#### Hugh Jackson v. Eliza Hobson.

Appeal from Greene,

I.Trespass — -justification of officer levying. In an action of trespass against a sheriff for taking in execution tile goods of the plaintiff, the defendant pleaded that an execution issued to him from the clerk’s office of the county in favor of A against B, and that, as such sheriff,, he levied upon the goods as the property of the defendant in the execution, and that the goods were not the property of the plaintiff, but the property of the defendant mthe execution. The plaintiff replied that the goods were the property of the plaintiff, and not the property of defendant in execution. The defendant demurred to the replicatidn, and the crurt sustained the demurrer to the defendant’s plea: Held, that this decision,was erroneous.

2.Practice — plea amountingto general issue. Semble, That as the plea amount-[*412 Jed to the general issue, the court, on motion, might have stricken it out, and directed the general issue to be pleaded ; or that the defect in form might have been reached by special demurrer.

3.Process — justification under. The rule is well established that the production by an officer of process under which he acts, from a court having jurisdiction, is, as to him a sufficient justification.

4 Same — same. A sheriff, when sued in trespass, for taking property on execution, can justifyunder the writ, without setting out the judgment upon which such writ is based ; but if sued by a stranger, who claims the property by virtue of asale anterior tp the levy, it seemsuhat it would be necessary to produce thejudgment in evidence, in order to defeat the sale for fraud; but it would not be necessary to plead it. (a)

This cause was heard in the court below, at the October term, 1841, and the August term, 1842, before the Hon. Samuel D. Lockwood. At the October term, a jury was called to assess the *427plaintiff’s damages, who rendered a verdict for $172.62. The plaintiff subsequently remitted $60, and judgment was rendered for the residue. The defendant appealed to this court. At a former term of this court, a decision was made in this case, affirming the judgment of the court below. A motion was made for rehearing, upon the following points and authorities relied on by

E. D. Bakek and A. T. Bledsoe, for the appellant:

I. It is true, that where a sheriff is sued in trespass by a stranger, as in the present case, he should give the judgment in evidence, under the plea of “ not guilty.” This principle is established by various authorities. 2 Johns. 46; Doug. 40; 1 Ld. Raym. 733 ; 6 Burr. 2631.

II. But, in every one of the above cases, the sheriff had undertaken to impeach a sale of property on the ground of fraud. The stranger who sued claimed the property by virtue of a sale from the defendant in execution; and the sheriff had taken it upon himself to declare such sale void, on the ground that it was fraudulent, and, notwithstanding the sale, to subject the property sold to the execution.

The reason of the law in question, as applied to all such cases, is plain. A sale of property, however fraudulent, is valid as between the parties, and as to all the world, except a judgment creditor or a subsequent bona fide purchaser ;and hence, the sheriff has no right to impeach it, hr treat it as invalid, unless he can show that he acts as the agent of a judgment creditor, by producing the judgment in evidence. This is the reason assigned by the authorities for the rule in question. Thus, in 2 Pick. 413, the court says: “ When the goods taken are claimed by a person who was-not a party to the suit, and. brings trespass, and his title is contested on the ground of fraud, under the St. 13 Eliz. c. 5, a judgment must be shown, if the officer justifies under execution, or a debt, if under a writ of attachment, because it is only by showing that he acted for a creditor, that he can question the title of the vendeed’ And in support of this distinction, the court refers to the very authorities above cited.

And in Bac.Abr. title Trespass, letter G 1, we find the following language; “ The distinction seems to be this, [*413] if the action be brought by the party against whom the writ issued, it is sufficient for the officer to give in evidence the writ of fieri facias, without showing a copy of the judgment; but if the plaintiff be not the party against whom the writ issued, but claims the goods by a prior execution or sale, that was fraudulent, then the officer must produce, not only the writ, but a copy of the judgment. For in the first case, by proving that he took the goods in obedience to a writ issued against the plaintiff, he has proved himself guilty of no trespass ; but in the other case, they are not the goods of the party against whom the writ issued, and *428therefore the officer is not justified by the writ in taking them, unless he can bring the case within the 13 Eliz., for which purpose it is necessary to show a judgment.” And to support this doctrine, the authority of Doug. 40, and 2 Johns. 46, and Burr. 2631, above cited, are referred to.,

It appears, then, from the above authorities, that a judgment must be shown in such cases, in order to settle the question of property between the defendant in execution, and the plaintiff in trespass ; a question which is raised by the pleadings in the present case. And, hence, although the judgment is a matter of evidence in certain cases, it is not necessarily a question raised by the plea in the present case, and consequently it should not have been pleaded.

