#### Pryor vs. Clay.

Where one sued' in' trespass, desires to introdube, under tlib general issue, specia! matter in justification, as an officer, under section 71, of chapter 1‘16'Rev. Sfat. lie must not oniy file a notice in writing to the adverse party,- but should set out substantially the facts relied upon in justification.

It is not sufficient for the record to state that the party gave notice, that he would introduce special matter in justification, according to the Statute, but the notice should be put upon the record, in order that this court may judge of its sufficiency, otherwise it will be presumed, in favor of the judgment below, that such notice as the Statute requires was not given, and that the court property excluded special matter in justification from the jury.

Writ of Error to the Circuit Court of Johnson Gomití]'.

This was an action of trespass vi et armis, brought by Henry Clay against William P. Pryor, determined in' the Johnson circuit court at the September term 1845, before the Hon. R. C. S. Bkown, then one of the circuit judges.

. The declaration charged that defendant wrongfully took, led away, and converted to his own use a bay mule, the property of plaintiff, &cl

The record states, “ oh this day came the parties, &c., and the defendant filed his plea of not guilty, and gave notice, according to the form of the Statute in such case made and- provided, that-he would introduce special matter in justification; and the plaintiff joined issue to said plea, which said plea and joinder are taken in short upon the record by consent.” Whereupon-*97the cause was submitted to a jury, and the plaintiff obtained verdict and judgment in his favor.

Pending the trial the defendant took ú bill of exceptions'; from which it appears that after the plaintiff had proven the trespass as charged in the declaration; defendant read in evidence a certificate of his election as Constable of Spadra Township, in said county, by the clerk of the circuit court thereof, a certified Copy of the approval of his bond as such by the County court, and of the usual oath of office; all bearing date before the time of the alleged trespass. He then offered to read in evidence a transcript of a judgment recovered before a justice of the peace of the township, by one Goodrich against the plaintiff and John Clay, of an execution which was issued thereupon, and directed to defendant as such constable, and his return, showing that in obedience to its. mandate he had levied on the mule in question as the property of plaintiff, and sold him to' satisfy the execution. To the reading of which in evidence the plaintiff objected generally, the court sustained the objection, .excluded the transcript, and defendant excepted. The defendant brought error,

Pascháí, for the plaintiff. We' are at a loss to learir from the record upon what ground the court excluded the evidence offered in the court below by the plaintiff to prove his justification for the alleged trespass. It is in proof that he was a constable, and any evidence whieh goes to show that he seized the property under the authority of legal process was certainly competent evidence. The only ground whieh could have influenced the coürt, müst have been the want of a special plea or notice in writing as authorized by our practice. See 116 Chap. Rev. St at. Sec. 71, p. 629. The record shows that notice was given according to the form of the statute in such cases made and provided. This is conclusive that such notice was given as is required by law, the presumption of law being that the court below acted correctly until the contrary is made to appear. Nor is there any thing.upon the record inconsistent with the presumption that the proper notice was given. For any thing that this court csin know, the defendant *98oi’ his counsel may have been shown the very transcript which was excluded from the jury. The statute does not require that the special notice should disclose the particular justification. It is enough that the party is sued for any act done as a public officer,' and that he gave notice of the special matter, and a short entry upon the record is the highest written evidence, being written evidence of which the party in court must be cognizant.

Whether the justification was or was not sufficient is not the question;- but was it admissible as proof?

Fowmsk, contra.

The court below properly excluded the evidence offered by Pryor in justification. He only pleaded the general issue, and therefore no evidence in justification of the act as a public officer was admissible. 1' Ch. PI. 492 et seq. 2 St. Ev. 819 et seq.

By the Statute of our State,- a public officer of this State “ may plead the general issue and give the special matter in evidence,giving the adverse party notice in writing of the special matter intended to be offered in evidence.”' Rev. Staf. 629, sec. 71. By the record in this case no notice whatever in writing appears to-have been given.- A notice in writing should not only be given under' tlie statute, but it should set out substantially the facts relied upon in-justification, and intended to be proved. The mere stating that ai notice waé given, or even the statement that a plea was filed, does not prove the facts, the notice or plea must be copied in the transcript,- and be marked filed. 5 Ark. Rep. 286. Moore v. Stone. 479 Duke et al. v. Crabtree. 3 Ark. Rep. 476, Kittlewell et al. v. Scull. 2 Ark. Rep. 441, Jones et al. v. Buzzard et al. lb. 118 Davies v. Gibson.-

Johnson, C. J„-

The only question involved in the investigation of this case is, whether the circuit court erred in excluding the transcript offered in evidence by the defendant below. It is enacted by the 1st section of the 116th Chap, of the Revised Code that “ in every action brought against any public officer of this State, or against any person specially appointed according to law to- execute the duties of any such office, for or concerning any act done by such officer o'r person by virtue or reason of his office *99and in an action against any other person, who by the command of such officer or person or in aiding or assisting him, may do any thing touching the duties of such office or appointment, the defendant may plead the general issue and give the special matter in evidence by giving the adverse party notice in writing of the special matter intended to be offered in evidence.” The defence interposed here, as shown by the record, is that the defendant below filed his plea of not guilty, “ and gave notice according to the form of the statute in such cases made and provided that he would introduce special matter in justification.” It is contended by the plaintiff that this entry is equivalent to an actual filing of a notice and that too in strict conformity with the requisition of the statute. It was held by this court in the case of Moore v. Stone, 5 A. R. p. 256, “ that where the record states that the defendant filed the following plea, and a plea of the general issue is then copied in the transcript, but the clerk has not marked the plea filed, nor stated the time it came in, and neither the court nor the plaintiff took any notice of it, this court will, in favor of the judgment below, consider it as forming no part of the record, but as having been placed among the papers by mistake or interpolation.” This case is still stronger against the party pleading, for it does not appear that he actually filed any notice whatever. The mere statement upon the record that a notice was given or that a plea was filed furnishes no legal evidence of the fact. The notice or plea itself must be copied into the transcript and sent into this court, so that the court may see it, and thereby be enabled to decide upon its legal sufficiency. It is utterly impossible for this court to determine whether such a notice as the statute requires has been filed or not, unless the notice is brought before us and subjected to our inspection. We are therefore clear that it is not only necessary to file a notice in writing, but that it is equally indispensable that it should set out substantially the facts upon which the party relies.

This being the view which we have taken of this case it is therefore clear that there is no error in the judgment, of the circuit court in thus excluding the evidence from the jury, ^

Judgment affirmed