Moore v. Devoy

The defendant had a right to confess the assault and imprisonment charged in the complaint, and avoid liability therefor, by an averment of sufficient facts to constitute a legal justification. But an answer,which, after denying all the facts set forth in the. complaint, alleges that whatever was done by the defendant was done by him as a deputy sheriff, is not only duplex, but the latter allegations are wholly impertinent and irrelevant, and constitute no defense whatever.

*19Besides, the facts, stated in the answer, that the defendant was a deputy sheriff and that what he did was done in the performance of his duty as such, do not amount to a justification for the alleged assault and imprisonment, in the absence of an averment that he acted under and in pursuance of process duly issued by a proper court or officer or for the purpose of preventing or suppressing a breach of the peace, or of arresting a person whom he had reason to believe tobe a felon in a case where a felony had actually been committeed. Indeed, I am not aware of any instance where a sheriff or other officer can legally arrest, imprison, or assault a man, without due process of law, in which any other citizen may not lawfully do the same thing.

The demurrer must be sustained, with costs to the plaintiff.