III. By the execution, the sheriff was directed and commanded to levy the same on the goods, etc., of the defendant therein. He was bound to know, at his peril, that the goods on which he levied were the property of the'defendant in the execution. And hence, if he had found goods which the defendant had conveyed to another, he would have had no right to say that such sale was fraudulent, and consequently the goods sold were subject to the execution, unless he could show that he was acting as the agent of a judgment creditor. In such a case, he would have been hound, under the decisions, to know that there was a judgment creditor, in whose name he acted ; and, in order to justify himself in treating such sale as a nullity, he would have been bound to produce the judgment in evidence.

But in the present case, the sheriff did not undertake to seize property claimed by another, on the ground that the defendant in execution had sold it to him. He did not undertake to impeach any sale on the ground of a fraudulent conveyance. There is no reference to any sale in the case. The sheriff seized the property in question, as he alleges in his plea, simply because he was commanded by the writ to take the goods of the defendant in execution, and because the goods upon which he levied were the property of the said defendant. The broad ground of his jus-[*414] tification is this, that he was imperatively bound, by the mandate of the court, to take the property of the defendant in execution, and he did so. He took the property of the defendant in execution, and not the property of any other person; and he humbly submits to the court, if he is liable to any other person, as a trespasser, for so doing?

IY. When a sheriff undertakes'to impeach a sale on the ground of fraud, he should produce a judgment in evidence, in order to show that he is acting as the agent of a judgment creditor, andas such has a right to call the sale in question. But when he undertakes to do no such thing, the reason of this rule of evidence does not obtain, and its operation ceases.

*429V. It is true, that whenever it is necessary to prove a fact, it is also necessary to plead it. But it is .a familiar rule, that it is never necessary to plead mere matters of evidence Indeed, it is a cause of demurrer, to plead the evidence of a fáct, instead of pleading the fact itself. This principle may be easily applied to the present case. According to- the decisions above mentioned, the judgment should have been given in evidence, under the general issue, “not guilty.” It was mere matter of evidence, under the general'issuer It was necessary, in evidence, in order to show that the sheriff had a right to seize the property levied on, notwithstanding the defendant in execution had fraudulently conveyed it away; in order to show that, notwithstanding the sale, the property was, for the purposes of the execution, the property of the defendant therein.. This fact the sheriff has alleged in the present case. He alleges, in his plea, that the property in question belonged to the-defendant in execution, and not to the plaintiff in trespass; and, even supposing he were required to offer the judgment in evidence, he should not havd pleaded it; for he has pleaded the fact which such evidence would have been required to prove.

VI. In the declaration, it is alleged that the property belonged to the plaintiff. This is a material fact; and, in order to recover, the plaintiff was bound to prove-it. This material fact is directly and emphatically denied in the plea. This of itself is sufficient to make the plea a good one.

The plaintiff says that the property is hers. The defendant denies this material fact. Now, suppose on the trial of this question of property, the plaintiff had introduced a bill of sale from the defendant in execution; then, in order to show that such a sale was fraudulent, and the sheriff had a right to treat it as nullity, he might have been required to offer the judgment in evidence; just as if the same question had been tried under the general issue. In such a case, the sheriff might have been required to produce the judgment as a part of the evidence necessary to show, that notwithstanding the sale, the property was, 'as to the judgment creditor, the property' of the defendant in execution. It might have been required, in order to [* 415] make good the allegations contained in his plea, and for no other purpose; and hence, however important it may have been as a matter of evidence, it would have been improper to have pleaded it.

VII. “ Where a court has jurisdiction of the subject matter, it is sufficient to justify an officer executing its process. The officer is not bound to examine into the validity of its proceedings, or the regularity of its process.” Wheat. Selw. N. P. 1860; 10 Johns. 138; 12 Johns. 259. He is simply bound to take the property of the defendant in execution; and if he does so, can he be *430liable as a trespasser? Can he be liable as a trespasser to a person whose' property he has not touched? The plaintiff alleges that her property was taken; the defendant, in his plea, alleges that it was not her property, but the property of the defendant in execution; and in thus obeying the mandate of the court, by taking-such defendant’s property, is he liable as a trespasser? If the plaintiff had relied upon a qualified property in the goods, and if this is affirmed in the allegation that; they were her property; surely it is denied in the negative allegation, that they were not her property.

As the sheriff alleges that he did not take the property of the plaintiff below, it may be supposed that the plea amounts to the general issue. As it alleges, in effect, that he did not trespass upon the plaintiff’s property, it may be supposed that it is equivalent to the plea of not guilty. Supposing it does amount to the general issue, this is merely a defect of form, which can be reached only by a special demurrer. Gould’s Plead. 346, § 79. If it amounts to the general issue, it is certainly good in substance. And again: when a plea contains matter of justification, it is not defective even in form, because it amounts to the general issue. Gould’s Plead. 846, § 80. In the third place, if the plea amounts to the general issue, this would only show that the judgment might be given in evidence under it, as it is under the general issue.

