest and imprisonment.

Wherefore the said plaintiff demands judgment against the said defendant for $5,000 damages, beside costs.

P. CAGGER,

Plaintiff's Attorney.

(No. 38.)

Several answers in action for assault and battery; specific denial; justification that defendant was preserving the peace; also, that plaintiff committed the first assault.1

SUPREME COURT.

Abraham Jenkins

agt.

Joseph J. Richardson.

The defendant, in answer to the complaint of the plaintiff in this action,

First. Denies that he assaulted or beat said plaintiff, or struck him, or threw him on the ground, or kicked him, and as to every other allegation in said complaint contained, defendant has no knowledge or information thereof sufficient to form a belief.

Second. And for a second and further defence in this action the defendant alleges, that the said plaintiff, just before the time mentioned in said complaint, made an assault upon one John Richardson, a son of the said defendant, and an infant of the age of twelve years, and wrongfully and without cause, at the same time, commenced

1 To Complaint No. 66, Part III., ante, p. 486.

2 As to whether these several answers are consistent, and may be set up in the same pleading, see Pleadings, 502, 503; see also note, ante, p. 552. But an answer in assault and battery cannot consist of matters merely in mitigation of damages, such as provocation, &c. It must put in issue some allegation which the plaintiff is obliged to establish to entitle him to a verdict. (Gilbert v. Rounds, 14 How., 46; Saltus v. Kipp, 5 Duer, 646.) Whether with a justification or denial the defendant may plead mitigating circumstances, see Pleadings, 501-504.

to beat and ill treat defendant's said son; whereupon the said defendant, to preserve the peace and to prevent him from further beating and ill treating the said son of defendant, laid his hands upon the said plaintiff, without unnecessary violence, as he lawfully might, for the purpose and cause above mentioned, which is the same assaulting, beating and ill treating the said plaintiff, set forth in his complaint in this action.

Third. And for a third and further defence in this action, the defendant alleges, that just before the time in the said complaint mentioned, the plaintiff wrongfully made an assault upon him, the said defendant, and would have beaten, bruised and ill treated the said defendant if he had not immediately defended himself against the said plaintiff, wherefore he, the said defendant, did defend himself against the said plaintiff, as he lawfully might, for the cause aforesaid, and in doing so did necessarily and unavoidably beat and wound the said plaintiff, and tear his said wearing apparel, &c., [setting forth the particular injury,] as in plaintiff's complaint mentioned, doing no unnecessary violence or damage to the said plaintiff; and the hurt and damage to said plaintiff and his said wearing apparel, if any such happened,' were occasioned by the said first assault, and the necessary and lawful defence of him, the said defendant, against the said plaintiff, which the said plaintiff avers is the same assault and battery alleged by said plaintiff in his said complaint.2

S. & V. S.,

Defendant's Attorneys.

This expression, though hypothetical in form, is not strictly hypothetical pleading, and may be properly alleged in this form in the answer. (Pleadings, 531, 532; see, also, note, ante, p. 548.)

2 Even though the complaint in an action of assault and battery be verified, the defendant may put in an answer without verification;

(No. 39.)

Justification in action of trespass to lands, that defendant entered plaintiff's land adjoining highway necessarily to pass through, the highway being impassable.

Title of the Cause.

This defendant, in answer to the plaintiff's complaint in this action,

First. Denies each and every allegation in said complaint contained.

Second. And for a further and separate defence herein, this defendant says, that before and at the time mentioned in said complaint, there was, and still is, a common public highway extending alongside and adjoining the close, lands and premises of the plaintiff, mentioned in said complaint, which public highway was, at the said several times mentioned in said complaint, founderous and impassable, at a place adjoining said plaintiff's said close, lands and premises, by reason of a bridge thereon being torn up and out of repair; and this plaintiff, who was then and there lawfully traveling on the said highway, with a horse and carriage, finding the same so as aforesaid, founderous and impassable, as he lawfully might do in such case, removed enough of the fences in the said close as to enable him to pass around the said obstruction in the said highway with his said horse and carriage, and did then and there pass

and so, also, in any other case where the party called upon to verify an answer would be privileged from testifying as a witness to the truth of the matter denied by such pleading. (Laws of 1854, p. 153; and see cases in which a party is so privileged, and the mode in which, under such circumstances, an answer, without verification, to a verified complaint, must be put, in Pleadings, 585, 587, 588.)

with his said horse and carriage around the said obstruction, through the said close and lands of the said plaintiff, passing as near the said highway as possible, doing no unnecessary damage or injury to the said plaintiff or his property, which is the same injury alleged in said complaint

(No. 40.)

Answer to a complaint for possession of personal property for wrongful detention of the same.1

Title of the Cause.

First. The defendant, in answer to the plaintiffs' complaint, denies that he does or did, at the time of the commencement of this action, wrongfully detain from the plaintiffs the goods and chattels mentioned in the plaintiffs' complaint, or any part thereof.

Second. And for a second and further defence, he alleges that at the time of the commencement of the plaintiffs' action, he was in the lawful possession of said goods, as assignee of T. R., who was the owner thereof at the time said goods were assigned by said T. R. to defendant, to wit, on or about the day of

1 To Complaint No. 72, ante, p. 493. The action is based upon the wrongful taking as well as the wrongful detention. A mere wrongful detention, however, against the demand of the true owner, is a conversion for which an action will lie (Sheldon v. Hoy, 11 How., 11), and the denial in the present case is to such a complaint.