J. A. McDotjgall (with whom was A. W. Cavarly), for the appellees,

relied upon the following points and authorities: First. That the plea, if sufficiently pleaded, would amount to a plea of not guilty, and must therefore contain all the facts which in evidence would establish a sufficient defence. Gould’s Plead. 340, 345.

Second. This action having been instituted by a straiiger to the original judgment, under which the sheriff justified, the defendant was bound to prove, and consequently to plead, the original judgment. Ackworth v. Kemple, Doug. 40; Lake v. ['*"416] Billers, 1 Ld. Raym. 733;. Martin v. Podger etal. 5 Burr. 2631; High v. Wilson, 2 Johns. 46; Damon v. Bryant, 2 Pick. 413.

Third. The defendant was bound to prove a return of the fieri facias, under which he justified, and consequently was bound to plead the fact. Middleton v. Price et al. 1 Wils. 17; same case, 2 Strange, 1184.

Fourth. The plea in question seeks to justify the defendant under an execution issued out of “ the clerk’s'office of said county.” It is insisted that the plea in this case does not show a writ issued by any competent authority.

(a)

Cases Citing Text. Where justice had jurisdiction of subject matter of suit, officer executing process under irregular judgment is not liable as trespasser. Parker v. Smith, 1 Gilm. 411, 415.

Rule stated in head note enforced. Cook v. Miller, 11 Ill. 610, 612; Johnson v. Holloway, 82 Ill. 334.

Same rules as to defence of justification enforced in action of replevin against officer. Schemerhorn v. Mitchell, 15 Bradw. 418, 422.

Where defendant in execution sues officer in trespass, production of execution is valid defence, but where stranger sues-officer he must prove that execution is based on valid judgment. Hartman v. Cochrane, 2 Bradw. 592; Ambler v. Traver, 2 Bradw. 614.

Shields, Justice,

delivered the opinion of the court: This was an action of trespass, for taking and carrying away certain articles *431of personal property of the proper goods and chattels of Eliza Hob-son, alleged to be worth $-450. The defendant pleaded that an execution issued from the clerk’s office of said county, in favor of William B. Pegram, against Charles F. Hobson, commanding the said defendant, as sheriff of said county, to make of the proper goods and chattels of the said Charles F. Hobson, the sum of §117.84, and also the sum of $8.88 in damages, and $9,624- costs, with interest, and which said execution, bearing date the 17th day of August, 1841, came to the bauds of the defendant, as sheriff of said county, and that the defendant, by virtue of said execution, then and there being sheriff, then and there seized upon the property mentioned in said declaration, as the property of Charles F. Hobson; and the said defendant further averred that the said property was not the property of Eliza Hobson, but the property of the said Charles F. Hobson. To this plea the plaintiff replied that the said articles of property in the declaration mentioned were the property of the said Eliza Hobson, and not the property of the said Charles F. Hobson. The defendant demurred to the replication, and the court sustained the demurrer to the defendant’s plea, and the defendant saying nothing further, judgment was rendered against him; and, upon enquiry, damages were assessed, and judgment rendered against him for the sum of $172,624. The cause is brought to this court by appeal, and the judgment of the court below, in sustaining the demurrer to the defendant’s plea, is assigned for error. The question raised by this assignment of error is, whether a sheriff, when sued in trespass, as in the present case, can justify under the writ of execution, without setting out the judgment upon which such writ was founded. This question is to be determined wholly upon authority, and it must be admitted, that there is considerable apparent conflict in the books on the subject. One of the first cases bearing upon the point is to be found in 2 Ld. Raym. 733 ; the case of Lake v. Billers et al. In an action of trespass against the sheriff, and not guilty pleaded, he gave in evidence that he levied upon the [* 417] goods by virtue of a writ of fieri facias. The plaintiff claimed the same goods by virtue of a prior sale. Holt, Chief Justice, who decided the cause, said, “That the defendant, though sheriff, ought to give in evidence a copy of the judgment, but it would have been otherwise, if trespass had been brought by the person against whom the fieri facias was issued.”

In Martyn v. Podger et al. 5 Burr. 2631, Lord Mansfield ruled that the action being brought by a stranger, a copy of the judgment should have been given in evidence. These decisions countenance, to some extent, the impression, that in an action by the defendant, in the original execution, the writ will be a sufficient justification to the sheriff, but if sued by a stranger, he will be compelled to give the judgment upon which the writ is founded'

*432also in evidence. There is, however, another distinction observable in each of these cases. The plaintiff claimed the property by virtue of a sale, which sale the officers contested on the ground of fraud; and to avoid the sale on this ground, he was bound to show that he-acted in right of a judgment creditor. In the case of High v. Wilson, sheriff of Washington county, 2 Johns. 47, the defendant being sued in trespass, contested the plaintiff’s title to the goods, on the ground that the sale was fraudulent. The court, however, in- deciding the point now under consideration, failed to notice the distinction already alluded to, and said, “ It is settled that when a stranger sues the sheriff, the latter must, produce the judgment, as well as the writ to justify the seizure.’’ This decision is based on the authority of the case in 5 Burr. 2631. In Barker et al. v. Miller, 6 Johns. 195, the court, in deciding this question, said, that proof of the seizure was enough, without producing the judgment, and uses the following language: “ The rule that the officer must show a judgment does not apply, when sued-in trespass by a stranger.” This rule, it will be observed, is the very reverse of that laid down in 5 Burr, and 2 Johns; The decision in this particular case is evidently correct; but this rule, thus laid down, is in conflict with all the other authorities which have come to our notice on this subject. The case of Holmes v. Newcaster, 12 Johns. 395, was trover against a constable for taking bank notes in execution. The court decided that the officer could justify under the writ, without showing the judgment. The plaintiff in this case was the defendant in the original execution. In Dawson v. Bryant, 2 Pick. 413, which was an action of trespass, it is laid down that when an officer is sued in trespass, by the vendee of goods, and contests the plaintiff’s title, on the ground of fraud, if he justifies under a writ of attachment, he must show a debt, or if under execution, a judgment. Parker, Chief Justice, recognises the distinction in this case, that a judgment is only neat'* 418]'essary to be given in evidence, where there is a contest for the title of goods; on the ground of fraud. In the case of Parker v. Waldron, 16 Wend. 517, decided in the court of errors of New York, the doctrine on this subject is ably discussed, and the chancellor, after the examination of the authorities on the subject, lays down the following as the result of his examination: “The settled rule of common law, at least in this state,” he says, “ is that a mere ministerial officer, who executes the process of a court having jurisdiction of the subject matter, and having also jurisdiction to issue such process, in general, or in certain specified cases, is protected in the execution of such process, if it is regular on its face, and apparently within the jurisdiction of tho court issuing the same.” The general rule is, therefore, to be now considered well established, that *433the production of the writ under which the officer acts is, as to him, a sufficient justification. Indeed any other rule might operate unjustly, in many instances, where writs issue to officers of distant counties, who are commanded to obey their mandates, and are held responsible for neglect; and who cannot tell whether the writs they are thus required to execute are based upon subsisting judgments or not. In a case of Stephens v. Frazier, 2 Munroe 250, the principles which govern the case now under consideration was discussed with great clearness, and the distinctions, which have created apparent confusion in the books, elucidated with singular felicity. The action was replevin, brought by Joseph Stephens against Frazier, who, as deputy sheriff, acknowledged the taking, and justified, under execution against Samuel Stephens, by averring that all the property taken was the property of the said Samuel. It was objected that this plea of cognisance was bad, for not averring a subsisting judgment, upon which the execution issued. The court said that after pleading the execution, all that was necessary on the part of the defendant, was to aver that the property levied on was that of Samuel Stephens, and subject to the execution. This was sufficient on the face of the cognisance, to show a right to a return, and a justification of the seizure. “ It was not necessary to aver that the executions were issued upon subsisting judgments. The necessity of showing a judgment resulted from the plaintiff’s proof of purchase, to avoid which, it might be necessary to show that the plaintiff in execution was a judgment creditor, by the production of the judgment.” The court goes on to say that the defendant could not be expected to anticipate proof of a purchase on the part of the plaintiff; and when such proof was given, he ought to be allowed to repel it by the introduction of the judgment. This reasoning is applicable in all its force to the present case. The plea amounts to the general issue, and the court, on motion, might have stricken it out, and have directed the general issue to be pleaded in its stead; or, being defective in form, it might have been reached by special demurrer; but, [*419] special matter being pleaded, amounting to the general issue, and no objections being made, the matter set forth must constitute a good bar to the action. Gould’s Plead. 346, § 80 ; 3 Munroe 473.

Does the matter set forth in the plea constitute a good defence to the action ? Eliza Hobson sued the defendant in trespass, for taking goods. The plea acknowledges the taking, and shows that, as sheriff, he took them by virtue of an execution against Charles F. Hobson, and avers that the goods are the property of said Charles F. Hobson. If the facts set forth in the plea are true, and their truth is admitted on demurrer, the plaintiff lias no cause of action. The replication denies that the goods are the *434property of Charles F. Hobson; and on the trial of this issue, if the plaintiff proved a sale from the defendant anterior to the levy, it might be necessary, in order to rebut this testimony, and defeat the sale on the ground of fraud, to giye the judgment in evidence ; but this does not make it necessary to plead the judgment. The decision of the court below, in sustaining the demurrer to the plea, is erroneous.

The judgment is therefore reversed, at the costs of the appel-lee, and the cause remanded.

Judgment reversed.